Kim Jackson v. State of Florida

Supreme Court of Florida
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No. SC13-2090
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KIM JACKSON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[August 27, 2015]
PER CURIAM.
This case is before the Court on appeal from a judgment of conviction of
first-degree murder and a sentence of death. We have jurisdiction. See art. V, §
3(b)(1), Fla. Const. For the reasons that follow, we affirm the conviction and the
death sentence.
FACTS
Debra Pearce was stabbed to death in her kitchen on or around October 17,
2004. The murder remained unsolved until 2008, when DNA from a hair found on
Pearce’s body was matched to Kim Jackson and a fingerprint found in blood on the
sink above Pearce’s body was also matched to Jackson.
The Murder
Pearce was last seen by her mother between midnight and 1:30 a.m. on
October 15 to 16, 2004. Pearce was discovered late in the evening on October 18,
or in the early morning hours of October 19, by a neighbor and friend of Pearce
who purchased drugs from her and used them at the house. That evening, the
friend walked past Pearce’s house and saw that the gate was open. Over the
previous days, he had called her several times, but received no answer, and he had
noticed that her van was not in her driveway. When he approached the house, he
saw that the sliding glass door was open. He entered and found Pearce’s body. He
returned to his house and called the police.
The medical examiner determined that the cause of Pearce’s death was
hypovolemic shock due to vascular hemorrhage as a result of stab wounds to the
neck and shoulder—in layman’s terms, Pearce bled to death as a result of a fatal
stab wound to her neck that struck her jugular vein and a fatal stab wound to her
chest/shoulder area that struck her subclavian artery and vein. The stab wound to
the chest pierced through Pearce’s bra, sliced her left breast, continued across into
the right side of her chest, and pierced her scapula. The knife, which had been left
in Pearce’s chest, was only five inches long, but it had penetrated seven to eight
inches into her body. The blow with the knife was forceful enough to pierce the
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scapula and break off a 3/4 inch area of bone, and the wound would have caused a
significant amount of blood loss as well as an arterial blood spurt pattern.
The medical examiner also found several other injuries. Because the body
was in the early stages of decomposition, the medical examiner could not
determine whether certain injuries were lacerations or incisions. One such injury
was a superficial wound to Pearce’s forehead, and another was a wound to her left
cheek. Additionally, there were two wounds to Pearce’s chin—one where the
blade entered, and the other where the blade exited. Pearce also had two cuts
across her ear, a scrape or abrasion on the left side of her head that indicated she
had been hit or her body was dragged, and five shallow cuts on the left side of her
head. Her right eye was bruised from a forceful blow. Additionally, Pearce had
two lacerations/incisions to her right forehead that were jagged, due to either a
knife with a dull blade, or the blade of a knife being raggedly ripped across her
skin.
The medical examiner could not be certain as to whether Pearce was
conscious throughout the attack, but stated that it was possible because she bled to
death—she was not knocked unconscious, her spinal cord was not severed, and no
major organs were involved. Additionally, Pearce’s right pinky finger had a deep
cut that penetrated the tendons and was consistent with a defensive wound. Pearce
also had a cut on the back of her left forearm that went from shallow to deep,
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which could have occurred while she attempted to ward off a blow. Further, the
medical examiner testified that minor blunt-force injuries which were present—
including those to her forehead, head, and ear—demonstrated that she struggled.
A crime scene reconstructionist was called to Pearce’s house on October 19,
and he noted that Pearce, who was face-down on the kitchen floor below the sink,
had been dead for some time. The reconstructionist retrieved a dark-colored hair
from the back of Pearce’s right calf that appeared out of place. He observed the
knife that had been left in Pearce’s chest and also found a second knife beneath her
body.1 Additionally, the reconstructionist found significant blood spatter in the
kitchen and determined that the spatter around the sink was consistent with either a
weapon being swung back, or from the impact when the weapon was swung down.
He also discovered a fingerprint in blood on the lip of the sink.
The reconstructionist utilized luminal testing on red stains detected on the
rug outside of the kitchen, which revealed an impression left by a person wearing a
sock, and another impression left by a person wearing a shoe. He testified that it
appeared as though the person who left the tread dragged his or her feet, and the
tread appeared to lead toward the master bathroom. He could not determine
1. The small knife located under Pearce tested positive for the presence of
blood, and presented a mixed profile with Pearce as a major contributor. Two to
three other DNA profiles were present on the knife, and Jackson was excluded as
being one of the possible contributors.
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whether the impressions had been left by more than one person and stated that it
was possible more than one person had been at the scene.
The investigation revealed that around the time of the murder, an eyewitness
saw three individuals near the back of Pearce’s house. The lead detective spoke
with two of these individuals, who admitted that they took several items from the
house, including a television, a VCR, and a DVD player. However, no forensic
evidence linked these individuals to the home or Pearce.
Fingerprints that were found at Pearce’s house were submitted to the Florida
Department of Law Enforcement (FDLE) latent print unit in Jacksonville. The
analyst there determined that none of the prints were of value. However, the lead
detective discovered that the Pinellas County unit possessed equipment that could
enhance latent prints, and the sink was transported there so that more detail could
be obtained from the latent fingerprint located on the sink. Although the
equipment did not prove to be particularly useful, the Pinellas County latent print
unit examined the photographs of the sink fingerprint and determined that it was of
value. However, no match for the fingerprint was found at that time. The lead
detective also submitted photographs of several of the prints lifted from Pearce’s
house to the Federal Bureau of Investigation (FBI). The FBI determined that
among the prints it received, one latent fingerprint was of value (the sink
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fingerprint), and one latent palm print was of value. The FBI was also unable to
match either print to any known individual at that time.
Identification
It was only later that FDLE matched DNA extracted from the hair that was
found on Pearce’s calf to Jackson.2 After receiving this information, the lead
detective located Jackson in Georgia, where he had been incarcerated since 2005.
During an interview with Jackson on January 22, 2008, the lead detective asked
whether Jackson knew Pearce or had been to her house. The detective showed
Jackson a photograph of Pearce, as well as several pictures of her house. Jackson
asserted that he had never met or seen Pearce, and had never been to her house.
After Jackson was identified as a suspect, latent print analysts with the FBI
and Pinellas County were asked to compare Jackson’s known prints with the
fingerprint from the sink. Jacqueline Slebrch, the FBI latent print examiner,
examined the photograph of the sink fingerprint.3 She noted spots or distortion on
the fingerprint, and that the fingerprint was one of multiple prints left on top of
2. The record does not clearly state when the identification was made.
However, the lead detective testified that he located Jackson after he obtained the
DNA and fingerprint evidence, and the interview of Jackson occurred in January
2008.
3. Slebrch was not the first FBI analyst to examine the prints, which were
first examined by an analyst who later left the FBI. Slebrch performed her own
analysis, and her conclusions matched those made by the first FBI analyst.
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each other. However, she determined that the print was of value and matched the
right ring finger of Jackson. With respect to when the fingerprint could have been
placed on the sink, Slebrch testified that she had never encountered a situation in
which a fingerprint was left and, at a later date, captured and preserved by being
coated in a substance such as blood, but that such an occurrence could be possible.
She also explained that when a person has an excess amount of blood or other
substance on his or her hand and then touches a surface, the substance will be
pushed between the friction ridges on a fingerprint, and an imprint of the furrows
will be left on the surface. She testified that this is a factor to consider when
looking at a latent print such as the sink fingerprint.
The sink fingerprint was also examined by William Schade, who worked for
the Pinellas County Sheriff’s Office. Like Slebrch, he concluded that the sink
fingerprint matched the right ring finger of Jackson, and that the fingerprint was
left on the sink while Jackson’s finger was coated in a wet substance, such as
blood. When Schade made the comparison, he had no knowledge that Slebrch had
also concluded that the sink fingerprint matched the right ring finger of Jackson.
However, during trial, Jackson presented the testimony of Michelle Royal,
the Jacksonville Sheriff’s Office latent print analyst who concluded that the sink
fingerprint was of no value and could not be used to identify any suspect. She
nonetheless testified that even prints of no value can be used to exclude suspects,
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and acceded both that Jackson could not be excluded as the individual who left the
sink fingerprint, and that similarities existed between the sink fingerprint and the
known print of Jackson.
Alibi
Jackson presented as an alibi that he visited Adel, Georgia, between October
15, 2004, and October 22, 2004, to celebrate his birthday with his family, which he
did every year for a weekend around his birthday. His birthday is October 13,
which fell on a Wednesday in 2004. October 15 was the Friday that followed his
birthday. The testimony of Jackson and his wife, sister, and father presented as an
alibi that his cousin drove him to Adel on Friday, October 15, and he did not return
until after the murder occurred. He had intended to return on Sunday with his
cousin, but did not, and later obtained money from a friend for bus tickets, missed
the initial bus, and eventually returned to Jacksonville by bus on October 22. The
friend who provided Jackson with bus money testified that she recalled that
Jackson visited her work place in October 2004, but she could not recall the date.
Jackson testified that he knew Pearce through her boyfriend, had met her
between five and ten times, and had been to her house approximately five times.
He had previously purchased crack cocaine from Pearce’s boyfriend, as well as
from Pearce. He also testified that he and Pearce had become comfortable
interacting with each other, and that she would let him enter her house.
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Jackson explained that when he was interviewed by the lead detective, he
did not admit that he knew Pearce or that he had been to her house because he
knew the detective was investigating a homicide, wished to distance himself from
Pearce, and did not want to be implicated in something he did not do. He also
testified that he did not recognize Pearce in the photograph he was shown during
the interview because it was in black and white, and she appeared dead in the
photograph.
Jackson testified that he had been at Pearce’s house one week before his trip
to Adel, and he helped move a couch while he was there. Jackson explained that
his fingerprint could be on the sink because he had removed a rag from the garbage
disposal and placed his hand on the sink while he looked under it. He admitted
that his hands were not bloody when he repaired the disposal, and that this
occurred months before the murder.
In rebuttal, the State presented the lead detective, who testified that Pearce’s
vehicle was found on the same road where Jackson resided at the time of the
murder. The vehicle was approximately one to one and a half miles from his
residence. However, no evidence connected Jackson to the vehicle.4
4. The upholstery covering of the armrest tested positive for blood, and the
DNA profile matched Pearce. Additionally, a mixed DNA profile with Pearce as
the major contributor was found on the steering wheel cover of the vehicle. The
DNA results with respect to the second contributor were inconclusive, but the
FDLE DNA analyst testified that the second contributor was male.
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Because the evidence suggested that another person may have been present
during the murder—i.e., the footprints and the second knife with DNA that did not
match Pearce or Jackson—the State requested that a principal instruction be given.
The trial court agreed, and a principal instruction was read to the jury. On April
17, 2013, the jury found Jackson guilty of the first-degree murder of Debra Pearce.
Penalty Phase
During the penalty phase, the State presented the victim impact statements
of Pearce’s mother and daughter. The parties stipulated to two aggravating
circumstances: (1) Jackson was on probation at the time of the murder, and (2)
Jackson was previously convicted of three violent felonies.5 Additionally, despite
the stipulation, the State presented the testimony of the victims of two of the prior
violent felonies. The victim of the armed robbery testified that Jackson robbed her
at gunpoint while she was at work. The surveillance video of the event was played
for the jury. The victim of the aggravated assault testified that he worked for the
Georgia Bureau of Investigation and, while he was assigned to purchase cocaine
while undercover in the Adel area, he unsuccessfully attempted to purchase crack
5. These felony convictions were: (1) a 1988 conviction for robbery; (2) a
1992 conviction for aggravated assault; and (3) a 2006 conviction for armed
robbery. Jackson was on probation at the time of the murder for the 1992
aggravated assault conviction. The trial court ultimately based the aggravating
circumstance of prior violent felony only on the second two felony convictions
because there was no indication that the 1988 robbery, which was from Georgia,
actually involved violence.
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from Jackson. However, when he approached another individual, Jackson ran up,
pushed the individual out of the way, pulled his shirt up, and pulled out a gun.
Jackson presented the testimony of forensic psychologist Dr. Jerry Valente,
who met with Jackson twice to determine whether he was competent for trial. Dr.
Valente performed a standardized intelligence test on Jackson, and determined that
Jackson is of low-average intelligence. Specifically, Jackson’s IQ is within a 10-
point range of 84. His brain is fully developed and he completed the 12th grade.
Dr. Valente testified that Jackson displayed no evidence of psychosis, neurosis, or
hallucinations, and was cooperative, well-mannered, and respectful of authority.
Dr. Valente described Jackson’s psychological profile as flat and with nothing of
clinical significance.
Jackson also presented several people who testified with respect to his
positive attributes, including that he: (1) was good at sports; (2) worked well with
others; (3) coached and participated in softball; (4) was a role model and a leader;
(5) was caring, supportive, and kind; (6) was upbeat; (7) motivated and encouraged
others; (8) was dependable; (9) was helpful; (10) was humble; (11) was respectful;
(12) was religious and attended prayer meetings; (13) spoke well of and displayed
genuine concern for others; (14) regretted and was sorry for certain actions during
his life, and wished to be and do better; (15) was a hard worker, who did good
work, was prompt, and did not complain about long hours; (16) was protective;
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(17) was trusted around and good with children; and (18) would be a positive
influence in others’ lives.
Jackson’s father testified that he was in the Army when Jackson was a child
and was stationed at various locations both within and outside of the United States.
When the father was stationed in the United States, Jackson spent summers at the
army bases. When the father was stationed out of the country, Jackson lived with
his grandfather. The father described Jackson as a good child who had friends and
played sports. He attended Jackson’s games when he could, but often could not
because of his work. The father believed that Jackson would be a productive
person and would assist other prisoners if given a life sentence. He stated that he
has a good relationship with Jackson and would continue to be involved in
Jackson’s life.
Several other family members testified, including Jackson’s sister, half-
sister, daughter, stepson, and wife. Jackson’s sister and half-sister testified that he
was a good influence and played sports. Jackson’s sister testified he was
protective of her as a child and taught her sports. Jackson’s daughter and stepson
testified that Jackson encouraged them to make good choices in life. His stepson
testified that Jackson was a better influence and father figure than his biological
father. Both the stepson and Jackson’s wife described him as a good father and
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husband. Additionally, his family members stated that Jackson is positive and that
they intend to maintain a relationship with him during his incarceration.
In rebuttal, the State presented the testimony of a Georgia Department of
Corrections employee, who testified that Jackson received nine disciplinary reports
in 2007.
On April 26, 2013, the jury recommended a sentence of death by a vote of 8
to 4. The jury form required the jury to indicate whether Jackson played a
significant role in the homicide of Debra Pearce. The jury unanimously found
beyond a reasonable doubt that Jackson played a significant role in the homicide.
During the Spencer6 hearing, the State presented victim impact statements of
Pearce’s mother and sister. The defense presented the testimony of a mitigation
specialist, who testified that he spoke with Jackson’s best friend, who would have
been able to provide mitigation with respect to good deeds by Jackson.7 The friend
agreed to appear during the guilt phase, but then failed to respond to all attempts to
contact him. The mitigation specialist stated that the friend had told him Jackson
was in Adel in 2004 for Jackson’s birthday.
6. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
7. The State objected to the mitigation specialist’s testimony on the basis of
hearsay, and the testimony was admitted only to assist the trial court in assessing
the mitigating evidence already presented and to explain the steps taken by the
investigator to contact the friend.
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On October 1, 2013, the trial court sentenced Kim Jackson to death for the
murder of Debra Pearce. The trial court found the State had proven beyond a
reasonable doubt the existence of three aggravating circumstances: (1) Jackson had
previously been convicted of two felonies that involved the use or threat of
violence (great weight); (2) Jackson was under felony probation at the time of the
murder (great weight); and (3) the murder was especially heinous, atrocious, or
cruel (HAC) (great weight).
Jackson presented numerous nonstatutory mitigating circumstances. The
trial court found that sixty-six had been established, and grouped them into twelve
categories. Additionally, within the twelve categories, the trial court often
discussed several factors together in assigning them weight. The trial court found
that Jackson did not prove the mitigating circumstance that he is religious/faith
based and guided his daughter spiritually.
The first category of mitigation found by the trial court is that Jackson is a
good father and husband and shares the love of his family. The trial court found
twenty-four mitigating circumstances within this category: (1) Jackson is a good
father to his daughter (moderate weight); (2) Jackson encouraged his daughter to
study (some weight); (3) Jackson encouraged his daughter to go to college (some
weight); (4) Jackson encouraged his daughter to grow beyond Nashville, Georgia
(some weight); (5) Jackson is involved in his daughter’s life and taught her right
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from wrong (some weight); (6) Jackson’s daughter intends to maintain a
relationship with Jackson (some weight); (7) Jackson and his daughter love each
other (moderate weight); (8) Jackson assumed the role of stepfather and went
beyond his legal responsibilities (moderate weight); (9) Jackson was involved in
raising his stepson (moderate weight); (10) Jackson is a good father to his stepson
(moderate weight); (11) Jackson has been a good role model to his stepson (some
weight); (12) Jackson taught his stepson the value of hard work (some weight);
(13) Jackson taught his stepson to have a good work ethic (some weight); (14)
Jackson taught his stepson and they worked together for more than one year (some
weight); (15) Jackson encouraged his stepson to study (some weight); (16) Jackson
was a good athlete and instructed his stepson athletically (slight weight); (17)
Jackson provided emotional encouragement to his stepson8 (some weight); (18)
Jackson and his stepson love each other (moderate weight); (19) Jackson’s stepson
maintains a relationship with him and communicates with him through his mother
(slight weight); (20) Jackson’s stepson intends to continue a relationship with him
(slight weight); (21) Jackson is a good husband, friend, and companion (moderate
weight); (22) Jackson’s wife will continue to foster a relationship with and visit
8. This mitigating factor was presented with two parts: that Jackson
encouraged his stepson to join the military and that he provided emotional
encouragement. However, the trial court found that Jackson did not establish that
he encouraged his stepson to join the military.
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him while he is incarcerated (some weight); (23) Jackson was a good provider to
his stepson (some weight); and (24) Jackson was a good provider to his family
(some weight).
The second category is that Jackson is a good sibling and son, and he shares
the love of his relatives in Georgia. The trial court found eleven mitigating
circumstances within this category: (25) Jackson assumed the role of protector and
role model to his younger sister (slight weight); (26) Jackson was a good influence
on his sister (slight weight); (27) Jackson encouraged his sister through difficulties
as she grew up (slight weight); (28) there is mutual love and respect between
Jackson and his sister (slight weight); (29) Jackson’s sister will maintain a
relationship with him while he is incarcerated (slight weight); (30) Jackson is a
good son and has been good to his father as an adult (slight weight); (31) Jackson
is respectful and polite to his father (slight weight); (32) Jackson has a good
relationship with his father (slight weight); (33) Jackson’s father will continue to
foster their relationship while Jackson is incarcerated (slight weight); (34) Jackson
visited his father, family, and friends in Adel, Georgia (slight weight); and (35)
Jackson was active in his church9 (slight weight).
9. This mitigating factor was presented with two parts: that Jackson
supported his family to the best of his ability in a very poor town and was active in
his church. However, the trial court found that Jackson did not establish that he
provided support to his family.
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The third category is that Jackson experienced a difficult childhood and
upbringing, and the trial court found nine mitigating circumstances within this
category: (36) Jackson’s mother worked long hours to support the family and,
therefore, was not home as he grew up (slight weight); (37) Jackson’s mother
passed away (slight weight); (38) the passing of Jackson’s mother was hard on him
(slight weight); (39) Jackson’s father was in the U.S. Army and was overseas in
some underdeveloped, dangerous areas (slight weight); (40) Jackson’s father was
not home for long periods of time and could not be with his son (slight weight);
(41) Jackson did not have a strong male role model growing up (slight weight);
(42) Jackson did not have good adult guidance (slight weight); (43) Jackson was
raised by various relatives and lived in a dysfunctional family (slight weight); and
(44) Jackson was raised in poverty (slight weight).
The fourth category is that Jackson is a nice, generous, helpful person and
friend, and the trial court found six mitigating circumstances within this category:
(45) Jackson has a good reputation in Adel, Georgia as a nice and good person
(slight weight); (46) Jackson was not known by his friends to be violent (slight
weight); (47) Jackson was not a trouble-maker as a child or teenager (slight
weight); (48) Jackson was humble, generous, and helped others (some weight);
(49) Jackson was a good and trusted friend (slight weight); and (50) Jackson is
trustworthy and has a good heart (some weight).
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The fifth category is that Jackson is athletic, dependable, and helped children
learn sports. The trial court found five mitigating circumstances within this
category: (51) Jackson was a good athlete and coached softball for the area
children (slight weight); (52) Jackson volunteered his time to children and their
families, was a great mentor for youngsters, and taught them about patience (slight
weight); (53) Jackson was a nurturing and caring person with children, was very
dependable, and was trusted and reliable (slight weight); (54) Jackson was an
excellent athlete, dependable, and a good teammate (slight weight); and (55)
Jackson was proud of and a good representative of his softball team (slight
weight).
The sixth category is that Jackson is a polite, respectful person. The trial
court found three mitigating circumstances within this category: (56) Jackson was
a gentleman and respectful of women (slight weight); (57) Jackson was not rude to
friends or strangers (slight weight); and (58) Jackson was polite, respectful, and
had good manners (slight weight).
The seventh category is that Jackson is religious, and the trial court found
two mitigating circumstances within this category: (59) Jackson believes in and
gave himself to God (some weight); and (60) Jackson and his wife hosted church
functions at their home (some weight).
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The eighth category is that Jackson is a hard worker. The trial court found
two mitigating circumstances within this category: (61) Jackson is a productive and
hard worker (some weight); and (62) Jackson grasps artistic concepts easily,
perseveres through hard work, and is a good project worker (some weight).
The final categories each contain only one mitigating circumstance: (63)
Jackson had a positive outlook on life (slight weight); (64) Jackson’s friends and
associates will continue to foster a relationship with and visit him while he is
incarcerated, which the trial court found to be established as to Jackson’s family,
but not as to his friends (some weight); (65) Jackson has low-average intelligence
(slight weight); and (66) Jackson respects the judicial process and has been polite
and cooperative throughout these proceedings (some weight).
In its sentencing order, the trial court addressed the instruction it read to the
jury during the penalty phase with respect to whether Jackson played a significant
role in Pearce’s murder. The trial court recognized that the instruction approved
by this Court with respect to Enmund/Tison10 addresses the defendant’s state of
mind, which was not included in the instruction read in this case.11 However, the
10. Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458 U.S.
782 (1982).
11. The language of the instruction approved by this Court provides: “In
order for you to recommend a sentence of death in this case you must find [the
Defendant] was a major participant in the crime of robbery or burglary and that
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trial court noted that Enmund/Tison concern the proportionality of the death
penalty for the crime of felony murder where the defendant is only a minor
participant in the offense and does not have the requisite mental state that amounts
to a reckless indifference to human life. Because Jackson was convicted based on
a theory of premeditation—not felony murder—and the jury was never instructed
with respect to felony murder, the trial court concluded that Enmund/Tison do not
apply.
The trial court weighed the aggravating circumstances against the mitigating
circumstances, and noted that the mitigating evidence demonstrated that Jackson
had a good home and family life, many friends, did not lack for the necessities in
life, did not suffer any abuse or trauma as a child, and did not have any mental
health issues. The trial court stated that the image of Jackson as a good friend,
father, and husband starkly contrasted with his commission of a brutal and savage
murder, as well as the earlier armed robbery. The trial court concluded that the
aggravating factors far outweighed the mitigating circumstances and imposed a
sentence of death.
This direct appeal followed.
ANALYSIS
[the Defendant’s] state of mind at the time amounted to [reckless] indifference to
human life.” Perez v. State, 919 So. 2d 347, 366 (Fla. 2005).
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Sufficiency
Jackson’s conviction is based on the circumstantial evidence of the sink
fingerprint and the hair discovered on Pearce’s calf. When the evidence of guilt is
wholly circumstantial, it must be inconsistent with any other reasonable hypothesis
of innocence. See Twilegar v. State, 42 So. 3d 177, 188 (Fla. 2010). Evidence that
provides nothing more than a suspicion that the defendant was the perpetrator of
the crime is insufficient to sustain the conviction. See Ballard v. State, 923 So. 2d
475, 482 (Fla. 2006) (citing Davis v. State, 90 So. 2d 629, 631-32 (Fla. 1956)).
However, the State is not required to rebut all possible hypotheses that could be
inferred from the evidence. See Durousseau v. State, 55 So. 3d 543, 557 (Fla.
2010) (citing State v. Law, 559 So. 2d 187, 189 (Fla. 1989)). Instead, it is required
to present evidence that is inconsistent with the version of events given by the
defendant during trial. Id.; see also Smith v. State, 139 So. 3d 839, 845 (Fla.)
(“The relevant inquiry regarding whether the circumstantial evidence of guilt is
inconsistent with the defense’s theory of innocence is based on the evidence
presented and the theory argued to the jury at trial.”), cert. denied, 135 S. Ct. 711
(2014). When there is an inconsistency between the evidence presented by the
State and the theory of innocence presented by the defendant, the issue is one for
the jury and its determination will not be disturbed if supported by competent,
substantial evidence. Law, 559 So. 2d at 188.
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After the State rested, Jackson moved for a judgment of acquittal on the
basis that the circumstantial evidence presented by the State was insufficient to
sustain the conviction. Specifically, Jackson contended that the expert testimony
did not establish when the fingerprint and hair were left in Pearce’s home. The
trial court ruled the evidence, when viewed in the light most favorable to the State,
negated all reasonable hypotheses of innocence, and denied the motion.
On appeal, Jackson contends that the evidence is insufficient to exclude
every reasonable theory of innocence for the following reasons: (1) Jackson had an
alibi for the murder, i.e., he was in Georgia to celebrate his birthday; (2) the latent
fingerprint found on the sink was not of sufficient value for comparative purposes;
(3) the sink fingerprint could have been left prior to the murder; (4) the hair could
have been left at Pearce’s home on an earlier date and transferred onto the body
after the murder; and (5) there is insufficient evidence of premeditation.
Alternatively, Jackson asserts that even if he were present during the murder, there
is no evidence that he was an active participant in the murder.
The jury was presented with two mutually exclusive theories of what
occurred—either Jackson committed the murder, or he was in Adel when the
murder occurred. The State introduced competent, substantial evidence that
contradicted Jackson’s alibi, and, accordingly, the trial court properly denied
Jackson’s motion for judgment of acquittal. Because of this, it became the role of
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the jury to decide the factual issues presented in this case. The jury was free to
reject the alibi defense when presented with an alternate and inconsistent version
of events by the State. This is especially true because Jackson made inconsistent
statements with regard to his relationship with Pearce. See Carpenter v. State, 785
So. 2d 1182, 1195 (Fla. 2001); see also Finney v. State, 660 So. 2d 674, 680 (Fla.
1995). The challenges Jackson raises with respect to the identification and timing
of the sink fingerprint, the hair, and his participation in the murder are all issues
that were properly presented to and decided by the jury. Because the jury’s
determination is supported by competent, substantial evidence, it will not be
overturned by this Court. Perry v. State, 801 So. 2d 78, 84 (Fla. 2001).
Sink Fingerprint
The latent fingerprint relied on by the State was lifted from the lip of the
sink above where Pearce was discovered. Jackson asserts that the evidence was
insufficient to establish that the fingerprint belonged to him to the exclusion of all
reasonable inferences. However, the State presented the testimony of two
fingerprint experts whose qualifications were not questioned or contested during
trial. Those experts identified the fingerprint as a match to the right ring finger of
Jackson. Thus, the State presented evidence with respect to the identification of
the print that was sufficient to withstand a motion for judgment of acquittal and,
therefore, this was an issue of fact to be decided by the jury.
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With respect to the timing of the fingerprint, the crime scene
reconstructionist testified without objection that the sink fingerprint was left while
Jackson’s finger was coated in Pearce’s still-wet blood:
DEFENSE COUNSEL: Now, with regard to this print, there’s not a
way to determine—and I’m going to use a phrase—which came first,
in a sense, the print was there and the blood came after or the blood
was there and the print went through it. There’s not a way to
determine that, is there?
RECONSTRUCTIONIST: Well, there is with regard to [the]
fingerprint at the sink. That was transferred from a hand to the sink so
the blood is on the hand and then gets transferred to the sink.
The reconstructionist further testified that the sink fingerprint was a transfer
impression that was not left before the attack and could not have been there before
the blood.
Counsel alleged for the first time during oral arguments that the
reconstructionist was not qualified to state this opinion. Even if, as a crime scene
reconstructionist rather than a fingerprint expert, he was not qualified to testify that
the fingerprint was a blood transfer print, Pinellas County fingerprint expert
Schade also testified that fingerprints that are left in a wet substance are distinctive:
SCHADE: Now, I should point out that the [photograph of the sink
fingerprint] is a print that was left in a wet substance. Now, when I
told you before about touching a surface and leaving behind the
impression of your fingers, that’s assuming that the surface of those
ridges are coming in contact and that’s what’s left behind, is the
moisture that’s on the surface of the ridges. Even when you get dirt
and grease on your hands or paint, if you touch something, most times
you’ll leave an impression of the ridges. The furrows are not
- 24 -
touching. Only the ridges are. But what happens on a print when the
fingers or the palms are covered in a wet surface, heavy perspiration
or another foreign substance, when you touch, you’re actually
squeezing that substrate, you’re squeezing the matrix into the furrows,
and so the ridges are not the white part, they’re the black—I’m sorry.
I got that backwards. The ridges are not the black part that was
developed, they are the white part, because the substance was pushed
into the furrows.
I’m not sure if I’m making sense, but it’s a tonal reversal. It’s
very common when you’re dealing with prints left in a foreign
substance. . . .
PROSECUTOR: Would that be common on, let’s say, a bloody
fingerprint?
SCHADE: Yeah, blood is an example of a foreign substance. . . .
(Emphasis supplied.) This testimony supports the conclusion that Jackson’s finger
was coated in wet blood before he touched the sink.
Further, the testimony provided by Slebrch also alludes to this theory.
Slebrch testified:
SLEBRCH: What can happen if you get an excess amount of blood
or any substance on your hand and then touch a surface with a certain
amount of pressure, that will push any of the substance coating your
fingers and coating those friction ridges into the spaces in between the
ridges or the furrows and that will end up being behind the impression
of the furrows.
PROSECUTOR: And is that something you take into account when
looking at latent prints like this?
SLEBRCH: Yes.
Thus, Slebrch indicated that the sink print was left while Jackson’s finger was
coated in an excess amount of blood.
- 25 -
In contrast, no affirmative evidence was presented in the record that the
fingerprint could have been left at an earlier date and was then coated and
preserved by Pearce’s blood. The sole comment relied on by Jackson for this
proposition did not establish that such a scenario was even possible in this case.
During direct examination, the prosecutor asked Slebrch:
There’s been some discussion in this trial about the possibility that a
latent print was left behind on this object, on a sink, and that later
blood kind of preserved that print or captured it by going on top of it,
similar to the way black powder would be applied to a latent print to
preserve and capture that. Have you ever seen anything like that in
your training and experience?
Slebrch responded that she had not. During cross examination, defense counsel
elicited the following responses:
DEFENSE COUNSEL: Now, Ms. Slebrch, you—when [the
prosecutor] was asking you a moment ago if you had ever seen where
blood had been dropped and then a print had gone through it, you
stated that you had never seen that before, is that right?
SLEBRCH: That’s correct. I had never seen that.
DEFENSE COUNSEL: Does that mean that that could never happen?
SLEBRCH: No, it’s possible that that could occur.
(Emphasis supplied.) The emphasized portion of this testimony is not evidence
that Jackson’s theory of events is possible based on the evidence in this case.
Rather, this is simply a statement that such an event may, generally and in some
hypothetical set of circumstances, be possible. Such vague testimony that does not
- 26 -
relate to any actual evidence is not sufficient to prevent the case from being
decided by the jury.
Hair Evidence
The DNA expert testified that the hair found on the back of Pearce’s calf
provided a complete DNA profile of Jackson, and the presence of a complete DNA
profile demonstrated that the hair had been forcibly removed. She explained that
there are three stages of hair growth: (1) the first stage, in which hair has a fleshy
root with DNA cells and is growing and firmly attached to the head; (2) the second
stage, during which the root begins to die, the hair no longer actively grows, and
only a partial DNA profile may be present; and (3) the third stage, during which
hair is no longer attached to the root, may be naturally shed, and is unsuitable for
DNA testing. She also testified that normal handling, such as brushing or running
a hand through hair, would not be sufficient to forcibly remove hair in the first
stage of growth. However, once hair has been removed, it may be transferred from
one object to another, and there is no way to determine when the hair was
removed.
Jackson’s theory of innocence is that the hair was removed prior to the
murder, possibly while he moved a couch at Pearce’s house, and was transferred
onto Pearce by a cat or when she sat on the couch. However, the State presented
evidence that a struggle occurred between Pearce and her attacker—i.e., the
- 27 -
defensive wounds and Jackson’s forcibly removed hair. Also, the crime scene
reconstructionist testified that he found the hair on the back of Pearce’s calf, it was
not attached in any way to the calf, and that had Pearce stood up, the hair would
have fallen off. Because of this, it is not reasonably possible that the hair was
transferred onto Pearce’s leg prior to the attack. The theory that a cat deposited the
hair onto the body after the murder stretches the bounds of reason. Additionally,
as discussed below, the combination of the hair with the sink fingerprint provides
sufficient evidence to negate all reasonable hypotheses of innocence.
Circumstantial Evidence Cases
The presence of both the hair and the fingerprint distinguishes this case from
other circumstantial cases in which only one piece of evidence connected the
defendant to the murder scene. For example, in Jaramillo v. State, 417 So. 2d 257,
258 (Fla. 1982), the defendant’s fingerprints were lifted from a knife found on a
table in the victims’ house, a grocery bag found next to a chair, and the packaging
for a knife that was found near one of the victims. The victims had been shot to
death in their home. Id. at 257. The defendant testified that he knew the nephew
of one victim, who lived in the home, and that during a visit to the home a day
prior to the murders, he helped organize the garage. Id. at 258. He explained that
he needed a knife to cut boxes, and was told to use a knife that was in a bag on the
dining room table. Id. Notably, fingerprints that did not match the defendant were
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found in the house on the handcuffs that restrained one victim, the knife packaging,
and in the bedrooms and closets that had been ransacked. Id. This Court noted
that the evidence presented by the State did not establish when the defendant’s
fingerprints were left at the house and was not inconsistent with the defendant’s
theory that the fingerprints had been left prior to the murder. Id. at 257.
Accordingly, the Court held that the defendant’s fingerprints, which were the only
evidence offered by the State, did not provide sufficient circumstantial evidence to
support the convictions. Id.
Similarly, in Shores v. State, 756 So. 2d 114, 115 (Fla. 4th DCA 2000), the
Fourth District Court of Appeal reversed a burglary conviction where the only
evidence that implicated the defendant was the presence of his fingerprint on a box
of ammunition in a drawer that was ransacked. The district court noted that there
was no evidence with regard to when the fingerprint had been left on the box, and
when identity in a circumstantial case is established exclusively by fingerprint
evidence, there must be evidence that the print could have been left only at the
time the crime was committed. Id. (citing C.E. v. State, 665 So. 2d 1097, 1098
(Fla. 4th DCA 1996)). Moreover, the district court noted that when a fingerprint is
found on an item that was accessible to the public, the evidence is insufficient to
sustain a conviction. Id. at 116. The defendant in Shores alleged that his
fingerprint could have been on the ammunition box before the victim purchased it,
- 29 -
and there was no evidence that refuted this hypothesis. Id. The court determined
that this scenario was comparable to other Florida cases in which the evidence was
held to be insufficient, including one case in which the defendant’s fingerprints
were found on a candy bar wrapper purchased by the victim from the same store
where the defendant shopped, Leonard v. State, 731 So. 2d 712 (Fla. 2d DCA
1999), and another case in which the defendant’s fingerprints were found on a
gumball machine in a store, Mutcherson v. State, 696 So. 2d 420 (Fla. 2d DCA
1997).
Instead, this case is more comparable to Darling v. State, 808 So. 2d 145,
157 (Fla. 2002), in which the circumstantial evidence included not only a
fingerprint, but also DNA evidence in the form of semen. In Darling, the
defendant asserted that he had consensual sex with the victim, and she was then
killed by another person. Id. at 156. However, the evidence of sexual assault
combined with the lack of any evidence that the defendant had a relationship with
the victim was inconsistent with this theory. Id. Additionally, this Court rejected
the defendant’s contention that the presence of his fingerprint on a lotion bottle in
the victim’s bathroom was not compelling and insufficient to establish guilt
pursuant to Jaramillo and Shores. Id. at 157. The Court concluded that the
fingerprint combined with the evidence of rape and DNA evidence distinguished
- 30 -
the case from those in which fingerprint evidence, standing alone, was held to be
insufficient. Id.
Similarly, the evidence here includes the blood transfer fingerprint as well as
Jackson’s forcibly removed hair. The presence of both pieces of evidence that are
unique to Jackson distinguishes this case from circumstantial cases that are based
on a sole piece of evidence. Further, the evidence is inconsistent with the theory
that Jackson was in Adel at the time of the murder and supports the conclusion that
Jackson was inside Pearce’s home and struggled with her at the time of the murder.
Moreover, the cases relied on by Jackson are distinguishable. In Ballard,
over one hundred fingerprints were lifted from the crime scene, four of which were
from the bedframe near where one of the two victims was found. Ballard, 923 So.
2d at 479. One of the prints on the bedframe belonged to the defendant. Id.
Additionally, six hairs were found in the hand of one of the victims, three of which
belonged to the victim, two that were too short to provide sufficient information,
and one that belonged to the defendant. Id. at 479-80. This hair was in the third
phase of growth, and there was no cellular tissue on it, so the expert could not
determine whether the hair was forcibly removed or naturally shed. Id. at 480.
Additionally, five unidentified forcibly removed hairs were also discovered in the
house, and hundreds of hairs in total were recovered. Id.
- 31 -
Other evidence suggested that the defendant may not have been the killer. A
week prior to the murders, a person affiliated with a street gang shot at the house,
and the State presented no evidence that definitively ruled out the gang members as
the perpetrators. Id. at 485. One victim was known to sell marijuana and hide cash
within the home. Id. at 477. Additionally, the vehicle that belonged to one victim
was found in the woods approximately one mile from the defendant’s residence
with blood and fingerprints in it, but neither the blood nor the fingerprints
belonged to the defendant. Id. Finally, bloody fingerprints that did not match
those of the defendant were found on a barbell and a curl bar located in the room
where the second victim was found. Id. at 479. This Court held that the
circumstantial evidence in Ballard was not sufficient to support the conviction. Id.
at 483. The defendant had been a regular visitor at the home, and the Court
concluded that the hair and fingerprint evidence could have been left during one of
his many visits. Id. Accordingly, the evidence was not inconsistent with his
reasonable hypothesis of innocence. Id. at 485-86.
Jackson contends that this case is comparable to Ballard. Like in Ballard,
there was other hair and fingerprint evidence. A total of five hairs were found in
Pearce’s home, three of which were not suitable for DNA testing, one that matched
Pearce, and one that matched Jackson. A palm print was lifted from a doorjamb
inside the house that remained unidentified, but Jackson was excluded as a person
- 32 -
who could have left the print. Other latent prints were also found in the house.12
Additionally, items had been stolen from the home by three individuals who were
seen leaving from the back of the house before Pearce was discovered. Finally, the
DNA on the second knife, and the sock and footwear impressions, suggested that
more than one person could have been involved in the murder.
However, despite these similarities, significant distinctions render Ballard
inapplicable. For example, the hair found in this case had been forcibly removed,
whereas the hair in Ballard could have been naturally shed. Additionally, unlike in
Ballard, there were no hairs other than the defendant’s found on Pearce. With
respect to the print evidence, the sink fingerprint was left in wet blood, and placed
Jackson above or near the body during the murder. In Ballard, there was no
evidence as to when the defendant’s fingerprint was left on the bed. 923 So. 2d at
484. Moreover, in Ballard many fingerprints remained unidentified. Id. at 479.
Here, the only print that remained unidentified was the palm print left on a
doorjamb.
With respect to the evidence of other crimes (here, the stolen property; in
Ballard, the drive-by shooting), there is no evidence that any violent crimes had
been directed towards Pearce around the time of the murder. Further, the lead
12. There is no testimony with respect to how many prints were lifted from
the home. However, Royal testified that she received twelve latent lift cards.
- 33 -
detective testified that he identified the individuals who entered the home, and he
spoke with two of them, who admitted that they took a television. However, no
forensic evidence linked these individuals to the house.
This Court’s opinion in Cox v. State, 555 So. 2d 352 (Fla. 1989), also relied
on by Jackson, is equally inapplicable. In Cox, the evidence against the defendant
included that: (1) O-type blood, the same type as the defendant’s, was found in the
car of the victim; (2) the tongue of the defendant had been bitten off and appeared
to have been bitten by a person other than the defendant; (3) a hair that was
consistent with that of the defendant was found in the vehicle of the victim; and (4)
a print that appeared to be made by a military-type boot was found in the victim’s
vehicle, and the defendant was in the military at the time of the crime, but no
comparison was performed on the print found in the vehicle and the defendant’s
boots. Id. at 353. This Court held the circumstantial evidence to be insufficient.
Id. However, the evidence here is more compelling. The hair found on Pearce was
tested for DNA and matched Jackson, thus placing him in Pearce’s house. The
blood transfer print demonstrates that he was in the house during the murder. In
contrast, nothing in Cox conclusively linked the defendant to the victim. Id.
The third case relied on by Jackson, Lindsey v. State, 14 So. 3d 211 (Fla.
2009), is even less comparable. In Lindsey, the Court summarized the
circumstantial evidence as follows:
- 34 -
(1) a Crown Royal bag containing jewelry was taken during the
robbery of Big Dollar pawn shop; (2) [the defendant’s ex-wife] found
a Crown Royal bag containing jewelry in a closet of an apartment
where she sometimes stayed with [the defendant] and several other
individuals, including [another individual who had been convicted for
the second-degree murder of the victim and the robbery of the pawn
shop]; (2) [the defendant] eventually sold the jewelry from the bag in
the closet at a flea market; [and] (3) [the defendant told another
inmate] that [the inmate] should always kill witnesses to crimes and
that [the defendant] had to do that.
Id. at 215-16. In addition, a fingerprint that matched the defendant was found on a
pawn shop slip dated several weeks before the murder. Id. at 214. The Court held
this evidence insufficient to establish that the defendant was in the pawn shop at
the time of the murder. Id. at 216. As previously discussed, the evidence here
places Jackson in Pearce’s house during the murder.
Active Participant
Jackson alleges for the first time on appeal that the evidence is insufficient to
establish that he was an active participant in the murder. Jackson relies on the
evidence that more than one person may have been in the home to assert that he
may merely have been present during the killing. However, where a conviction is
based on circumstantial evidence, the State is not required to contradict every
possible version of events. See Smith, 139 So. 3d at 845. Rather, the State is
required to present evidence that contradicts the theory of innocence presented by
the defendant during trial. Id. Further, this claim is not preserved because it was
not asserted before the jury.
- 35 -
Moreover, even if this claim had been preserved, it is without merit. The
evidence presented during trial establishes that Jackson was at the sink above
where Pearce’s body was found with her wet blood on his hand. The forcibly
removed hair suggests that Pearce engaged in a struggle with Jackson prior to her
death. Moreover, the jury heard evidence that more than one person may have
been present, was given a principal instruction, and convicted Jackson of first-
degree murder. The jury was additionally given a special interrogatory during the
penalty phase that asked whether Jackson played a significant role in the homicide
of Pearce. Again, the jury found that he did. Thus, although the parties did not
assert before the jury that more than one person was present during the murder, the
jury found that Jackson was an active participant, and its decision is supported by
competent, substantial evidence.
Premeditation
Whether premeditation exists is a question of fact for the jury, as is whether
the State has presented evidence to exclude all reasonable hypotheses of
innocence. Premeditation is a fully formed and conscious purpose to kill, and can
be formed up to even only a moment before a killing occurs, but must exist for a
sufficient time to permit reflection as to the nature and probable result of the act.
Green v. State, 715 So. 2d 940, 943-44 (Fla. 1998) (citing Coolen v. State, 696 So.
2d 738, 741 (Fla. 1997)). When a victim is deliberately stabbed with a knife
- 36 -
several times in vital organs, as occurred here, the manner of death can provide
circumstantial evidence of premeditation. See Perry, 801 So. 2d at 85-86. The
wounds here are similar to those in cases where this Court determined
premeditation was established.
In Perry, the victim was stabbed four times in the chest and three times in
the neck, and also suffered a defensive wound to the thumb. Id. at 81. Four of
these wounds would have been fatal individually. Id. at 86. One stab wound
penetrated the chest bone of the victim, which required extensive force and
demonstrated the injury was carefully inflicted in a deliberate manner so as to
effectuate death. Id. Similarly, in Morrison v. State, 818 So. 2d 432, 452 (Fla.
2002), the victim suffered two major knife wounds to the neck, and the second
blow was sufficiently deep to nick the victim’s vertebrae. This Court concluded
that the use of a knife to stab the victim in this manner was sufficient evidence to
support the jury’s conclusion that the murder was premeditated. Id.
Here, the State presented as circumstantial evidence of premeditation the
multiple and violent stab wounds inflicted with a knife, many of which were to
Pearce’s head. Additionally, the stab wounds to the neck and chest were both fatal.
Because the knife was left in Pearce’s chest, it is likely that the neck wound was
inflicted first. Thus, even after Jackson had fatally wounded Pearce in the neck, he
stabbed her again in the chest and with such force that the five-inch knife
- 37 -
penetrated approximately eight inches into Pearce’s body and broke off a piece of
her scapula. Accordingly, the nature, number, and manner of these wounds
provides competent, substantial evidence to support the jury finding of
premeditated murder.
This case is distinguishable from Green, 715 So. 2d at 940; Coolen, 696 So.
2d at 738; and Kirkland v. State, 684 So. 2d 732 (Fla. 1996), relied on by Jackson.
In each case, the State relied exclusively on the nature and number of stab wounds
to establish premeditation, and this Court held the circumstantial evidence to be
insufficient. In both Green and Coolen, the evidence reasonably supported a
scenario in which the killings resulted from an escalated fight. 715 So. 2d at 944;
696 So. 2d at 742. Here, because Jackson relied exclusively on an alibi defense,
the only possible conclusions from the evidence presented during trial were that
Jackson was not present, or he committed a premeditated killing. With respect to
Kirkland, the nature and number of wounds is not comparable to those inflicted on
Pearce. Additionally, the Court in Kirkland noted that the defendant had an IQ in
the sixties. 684 So. 2d at 735.13 Jackson has an IQ within a ten-point range of
eighty-four. Accordingly, this case is closer to Perry and Morrison than to Green,
Coolen, or Kirkland.
13. Kirkland was decided prior to Atkins v. Virginia, 536 U.S. 304 (2002)
(holding unconstitutional the execution of individuals with intellectual disabilities).
- 38 -
Based on the foregoing, we deny Jackson’s claims with respect to the
sufficiency of the evidence.
Closing Statements
During trial, Schade testified with respect to changes in the testimony given
by fingerprint experts over the last ten to twenty years. For example, the
prosecutor asked Schade to explain how laboratories have changed over the years,
and Schade responded:
Well, we’ve always talked about the science of fingerprints,
however, we did not always adhere to some of the other principles of
science that are now coming to the forefront. Science is never
absolute, one hundred percent certain. Science always leaves the door
open for additional information, additional examination, and even
changing conclusions. Early on, and as recently as 15 years ago,
fingerprint people were trained you examine the evidence carefully,
you come to a conclusion and you stand by it, come hell or high
water. It was weakness to say, well, I’m reconsidering my opinion.
And that’s a big change for us. It’s still is very difficult sometimes to
think that, you know, we can no longer say we’re one hundred percent
certain, this is a one hundred percent match.
Those terms are no longer allowed in court and that’s really
holding to the [tenets] of science. It’s just the way it is. It’s a
preponderance of evidence, it’s a conclusion that, you know, it can be
possible or plausible conclusions but science never says one hundred
percent. That’s a big change for us to go from the days of it’s my
opinion, I’m a hundred percent and I will not be swayed to
reconsidering.
In addition, when the State cross-examined Royal, the following exchange
occurred:
PROSECUTOR: Okay. Now, would you agree with the concept that
if an identification is made, for example, when you come into court
- 39 -
and you say that matches that person, that that’s a hundred percent
accurate?
ROYAL: That is correct.
PROSECUTOR: Okay. Is there any doubt in your mind whatsoever
when you make those decisions?
ROYAL: No, the identification is made then I’m a hundred percent
certain that the unknown print was identified to a set of known prints.
PROSECUTOR: And that’s the way you’ve been taught to operate?
ROYAL: That is how I operate.
During closing statements, the prosecutor made the following remark:
Now, Michelle [Royal] is a good woman. I’ve put her on the
stand before in many cases to convict defendants of crimes. She’s just
wrong on this one. It happens. It was interesting, the reason I asked
her this question about the hundred percent and the reason why Bill
Schade spent all that time talking about the change is Michelle Royal
is old school. She was taught you walk into court, it’s a hundred
percent, no doubt, this is the way I am. She’s also taught that once a
lab makes a decision, that decision is final. She runs that lab, she
made the call that wasn’t a print of value and she’s going to stand by
that conclusion because that’s what she does in court. A hundred
percent.
Bill Schade told you that’s really not where the business—not
where the expertise is going. You saw a lot of that from the FBI.
Jacqueline Slebrch. She’s the new school. She’s been taught new.
That’s why they’re doing the whole blind verifications. That’s why
they’re doing those things. Regardless, he admits it’s his print.
No objection was made to this remark, and as such, we review it for fundamental
error. Braddy v. State, 111 So. 3d 810, 837 (Fla. 2012), cert. denied, 134 S. Ct.
275 (2013). An error is not fundamental unless it reaches down into the validity of
- 40 -
the trial itself to the extent that the guilty verdict could not have been obtained in
the absence of the error. Id.
To the extent that the prosecutor’s closing statement compared “old school”
and “new school” methodology, these remarks were related to testimony that was
presented to the jury. Where the jury is to decide a matter based on the testimony
of competing experts, it is the job of the attorney to highlight how the testimony of
the expert presented by the opposing party differs from that of his or her own
expert and explain why the opposing expert’s opinion is flawed. Counsel must
attempt to persuade the jury why it should credit one expert over another by
attacking the opposing expert’s credentials and distinguishing the methods and
procedures used by each expert.
However, it is impermissible to vouch for the credibility of a witness, see
Williamson v. State, 994 So. 2d 1000, 1013 (Fla. 2008), assert personal
knowledge, see Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010,
1028 (Fla. 2000), or comment on facts outside the evidence presented during trial,
see Bigham v. State, 995 So. 2d 207, 214 (Fla. 2008). To the extent that the
prosecutor vouched for or asserted personal belief as to the credibility of Royal,
asserted personal knowledge of how she operates, commented on matters outside
the evidence presented during trial, or bolstered the testimony of Slebrch, we
conclude that any error was not fundamental.
- 41 -
During trial, the State presented two qualified latent print experts who
identified the sink fingerprint. Slebrch testified that after she received her
bachelor’s degree in chemistry, she then completed an approximately eighteen-
month training program with the latent print unit at the FBI. This training included
written and oral exams, moot courts, oral boards, comparison and processing
exams, and a comprehensive qualifications exam. To maintain her qualifications,
she is required to complete an annual comparison test. She explained that the FBI
uses standard operating procedures to ensure the latent print analysts report
accurate results. One of these procedures is the use of blind verification in which
another qualified examiner who has no knowledge of the case or the conclusion of
the original examiner conducts an independent analysis, comparison, and
evaluation of the latent print. With respect to Schade, he worked as a latent print
expert for over forty years. He received training from both the Nassau County
Police Department in New York and the FBI Academy in Quantico. He is a
member of the International Association for Identification and has been certified
by that organization as a fingerprint examiner since 1978. Accordingly, two
qualified experts presented testimony in which they concluded that the sink
fingerprint belonged to Jackson, and there is no reasonable possibility that the
comment by the prosecutor about the fingerprint experts is such that the guilty
- 42 -
verdict could not have been reached without it. See Gonzalez v. State, 136 So. 3d
1125, 1140 (Fla.), cert. denied, 135 S. Ct. 193 (2014).
HAC
Jackson asserts that the HAC aggravating circumstance was impermissibly
vicariously applied to him. The trial court addressed in its sentencing order
whether HAC may be applied to Jackson in light of the request by the State that a
principal instruction be given. The trial court found the following:
In this case, the Court has no trouble finding that the Defendant
was “particularly physically involved” in the murder of Debra Pearce.
The Defendant testified that he wasn’t present when the crime
occurred. Clearly the jury rejected the Defendant’s claim of alibi
when it found him guilty of Premeditated First Degree Murder. With
the jury’s rejection of the Defendant’s alibi claims, and no testimony
from the Defendant, or anyone else, that specifically identified anyone
other than the Defendant who could have done the actual killing, the
overwhelming conclusion to reach is that the Defendant directly
caused the victim’s death.
However, even if there was an unknown assailant that did the
actual killing, the forensic evidence linking the Defendant to the crime
scene supports the determination that the Defendant was “particularly
physically involved” in killing Debra Pearce. The Defendant’s
fingerprint left in the victim’s blood next to the kitchen sink not only
identified the Defendant as a suspect, but also indicated that he was
present while the victim’s blood was still fresh and had not dried up.
The imprint was, therefore, made close to the time that the victim
struggled with her attacker. Also, a hair expert testified during the
guilt phase that the hair found on the victim’s calf matching the
Defendant’s DNA profile was a pulled hair containing the root, not
one that was cut or clipped with a sharp instrument. As such, this
evidence was consistent with a finding that the Defendant engaged in
some type of struggle with the victim, again, at or near the time of her
death.
- 43 -
Additionally, the jury unanimously found beyond a reasonable doubt via a penalty
phase special interrogatory that Jackson played a significant role in the homicide of
Pearce. Where an aggravating circumstance is supported by competent, substantial
evidence, it will not be overturned on appeal. See, e.g., Guardado v. State, 965 So.
2d 108, 115 (Fla. 2007).
As previously discussed, we conclude that the evidence is sufficient to
support the jury conviction for first-degree, premeditated murder to the exclusion
of all reasonable theories of innocence that were presented during trial. The
evidence presented during trial establishes that: (1) Jackson had the wet blood of
Pearce on his hand and touched the sink above where Pearce was found; (2) a hair
that had been forcibly removed from Jackson was found on Pearce such that it
would have fallen off had she stood up; (3) Pearce suffered defensive wounds; and
(4) Jackson lied and denied knowing Pearce or ever having been to her house until
confronted with the evidence against him. This evidence supports the jury
determination that Jackson struggled with Pearce and ultimately stabbed her to
death. Accordingly, the HAC aggravating circumstance was not applied
vicariously in this case, and this claim is without merit.
Moreover, this case is not comparable to Perez v. State, 919 So. 2d 347 (Fla.
2005), relied on by Jackson. In Perez, the evidence conclusively established that
two identified individuals were present during the murder. Id. at 356. The
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defendant admitted that he and two other individuals went to the victim’s house to
steal her car. Id. at 355. He also admitted that he witnessed his codefendant stab
the victim, and he then ran through the house behind the codefendant, who stole
various items. Id. at 356. However, the defendant consistently asserted that his
codefendant committed the murder of his own accord and without prior discussion.
Id. at 381. Because there was no evidence that the defendant directed the murder,
knew that the victim would be killed, or knew how the victim would be killed, this
Court struck the HAC aggravator as applied to him. Id. Notably, in Perez, this
Court expressed concern that the trial court did not address the line of cases that
requires a showing that the defendant directed or knew that the victim would be
killed and how the victim would be killed where HAC is applied vicariously. Id.
Here, the evidence was merely ambiguous as to whether more than one
person was present during the murder. Although a second knife was found under
Pearce with DNA on it that did not match either Jackson or Pearce, there is no
evidence that this knife was used during the attack. Further, in contrast to the
defendant in Perez, Jackson never asserted until this appeal that he was present and
simply not active in the murder. Accordingly, this case is not comparable to Perez.
Additionally, even though Jackson does not appear to dispute that HAC
applies to the murder, we note that competent, substantial evidence supports this
aggravating circumstance, which has been consistently upheld in cases where the
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victim was repeatedly stabbed. See, e.g., Francis v. State, 808 So. 2d 110, 134
(Fla. 2001). Here, Pearce suffered defensive wounds to her arms and several
lacerations or abrasions to her head and face. Her shirt had been twisted around
her body and displaced. The medical examiner testified that he could not be
certain whether Pearce was conscious throughout the attack but, because she bled
to death, it is possible. He additionally testified that she was not immediately
stabbed in a major organ, “so it would take sometime [sic], especially if the jugular
was the first one and then the scap—the chest one is later.” Thus, the evidence
indicates that Pearce, who was at home and in her kitchen, struggled against an
attacker armed with a knife during a vicious attack and attempted, unsuccessfully,
to ward off numerous blows aimed at her face, neck, and chest. Accordingly,
competent, substantial evidence supports this aggravating factor with regard to the
murder itself.
Proportionality
Jackson asserts that the death penalty cannot be imposed because it violates
the requirement of individualized punishment delineated by Enmund and Tison.
However, Enmund and Tison do not apply to this case, which was prosecuted
exclusively on the basis of premeditated first-degree murder. No felony murder
instruction was read to the jury. In Jackson v. State, 575 So. 2d 181, 190-91 (Fla.
1991), this Court explained the holdings of Enmund and Tison:
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In Enmund and Tison, the Court said that the death penalty is
disproportional punishment for the crime of felony murder where the
defendant was merely a minor participant in the crime and the state’s
evidence of mental state did not prove beyond a reasonable doubt that
the defendant actually killed, intended to kill, or attempted to kill.
Mere participation in a robbery that resulted in murder is not enough
culpability to warrant the death penalty, even if the defendant
anticipated that lethal force might be used . . . .
(Emphasis supplied.) Accordingly, the Enmund/Tison claim raised by Jackson is
without merit.
Jackson also asserts that the death sentence is disproportionate. In each case
that imposes the death penalty, the Court performs a comprehensive analysis to
determine whether the crime is among the most aggravated and least mitigated.
See Taylor v. State, 937 So. 2d 590, 601 (Fla. 2006). The Court considers the
totality of the circumstances and compares the case with other capital cases so as to
ensure uniform application of the death sentence. Id.
Here, the three aggravating factors of prior violent felony conviction (based
on two convictions), murder committed while on felony probation, and HAC were
each given great weight. These aggravating factors were weighed against sixty-six
mitigating circumstances, many of which were substantially similar and related to
Jackson’s positive attributes as a father, husband, friend, and worker. Of the sixty-
six mitigating circumstances, the trial court found that thirty-six warranted only
slight weight, twenty-three warranted some weight, and only seven warranted
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moderate weight. The trial court did not give any mitigating circumstance great
weight.
Proportionality is not a comparison of the number of circumstances, but
instead is a qualitative review of the totality of the circumstances and the
underlying basis that supports the application of each circumstance. See Simpson
v. State, 3 So. 3d 1135, 1148 (Fla. 2009). This Court has previously held the death
sentence to be proportionate despite the finding of a large number of mitigating
circumstances. See Abdool v. State, 53 So. 3d 208, 215, 228 (Fla. 2010) (holding
death sentence proportionate where cold, calculated, and premeditated and HAC
were weighed against four statutory mitigating factors and forty-eight nonstatutory
mitigating factors); see also Willacy v. State, 696 So. 2d 693, 695 n.2, 696 (Fla.
1997) (holding death sentence proportionate where five aggravating circumstances
were weighed against thirty-one nonstatutory mitigating factors, most of which
were cumulative and general in nature). Here, although the trial court found a
large number of mitigating factors, they are repetitive and involve positive aspects
of Jackson’s life, whereas the three aggravating factors demonstrate an individual
who repeatedly commits violent criminal acts. Accordingly, we conclude that the
underlying bases for the aggravating circumstances in this case are weightier than
those that support the mitigating circumstances.
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Moreover, prior violent felony and HAC are among the weightiest
aggravating circumstances. See Gonzalez, 136 So. 3d at 1167. Jackson does not
challenge the weight applied to the aggravating factors, but to support his assertion
that the death penalty is disproportionate, he contends that the prior violent felony
and felony probation factors are relatively weak. Jackson asserts that because one
felony conviction was used to support both the prior violent felony and felony
probation aggravating circumstances, neither is compelling. However, the trial
court considered two convictions when it weighed the prior violent felony
aggravating circumstance. One conviction was for an armed robbery that occurred
only months after the murder of Pearce. Additionally, although no shots were fired
during either felony, the trial court specifically noted that:
the videotape of the . . . robbery shows an individual who, with all
deliberate intent and absolutely no hesitation, walked into the lobby of
a hotel, immediately pointed a handgun at an innocent victim, and
demanded money. [The victim of the aggravated assault], likewise,
provided the description of an individual involved in a narcotics
transaction that was willing to brandish a handgun despite the risks
presented by such an act.
The court further concluded that the felony probation aggravating circumstance
warranted enhanced weight because Jackson was on probation for a violent crime
when he committed the murder.
The Court has held the death penalty to be proportionate in cases that
involve similar aggravating and mitigating circumstances to those here. In Duest
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v. State, 855 So. 2d 33, 45, 47 (Fla. 2003), the death sentence was affirmed where
the victim was stabbed twelve times, and three aggravating circumstances—prior
violent felony (on the basis of two convictions), murder committed during a
robbery or for pecuniary gain, and HAC—were weighed against twelve non-
statutory mitigating circumstances. Of the mitigating circumstances, two
warranted great weight—that the defendant had a physically and emotionally
abusive childhood, and that he experienced childhood traumatization and
deprivation of love. Id. at 38 n.3. Similarly, in Singleton v. State, 783 So. 2d 970,
972-73, 979-80 (Fla. 2001), this Court held the death sentence to be proportionate
where the victim had been stabbed seven times and the two aggravating
circumstances of prior violent felony and HAC were weighed against three
statutory mitigating circumstances (the defendant suffered from an extreme mental
or emotional disturbance at the time of the murder, the defendant’s capacity to
appreciate the criminality of his conduct or conform his conduct to the
requirements of the law was substantially impaired, and the defendant was sixty-
nine at the time of the murder), and nine nonstatutory mitigating circumstances.
The cases relied on by Jackson are not comparable. In Larkins v. State, 739
So. 2d 90, 92 (Fla. 1999), the aggravating factors of prior violent felony and
pecuniary gain were weighed against two statutory mitigating factors and eleven
nonstatutory mitigating factors. The Court noted that the most serious aggravator
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(prior violent felony) was based on two convictions that occurred almost twenty
years before the murder, and the defendant had led a comparatively crime-free life
in the interim. Id. at 95. The Court specifically noted that HAC was not present in
that case. Id. With respect to mitigation, the defendant in Larkins presented
evidence of an extensive history of mental and emotional problems and brain
damage. Id. at 94.
In contrast, HAC was found in this case. Additionally, Jackson had no
mental health or emotional mitigation, and the forensic psychologist testified that
there was nothing clinically significant in Jackson’s psychological profile. Further,
Jackson did not lead a relatively crime-free life and had violent felony convictions
for acts both before and after the murder. When the trial court weighed the
aggravating and mitigating circumstances, it specifically noted: “From the
evidence, the Defendant has consistently led an entirely separate life from the one
known to his family and friends that involved a repeated willingness to resort to
violent criminal acts to further his intentions.”
In Johnson v. State, 720 So. 2d 232, 235 (Fla. 1998), the aggravating
circumstances of prior violent felony (based on four convictions) and murder
committed during a burglary merged with pecuniary gain were weighed against the
statutory mitigating circumstance of young age and six nonstatutory mitigating
circumstances. This Court noted that although the prior violent felony aggravating
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circumstance was properly found, it was not strong when considered in light of the
facts of the case because it was based in part on the aggravated assault committed
by the defendant on his brother, who testified that he was not injured, and the
incident was a misunderstanding. Id. at 238. Two of the other felonies were based
on contemporaneous convictions as a principal to crimes simultaneously
committed by a codefendant. Id. For these reasons, the Court vacated the death
sentence. Id. In contrast, neither of the felonies that formed the basis for the prior
violent felony aggravating circumstance here was committed during the murder.
Additionally, the weighty circumstance of HAC was found.
The other cases relied on by Jackson are equally uncompelling. See
Robertson v. State, 699 So. 2d 1343, 1347 (Fla. 1997) (death penalty vacated
where the murder was “an unplanned, senseless murder committed by a nineteen-
year-old, with a long history of mental illness, who was under the influence of
alcohol and drugs at the time”); Terry v. State, 668 So. 2d 954, 965 (Fla. 1996)
(holding death sentence disproportionate where the murder was the result of a
robbery gone bad, and the aggravating circumstances of prior violent felony and
murder committed during the course of an armed robbery/pecuniary gain were not
compelling given the underlying facts); Wilson v. State, 493 So. 2d 1019, 1023
(Fla. 1986) (holding death sentence disproportionate where “the murder . . . was
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the result of a heated, domestic confrontation and the killing, although
premeditated, was most likely upon reflection of a short duration”).
Accordingly, we hold the death sentence to be proportionate in this case.
Ring
Jackson asks that we revisit prior decisions that hold that Florida’s death
penalty statute does not violate the Sixth Amendment under the principles
announced in Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey,
530 U.S. 466 (2000). We decline to revisit the numerous decisions that hold that
Florida’s capital sentencing scheme does not violate the United States Constitution
under Ring or Apprendi. See, e.g., Abdool, 53 So. 3d at 228 (“This Court has also
rejected [the] argument that this Court should revisit its opinions in Bottoson v.
Moore, 833 So. 2d 693 (Fla. 2002), and King v. Moore, 831 So. 2d 143 (Fla.
2002).”); see also Duest, 855 So. 2d at 49. Moreover, this Court has repeatedly
held that Ring does not apply where the trial court found the aggravating factors of
prior violent felony and felony probation, both of which are present in this case.
See, e.g., Hampton v. State, 103 So. 3d 98, 116 (Fla. 2012); Hodges v. State, 55
So. 3d 515, 540 (Fla. 2010).
CONCLUSION
Based on the foregoing, we affirm Jackson’s conviction and sentence of
death.
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It is so ordered.
LABARGA, C.J., and LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ.,
concur.
PARIENTE, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County,
James Hunt Daniel, Judge - Case No. 162008CF010726AXXXMA
Nancy Ann Daniels, Public Defender, and Nada Margaret Carey, Assistant Public
Defender, Second Judicial Circuit, Bartow, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Patrick M. Delaney, Assistant Attorney
General, Tallahassee, Florida,
for Appellee
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