Dale Glenn Middleton v. State of Florida – Revised Opinion ( 2017 )

Supreme Court of Florida
____________
No. SC12-2469
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DALE GLENN MIDDLETON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[March 9, 2017]
REVISED OPINION
PER CURIAM.
Middleton’s motion for rehearing is hereby granted. We substitute the
following revised opinion for our previous opinion issued October 22, 2015.
On August 6, 2012, a jury found Dale Middleton guilty of first-degree
premeditated murder for the killing of Roberta Christensen, first-degree felony
murder with a weapon, burglary of an occupied dwelling while armed, and dealing
in stolen property.1 The jury voted 12-0 to impose the death penalty. The trial
court followed the jury’s recommendation and sentenced Middleton to death.
1. The State nolle prossed the third-degree grand theft charge of the
indictment.
Middleton now appeals his convictions and sentence of death. We have
jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth in this
opinion, we affirm Middleton’s conviction of first-degree murder and uphold his
death sentence.
I. Statement of the Case and Facts
Roberta Christensen, as well as her husband of thirty-one years, lived in a
trailer across the street from Middleton. On July 1, 2009, Mr. Christensen went to
New Jersey to visit the couple’s son. Before her husband left, they bought mobile
phones that allowed them to use a walkie-talkie mechanism to communicate while
they were apart.
Middleton lived in a trailer with Garrett Wade Fowler, Kenneth Wade
Sullivan and Sullivan’s girlfriend, Haleigh Zinker. On occasion, Middleton would
visit the victim at her home and would sometimes borrow money and cigarettes
from her. On the morning of July 27, 2009, Middleton went over to the victim’s
trailer while she was preparing to go to the bank. After he left, she realized that
she had left approximately $400 in tip money out, and suspected that Middleton
had seen it. She deposited the money into the bank that afternoon. When the
victim returned from the bank she noticed that someone had attempted to remove
the screen from the window by her front door.
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On the morning of July 28, 2009, Middleton rode around with his
girlfriend’s roommate, Steve Britnell, for a period of time looking for drugs. The
two eventually found methamphetamine around twelve or one o’clock that
afternoon. They returned to Middleton’s trailer and shared the methamphetamine.
At this time, Garrett Wade Fowler and his girlfriend were also at the trailer. At
approximately 4:30 p.m., Fowler and Britnell decided to go to Walmart to “boost.”
Middleton declined to go, stating that he had business to take care of, that someone
owed him some money, and that he needed to take a shower.
While Britnell and Fowler were gone, Middleton took a knife from the sink
of his trailer and went over to the victim’s home. While in the victim’s kitchen, he
asked her for money. When she refused and attempted to push him out of the
trailer, he attacked her with the knife. Christensen was alive and moving
erratically as she was dragged from the kitchen area to the bedroom. Once in the
bedroom, Middleton cut Christensen’s throat. Before leaving her home, Middleton
stole her flat-screen television and power cord and carried the television across the
street to his trailer. There, he washed his hands in the kitchen sink, changed his
clothes, but kept his boots on. He placed the bloody clothes in a bag with the
murder weapon.
When Fowler and Britnell returned to Middleton’s trailer, Middleton was
there with Chris Jenkins, Kenneth Wade Sullivan and Sullivan’s girlfriend. There
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was a flat screen television in the kitchen with a blanket covering it. At this time,
Middleton had already showered and his hair was still wet. He stated that the
person that owed him money had given him the television as payment.
After Jenkins and Sullivan left, Fowler was sitting on the porch as Middleton
stood at the door. Fowler noticed that Middleton had a red substance on his boots,
which Middleton claimed happened because he got something out of the dumpster.
Later, Britnell and Middleton drove around in Britnell’s black Pontiac to two
different pawn shops trying to sell the victim’s television; both pawn shops were
closed. They both then got on the phone and began to call around to see if they
could find someone who wanted to purchase the television.
At approximately 5:30 p.m., Middleton called Christopher Jenkins to his
home. Middleton asked Jenkins to bring drugs with him. When Jenkins arrived at
Middleton’s trailer, Middleton asked Jenkins for assistance in selling the
television. After Jenkins took a photo of the television, he and Middleton went
into the bedroom where Middleton crushed and consumed two Roxicodone pills,
saving one pill for later.
Mrs. Christensen’s husband had last spoken to her on July 28, 2009, around
2:50 p.m. He watched a movie and fell asleep from approximately 4 p.m. to 6:40
p.m. When he woke up he was surprised that his wife had not called him; he
repeatedly attempted to contact his wife on the walkie-talkie phone, to no avail.
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He also left a message on the home’s voicemail. Mr. Christensen called the
couple’s other son who lived near the victim’s home and asked him to check on his
mother.
When the Christensen’s son and his wife arrived at his parents’ home, he
noticed Mrs. Christensen’s car parked in its usual spot. The trailer door was
unlocked and the son went inside. When the son walked into the kitchen, he saw a
big puddle of blood on the kitchen floor. Next to the puddle of blood he saw a
yellow broom with a sharp edge. He followed the path of blood to a closed
bedroom door. He opened the door and saw his mother’s dead body on the floor.
He heard his father on the walkie-talkie calling out for him and his mother. He
went outside to call the police. He stopped his wife from entering the trailer.
While on the phone with the 911 dispatcher, he went back into the trailer to
confirm that his mother was not breathing.
Randy Ammons helped Middleton sell the television to his brother, Rolland
Ammons. When Middleton went to Randy Ammons’ house, he said that he had
just taken a shower and did not want the dog to jump on him. A little after 7 p.m.,
Middleton, in a vehicle driven by Wade Fowler, followed Randy Ammons to
Ronnie Ammons’ house to sell the television. Fowler stayed outside by his car
while Middleton took the television, covered with a comforter, inside and sold it to
Rolland for $200. At some point earlier, while riding around trying to sell the
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television, Middleton placed the bag with the bloody clothes and the murder
weapon inside of a dumpster.
After selling the television, Britnell drove Middleton to a gas station, where
Middleton purchased cocaine from someone in a truck. They consumed some of
the drugs while in the car. Soon thereafter, the serpentine belt on the car broke and
Britnell drove to a relative’s house to have it fixed. While the car was being fixed,
Middleton walked a few hundred yards to a local bar, Brewskis, and called Britnell
to pick him up once the car was fixed. When Middleton got back to the car, he
was really upset and was crying while he was on the phone with his girlfriend and
said, “I’m sorry.” The two drove back to the trailer park where Middleton lived.
When they arrived, there were police cars in the area. Not wanting to get too close
to the police officers, the two turned off at someone else’s house, where they got
out of the car and stood in the yard.
Later that evening, officers found Middleton at the residence of Darrell
Dubel. When the officers arrived, Britnell’s car was there. At this time, Middleton
was barefoot and had placed his boots and socks in Britnell’s trunk. Officer John
Rhoden asked Brandon Jenkins, Britnell and Middleton to come to the Sheriff’s
Office for questioning. Middleton’s boots were later recovered from the trunk and
were found to have the victim’s blood on them. While in custody, Middleton
confessed. The bloody clothes and the murder weapon were never discovered.
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A. Middleton’s Confession
During the trial, the State played Middleton’s interview videos for the jury,
including the fifth and final video where Middleton ultimately confessed to the
murder. Detective Faulkner and Assistant State Attorney Ashley Albright were
present during Detective Maerki’s questioning of Middleton. The recording of the
first interview, which was conducted in Detective Maerki’s office, could not
subsequently be retrieved. As a precautionary measure, the second and third
interviews were conducted using the computer equipment located in Detective
Faulkner’s office. Maerki read Middleton his rights, as detailed on a Miranda2
card. Maerki detected an odor of alcohol on Middleton, and also noticed that his
eyes were bloodshot and watery. He was surprised that Middleton did not have
slurred speech and that his coordination was fine. He stated that Middleton
seemed to be fully aware of everything that was happening during the
interrogation.
Middleton told Maerki that everything happened so fast that he never
checked to see if the victim had any money. He stated that he thought that the
victim ended up in the hallway, and that he did not remember cutting her throat.
He stated that after the murder, he did not bathe, and only washed his hands. He
admitted that he acted alone. He told the police the location of the dumpster where
2. Miranda v. Arizona, 384 U.S. 436 (1966).
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he threw the bag with his clothes and the murder weapon. He stated that he kept
his boots on and put them in the trunk of Steve Britnell’s small black car. He
admitted to selling the television later that night to Rolland Ammons for $200. He
additionally admitted that he used the same $200 to purchase more drugs.
B. Forensic Testimony
Crime scene technician Jackie Moore assisted Detective Bradley at the crime
scene. She testified that there was no evidence of a struggle in the living room
area. She recalled that there was a void in the dust on a television stand in the
living room indicating that there was previously a television and remote there. She
testified that there were bloodstains on the dining room table and chairs that led
toward the master bedroom. The bloodstains on the wall of the bedroom indicated
that at some point the victim had been standing and had stepped in blood. On the
floor near the wall next to the refrigerator and the dining room table, there was
blood with drag marks and some pooling of blood. The drag marks indicated that
the victim was alive and moving erratically as she was dragged from the kitchen
area to the bedroom. There was blood with drag marks in the doorway of the
master bedroom. There were bloody shoe impressions from the master bedroom to
the kitchen.
The victim had a gaping wound in her throat. The medical examiner
testified that there were several passes like a sawing motion with a sharp
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instrument to create the margin of the wound. The blood stains indicated that the
victim’s carotid artery was not cut until she got into the bedroom. Her hands and
shirt were saturated with blood. She also had blood running down her abdomen
that soaked into the waistband of her pants. The amount and pattern of blood on
the victim’s waistband indicated that she may have been sitting up slightly or
halfway when she received the neck injury. The victim’s shirt was pulled upwards
toward her neck, which is consistent with being dragged.
The laceration to the victim’s throat produced significantly more blood than
was seen in the blood trail through the kitchen. The victim had a bruise on her
cheek that was consistent with the tread and design of Middleton’s boots. The
victim had bruises and a cut to her face, a puncture and stab wounds on her chest,
neck, ear, and arms. The bloody shoeprints were well defined closer to the
bedroom and became faint as they continued down the hall. The victim’s son’s
shoes were tested and eliminated as the shoes that caused the bloody shoe
impressions. Moore testified that this indicated that the blood was likely dried by
the time the victim’s son found her. There were various items located close to the
victim’s body, which indicated that she was grabbing for things during the
struggle. The victim had bloody injuries to her arms and wrists. She had defensive
wounds that indicated that she was trying to get away from someone who had a
knife. None of the injuries to the victim’s extremities would have killed or
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incapacitated her. The autopsy revealed that the neck injury occurred toward the
end of the attack. Following the neck injury, the victim could have been conscious
for ten to twenty seconds, and alive for minutes after losing consciousness.
On the kitchen floor of Middleton’s residence, there was a washed-out shoe
impression that was similar to those found inside the victim’s residence. This print
tested positive for blood, but no DNA profile could be obtained. The medical
examiner found blood on the sink of the only bathroom in Middleton’s trailer, but
no DNA profile could be obtained. There was blood beside the dresser in
Middleton’s bedroom, but the DNA profile was determined to be inconclusive. A
different bloodstain in Middleton’s room matched the victim’s DNA on four of
thirteen points. The probability that a randomly selected Caucasian person could
match the same DNA profile at these four locations is one in 41,680.
Donna Lee and Rolland Ammons’ fingerprints were the only prints found on
the victim’s television. Middleton’s fingerprints were not found inside the victim’s
residence. There was no evidence that the trailer had been ransacked or that the
victim’s things had been rifled through. Moore explained that the vanity in the
victim’s bedroom had blood spatter on the outside, but not the inside, indicating
that the door to the cabinet of the vanity was closed during the attack. Inside the
cabinet, there was a purse that appeared to have been thrown in there. There was
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evidence of blood spatter on the purse and also blood inside of the purse. The
purse was empty, and there were no fingerprints found on the purse.3
C. Penalty Phase
During the penalty phase, the defense presented testimony from Dr. James
D. Barnard, and the State presented testimony from Dr. Deborah Leporowski.4
The defense’s court-appointed mitigation investigator, Joe Parish, also testified, as
did Middleton’s sisters.
1. Psychological Witnesses Testimony
Dr. Barnard assisted the defense in formulating mitigating evidence and
conducted a mental health evaluation of Middleton. His findings indicated that
Middleton underreported the type of drugs he abused and the frequency of their
use. Dr. Barnard determined that Middleton began abusing painkillers after being
prescribed the medications following an accidental fall. He also determined that
Middleton began smoking marijuana between the ages of ten and thirteen. He
described the onset of cocaine use at age twenty-five, ceasing at age thirty.
Additionally, Middleton told Dr. Barnard that he had used methamphetamine once
a year since he was twenty-eight years old. This statement conflicted with his
3. During the guilt phase, the defense rested without presenting a case-in-
chief.
4. They testified consistently with their respective testimony provided at the
hearing on Middleton’s pretrial motion to suppress his confession.
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assertion during his police interview that the day of the murder was the first time
he had ever used methamphetamine. Dr. Barnard testified that Middleton reported
briefly being medically treated for attention deficit hyperactivity disorder (ADHD).
Dr. Barnard characterized ADHD as symptomatic of difficulty with impulse
control, difficulty regulating behavior to standards or norms, high-rate motor
activity, and difficulty focusing attention.
Dr. Barnard also found that Middleton was possibly exaggerating his
symptoms, which may sometimes be viewed as a cry for help. Dr. Barnard found
it quite significant that Middleton’s personality type is known to have problems
with repressed anger and hostility and that persons with this condition are
sometimes able to control their anger but sometimes have anger outbursts that are
difficult or impossible for them to control. Equally significant, opined Dr.
Barnard, is that individuals with this personality type have real problems
responding to authority and taking direction and often accept little or no
responsibility for their behavior. Dr. Barnard concluded that Middleton could not
conform his conduct to the requirements of the law on the day in question and that
his substance abuse on the date of the murder would have likely impaired anyone’s
psychological controls, even someone who had no difficulty with impulse control.
On cross-examination, Dr. Barnard admitted that he did not review all of the
records in this case, i.e., the depositions of people close to Middleton, his arrest
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and jail records, and his confession to the murder. Dr. Barnard conceded that
Middleton is not mentally retarded. The State questioned Dr. Barnard about the
report that was conducted by Dr. Landrum in August 2009 which found
Middleton’s IQ to be 72. Dr. Barnard testified that Middleton informed him that
he did not give his best effort on the IQ test conducted by Dr. Landrum. When Dr.
Barnard administered the Wechsler Adult Intelligence Scale-IV (WAIS-IV) test in
September 2011, he determined that Middleton’s full scale IQ was 83. Dr. Barnard
determined that Middleton was not malingering during the exam he administered.
He stated that he was aware that Middleton was administered the WAIS-IV test for
a third time in this case by Dr. Riordan in March 2012.
Dr. Riordan’s March 2012, evaluation indicated that Middleton’s IQ score
was 75. Dr. Barnard would have expected Middleton’s IQ score to be higher if all
other factors were stable. This lower score could be an indication of various
factors including Middleton being under the weather or malingering. There were
no indications that Middleton was ever separated from the general population in
prison due to any mental health issues. Dr. Barnard admitted that Middleton slit
his wrists in a holding cell and did so in an attempt not to be extradited back to a
facility in Georgia.
Dr. Deborah Leporowski testified for the State. She stated that in order to
prepare for her testimony, she reviewed the reports, previous testimony, and
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depositions of Doctors Barnard and Riordan and the report of Dr. Landrum. She
also reviewed the police reports in this case, transcripts, witness interviews, letters
that Middleton wrote while he was in jail, and Department of Corrections records.
She also interviewed Middleton. Dr. Leporowski maintained that Middleton’s IQ
scores are illogical with an initial score of 72, a score of 83 two years later and
then months later receiving a score of 75. Dr. Leporowski opined that a score of
83 is likely Middleton’s actual IQ score. Dr. Leporowski diagnosed Middleton
with antisocial personality disorder, as did Dr. Barnard.
Dr. Leporowski determined that Middleton was malingering “or at least
exaggerating” when taking his personality tests. Dr. Leporowski found no history
of mental illness in Middleton’s records or in her interview with him. She rejected
any assertion that Middleton’s capacity to appreciate the criminality of his conduct
or to conform his conduct to the requirements of the law was substantially
impaired. She opined that Middleton’s upbringing did not in any way lead him to
believe that those actions involving this crime were okay or were warranted in any
way based on the victim’s behavior. She testified that everything he told her about
the day of the crimes was logical, made sense, and indicated that he was able to
make decisions and choices. Dr. Leporowski further noted that Middleton
appeared to remember what he did throughout the day, where he did drugs and
with whom. On cross-examination, she stated that Middleton’s jail records
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indicated that his detox from drugs while in jail was typical and did not evidence
drug dependence, but that he used them intermittently when he had access to them.
2. Family History Testimony
The trial court appointed Joe Parrish, a licensed private investigator, to assist
the defense in developing mitigation for the penalty phase. Mr. Parrish determined
that Middleton’s mother abused drugs and his older siblings acted as parents to
him. Middleton expressed to Parrish some depression concerning the death of his
father figure, a former employer, who had died. Mr. Parrish found that Middleton
was employed at a welding company for a period of time and was described by the
owner as being a hard worker and very dependable. Parrish also found that
marijuana use at an early age led Middleton to abuse heavier drugs. Mr. Parrish
spoke with Middleton’s eldest daughter, who lived in the same mobile park with
her mother and younger sister. She explained that in the days leading up to the
murder, she noticed that her father’s physical appearance had changed and that he
was abusing drugs. Parrish also described a history of domestic violence between
Middleton and his girlfriend, Sabrina Jones.
Devenna Pearson, Middleton’s older sister, testified on his behalf. She
described their childhood as physically and emotionally painful. She explained
that their mother provided for the necessities of life, such as food, clothing, shelter
and basic hygiene through social security benefits that she received following the
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death of her husband. She explained that she and Middleton were never required
to go to school. Pearson additionally explained that she was sexually molested by
her stepfather for approximately three and a half years, and that her mother was
aware of the abuse but did not stop it. Her older sister found out and stopped the
abuse by cutting their abusive stepfather. She recalled that she was sent away for a
few months and Middleton remained in the house with their mother. She described
her brother, as she knew him growing up, as outgoing, fun and someone who
always tried to make everyone laugh.
Dewanna Sprowse, Middleton’s eldest sister, also testified on his behalf.
She explained that their mother would sell her food stamps for beer and drugs.
Sprowse recalled that Middleton did not have clean clothes and fitted shoes, and
that if she was not home to get her siblings up and ready for school then their
mother would just tell them to go outside and play. She explained that one of her
stepfathers was physically abusive to her younger siblings, including Middleton.
She testified that their mother had always placed men before her children, and that
she did not spend any money on holidays, birthdays, or books. She recalled
Middleton being about age twelve or thirteen when he finally quit going to school.
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She described Middleton, as she remembered him growing up, as a sweetheart,
talented, with a good heart.5
D. Middleton’s Pretrial Motion to Suppress His Confession
The defense filed a motion to suppress the defendant’s confession, claiming
that Middleton was too intoxicated to waive his Miranda rights. The motion
additionally alleged that Middleton did not possess the intellectual ability to
comprehend his Miranda rights and that Middleton’s final interview was conducted
after Middleton’s attorney provided the Sheriff’s Office with a form invoking
Middleton’s constitutional right to remain silent. The hearing on the motion took
place on April 10, 2012, and June 29, 2012.
1. Lay Witnesses
At the hearing on the motion to suppress, Christopher Jenkins testified for
the defense. He testified that he was disabled and was prescribed Roxicodone and
Xanax. He testified that since 2007 he would either sell or give Middleton his
prescription medications. On the day of the murder, he went to Middleton’s trailer
to give him some drugs and to look at the television that Middleton wanted to sell.
He gave Middleton three Roxicodone pills. Middleton snorted two of the pills
while Jenkins was there.
5. The trial court held a Spencer hearing on August 24, 2012. See Spencer
v. State, 615 So. 2d 688 (Fla. 1993). Neither the State nor the defense presented
any additional evidence.
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The State called Steve Britnell to testify at the suppression hearing. He
testified consistently with his guilt phase testimony. Britnell recalled he and
Middleton each taking one Xanax pill on the morning of the murder. He further
recalled that in the early afternoon, the two shared $20 worth of methamphetamine,
which Britnell described as “a little bit.” He indicated that immediately following
the sale of the television, he drove Middleton to a Circle K to purchase cocaine.
They each consumed “a line or two” of cocaine in the Circle K parking lot. Later,
Captain John Rhoden and Lieutenant Brad Stark approached them and asked them
to come to the police station to give a statement. They drove to the station
voluntarily.
Captain Rhoden testified that Middleton had no trouble standing or keeping
his posture, did not appear to be under the influence of drugs or alcohol, spoke
clearly, and did not appear to have any problems understanding what was being
said to him. Lieutenant Stark testified that none of the men appeared to be off-
balance. Nothing indicated that the defendant was under the influence of alcohol.
On cross-examination, he stated that it would surprise him to hear that Middleton
had done crystal meth, cocaine and Xanax during that day.
Detective Marty Faulkner testified regarding his interviews of Middleton.
The first interview occurred on July 28, 2009, at 11:56 p.m., in his office, with
another detective and Assistant State Attorney Ashley Albright present. He read
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the Miranda card verbatim to Middleton, who signed, dated and time stamped it.
Middleton agreed to speak with detectives, but seemed nervous. He stated that
Middleton appeared to be coherent and not under the influence of any drugs;
Middleton was responsive to questions and his memory appeared to be fine. The
interview lasted approximately one hour. Middleton made no admissions during
this interview.
Faulkner interviewed Middleton a second time, again in his office, in the
early morning hours of July 29, 2009. Middleton made no admissions. The third
interview lasted three minutes, and at that time Middleton claimed that Garrett
Wade Fowler had committed the murder. Middleton was placed under arrest at the
end of the third interview. When Faulkner returned to work, at approximately 11
a.m., Sergeant Coleman informed him that Middleton wanted to speak with him.
Coleman testified and corroborated that Middleton made this request and that he
relayed the request to Faulkner. This interview lasted for approximately twenty-
three minutes before Middleton asked to go back to his cell. The officers then
immediately concluded the interview and returned Middleton to his cell.
Faulkner further testified that on July 30, he felt obligated to check on
Middleton, based on Middleton’s state of mind during the interview conducted the
previous day. When Faulkner arrived, Middleton was in segregation and standing
at the gate of his cell. Middleton asked to speak to him, and Faulkner had
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Middleton escorted to his office, where the final interview took place. During this
final interview, after repeatedly being advised of his Miranda rights, Middleton
confessed to murdering Roberta Christensen. On cross-examination, Faulkner
acknowledged that he informed Middleton that he would have to waive his right to
counsel to speak with him, and it was on the final (approximately seventh) time
that Faulkner told Middleton what he would have to say in order to waive his
rights, which Middleton had in fact done.
Assistant Public Defender Stanley Glenn testified that he was initially
appointed to represent Middleton. He stated that on the morning of July 30, 2009,
he filed an invocation of rights form with the clerk’s office and that afternoon he
personally delivered it to the Sheriff’s Office front desk, instructing them that it be
given to the lead detective investigating Christensen’s death. Glenn first met with
Middleton the next day and reviewed the form with him. Middleton was very
depressed at this time. Glenn was concerned that Middleton needed someone to
talk to and might make incriminating statements. He repeatedly informed
Middleton not to make any statements without him being present. On cross-
examination, Glenn acknowledged that unbeknown to him, when he filed the
invocation of rights form at 11:28 a.m. and delivered it to the Sheriff’s Office that
afternoon on July 30, 2009, the defendant had already confessed at approximately
9:24 a.m. that morning.
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2. Psychological Testimony
Forensic psychologist Dr. Gregory Landrum testified for the defense at the
suppression hearing. He testified that he met with Middleton on two occasions in
August 2009. He indicated that Middleton was competent to proceed and assist in
his own defense. He determined that Middleton’s IQ was 72, which is in the
borderline mental retardation range. He additionally determined that Middleton
reads on a fifth-grade level. Dr. Landrum was not asked to do an evaluation
regarding Miranda competency.
On cross-examination, Dr. Landrum stated emphatically that Middleton is
not mentally retarded. Dr. Landrum stated that it is possible that Middleton was
faking when he was examined by Dr. Riordan, who determined that his IQ was 75,
months after being examined by Dr. Barnard, who determined that it was 83.
According to Dr. Landrum, administering the same tests within a year may result
in a false positive.
Dr. James Barnard also testified for the defense. He prepared two reports,
one of which was a psychological evaluation and the other an examination of
Middleton’s competency to waive his Miranda rights. He determined that
Middleton’s full scale IQ was 83. He additionally found that Middleton was not
malingering. Dr. Barnard indicated that Middleton’s chronic use of drugs resulted
in an increased tolerance for the substances and the need for more of the
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substances to get high. This factor and other factors indicate dependence on a
substance as distinguished from abuse. He reported Middleton’s statement that
drugs make him “go, go, go” and less able to control his impulses and that
Middleton told him that before he went to jail he had not slept for two nights. Dr.
Barnard opined that Middleton should have been placed in a private detox facility
when he was arrested. Dr. Barnard determined that at the time of Middleton’s
confession, he was likely withdrawing from substances and may have been under
the effects of substances, at least during the time of his initial interrogation.
Dr. Barnard administered an instrument entitled “Dr. Thomas Grisso’s
Understanding and Appreciating Miranda Rights.” Dr. Barnard testified that
Middleton’s total score was 13 out of 30, more than two standard deviations below
the mean. He testified that although Middleton could paraphrase portions of
Miranda, he “showed a very significant weakness in terms of his ability to
intelligently apply knowledge of Miranda, to novel situations.” Dr. Barnard stated
that it was difficult to reconcile his findings during the testing with what he saw on
the confession video. He explained that there is no correlation between having had
Miranda warnings administered in the past and actually understanding them. He
also stated that there are no validity scales for Grisso’s Miranda test.
On cross-examination, Dr. Barnard stated that Middleton made general
remarks indicating that he may have been malingering during the testing with Dr.
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Landrum, but he did not specifically mention whether he was referring to the IQ
test. Dr. Barnard’s testing also indicated that Middleton may have exaggerated
some of his answers to appear more maladjusted than he actually was on the date
of the testing. Dr. Barnard diagnosed Middleton with antisocial personality
disorder; he explained that one major feature of this disorder is that the person has
a tendency to be untruthful.
Dr. Barnard further testified that before the Grisso test was administered,
Middleton stated he had been advised of his rights at least five times. However,
after the Grisso test, Middleton claimed that he had never been read Miranda
rights, despite his extensive criminal history. After the Grisso test, Middleton told
Dr. Barnard that the confession tapes had been altered. Middleton also told the
doctor that methamphetamines make him think better. Middleton made comments
to Dr. Barnard indicating that the police in Okeechobee violated his rights, which
Dr. Barnard opined indicates that he knew what his rights were.
On redirect, Dr. Barnard stated that the conditions that Middleton was under
at the time of the interrogation, plus the interrogation procedures themselves, made
it more likely that he would acquiesce to the police. He also opined that Middleton
did not fully comprehend his Miranda rights when he waived them.
Dr. Michael Riordan testified for the defense. Dr. Riordan was ordered to
conduct a neuropsychological evaluation on Middleton. Dr. Riordan prepared a
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written report, which he subsequently modified or redacted. He modified his
original finding that Middleton had brain damage, and in the subsequent report he
indicated that Middleton suffers from a cognitive disorder. He explained that “the
cognitive disorder was the more appropriate term as a neuropsychologist to
report.” Dr. Riordan reviewed the reports prepared by Dr. Barnard. He agreed
with Dr. Barnard’s finding that Middleton was incompetent to waive his Miranda
rights at the time of his interrogation, based on his borderline intellectual
functioning, his cognitive disorder, and his drug use, which would have caused
withdrawal at the time of the interrogation. Dr. Riordan also found that Middleton
had polysubstance dependence disorder. He indicated that Middleton was not
malingering. Dr. Riordan did not have Middleton perform the Grisso test, but did
not disagree with Dr. Barnard’s findings.
Dr. Riordan did not diagnose an antisocial personality disorder. His report
indicated that Middleton had a tendency to exaggerate his problems. Dr. Riordan
had previously indicated in a February 11, 2012, letter to the defense that
Middleton was not initially incompetent to waive his Miranda rights, but as the
interrogation progressed, he became incompetent to proceed. Dr. Riordan wrote a
letter to the defense in April 2012 indicating that Middleton’s drug withdrawal
would have furthered his incompetence, but Dr. Riordan did not review jail records
to determine whether Middleton was suffering from withdrawal symptoms. And
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Middleton did not state that he was suffering from withdrawal symptoms during
the interrogation. Instead, he told Dr. Riordan that the police harassed him and
tampered with the confession tapes. Dr. Riordan was not aware that Middleton
signed a Miranda waiver.
Dr. Deborah Leporowski testified for the State. She testified that she
reviewed Dr. Landrum’s report, along with the deposition reports and in-court
testimony of Dr. Riordan. She also reviewed Dr. Barnard’s raw data and his
deposition and was present for his testimony. Additionally, she reviewed
Middleton’s videotaped confessions, witness statements, drug treatment records,
and Department of Corrections and jail records; she also interviewed Middleton at
the county jail on May 10, 2012. She did not administer the WAIS test because it
had already been administered three times. She testified that the discrepancy in the
scores may be due to poor motivation or deliberately underperforming on the test
with Dr. Riordan. Dr. Leporowski reviewed Dr. Riordan’s testing, his raw data,
and his report and determined that Middleton performed in the average or above-
average range on most instruments. She opined that “[t]he only areas where he
demonstrated anything really in an impaired range were instruments that I felt
could be accounted for by his lack of education.” She observed that his scores
varied on the memory tests, with delayed recall being in the impaired range and
- 25 -
stated, “Those are essentially the only two areas where there’s anything that’s not
perfectly intact in the overall neuropsychological functioning area.”
Dr. Leporowski stated that she would not diagnose the defendant with brain
damage or a cognitive disorder. She stated there was nothing in the testing that
would indicate that Middleton had trouble comprehending the Miranda warnings.
Additionally, she said Middleton was candid with her about his drug use on the day
of the murder and even told her that there was another drug that he used that day
that Britnell did not report. He did not have difficulty reporting the information in
a logical order.
In addition to not administering another WAIS-IV, Dr. Leporowski did not
administer another Grisso test. She explained that one shortcoming of the exam is
that it was developed for a certain jurisdiction, in 1980, and the language that the
exam tests for has not been updated, despite the change in the administration of the
warnings across jurisdictions. Middleton told Dr. Leporowski that he was
threatened and that the confession tapes had been altered. She concluded that
Middleton had the capacity to knowingly and intelligently waive his Miranda
rights.
Dr. Leporowski disagreed with Dr. Riordan’s testimony indicating that
Middleton was suffering from withdrawal. She opined that withdrawal typically
occurs seventy-two hours after consuming drugs and alcohol. She explained that
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on his jail medical records, he is described as cool, cooperative, coherent, and not
agitated. Dr. Leporowski spoke with the jail nurse, who indicated that they never
had to use detox protocols for Middleton and that he did not need any medical
attention at all. She opined that this is indicative of his intermittent, rather than his
continuous, use of the substances. Dr. Leporowski found that Middleton was
malingering during her evaluations of him.
On cross-examination, Dr. Leporowski acknowledged that Middleton
reported doing methamphetamine before lunch, followed by eighty milligrams of
OxyContin, then Roxicodone that afternoon at his trailer, and Xanax and cocaine
later that evening. He also indicated that he walked down to Brewskis and
consumed a couple of beers and three lines of cocaine.
The trial court denied the defense’s motion to suppress Middleton’s
confession.
II. ANALYSIS
A. Avoid Arrest Aggravator
Middleton first argues that the trial court erred in finding the avoid arrest
aggravator. We agree that the record does not support this aggravator as
Middleton’s sole or dominant motivation for the murder. This Court has
consistently held that where the victim is not a law enforcement officer, “the State
must show that the sole or dominant motive for the murder was the elimination of
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the witness” in order to prove this aggravator. Davis v. State, 604 So. 2d 794, 798
(Fla. 1992); see also Green v. State, 583 So. 2d 647 (Fla. 1991); Perry v. State, 522
So. 2d 817 (Fla. 1988). The trial court’s order on this issue lists eight facts that
support this aggravator:
(1) the defendant personally knew the victim, and went to her home
without any type of disguise; (2) the defendant told Garret Wade
Fowler that he was going to rob Roberta Christensen, after seeing a
large amount of money inside her home the day before; (3) the
defendant walked 130 feet to the victim’s home in broad daylight;
(4) the defendant knew that the victim was home because he could see
her red car from his own home, and the car was parked directly in
front of the entrance to her home; (5) the defendant knew that the
victim’s husband was out of town and she was home alone; (6) the
victim did not pose any physical threat to the defendant; (7) the
defendant armed himself with a knife from his residence, before going
over to the victim’s home; and (8) the victim was the defendant’s
neighbor, who lived almost directly across the street.
In addition, the trial court indicated that the main object of the criminal endeavor
was the tip money, not the television. Finally, the trial judge said that if the victim
was left alive the defendant would have been quickly arrested.
Notably, only a few of these factors have a direct bearing on or support the
avoid arrest aggravator (i.e., the defendant knew the victim and did not wear a
disguise and the defendant would have been promptly arrested had the victim lived
and identified him). Many of the other factors listed by the trial court for this
aggravator either supported Middleton’s statement that he went to the victim’s
home to borrow money, or that he went there only intending to rob her, before
- 28 -
things became “crazy.” This Court has determined that the eighth factor listed is
not enough to prove this aggravator. See Foster v. State, 778 So. 2d 906 (Fla.
2000); Consalvo v. State, 697 So. 2d 805 (Fla. 1996). Additionally, the trial
court’s determination that Middleton’s primary objective was to obtain the “easily
concealable tip money,” implies that pecuniary gain was a dominant motive for the
killing.
In Davis, Green, and Perry, the defendants raised similar issues involving
the avoid arrest aggravator. In each of these cases, this Court struck the avoid
arrest aggravator even though the defendants were acquainted with the victims. In
Davis, the defendant stabbed an elderly female acquaintance inside her home and
stole some of the victim’s belongings before exiting the residence. Davis, 604 So.
2d at 795. In Green, the defendant and his girlfriend went to the home of their
landlords, a married couple, and paid them $250, under the threat of an impending
eviction. Green, 583 So. 2d at 648. Green went home, changed his shirt, grabbed
the largest butcher knife from his kitchen and went back to his landlord’s house.
When he arrived at the house, his landlord let him into the house, but was adamant
about keeping Green’s check. Green stabbed the husband and wife. Green
returned the knife to his home and, later that night, hitched a ride from
Hillsborough County to St. Petersburg and then to Ft. Lauderdale. In Perry, the
defendant killed his neighbor during a robbery attempt. 522 So. 2d at 819. The
- 29 -
fact that the victims could have identified the defendants was not enough to
demonstrate beyond a reasonable doubt that the sole or dominant motive for the
murders was witness elimination.
Although the trial judge correctly stated that the avoid arrest aggravator can
be supported by circumstantial evidence through inferences from the facts in the
record, his reliance on cases such as Jennings v. State, 718 So. 2d 144 (Fla. 1998),
and Riley v. State, 366 So. 2d 19, 22 (Fla. 1978), is not well-founded. In Jennings
we upheld the finding of this aggravator based on the fact that the defendant knew
the victim, used gloves, and stated that if he ever committed a robbery he would
not leave any witnesses. And in Riley, we affirmed the finding of this aggravator
based on the defendant knowing the victim coupled with the fact that the victim
was “executed after one of the perpetrators expressed a concern for subsequent
identification.”
Although the trial court infers that Middleton killed the victim because he
would have been arrested quickly if he had left her alive, there are no other facts
that indicate that this was his sole or dominant reason for killing her, especially in
the absence of other evidence indicating that Middleton was specifically concerned
about eliminating the victim as a witness. Therefore, we strike this aggravating
circumstance.
B. CCP Aggravator
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Middleton next challenges the trial court’s finding of the cold, calculated
and premeditated aggravator (CCP). On appeal, it is this Court’s task to review the
record to ensure that the trial court applied the correct rule of law for each
aggravating circumstance, and if so, determine whether there is competent
substantial evidence in the record to support the finding. Willacy v. State, 696 So.
2d 695 (Fla. 1997). We agree with Middleton that there was not competent,
substantial evidence in the record to support this aggravator.
In order to establish the CCP aggravator, it is the State’s burden to prove
beyond a reasonable doubt that: (1) “the killing was the product of cool and calm
reflection and not an act prompted by emotional frenzy, panic, or a fit of rage
(cold)”; (2) “the defendant had a careful plan or prearranged design to commit
murder before the fatal incident (calculated)”; (3) “the defendant exhibited
heightened premeditation (premeditated)”; and (4) “the defendant had no pretense
of moral or legal justification.” Franklin v. State, 965 So. 2d 79, 98 (Fla. 2007).
“ ‘CCP involves a much higher degree of premeditation’ than is required to prove
first-degree murder.” Deparvine v. State, 995 So. 2d 351, 381-82 (Fla. 2008)
(quoting Foster v. State, 778 So. 2d 906, 921 (Fla. 2000)). “Premeditation can be
established by examining the circumstances of the killing and the conduct of the
accused.” Franklin, 965 So. 2d at 98. Further, “the evidence must prove beyond a
reasonable doubt that the defendant planned or prearranged to commit murder
- 31 -
before the crime began.” Thompson v. State, 565 So. 2d 1311, 1318 (Fla. 1990).
“The CCP aggravator can ‘be indicated by circumstances showing such facts as
advance procurement of a weapon, lack of resistance or provocation, and the
appearance of a killing carried out as a matter of course.’ ” Franklin, 965 So. 2d at
98 (quoting Swafford v. State, 533 So. 2d 270, 277 (Fla. 1988)).
In this case, the evidence is inconsistent with the murder being a product of
cool and calm reflection. Although Middleton procured a knife prior to entering
the victim’s residence, there is no evidence that he possessed the weapon for the
purpose of attacking the victim. Rather, Middleton planned to commit a robbery.
In walking over to the victim’s residence, Middleton did not conceal his identity.
The evidence suggests that while inside the victim’s residence, the victim refused
Middleton’s request for money. After a struggle ensued, Middleton fatally stabbed
the victim. It was during the course of this struggle when Middleton formulated
his intent to kill her. Middleton’s behavior at the time of the murder can be aptly
described as murder committed in a frenzied rage or during a heated struggle
following the victim’s refusal to give him money. Following this spontaneous
murder—which was not carried out as a matter of course—the victim’s body
remained in her residence; Middleton left her home with the victim’s property, to
wit, her television.
- 32 -
Based on this evidence, we conclude that the State did not prove beyond a
reasonable doubt that Middleton had a careful prearranged plan or design to
murder the victim before he entered the victim’s residence. Thus, we disagree with
the trial court’s finding that the murder was a planned event, not a sudden,
impulsive act. Although following the murder Middleton washed his hands in his
kitchen sink, changed his clothes, and placed his bloody clothes in a bag with the
murder weapon—as noted by the trial court—these actions do not prove that he
planned the murder beforehand.
We conclude that the evidence is not indicative of a heightened
premeditated intent to murder. The facts in this case are similar to Castro v. State,
644 So. 2d 987, 991 (Fla. 1994), which did not involve a careful design and
heightened premeditation necessary for CCP when “the record reflect[ed] that
Castro planned to rob Scott.” In addition, we did not find the murder in
Hansbrough v. State, 509 So. 2d 1081, 1086 (Fla. 1987), to show the cold and
calculated premeditation necessary for CCP where there “appear[ed] to be a
robbery that got out of hand,” resulting in a “frenzied stabbing.” Accordingly, we
conclude that there is no competent, substantial evidence to support the finding of
the CCP aggravator. Therefore, we strike the finding of this aggravator.
“When this Court strikes an aggravating factor on appeal, ‘the harmless error
test is applied to determine whether there is no reasonable possibility that the error
- 33 -
affected the sentence.’ ” Williams v. State, 967 So. 2d 735, 765 (Fla. 2007)
(quoting Jennings v. State, 782 So. 2d 853, 863 n.9 (Fla. 2001)); see also Diaz v.
State, 860 So. 2d 960, 968 (Fla. 2003) (“We find this error harmless, however,
after consideration of the two remaining aggravating circumstances and the five
mitigating circumstances in this case.”). Despite striking the avoid arrest and CCP
aggravators, two valid aggravators remain in this unanimous death-
recommendation case. The two aggravators which remain are that the murder was
especially heinous, atrocious, or cruel (HAC) and that it was committed during the
commission of a burglary and for pecuniary gain, which were each given “great
weight” by the trial court. The trial court did not find any statutory mitigation
applicable in this case.
In its sentencing order, the trial court expressly stated that any of the
considered aggravating circumstances found in this case, standing alone, would be
sufficient to outweigh the mitigation in total presented regarding the Christensen
murder. In Smith v. State, 28 So. 3d 838, 868 (Fla. 2009), this Court held that the
trial court’s erroneous finding of the CCP aggravator was harmless because the
sentencing order provided that “any one of the aggravators found (except the
felony probation aggravator) was sufficient to outweigh the mitigating
circumstances found in this case and due to the other applicable aggravating
factors.” Therefore, it is clear that the trial court would have imposed a death
- 34 -
sentence for Middleton absent the avoid arrest and CCP aggravators. Because we
conclude that there is no reasonable possibility that the erroneous findings of the
avoid arrest and CCP aggravators contributed to Middleton’s death sentence, the
errors were harmless.
C. Proportionality
Middleton argues that without the avoid arrest and CCP aggravators, his
death sentence is disproportionate as compared to cases such as Perry and Davis.
After striking the two aggravators in this case, we find that the sentence of death is
still proportional to similar cases.
In order to ensure uniformity in death penalty proceedings, this Court
undertakes a comprehensive analysis of the aggravating and mitigating
circumstances to determine whether the case falls within the category of the most
aggravated and least mitigated. See Floyd v. State, 913 So. 2d 564, 578 (Fla.
2005) (quoting Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003)). This
analysis involves a thoughtful and deliberate proportionality review considering
the totality of circumstances of the case and then comparing it with other capital
cases with similar aggravating and mitigating circumstances. It is not a
comparison between the number of aggravating and mitigating circumstances.
Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991) (quoting Porter v. State, 564 So.
2d 1060, 1064 (Fla. 1990)).
- 35 -
In this case, the jury voted twelve to zero in favor of the death penalty. The
trial court weighed four aggravators against eleven nonstatutory mitigators.6 The
aggravators found are: (1) the capital felony was committed while the defendant
was engaged in the commission of a burglary or an attempt to commit a burglary
and the capital felony was committed for pecuniary gain; (2) the capital felony was
committed for the purpose of avoiding or preventing a lawful arrest or effecting
escape from custody; (3) the capital felony was HAC; and (4) the capital felony
was CCP. The court gave all of these aggravators great weight. The eleven
nonstatutory mitigators found are: (a) the defendant has below-average or
borderline intelligence (little weight); (b) the defendant suffers from attention
deficit hyperactivity disorder (ADHD) (little weight); (c) the defendant has a long
history of chronic substance abuse (some weight); (d) the defendant had no adult
role models to guide him as a child (little weight); (e) the defendant’s mother was
not involved in child-rearing or supervision and was unavailable emotionally for
her children (little weight); (f) the defendant had a steady history of employment
until his chronic substance abuse and incarcerations made it difficult to maintain
such employment (little weight); (g) the defendant had little, if any, formal
education (little weight); (h) the defendant has two children (little weight); (i) the
6. The trial court determined that the proposed mitigator that Middleton’s
capacity to appreciate the criminality of his conduct or to conform his conduct to
the requirements of the law was substantially impaired was not proven.
- 36 -
defendant was subjected to chronic neglect, as well as made aware of sexual abuse
that was inflicted by his stepfather upon his sister (little weight); (j) the defendant
expressed remorse for his crime (little weight); and (k) the defendant exhibited
appropriate courtroom behavior (little weight).
Having stricken two of the aggravators, this Court must analyze the two
appropriately found aggravators of HAC and during the commission of a
burglary/pecuniary gain with the nonstatutory mitigators outlined above. We begin
this analysis with the trial court’s weighing of both the aggravators and mitigators.
Each of the aggravators was given great weight. We have in a long line of cases
found the HAC aggravator to be one of the most serious in our limited statutory
aggravating circumstances. See, e.g., Larkins v. State, 739 So. 2d 90 (Fla. 1999).
Significantly, the trial court only gave one of the nonstatutory mitigators “some
weight” and the other eleven were given “little weight.” Additionally, because
some of the mitigators were similar, the trial court analyzed them together.
Namely, the trial court combined the analysis for the defendant’s proposed
mitigator of low IQ with his diagnoses of ADHD. The trial court also combined
the analysis for the defendant’s proposed mitigators of no adult role models, his
mother being emotionally unavailable, the defendant being chronically neglected,
and his sister being molested by his stepfather.
- 37 -
The defense argues that this case is similar to Davis v. State, 604 So. 2d 794
(Fla. 1992), and Perry v. State, 522 So. 2d 817 (Fla. 1988). However, both are
distinguishable from this case. In Davis this Court, after striking two aggravators,
did not impose a life sentence. Rather we remanded the matter to the trial judge
for reconsideration of the sentence because we could not determine beyond a
reasonable doubt that the trial judge would have imposed a death sentence in the
absence of the two aggravators that were stricken. The trial judge ultimately
determined that the remaining aggravating circumstances outweighed the
mitigating circumstances and reimposed a sentence of death. We affirmed. The
fact that Davis ultimately received a life sentence was not based on the elimination
of aggravating circumstances but was the result of postconviction relief for
ineffective assistance of counsel regarding racial comments.
This Court in Perry had to address a situation involving a judge’s override of
a jury recommendation of life. In order to uphold the imposition of a death
sentence under those circumstances, we must find that no reasonable person could
differ with the sentence of death. See Tedder v. State, 322 So. 2d 908 (Fla. 1975).
While Perry also involved the striking of two aggravating circumstances, that
factor was not the basis for the imposition of a sentence of life imprisonment. This
Court made it clear that there were mitigating circumstances presented to the jury
that the jury could have considered in reaching its determination of a life sentence.
- 38 -
Thus, we said the Tedder standard had not been met, and the case was remanded
for imposition of a life sentence without parole for twenty five years.
This case is, however, more similar to Geralds v. State, 674 So. 2d 96 (Fla.
1996), where this Court found the defendant’s death sentence to be proportionate
under circumstances much like the ones presented here. In Geralds the jury
unanimously voted for a death sentence, the same aggravators were proven beyond
a reasonable doubt, and the trial court gave minimal weight to the defendant’s
mitigation. Geralds was a carpenter who worked remodeling the victim’s trailer.
Knowing that the victim’s husband was out of town, he attacked her, beating her,
stabbing her in the neck and stealing various items from the home. At his original
sentencing, the trial court found the same four aggravators that were found in this
case. We struck the CCP and witness elimination aggravators, and remanded for a
new penalty phase. On appeal from the subsequent sentencing, we again struck the
CCP aggravator, but found there was no reasonable likelihood of a life sentence
under the circumstance of that case. 674 So. 2d at 104-05.
In both this case and Geralds, the juries unanimously recommended
sentences of death. Both cases ultimately have the aggravators of heinous,
atrocious, and cruel murder during the course of a felony/pecuniary gain, and the
aggravators were given great weight. The mitigators in each case were
nonstatutory, with exception of the age mitigator found in Geralds, and in each
- 39 -
instance they were given little or very little weight. We conclude here, as we did
in Geralds, that even without the aggravators that were stricken, the trial court
would have found the aggravating factors substantially outweighed the mitigating
evidence. We, therefore, find that Middleton’s death sentence is proportional.
D. Order of Penalty Phase Witnesses/Continuance
Middleton argues that the trial court abused its discretion in denying his
motion to continue the penalty phase to allow the family to travel to the trial and
present mitigation testimony prior to the expert testimony. The defense argues that
this ruling prohibited the defense from setting the predicate for the expert
testimony through the lay witness testimony. The decision of whether to grant a
motion for continuance is in the sound discretion of the trial court. In re Gregory,
313 So. 2d 735, 737 (Fla. 1975). This Court has made clear that it will cautiously
review the trial court’s decision to deny such a motion and will not reverse the
decision unless there has been a palpable abuse of this judicial discretion which
clearly and affirmatively appears in the record. Magill v. State, 386 So. 2d 1188,
1188 (Fla. 1980); Cooper v. State, 336 So. 2d 1133, 1138 (Fla. 1976).
To prevail on his motion for continuance, the defendant was required to
show: (1) prior due diligence to obtain the witness’s presence; (2) that substantially
favorable testimony would have been forthcoming; (3) that the witness was
available and willing to testify; and (4) that the denial of the continuance caused
- 40 -
material prejudice. Geralds v. State, 674 So. 2d at 99 (citing United States v.
O’Neill, 767 F.2d 780, 784 (11th Cir. 1985)).
On the requirement of prior due diligence, the defense admitted that it did
not use the proper subpoena to ensure that the witnesses traveled from Georgia to
provide testimony on the date scheduled for their testimony. The trial court gave a
full day in between the guilt and the penalty phase to allow both sides to resolve
any issues with witness availability. Despite this, the defense witnesses were not
available to testify. In rejecting the defense’s motion for a continuance, the trial
court offered the defense an opportunity to allow its investigator to travel to
Georgia to pick up the witnesses and bring them to court or, alternatively, to live
stream their testimony from a facility in Georgia. Had the defense done its due
diligence, the trial court could have been made aware of the possibility that
Middleton’s relatives could not travel, and these same arrangements could have
been made a day prior, without the need for a continuance.
As to the second, third, and fourth requirements, the denial of the motion did
not prevent the jury from hearing the testimony of the relatives, and there is no
indication that the defense was materially prejudiced. It only required the jury to
hear this evidence after the expert witness testimony. Additionally, the expert
witness essentially provided general details about the defendant’s childhood, which
were corroborated by the relatives’ testimony. Although the defense may have
- 41 -
been inconvenienced by the denial of the motion because it preferred for the
relatives to testify before the experts, the denial of the continuance did not prevent
the jury from hearing the testimony. Therefore, the trial court did not abuse its
discretion in denying Middleton’s motion for a continuance.
E. Denial of Defense’s Request for a Mitigation Specialist
Middleton argues that the trial court abused its discretion in denying the
defense funds to appoint a mitigation specialist. The appointment of experts is
within the trial court’s discretion. San Martin v. State, 705 So. 2d 1337, 1347 (Fla.
1997). A trial court’s denial of funds to an indigent defendant for appointment of
an expert will not be disturbed unless there has been an abuse of discretion. Id.
Florida appellate courts use a two-part test to evaluate an alleged abuse of
discretion: (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 the expert assistance. Id. If such a request is denied, and not later
renewed by the party asserting the need, it is waived. Id.
On October 28, 2010, the parties attended a hearing where the trial court
granted the defense’s motions to appoint co-counsel and a fact investigator. In
appointing the investigator, the trial court stated that “in a death penalty case with
issues of mitigation, it’s almost self-evident” why the defense would need an
investigator. The very next motion that the trial judge heard in that proceeding was
- 42 -
the defendant’s motion to appoint a mitigation specialist. The State objected to the
motion, stating that an expert was not needed to do the type of investigations that a
mitigation specialist is expected to do.
The trial court denied the motion pursuant to Leon Shaffer Golnick Adver.,
Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982), stating that the defense was
asking him to disregard an administrative order from the chief judge of the circuit,
which set a maximum hourly rate for specialists on the case, “based on nothing
other than representations of counsel” that the mitigation specialist’s work would
not be “duplicative of [the investigator just appointed].” The trial court refused to
appoint a mitigation specialist because the defense did not demonstrate a
particularized need or showing for one. Therefore, the trial court denied the
motion without prejudice and invited the defense to set a hearing on the motion in
the future when it could demonstrate a particularized need.
The trial court did not abuse its discretion in denying the defense’s motion to
appoint a mitigation specialist. The defense did not demonstrate a particularized
need for the mitigation specialist, in light of its having been granted the
appointment of an experienced investigator. The defense claims that only the
mitigation specialist can explain how his or her responsibilities are different from
those of a fact investigator. This argument is not persuasive. Although a
mitigation specialist can best explain his or her capabilities and strategy, the
- 43 -
attorney requesting the services should at the very least be able to provide the court
with an explanation of what the mitigation specialist is expected to provide that the
fact investigator may not. Without this explanation, the defense is requesting for
the court to provide state funds for the defense to conduct what may very well be
the gathering of information cumulative to that gathered by the court-appointed
fact investigator.
Middleton’s reliance on Ake v. Oklahoma, 470 U.S. 68 (1985), is misplaced.
In Ake, the Supreme Court reversed because the state court did not provide the
defendant expenses for a psychiatric evaluation to assess his sanity at the time of
the crime. Id. Importantly, in that case, the defendant was initially declared
incompetent to stand trial. Id. Therefore, the Supreme Court determined that the
defendant was entitled to a psychiatrist once he made a preliminary showing that
his sanity at the time of the offense was likely to be a significant factor at trial. Id.
In this case, Middleton was evaluated by four different doctors and was also
appointed a fact investigator. Additionally, during the hearing on Middleton’s
motion to appoint a mitigation specialist, the defense told the court that it would
come back a few months before the trial to request the appointment of a mitigation
expert, and the court invited the defense to do so. The defense never renewed the
motion. If at any point the defense could specifically demonstrate how a
mitigation specialist was imperative to its case, in addition to the other previously
- 44 -
provided experts, the defense could have set a hearing on the motion that had
already been filed. Because error has not been demonstrated, we deny relief on
this claim. Although we find no abuse of discretion in this case, we note that it
may be appropriate in other cases for a trial court to grant the defense’s request to
appoint a mitigation specialist.
F. Individualized Sentencing Requirement
Middleton raises numerous claims to support his argument that the trial court
did not perform the individualized sentencing required for death penalty cases. He
first claims the trial court improperly and arbitrarily rejected findings of medical
experts, and cites Nowitzke v. State, 572 So. 2d 1346 (Fla. 1990), for support. In
Nowitzke, however, this Court reiterated that it is improper for the prosecution to
discredit the insanity defense, as a legal defense, in front of the jury. Id. at 1355.
No defense of insanity was made in this case, and no argument based on Nowitzke
was made. Instead the defense argues for a new penalty phase claiming the trial
judge denigrated the field of psychology and rejected the findings of the experts.
This argument is based on the trial court’s agreement with and citation to the
dissent in United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1984), where the
dissenting judge commented on the imprecision of the science of psychiatry.
Despite this agreement, the trial court evaluated the testimony of all of the experts
- 45 -
who testified about the defendant’s mental status and determined that Dr.
Leporowski was more credible. Relief on this issue is not warranted.
Middleton additionally claims that the trial court used a strawman argument
to denigrate the defense’s mitigation. See Consalvo v. State, 697 So. 2d 805, 814-
15 (Fla. 1996) (explaining that a strawman argument is one where the prosecutor
creates an issue not raised by the defense then proceeds to knock it down). In this
case, the trial court did not manufacture an argument for the purpose of using the
testimony regarding Middleton’s psychological state. The defense argued and the
trial court considered the mitigating factor of substantial impairment. The
psychological data the trial court used to find that Middleton was not impaired was
previously presented to assess Middleton’s mental state, and the two experts that
testified during the penalty phase were repeatedly questioned about those reports
and asked to compare their findings to the reports of the nontestifying doctors. The
trial court considered the entire record of proceedings where Middleton’s
psychological capacity was concerned. This strawman argument has no merit. See
Perez v. State, 919 So. 2d 347, 374 (Fla. 2005) (determining that the trial court was
allowed to use in-court testimony and an expert’s report, which was admitted into
evidence during the Spencer hearing, to conclude that the mitigator of inability to
conform conduct to the requirements of the law was not established).
- 46 -
Middleton next claims that the trial court improperly rejected mitigating
evidence of impaired capacity. The trial court provided a thorough explanation of
why it was rejecting the statutory mitigator that defendant’s ability to conform his
conduct to the requirements of the law was substantially impaired.7 The trial court
compared the testimony of Dr. Barnard, who determined that the defendant was
not “substantially impaired,” to the testimony of Dr. Leporowski, who stated that
she saw no evidence that the defendant was suffering from a mental disorder and
noted that the defendant made rational decisions on the night of the murder. After
considering the record, the trial court determined that the statutory mitigator did
not exist. See Walker v. State, 707 So. 2d 300, 318 (Fla. 1997) (contradictory
evidence on mitigating factor supports trial court’s conclusion that factor did not
exist). Relief on this claim is denied.
Middleton further claims the trial court used the wrong standard in
evaluating his abusive childhood and abused its discretion in assigning weight to
this mitigation, citing Mines v. State, 390 So. 2d 332 (Fla. 1980), and Campbell v.
State, 571 So. 2d 415 (Fla. 1990), receded from on other grounds by Trease v.
7. Middleton also argues the trial court should have evaluated the evidence
as nonstatutory mitigation. It is clear from the trial court’s discussion that
consideration was given to substantial impairment, significant impairment, and
impairment, and the court found none had been demonstrated. It should also be
noted that the trial court used the mental health and drug use evidence to support
other nonstatutory mitigation.
- 47 -
State, 768 So. 2d 1050 (Fla. 2000), as support. Both Mines and Campbell stand for
the proposition that once a trial court determines that a defendant is not insane, it
must still consider the statutory mental mitigating factors. Campbell, 571 So. 2d at
418-19; Mines, 390 So. 2d at 337. The trial court below did not reject the statutory
mental mitigators after finding Middleton to be sane; it rejected them after a
reasoned analysis comparing the findings of the mental health experts who
evaluated him. To the extent that Middleton argues that the trial court erred in
using the sanity standard to reject the nonstatutory mental mitigation and assigned
it improper weight, this Court addressed this issue in Consalvo. In that case, this
Court found that where the trial court would have likely accorded a mitigating
circumstance the same amount of weight had it used a different standard, the
defendant’s claim should be denied. 697 So. 2d at 818-19. The trial court
incorporated its analysis from the order on Middleton’s motion to suppress his
confession and additionally referred to Dr. Leporowski’s finding that the defendant
was thinking rationally on the night of the murder. Therefore, it is not likely that a
different standard of review would have changed the trial court’s ruling on this
issue.
G. Admission of Middleton’s Confession Video
Middleton’s motion to suppress his confession contained three general
allegations: (1) that the defendant’s statements were illegally obtained because the
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consumption of drugs and alcohol caused him to become incompetent to proceed
with the interview process, invalidating his waiver of his rights; (2) that the
defendant does not have the intellectual ability to adequately comprehend his
Miranda rights in order to knowingly and intelligently waive them; and (3) that the
final interview was conducted after the defendant was represented by counsel and
after his court-appointed counsel filed his Invocation of Constitutional Rights form
with the clerk on July 30, 2009, at 11:28 a.m. The trial court in the order on the
motion specifically addressed each allegation, and denied the motion. Middleton
now claims that the admission of this evidence into his trial was error, based on the
same claims raised in his pretrial motion.8 We conclude that the motion to
suppress was properly denied.
A trial court’s decision to deny a motion to suppress comes to this Court
cloaked with a presumption that its factual findings are correct, but we
apply a de novo standard of review to legal issues and mixed questions of law and
fact which ultimately determine constitutional issues. Smithers v. State, 826 So.
2d 916, 924-25 (Fla. 2002). When considering the validity of a confession, this
8. Defense counsel raised a standing objection to anything that would
involve the motion to suppress the confession, including but not limited to
interviews of the defendant. The jury was provided with an edited transcript that
had been approved by both parties to refer to as they watched the interviews.
Jurors were notified that the transcripts were not evidence and would be collected
once the video was over.
- 49 -
Court considers the totality of the circumstances surrounding the defendant’s
confession. Lukehart v. State, 776 So. 2d 906, 920 (Fla. 2000).
In Traylor v. State, 596 So. 2d 957 (Fla. 1992), this Court stated that under
the Florida Constitution,
if the suspect indicates in any manner that he or she does not want to
be interrogated, interrogation must not begin or, if it has already
begun, must immediately stop. If the suspect indicates in any manner
that he or she wants the help of a lawyer, interrogation must not begin
until a lawyer has been appointed and is present or, if it has already
begun, must immediately stop until a lawyer is present. Once a
suspect has requested the help of a lawyer, no state agent can reinitiate
interrogation on any offense throughout the period of custody unless
the lawyer is present, although the suspect is free to volunteer a
statement to police on his or her own initiative at any time on any
subject in the absence of counsel.
A waiver of a suspect’s constitutional rights must be voluntary,
knowing, and intelligent, and, where reasonably practical, prudence
suggests it should be in writing. . . . [A]ny statement obtained in
contravention of these guidelines violates the Florida Constitution and
may not be used by the State.
Id. at 966 (footnotes omitted).
A defendant who has “expressed his desire to deal with the police only
through counsel is not subject to further interrogation until counsel has been made
available to him, unless the accused has himself initiated further communication,
exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477,
484-85 (1981). It does not appear that the trial court abused its discretion in
denying Middleton’s motion to suppress his confession. The trial court determined
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that the office where the confession occurred was a standard office, and not an
interrogation room or any other
particularly threatening or intimidating venue. The defendant did not
appear to be under the influence of drugs or alcohol. His speech was
clear and coherent. His answers are fairly responsive to the questions
asked. He was capable of articulating thoughts, giving directions and
describing events. More importantly, the video tape confirms and
corroborates fully the testimony of Captain John Rhoden, Lieutenant
Brad Stark, Detective Marty Faulkner and Dr. Deborah Lep[o]rowski.
It is more difficult to reconcile the videotape with the testimony of
Drs. James B[a]rnard and Michael Riordan.
These findings are supported by the record.
The trial court also determined that, based on the testimony of Middleton’s
friend, Britnell, and the officers who encountered Middleton on the night of the
murder, he did not appear to be so influenced by drugs and alcohol as to be
incoherent or not understand that he was waiving his right to remain silent. The
trial court also observed that of the four psychologists who evaluated Middleton,
Dr. Leporowski appeared to have been the most thorough; she reviewed all of the
records and gave the most reasonable explanation for the discrepancies between
the doctors on the issue of Middleton’s capacity to knowingly and voluntarily
waive his right.
As to the defendant’s claim regarding the invocation of rights form filed by
the attorney, the trial court observed that it is clear from the record that
Middleton’s invocation of rights form had not been executed or served on law
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enforcement prior to the defendant’s last interview. The written invocation of
rights was filed in the court file at 11:28 a.m. on July 30, 2009, and served on the
Sheriff’s Office that afternoon after the defendant’s last interview, which was
conducted that morning at approximately 9:24 a.m.
The trial court’s finding that Middleton initiated contact with Detective
Faulkner is also supported by the record. It is clear from the record that Middleton
initiated the final interview with Detective Faulkner, understood that he had the
right to remain silent, and voluntarily chose to waive it. At the beginning of the
fourth interview, the defendant was reminded of his Miranda rights. He continued
to blame Wade Fowler; he was arrested minutes later. When Detective Faulkner
arrived at the Sheriff’s Office on July 29, 2009, at approximately 11 a.m., he was
notified that Middleton was requesting to speak to him again. The recording began
at 12:35 p.m. On the recording, Detective Faulkner confirmed that Middleton had
in fact requested to speak to him and that Middleton had not yet been to first
appearance. Detective Faulkner read Middleton his Miranda rights and Middleton
waived his right to remain silent. After initially asking why a different man was
not in jail, Middleton began to ramble about clearing his conscience and getting his
life together. The detectives repeatedly asked him not to waste their time.
Middleton began to explain the events of the day, including drug use. He
explained that he and Steve Britnell went to someone’s house and did OxyContin
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and smoked methamphetamine. He did not remember what time he went to the
victim’s trailer, only that it was less than twenty minutes after Fowler and Britnell
went to Walmart. He stated that he knocked on the victim’s door and things just
went “crazy.” He described the events as “foggy.” When Detective Faulkner
followed up with a question about how long Middleton was at the victim’s trailer
before the altercation occurred, Middleton stated that he did not want to talk
anymore and requested to go back to his cell. Detective Faulkner immediately
states, “The time is now 12:58 P.M., concluding the interview with Dale.”
Faulkner testified that he went over to the jail the next day, July 30, to check
on Middleton because he was so distraught the night before. He stated that upon
seeing him at the jail, Middleton requested to speak to him again. Detective
Faulkner immediately had one of the corrections officers escort Middleton to his
office. The Sheriff’s Office and the jail are connected, with the distance from
Faulkner’s office and the jail being approximately fifty yards. The jury reviewed
the January 30, 2009, recording of Middleton’s interview, along with a transcript.
The video begins with Detective Faulkner confirming that it was Middleton who
initiated the interview. Middleton informs Faulkner during the interview that he
had been to first appearance that morning and was told not to talk to anyone.
Faulkner told him that they could not speak unless he specifically decided to speak
without his attorney being present. Faulkner repeatedly asked Middleton if he was
- 53 -
sure that he wanted to talk without his attorney present; Middleton responded that
he did. Faulkner read Middleton his Miranda rights again. Middleton again
waived his right to remain silent. Middleton insisted on speaking with Faulkner to
clear his head and get past what happened. Thereafter, Middleton confessed to the
murder of the victim and the theft of her television.
When Detective Maerki entered the room, he inquired whether Middleton
had been to first appearance, to which Middleton replied that he had. He also
inquired whether Middleton had requested to speak to him and Faulkner, to which
Middleton also replied in the affirmative. Throughout the entire interview,
Middleton repeatedly offered information, stating that he wanted everything to be
over with because the murder that he committed was out of character; he resisted
the offer to have counsel present, and he agreed to assist in the investigation.
It is clear from the record that Middleton initiated contact with Detective
Faulkner, rendering his subsequent interview valid under Edwards v. Arizona.
Additionally, the requirements of Traylor have been met in this case where the
detectives immediately stopped the interview at Middleton’s request, and only
resumed their conversation with him on his prompting. The trial court properly
denied the defendant’s motion to suppress the videotaped confession.
H. Sufficiency of the Evidence
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Middleton argues that the trial court erred in denying his motion for
judgment of acquittal, claiming that the State failed to present sufficient evidence
to support Middleton’s convictions for first-degree premeditated murder and first-
degree felony murder. After the State rested in the guilt phase, the defense moved
for a judgment of acquittal, claiming that the State had not proven that the murder
was premeditated in nature, only that it was committed during a robbery. The
State responded by pointing out that Middleton stabbed the victim thirty-five
times. The trial court denied the motion finding the threshold for submission of the
case to the jury had been surpassed because of the totality of the evidence,
including DNA evidence, blood spatter evidence, the number of stab wounds, the
nature of the wounds, and Middleton’s arming of himself prior to going to the
victim’s trailer.
The defense also moved for a judgment of acquittal as to the burglary count,
claiming that Middleton was invited into the trailer and stating that the State did
not prove that Middleton intended to commit the theft of the television before he
entered the trailer. The State responded that Middleton said the victim told him to
leave and attempted to remove him from the trailer, thus withdrawing any consent
to enter that was initially given. The State also argued that it did not have to prove
intent to commit theft because it could proceed on the theory that the defendant
remained in the home with the intent to commit murder, which he ultimately
- 55 -
committed. The trial court denied the motion for acquittal on these grounds. The
defense then notified the court that, based on the court’s decision on the motion for
judgment of acquittal on the burglary charge, the defense had no argument as to the
motion for judgment of acquittal on felony murder, which was predicated on the
burglary. We affirm the denial of the defendant’s motion for judgment of
acquittal.
The evidence in a capital case is judged to be sufficient when it is both
competent and substantial. See Phillips v. State, 39 So. 3d 296, 308 (Fla.), cert.
denied, 562 U.S. 1010 (2010). This Court has an obligation to independently
review the record to determine whether sufficient evidence exists to support
Middleton’s convictions. Id. This Court must “view the evidence in the light most
favorable to the State to determine whether a rational trier of fact could have found
the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v.
State, 948 So. 2d 655, 674 (Fla. 2006) (citing Bradley v. State, 787 So. 2d 732, 738
(Fla. 2001)). Further, “[a] general guilty verdict rendered by a jury instructed on
both first-degree murder alternatives may be upheld on appeal where the evidence
is sufficient to establish either felony murder or premeditation.” Crain v. State,
894 So. 2d 59, 73 (Fla. 2004).
- 56 -
The jury was instructed on both premeditated and felony murder, and the
jury found Middleton guilty on a special verdict form listing both felony murder
and premeditated murder; the jury found him guilty of both.
“Premeditation is defined as more than a mere intent to kill; it is a
fully formed conscious purpose to kill. The purpose may be formed a
moment before the act but must exist for a sufficient length of time
to permit reflection as to the nature of the act to be committed and
the probable result of the act.” Premeditation may be inferred from
such facts as “the nature of the weapon used, the presence or absence
of adequate provocation, previous difficulties between the parties,
the manner in which the homicide was committed, and the nature
and manner of the wounds inflicted.”
Hall v. State, 107 So. 3d 262, 281 (Fla. 2012) (emphasis added) (footnotes
omitted) (quoting Bradley, 787 So. 2d at 738; Norton v. State, 709 So. 2d 87, 92
(Fla. 1997)), cert. denied 134 S. Ct. 203 (2013).
Here, sufficient evidence exists to support a conviction for premeditated
first-degree murder and first-degree felony murder. The defendant went to his
neighbor’s trailer armed with a knife. When she would not give him money and
attempted to get him out of her trailer, the defendant attacked her with the knife.
The medical examiner testified that the forensic evidence indicated a struggle
between the victim and the defendant that began in the kitchen, and that drag
marks indicated that the victim was alive and moving erratically as she was
dragged from the kitchen area to the bedroom. The medical examiner also said
there were several passes of a sharp instrument to create the margin of the wound,
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such as a sawing motion. The blood stains indicated that her carotid artery was not
cut until she got into the bedroom. The amount and pattern of blood on the
victim’s waistband indicates that she may have been sitting up slightly or halfway
when she received the neck injury. The victim’s shirt was pulled upwards toward
her neck, which is consistent with being dragged. The victim had a bruise on her
cheek that was consistent with the tread and design of Middleton’s boots. The
victim had bruises and a cut to her face, a puncture and stab wounds on her chest,
neck, ear, and arms. The victim had defensive wounds that indicated that she was
trying to get away from someone who had a knife. The autopsy revealed that the
neck injury occurred toward the end of the attack. There was sufficient evidence
that the defendant committed the homicide with a premeditated design to effect the
death of Mrs. Christensen. See Hall, 107 So. 3d at 281.
There is also sufficient evidence of felony murder. In Bradley v. State, 33
So. 3d 664 (Fla. 2010), this Court determined that a conviction for felony murder
will stand where the State can show that, even if the defendant was invited into the
home by an occupant, the consent was expressly revoked prior to the defendant’s
opportunity to begin the attack on the victim. Id. at 683. In this case, Middleton
explained that he and Wade Fowler had been discussing the crime for a few days
because they were experiencing “hard times.” Middleton asked the victim to loan
him money, but she said she did not have any money because she paid the bills.
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He stated the victim got scared and tried to push him out of her trailer. Middleton
pulled out the knife he brought with him, and the attack ensued. Thereafter,
Middleton took the victim’s television, which he later sold for $200. Under these
facts, even if the victim invited Middleton into her kitchen, as he claimed, that
consent was clearly revoked when the victim attempted to get Middleton out of her
home, and when she struggled with him down the hallway before he ultimately cut
her throat in the bedroom.
I. Section 921.141(5)(i), Florida Statutes (2009)
Middleton claims that the CCP aggravator is unconstitutionally vague and
overbroad, is incapable of a constitutionally narrow construction and has been and
is being applied in an arbitrary and inconsistent manner. He also claims that the
standard jury instruction administered in this case did not require that the State
prove beyond a reasonable doubt an intent to kill before the crime began, and is
therefore unconstitutional. We deny relief as this Court has on numerous
occasions upheld the constitutionality of this aggravating factor and the standard
jury instruction against similar claims. See, e.g., McWatters v. State, 36 So. 3d
613, 643 (Fla. 2010); Donaldson v. State, 722 So. 2d 177 (Fla. 1998); Hunter v.
State, 660 So. 2d 244 (Fla. 1995).
J. Jury Instructions
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Middleton claims that the jury instruction stating that the jury must only
consider mitigation after it is “reasonably convinced” of its existence is improper.
More specifically, he claims that it violates separation of powers for the judiciary
to place a limitation on the consideration of mitigation that the legislature has not
specifically placed in the statute. We deny relief because these specific challenges
have been raised and rejected by this Court in a number of cases. See Salazar v.
State, 991 So. 2d 364 (Fla. 2008); Johnson v. State, 969 So. 2d 938 (Fla. 2007);
Bogle v. State, 655 So. 2d 1103 (Fla. 1995); Walls v. State, 641 So. 2d 381 (Fla.
1994).
K. Section 921.141 (5)(d), Florida Statutes (2009)
Middleton argues that the felony murder aggravator is facially
unconstitutional because (1) it does not genuinely narrow the class of persons
eligible for the death penalty, and (2) it does not reasonably justify the imposition
of a more severe sentence compared to others found guilty of murder. As support
for his argument, Middleton cites the decisions of three other state supreme courts
that have declared this aggravator to be improper, and urges this Court to follow
those courts, and do the same. We again reject Middleton’s argument on this issue.
In Mills v. State, 476 So. 2d 172 (Fla. 1985), this Court rejected the
argument that Middleton makes here, stating that “[t]he legislative determination
that a first-degree murder that occurs in the course of another dangerous felony is
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an aggravated capital felony is reasonable.” Id. at 178 (citing State v. Dixon, 283
So. 2d 1, 9 (Fla. 1973)); see also Blanco v. State, 706 So. 2d 7, 11 (Fla. 1997)
(“Eligibility for this aggravating circumstance is not automatic: The list of
enumerated felonies in the provision defining felony murder is larger than the list
of enumerated felonies in the provision defining the aggravating circumstance of
commission during the course of an enumerated felony. . . . This scheme thus
narrows the class of death-eligible defendants. We find no error.” (citations
omitted) (footnotes omitted)); see also Blanco v. McNeil, No. 07-61249-CIV, 2010
WL 9098788 at *9 (S.D. Fla. Dec. 7, 2010) (rejecting Blanco’s claim that felony
murder aggravator was unconstitutional (citing Blystone v. Pennsylvania, 494 U.S.
299 (1990))).
L. Hurst v. Florida
During the pendency of this case, the United States Supreme Court found
Florida’s death penalty scheme unconstitutional in Hurst v. Florida, 136 S. Ct. 616
(2016). We granted supplemental briefing in which Middleton argued that he is
entitled to a new penalty phase. On remand from the United States Supreme
Court, we determined that “before a sentence of death may be considered by the
trial court in Florida, the jury must find the existence of the aggravating factors
proven beyond a reasonable doubt, that the aggravating factors are sufficient to
impose death, and that the aggravating factors outweigh the mitigating
- 61 -
circumstances.” Hurst v. State, 202 So. 3d 40, 53 (Fla. 2016). We further held that
a unanimous jury recommendation is necessary for the imposition of death and
determined that Hurst error is capable of harmless error review. Id. at 68.
We reject Middleton’s argument that he is entitled to a life sentence under
section 775.082(2), Florida Statutes (2012). See Hurst, 202 So. 3d at 63-66. Thus,
the issue before us is whether any Hurst error during Middleton’s penalty phase
proceedings was harmless beyond a reasonable doubt. This Court has determined
that Hurst error is evaluated by the following harmless error standard:
Where the error concerns sentencing, the error is harmless only if
there is no reasonable possibility that the error contributed to the
sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).
Although the harmless error test applies to both constitutional errors
and errors not based on constitutional grounds, “the harmless error
test is to be rigorously applied,” [State v.] DiGuilio, 491 So. 2d
[1129,] 1137 [Fla. 1986], and the State bears an extremely heavy
burden in cases involving constitutional error. Therefore, in the
context of a Hurst v. Florida error, the burden is on the State, as the
beneficiary of the error, to prove beyond a reasonable doubt that the
jury’s failure to unanimously find all the facts necessary for
imposition of the death penalty did not contribute to Hurst’s death
sentence in this case. We reiterate:
The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a
device for the appellate court to substitute itself for the
trier-of-fact by simply weighing the evidence. The focus
is on the effect of the error on the trier-of-fact.
DiGuilio, 491 So. 2d at 1139. “The question is whether there is a
reasonable possibility that the error affected the [sentence].” Id.
- 62 -
Id. at 68 (last alteration in original). For the error to be harmless, this Court must
determine that a rational jury would have unanimously found that there were
sufficient aggravating factors that outweighed the mitigating circumstances.
We emphasize the unanimous jury recommendation of death in this case.
This unanimous recommendation allows us to determine that, beyond a reasonable
doubt, a rational jury would have unanimously found that sufficient aggravating
factors outweighed the mitigation. See Davis v. State, 41 Fla. L. Weekly S528,
S539-40 (Fla. Nov. 10, 2016). Jurors in Middleton’s case heard standard jury
instructions informing them that they were to determine sufficient aggravators
existed and that aggravation outweighed mitigation before recommending death.
See Fla. Std. Jury Instr. (Crim.) 7.11. Jurors were presented with mitigation and
informed that they could consider mitigating circumstances of which they were
reasonably convinced.
Although the jurors were not informed that they were required to find
unanimously that sufficient aggravating circumstances outweighed the mitigation,
the jury did recommend death unanimously in this case. We conclude that the jury
would have unanimously made the findings necessary to impose death. See Davis,
41 Fla. L. Weekly at S539-40. The extreme aggravation in this case further
bolsters our determination that any Hurst error is harmless beyond a reasonable
doubt: the trial court found both HAC and during the commission of a burglary
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aggravators supported by competent, substantial evidence. These are among the
most serious aggravating factors.
We find that the State can sustain its burden of showing that any Hurst error
in this case was harmless beyond a reasonable doubt. Although the jury in this
case was informed that it was not required to recommend death unanimously, it did
so. The unanimous recommendation of death in this case is the sort of
recommendation we have determined is constitutionally sufficient to impose a
sentence of death. Cf. Davis, 41 Fla. L. Weekly at S539-40. Based on the
foregoing, Middleton is not entitled to a new penalty phase.
III. CONCLUSION
For the reasons stated in this opinion, we affirm Middleton’s conviction for
first-degree murder and his death sentence.
It is so ordered.
LABARGA, C.J., and PARIENTE, and LEWIS, JJ., concur.
PARIENTE, J., concurs with an opinion, in which LABARGA, C.J., concurs.
CANADY and POLSTON, JJ., concur in result.
QUINCE, J., concurs in part and dissents in part with an opinion.
LAWSON, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring.
I join the Court’s opinion, which affirms Middleton’s conviction and death
sentence. I write separately to emphasize the importance of a mitigation specialist
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to the defense team’s investigation and presentation in a capital case and to
encourage trial courts to provide defense counsel the assistance of both a
mitigation specialist and a fact investigator upon a proper and timely request.
In my view, a trial court should not deny a request for a mitigation specialist
either based on the misconception that these specialists are similar to fact
investigators or based on undue emphasis on an additional expert “costing too
much.” It is also important that prosecutors do not add to that misconception by
arguing, as the prosecutor did here, that all “a mitigation expert does is synthesiz[e]
spankings and timeouts and things of that nature,” and “you don’t have to be an
expert” to “go out and find people who can offer mitigation about . . . bumps [the
defendant] got on the head or spankings he got in school or whatever the case
might be.”9
As for the importance of a mitigation specialist, this Court has emphasized
that “the obligation to investigate and prepare for the penalty portion of a capital
case cannot be overstated—this is an integral part of a capital case.” State v.
Lewis, 838 So. 2d 1102, 1113 (Fla. 2002). The investigation into mitigation can be
9. The prosecutor’s sarcastic comments reflect not only a misunderstanding
of the effect of early childhood traumas on brain development but also highlight
the tendency of some prosecutors to degrade mitigation. Cf. Oyola v. State, 158
So. 3d 504, 512-13 (Fla. 2015) (rebuking prosecutorial arguments that
characterize a defendant’s mitigating evidence as “excuses,” “make-believe,”
“flimsy,” or “phantom”).
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a monumental undertaking, requiring a significant amount of time that would
ideally begin as soon as possible. See American Bar Association (ABA)
Guidelines for the Appointment & Performance of Defense Counsel in Death
Penalty Cases (ABA Guidelines), Commentary to Guideline 1.1, reprinted in 31
Hofstra L. Rev. 913, 925 (2003). The difference between a thorough assessment of
mitigation and a cursory one could, quite literally, be a matter of life and death.
When funding is properly requested, the defense team should receive the assistance
of both a fact investigator and a mitigation specialist to ensure a complete and
reliable mitigation investigation.
There is an “apparent widespread use of mitigation specialists or
coordinators” in Florida, as the First District Court of Appeal has explained when
quashing a trial court order denying a defendant’s motion for additional mitigation
coordinator fees. Criminal Specialist Investigations, Inc. v. State, 58 So. 3d 883,
886 (Fla. 1st DCA 2011).10 Cases in this Court demonstrate that the use of a
mitigation specialist in capital cases is not unusual in Florida. See, e.g., Turner v.
State, 37 So. 3d 212, 219 (Fla. 2010) (noting that a mitigation specialist testified in
a capital case); Twilegar v. State, 42 So. 3d 177, 203 (Fla. 2010) (noting that the
10. The issue was before the First District, rather than this Court, because a
life sentence was imposed following the penalty phase, and the mitigation
specialist was requesting additional compensation for her work in having
successfully developed mitigation.
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defense counsel had enlisted the assistance of a mitigation specialist in a capital
case); Deparvine v. State, 995 So. 2d 351, 360 (Fla. 2008) (noting that a mitigation
specialist testified in the penalty phase of a capital case).11
The ABA has published guidelines to “set forth a national standard of
practice for the defense of capital cases in order to ensure high quality legal
representation” for defendants facing a possible death penalty. ABA Guidelines,
31 Hofstra L. Rev. at 919. At the hearing on the motion to appoint a mitigation
specialist in this case, the defense counsel urged the trial court to consider the ABA
Guidelines, by explaining that these Guidelines “include[] a suggestion, if not a
mandatory requirement, that a mitigation specialist . . . should be appointed in
death cases because of the nature of the crime and because of the serious nature of
the potential penalty.” The prosecutor’s misguided response was, “I could care
less about what they [the ABA] think about the death penalty and how it operates
in the State of Florida.”
Contrary to the opinion of the prosecutor in this case, the ABA Guidelines
do have relevance to capital cases, even if these guidelines are not binding in
11. Since at least 2011, mitigation specialists have been recognized as a part
of capital cases, when the General Appropriations Act of 2011 set the maximum
hourly rate for mitigation specialists at $75. See ch. 2011-69, § 4, at 126, Laws of
Fla; see also § 27.425, Fla. Stat. (indicating that the rate specified annually in the
General Appropriations Act is the maximum compensation rate in cases in which
the court has appointed private counsel or declared a person indigent for costs).
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determining whether counsel rendered ineffective assistance. The United States
Supreme Court has referred to the various renditions of these guidelines as “guides
to determining what is reasonable” for an attorney’s performance, or as reflecting
“well-defined norms” for attorney conduct. Rompilla v. Beard, 545 U.S. 374, 387
& n.7 (2005); Wiggins v. Smith, 539 U.S. 510, 524 (2003). This Court has also
relied upon these guidelines in determining whether trial counsel has adequately
investigated mitigation evidence. See, e.g., Parker v. State, 3 So. 3d 974, 984-85
(Fla. 2009) (citing the ABA Guidelines in a postconviction appeal to determine
that trial counsel’s performance as to investigating and presenting mitigation
evidence was deficient); Blackwood v. State, 946 So. 2d 960, 974 (Fla. 2006)
(citing the Supreme Court’s reliance on the ABA Guidelines in Wiggins in
determining that trial counsel unreasonably failed to attempt to present mental
health mitigation evidence, and concluding that there was competent, substantial
evidence to support the trial court’s finding of deficient performance).
A mitigation specialist is “an indispensable member of the defense team
throughout all capital proceedings[,] . . . possess[ing] clinical and information-
gathering skills and training that most lawyers simply do not have.” ABA
Guidelines, Commentary to Guideline 4.1, 31 Hofstra L. Rev. at 959. Not only do
mitigation specialists have honed skills in gathering and understanding the nature
of potential mitigation evidence, such as the significance of early childhood
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trauma, but mitigation specialists—unlike the defendant’s lawyer—can testify in
the penalty phase to impart the results of their mitigation investigation to the jury
that must weigh the mitigation and aggravation in determining whether to
recommend the death sentence.
As opposed to fact investigators, mitigation specialists “are generally trained
in the social sciences, with college degrees in social work or psychology,” and “are
adept at gathering institutional records, interviewing lay and professional people,
and compiling case histories.” Hon. Helen G. Berrigan, The Indispensable Role of
the Mitigation Specialist in a Capital Case: A View From the Federal Bench, 36
Hofstra L. Rev. 819, 827-28 (2008). “Significantly, they are trained in uncovering
family trauma and screening for often subtle mental and psychological disorders,”
and are “experienced in interpersonal communication so they know how to develop
trust and rapport with even the most difficult or distrustful of individuals.” Id. at
828 (footnote omitted). Part of the mitigation specialist’s job is to “conduct a
comprehensive life history investigation of the client and identify all relevant
mitigation issues.” Richard G. Dudley Jr. & Pamela Blume Leonard, Getting It
Right: Life History Investigation as the Foundation for a Reliable Mental Health
Assessment, 36 Hofstra L. Rev. 963, 966 (2008) (footnote omitted).
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A mitigation specialist has the potential to benefit a criminal defendant in a
capital case in a wide variety of ways, as summarized by the commentary to
Guideline 4.1 of the ABA Guidelines:
They have the time and the ability to elicit sensitive, embarrassing and
often humiliating evidence (e.g., family sexual abuse) that the
defendant may have never disclosed. They have the clinical skills to
recognize such things as congenital, mental or neurological
conditions, to understand how these conditions may have affected the
defendant’s development and behavior, and to identify the most
appropriate experts to examine the defendant or testify on his behalf.
Moreover, they may be critical to assuring that the client obtains
therapeutic services that render him cognitively and emotionally
competent to make sound decisions concerning his case.
. . . The mitigation specialist compiles a comprehensive and well-
documented psycho-social history of the client based on an exhaustive
investigation; analyzes the significance of the information in terms of
impact on development, including effect on personality and behavior;
finds mitigating themes in the client’s life history; identifies the need
for expert assistance; assists in locating appropriate experts; provides
social history information to experts to enable them to conduct
competent and reliable evaluations; and works with the defense team
and experts to develop a comprehensive and cohesive case in
mitigation.
The mitigation specialist often plays an important role as well
in maintaining close contact with the client and his family while the
case is pending. The rapport developed in this process can be the key
to persuading a client to accept a plea to a sentence less than death.
ABA Guidelines, Commentary to Guideline 4.1, 31 Hofstra L. Rev. at 959-60
(footnotes omitted); see also ABA Supplementary Guidelines for the Mitigation
Function of Defense Teams in Death Penalty Cases (2008), reprinted in 36 Hofstra
L. Rev. 677, 682 (2008) (explaining that mitigation specialists are skilled
interviewers who can identify and locate relevant persons, recognize and elicit
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information related to mental health, establish a rapport with witnesses, and
“advise counsel on the appropriate mental health and other expert assistance”).
The importance of appointing a mitigation specialist becomes all the more
evident in a case involving an indigent defendant, where the trial court appoints
private counsel, who generally does not have the same institutional resources as the
Public Defender’s Office. In such cases, the trial judge effectively decides “what
financial assistance, investigators, or experts the defense will be allowed.”
Berrigan, 36 Hofstra L. Rev. at 823. “By controlling the purse strings, the trial
judge effectively controls the quantity and quality of information that will flow to
the jury if a penalty phase is necessary.” Id. As the Eleventh Circuit Court of
Appeals has stated, “[p]ermitting an indigent capital defendant to introduce
mitigating evidence has little meaning if the funds necessary for compiling the
evidence [are] unavailable.” Westbrook v. Zant, 704 F.2d 1487, 1496 (11th Cir.
1983), overruled on other grounds by Peek v. Kemp, 784 F.2d 1479, 1494 (11th
Cir. 1986).
Accordingly, given the importance of a mitigation specialist to the defense’s
presentation in a capital case, I strongly encourage trial courts to liberally grant
proper requests for mitigation specialists. Nevertheless, I would not find reversible
error in this case because the defense lawyer expressly stated that he would renew
his request for a mitigation specialist, but he did not do so. Further, in this direct
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appeal, Middleton is unable to show how he was prejudiced. I therefore concur in
the affirmance of the conviction and death sentence.
LABARGA, C.J., concurs.
QUINCE, J., concurring in part and dissenting in part.
I concur with the majority’s findings that the evidence here is sufficient to
sustain Middleton’s convictions. I disagree with the majority’s finding that the
Hurst error was harmless beyond a reasonable doubt for the same reasons set forth
in Justice Perry’s partial concurrence in Davis v. State, 41 Fla. L. Weekly S528,
S540-41 (Fla. Nov. 10, 2016) (Perry, J., concurring in part and dissenting in part).
The jury’s unanimous recommendation of death in this case does not enable this
Court to conclude beyond a reasonable doubt that the jurors would have made all
the findings necessary for the imposition of death unanimously. Just as this Court
declined to speculate as to how the jurors would have voted in Hurst v. State, 202
So. 3d 40, 69 (Fla. 2016), so too should we decline to speculate in this case. I
conclude that the error here was harmful.
An Appeal from the Circuit Court in and for Okeechobee County,
Robert Eugene Belanger, Judge - Case No. 472009CF000448CFAXMX
Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public
Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Lisa-Marie Lerner,
Assistant Attorney General, West Palm Beach, Florida,
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for Appellee
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