Timothy Lee Hurst v. State of Florida

Supreme Court of Florida
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No. SC12-1947
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TIMOTHY LEE HURST,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[May 1, 2014]
PER CURIAM.
Timothy Lee Hurst appeals his sentence of death that was imposed for the
1998 first-degree murder of Cynthia Harrison. We have jurisdiction. See art. V,
§ 3(b)(1), Fla. Const. For the reasons set forth below, we affirm his sentence.
FACTS AND PROCEDURAL HISTORY
Hurst was convicted for the May 2, 1998, first-degree murder of Cynthia
Harrison in a robbery at the Popeye’s restaurant where Hurst was employed in
Escambia County, Florida. The victim, also an employee, had been bound and
gagged and repeatedly cut and stabbed with a weapon consistent with a box cutter
found at the scene. Hurst’s conviction and death sentence were originally affirmed
in Hurst v. State, 819 So. 2d 689 (Fla. 2002). In that decision, we set forth the
facts surrounding the murder as follows:
On the morning of May 2, 1998, a murder and robbery occurred at a
Popeye’s Fried Chicken restaurant in Escambia County, Florida,
where Hurst was employed. Hurst and the victim, assistant manager
Cynthia Lee Harrison, were scheduled to work at 8 a.m. on the day of
the murder. A worker at a nearby restaurant, Carl Hess, testified that
he saw Harrison arriving at work between 7 a.m. and 8:30 a.m.
Afterwards, Hess said that he saw a man, who was about six feet tall
and weighed between 280 and 300 pounds, arrive at Popeye’s and
bang on the glass windows until he was let inside. The man was
dressed in a Popeye’s uniform and Hess recognized him as someone
he had seen working at Popeye’s. Shortly after the crime, Hess picked
Hurst from a photographic lineup as the man he had seen banging on
the windows. Hess was also able to identify Hurst at trial.
On the morning of the murder, a Popeye’s delivery truck was
making the rounds at Popeye’s restaurants in the area. Janet Pugh,
who worked at another Popeye’s, testified she telephoned Harrison at
7:55 a.m. to tell her that the delivery truck had just left and Harrison
should expect the truck soon. Pugh spoke to the victim for four to
five minutes and did not detect that there was anything wrong or hear
anyone in the background. Pugh was certain of the time because she
looked at the clock while on the phone.
Popeye’s was scheduled to open at 10:30 a.m. but Harrison and
Hurst were the only employees scheduled to work at 8 a.m. However,
at some point before opening, two other Popeye’s employees arrived,
in addition to the driver of the supply truck. None of them saw Hurst
or his car. At 10:30 a.m., another Popeye’s assistant manager, Tonya
Crenshaw, arrived and found the two Popeye’s employees and the
truck driver waiting outside the locked restaurant.
When Crenshaw unlocked the door, and she and the delivery
driver entered, they discovered that the safe was unlocked and open,
and the previous day’s receipts, as well as $375 in small bills and
change, were missing. The driver discovered the victim’s dead body
inside the freezer. The victim had her hands bound behind her back
with black electrical tape and she also had tape over her mouth.
Similar tape was later found in the trunk of Hurst’s car. The scene
was covered with a significant amount of the victim’s blood, and it
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was apparent from water on the floor that someone had attempted to
clean up the area.
The victim suffered a minimum of sixty incised slash and stab
wounds, including severe wounds to the face, neck, back, torso, and
arms. The victim also had blood stains on the knees of her pants,
indicating that she had been kneeling in her blood. A forensic
pathologist, Dr. Michael Berkland, testified that some of the wounds
cut through the tissue into the underlying bone, and while several
wounds had the potential to be fatal, the victim probably would not
have survived more than fifteen minutes after the wounds were
inflicted. Dr. Berkland also testified that the victim’s wounds were
consistent with the use of a box cutter. A box cutter was found on a
baker’s rack close to the victim’s body. Later testing showed that the
box cutter had the victim’s blood on it. It was not the type of box
cutter that was used at Popeye’s, but was similar to a box cutter that
Hurst had been seen with several days before the crime.
Hurst’s friend, Michael Williams, testified that Hurst admitted
to him that he had killed Harrison. Hurst told him that he had an
argument with the victim, she “retaliated,” and that Hurst hit the
victim and cut her with a box cutter. Hurst said he had killed the
victim because, “he didn’t want the woman to see his face.” Williams
stated that Hurst had talked about robbing Popeye’s on previous
occasions.
Another of Hurst’s friends, “Lee-Lee” Smith, testified that the
night before the murder, Hurst said he was going to rob Popeye’s. On
the morning of the murder, Hurst came to Smith’s house with a plastic
container full of money from the Popeye’s safe. Hurst instructed
Smith to keep the money for him. Hurst said he had killed the victim
and put her in the freezer. Smith washed Hurst’s pants, which had
blood on them, and threw away Hurst’s socks and shoes. Later that
morning, Smith and Hurst went to Wal-Mart to purchase a new pair of
shoes. They also went to a pawn shop where Hurst saw some rings he
liked, and after returning to Smith’s house for the stolen money, Hurst
returned to the shop and purchased the three rings for $300. An
employee at the shop, Bob Little, testified that on the day of the
murder, a man fitting Hurst’s description purchased three rings. Little
picked Hurst out of a photographic lineup as the man who had
purchased the rings. The police recovered the three rings from Hurst.
Smith’s parents were out of town the weekend of the murder
but upon their return, and after discovering the container with the
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money from Popeye’s in Smith’s room, Smith’s mother contacted the
police and turned the container over to them. The police interviewed
Smith and searched a garbage can in Smith’s yard where they found a
coin purse that contained the victim’s driver’s license and other
property, a bank bag marked with “Popeye’s” and the victim’s name,
a bank deposit slip, a sock with blood stains on it, and a sheet of
notebook paper marked “Lee Smith, language lab.” On the back of
the notebook paper someone had added several numbers, and one
number was the same as the amount on the deposit slip. Smith’s
father also gave the police a pair of size fourteen shoes that appeared
to have blood stains on them and that he had retrieved from the same
trash can.
Jack Remus, a Florida Department of Law Enforcement
(FDLE) crime lab analyst, testified that the shoes were tested with
phenolpthalein to detect blood, and while the test results exhibited
some of the chemical indications associated with blood, attempts at
DNA testing were not successful. Remus also tested the blood-
stained sock and determined that the DNA typing was consistent with
the victim. Hurst’s pants were also tested, but no blood evidence was
detected. FDLE fingerprint expert Paul Norkus testified that the
deposit slip in the garbage can had three of Hurst’s fingerprints on it.
At trial, the State played the tape of an interview the police had
conducted with Hurst shortly after the murder. Hurst said that on the
morning of the murder he was on his way to work and his car broke
down. He said that he telephoned Harrison at Popeye’s to say he was
unable to come to work, and when he talked to her, she sounded
scared and he heard whispering in the background. Hurst then went to
Smith’s house and changed out of his work clothes. Hurst said he
went to the pawn shop and bought necklaces for friends, but he did
not mention purchasing the three rings or buying a new pair of shoes
at Wal-Mart.
At the close of the guilt phase of the trial, the jury deliberated
for approximately six hours before finding Hurst guilty of first-degree
murder.
Hurst, 819 So. 2d at 692-94 (footnotes omitted).
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Hurst filed his initial, amended postconviction proceeding in circuit court.1
On appeal from denial of postconviction relief, we affirmed on all but one of his
1. The claims raised in the initial postconviction motion were: (1) the State
withheld material and exculpatory evidence and/or presented misleading and false
testimony, i.e., false testimony of inmate witness Anthony Williams that defendant
confessed, in exchange for promises of leniency for Williams; suppression of
testimony of David Kladitis that three or four black males were in the Popeye’s
parking lot at 7:00 a.m.; false testimony and argument about defendant failing to
mention his trip to Wal-Mart; withholding the fact that the State planned to indict
witness Lee (“Lee-Lee”) Smith; and cumulative effect of these errors; (2) newly
discovered evidence concerning Anthony Williams that his testimony of Hurst’s
confession was fabricated, newly discovered evidence that jail witness Willie
Griffin (Anthony’s cousin) testified falsely against defendant, and newly
discovered evidence from inmate Edison Sartes that Griffin’s testimony was false;
new information that primary witness Lee-Lee Smith was going to be and was
charged in the case, when at the time of trial he had not been charged; false
testimony of witness Carl Hess, who identified defendant based on a false claim of
a prior job interview of defendant; and inappropriate conversation at trial between
Hess and Kladitis; (3) defense counsel was ineffective in that he failed to
adequately investigate and/or present exculpatory and impeachment evidence of
potential witness Andrew Salter who was at the crime scene and who would have
said he did not see defendant or his car there; failing to secure the testimony of
inmate Brett Pleasant regarding his conversations with witness Anthony Williams;
failing to object to inadmissible testimony and evidence of defendant’s lack of
remorse; failing to move for mistrial after an emotional display by the victim’s
family; failing to object or move for mistrial concerning evidence of physical
abnormality of the victim given to create sympathy; and cumulative effect of these
errors; (4) counsel failed to adequately investigate and present mitigation in the
penalty phase about defendant’s childhood, lack of parental support, poverty,
physical and mental abuse, drug and alcohol abuse; and counsel’s failure to seek a
psychiatric evaluation and to present mental mitigation including evidence of
neurological and mental deficits and brain damage; (5) defendant may not be
executed because he is mentally retarded under Atkins v. Virginia, 536 U.S. 304(2002); (6) Florida’s capital sentencing statute violates the Eighth and Fourteenth
Amendments to the United States Constitution and Ring v. Arizona, 536 U.S. 584(2002); (7) cumulative error unconstitutionally deprived defendant of a fair trial,
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postconviction claims. See Hurst v. State, 18 So. 3d 975 (Fla. 2009). Although we
concluded that the State should have disclosed certain field notes by investigator
Donald Nesmith, and that the trial court’s refusal to perpetuate the testimony of
Willie Griffin was an abuse of discretion, we concluded no prejudice accrued from
those errors. Id. at 1015. However, we reversed the denial of relief on Hurst’s
claim of ineffective assistance of counsel in investigation and presentation of
mitigation in the penalty phase, and remanded for a new penalty phase proceeding.
Id. at 1008. In granting a new penalty phase, we explained that there was no sound
basis for Hurst’s defense counsel to have failed to investigate and present evidence
of Hurst’s borderline intelligence, possible organic brain damage, the fact that he
was in special education classes as a child, and other mitigation for which there
appeared to be no apparent disadvantage in presentation. See id. at 1013-15.
Prior to the new sentencing trial, the trial court denied Hurst’s successive
motion for an evidentiary hearing on mental retardation. 2 In addition, the court
requiring a new trial. Not all the claims raised in the postconviction motions were
appealed.
2. The 2013 Legislature amended all Florida statutes that refer to “mental
retardation,” “retardation,” and “mentally retarded” to now refer to “intellectual
disability” or “intellectually disabled.” See ch. 2013-162, Laws of Fla.; see, e.g.,
section 921.137, Florida Statutes (2013), titled “Imposition of the death sentence
upon an intellectually disabled defendant prohibited.” Because the prior statute
was in effect when Hurst raised the issue in the trial court, we continue to use the
terms “mental retardation” and “mentally retarded” in this opinion.
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denied Hurst’s request to present mental retardation to the penalty phase jury as an
absolute bar to recommendation of a death sentence, although the court allowed
him to present mental retardation and other mental issues as mitigation to the jury.
After the new penalty phase evidence was presented, in which the State presented
an abbreviated version of the trial testimony as to the circumstances of the murder,
and after the defense presented testimony concerning mitigation, the jury returned
a recommendation of death by a seven-to-five vote.
Before sentencing, the trial court held a Spencer 3 hearing at which defense
counsel presented further argument that the evidence at the penalty phase
established that Hurst was mentally retarded. The trial court subsequently entered
a sentencing order sentencing Hurst to death. In doing so, the court found as
aggravating factors that (1) the murder was especially heinous, atrocious or cruel,
see § 921.141(5)(h), Fla. Stat. (2012), which was assigned great weight; and (2) the
murder was committed while Hurst was engaged in commission of a robbery, see
§ 921.141(5)(d), Fla. Stat. (2012), which was assigned great weight. In mitigation,
the trial court found the following two statutory mitigators: (1) no significant
history of prior criminal activity, see § 921.141(6)(a), Fla. Stat. (2012), which was
assigned moderate weight; and (2) Hurst’s age of 19 and his young mental age, see
§ 921.141(6)(g), Fla. Stat. (2012), which was assigned moderate weight. The trial
3. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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court found as additional mitigation under section 921.141(6)(h), Florida Statutes
(2012), that Hurst had significant mental issues—limited mental and intellectual
capacity with widespread abnormalities in his brain affecting impulse control and
judgment consistent with fetal alcohol syndrome, which was assigned moderate
weight—although the court expressly found that Hurst is not mentally retarded.
The trial court rejected as unproven proffered mitigating factors that the defendant
was under the influence of mental or emotional disturbance; the defendant was an
accomplice with relatively minor participation; the defendant acted under extreme
duress or substantial domination of another; or the defendant lacked the capacity to
appreciate the criminality of his conduct or conform his conduct to the
requirements of law. See §§ 921.141(6)(b), (d), (e), & (f), Fla. Stat. (2012).
Hurst took a timely appeal from the sentence of death raising the following
issues: (1) whether the trial court erred in refusing to give him a separate
evidentiary hearing on his successive mental retardation claim, in refusing to allow
the jury to determine mental retardation as a bar to execution, and in finding after
trial that he is not mentally retarded and exempt from execution; (2) whether this
Court should recede from precedent holding that the jury need not expressly find
specific aggravators or issue a unanimous advisory verdict on the sentence; and
(3) whether his death sentence is proportionate. We turn to Hurst’s first issue on
appeal.
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ANALYSIS
A. Mental Retardation Issues
The United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304(2002), that the Eighth Amendment to the United States Constitution forbids
execution of mentally retarded defendants. However, the Supreme Court left it to
the states to determine the manner in which this constitutional restriction on
execution of its sentences will be enforced. Id. at 317. Florida law sets forth a
three-pronged test to determine mental retardation as a bar to the death penalty. In
order to prove mental retardation as a bar to execution, the defendant must prove
all three of the following factors: (1) significantly subaverage general intellectual
functioning, which has been interpreted to be a full scale IQ of 70 or below on a
standardized intelligence test; (2) concurrent deficits in adaptive behavior; and (3)
manifestation of the condition before age eighteen. See, e.g., Nixon v. State, 2 So.
3d 137, 142 (Fla. 2009); § 921.137(1), Fla. Stat. (2012). The burden is on the
defendant raising a claim of mental retardation as a bar to execution to prove
mental retardation by clear and convincing evidence. See Nixon, 2 So. 3d at 145;
§ 921.137(4), Fla. Stat. (2012).
Hurst contends that the trial court erred in denying a successive mental
retardation hearing pursuant to Florida Rule of Criminal Procedure 3.203. He
contends that he is mentally retarded and exempt from execution based on a recent
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Wechsler Adult Intelligence Scale, Fourth Edition (WAIS-IV) test that indicated
his full scale IQ is 69, and based on expert testimony that he suffered from
adaptive deficits—all before age eighteen—such that he met the statutory
requirements for mental retardation. Hurst was previously provided a full
evidentiary hearing on the question of mental retardation in his initial
postconviction proceeding. At that evidentiary hearing, Hurst presented the expert
testimony of Dr. Valerie McClain, a licensed clinical psychologist, who
administered a number of tests to Hurst, including the Wechsler Abbreviated Scale
of Intelligence (WASI). That test placed Hurst in the borderline range with a full
scale IQ score of 70. As to deficits in adaptive functioning, Dr. McClain testified
that in her opinion Hurst did not meet the adaptive functioning deficit threshold for
mental retardation, and she did not determine that Hurst is mentally retarded. At
that same evidentiary hearing, the State presented clinical psychologist Dr. James
D. Larsen. After testing Hurst with the WAIS-III test, Dr. Larsen concluded that
Hurst’s full scale IQ was 78. Dr. Larsen also found no deficits in adaptive
functioning necessary for a diagnosis of mental retardation. The circuit court in
that initial postconviction proceeding denied the mental retardation claim, relying
primarily on the testimony of Dr. McClain and Dr. Larsen that Hurst’s adaptive
behavior was not substantially impaired; however, no appeal was taken of that
ruling when it was denied in 2007. See Hurst, 18 So. 3d at 1008 n.9.
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In this case, Hurst contends that the trial court should have held a second
Atkins mental retardation hearing prior to the new sentencing trial. The trial court
denied the request for a pretrial evidentiary hearing on several grounds, one of
which was that the motion was untimely under the requirements of rule 3.203. We
conclude that denial of the request for a second Atkins hearing was not an abuse of
discretion under the circumstances present in this case. See, e.g., Arbelaez v.
State, 898 So. 2d 25, 42-43 (Fla. 2005) (reviewing a trial court’s decision not to
allow supplemental Ring and Atkins claims on remand under an abuse of
discretion standard). Moreover, any error in denying the pretrial evidentiary
hearing on mental retardation was harmless because Hurst was allowed to present
all his mental retardation evidence at the penalty phase, after which the trial court
ruled that he failed to establish that he is mentally retarded. The background and
mental mitigation evidence presented by Hurst at the penalty phase is discussed
next.
Hurt’s sister, Sequester “Tina” Hurst; brother, Jermaine Bradley; mother,
Bertha Bradley; father, Timothy Bradley; Bible study teacher, Isaac Sheppard;
administrator at Hurst’s high school, Calvin Harris; and former United States
Army Major and principal of East Charter School, Jerome Chism, all testified
concerning Hurst’s family and background. Hurst’s mother was age fifteen when
Hurst was born and, during pregnancy, she drank all day, every day. As a child,
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Hurst stuttered and developed very slowly. As a toddler, he was slow to learn to
walk. He was disciplined harshly when he was growing up and was punished more
than the other children because he could not do things correctly.
Hurst was a fun-loving child and teenager with a good personality. He liked
to play jokes and was mild tempered, but was slow mentally and did very poorly in
school. In Bible study classes as a child, Hurst was unable to progress out of the
most basic children’s Bible study book and could not look up the Bible verses that
went with the stories. He was embarrassed because he had difficulty reading.
Hurst should have been in special education classes because he was low
functioning and could not understand what was going on in class; and for that
reason, he would skip class and play basketball in the gym. Even though his
school wanted to place Hurst in a special education program, his mother objected
because she was afraid he would be picked on. He did go to East Charter School,
which taught low achievers and children with behavioral problems, and while
there, was teased about his large size and his slowness. His maturity level
remained very low and even at age eighteen, he exhibited the maturity of a middle-
school student. Hurst could not obtain a GED, but did have a driver’s license and
obtained a car with his father’s help, although he was a poor driver.
Family members testified that Hurst had to be reminded to take care of
himself; and he allowed his mother and sister to wash his clothes, and allowed his
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mother to cook for him. He had poor hygiene and had to be reminded to bathe and
dress appropriately. He had to be reminded to keep appointments and be
awakened for work. Hurst did not have a checking account and would likely have
had difficulty making change if he was working a cash register. However, Hurst
was employed at Popeye’s and did food “prep work.”
Dr. Joseph Wu, a psychiatrist, professor of psychiatry, and clinical director
of the University of California at Irvine College of Medicine Brain Imaging
Center, testified as an expert on the use of positron emission tomography (PET) in
regard to neurological and psychiatric disorders. He was present when a PET scan
was performed on Hurst and later interpreted the results of that PET scan. Dr. Wu
testified that the scan showed a decreased cortical cerebellum metabolic rate,
which indicated widespread damage to the cortical region of Hurst’s brain. He
opined that Hurst has widespread abnormalities in multiple areas of his brain,
which abnormalities are associated with lack of judgment, risk taking, impulsivity,
and immaturity. Dr. Wu was aware that it was reported Hurst suffered from fetal
alcohol syndrome, which, along with other trauma, can cause the types of problems
seen in Hurst’s PET scan, although he could not say from the PET scan what
caused the abnormalities in Hurst’s brain.
Dr. Harry Krop, a clinical and forensic psychologist, testified that he
administered the WAIS-IV test, as well as a test of memory malingering (TOMM),
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to Hurst in January and February 2012. The testing resulted in a full scale IQ of
69, which is in the range of mental retardation. Dr. Krop reviewed details of the
murder, Hurst’s regular school records, the charter school records, Florida
Department of Corrections records, tests and reports of other testing performed on
Hurst, and Dr. Wu’s PET scan report. He also spoke to various family members
for the purpose of evaluating Hurst’s adaptive functioning as measured by
completion of the Adaptive Behavior Assessment System (ABAS). He did not
listen to the recorded statement Hurst gave to police. After reviewing the
questionnaire for the ABAS, which was completed by Hurst and three family
members, Dr. Krop concluded that Hurst is significantly deficient in all areas of
adaptive functioning. Dr. Krop was aware of earlier testing in which Hurst scored
in the 78 IQ range on a different WAIS test, which Dr. Krop opined was not as
accurate as the newer WAIS-IV, and his final opinion was that Hurst is mentally
retarded.
Dr. Gordon Taub, psychologist and associate professor at the University of
Central Florida specializing in measurement of intelligence, structure of
intelligence, intelligence theory, and evaluation of intelligence tests, testified that
he has written articles about the Wechsler Scale of Intelligence tests. He testified
that the WAIS-IV, which was revised in 2008, now measures four areas of
intelligence, made changes in the subtests, and added some completely new tests.
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Dr. Taub was aware that Hurst received a full scale IQ score of 78 on the earlier
WAIS-III test in 2004, which he said tested for only two main factors. He agreed
that on the WAIS-IV test, which was given by Dr. Krop and which tests for four
main factors, Hurst received a full scale score of 69. Dr. Taub opined that scores
on the current WAIS-IV and earlier Wechsler tests cannot properly be compared
because of the changes to the newer test and because the WAIS-IV is a much better
test. However, Dr. Taub agreed that the WAIS-III is a “valid score of intelligence
and there’s no reason not to use that score if you attained it at the time that it was
the test to use to measure intelligence.”
Dr. Taub testified that other testing done on Hurst when he was under the
age of eighteen and still in school showed depressed scores. As to Hurst’s adaptive
functioning, Dr. Taub testified that the information gathered by Dr. Krop showed
Hurst was impaired in functioning in the real world in areas of self-care and in
communication. Dr. Taub administered the Woodcock Johnson Test of
Achievement, Third Edition, to Hurst, which tests areas in reading, writing, math,
and spelling. He opined that Hurst’s limited proficiency shown on the
achievement test is consistent with his school records showing low performance.
He concluded based on the WAIS-IV test and on information concerning Hurst’s
adaptive functioning, school records, and achievement testing, that Hurst meets the
legal criteria for mental retardation in Florida.
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The State presented the testimony of Dr. Harry McClaren, forensic
psychologist, who testified that he reviewed court documents, the testimony of
Hurst’s family members, the testimony of Drs. McClain and Larson at the prior
evidentiary hearing, mental health records from the Department of Corrections,
educational records and school test results, information about the crime, Hurst’s
statement to police, and the testimony of Drs. Taub and Krop. Dr. McClaren also
reviewed a WAIS-III test given to Hurst by a Dr. Riebsame in 2003 and the WASI
(Wechsler Abbreviated Scale of Intelligence) given by Dr. McClain in 2004. He
testified that it would be a mistake to ignore Hurst’s past testing with the WAIS-III
resulting in full scale IQ scores of 76 and 78 because that test was the state of the
art instrument at the time. Dr. McClaren also testified that there was no adaptive
behavior testing done when Hurst was young, and now the reports of his deficits
are anecdotal. He opined that Hurst does not meet the criteria for mental
retardation.
The trial court relied primarily on the testimony of Dr. McClaren and on
evidence of Hurst’s actions in and around the time of the crime in determining that
Hurst did not meet the test for mental retardation as a bar to the death penalty. In
addition to testimony of members of law enforcement who investigated the crime
and recovered evidence from Lee-Lee Smith’s house, the State presented Hurst’s
statement given to detectives at the time. After Hurst signed a waiver of his rights
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and agreed he was speaking voluntarily with the detectives, he gave a narrative of
what he said he did that morning in which he described going to a friend’s house to
unsuccessfully try to use the telephone because, he said, his car broke down. He
gave street directions to that friend’s house. Hurst said he then went to the E-Z
Serve to use the pay telephone to call Popeye’s and tell Cynthia Harrison he would
not be able to come into work. He said that she spoke “in a scary voice” with a
“scary tone,” and he could hear some whispering in the background. He recited
the telephone number that he called to talk with her. Hurst also related to
detectives that he went to Lee-Lee Smith’s house that morning, and then to his own
house where his brother Jermaine asked Hurst to take him to a pawn shop. Hurst
described putting something in his car to clean out the gas tank and then driving to
the pawn shop with Jermaine, Lee-Lee, and another young man. Hurst said in his
statement that he bought his brother two necklaces at the pawn shop with his
brother’s money. Hurst told detectives that after leaving Lee-Lee Smith’s house
and before going to the pawn shop, he changed his shirt and shoes but not his work
pants. Timothy Bradley, Hurst’s biological father, testified that on the morning of
May 2, 1998, at around 7:45 a.m., he saw Hurst putting the battery back into his
car after the battery had been on the charger all night. At that time, Hurst was
wearing his Popeye’s uniform.
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The trial court concluded in the sentencing order that Hurst was able to
maintain a job and had acquired a driver’s license. The court noted that Hurst’s
statement to police and his efforts to conceal his involvement in the crime were
particularly persuasive in determining that Hurst did not suffer significant deficits
in adaptive functioning. The court stated, “The statement, given shortly after the
crime, reveals an individual clearly recounting a morning’s events, giving
directions, recalling telephone numbers, and deliberately omitting certain
information tending to incriminate him. Similarly, the evidence offered at trial
suggests that Defendant took numerous steps to conceal his involvement in the
crime by attempting to clean the murder scene, having his clothes washed, hiding
the money in another location, discarding Ms. Harrison’s belongings and his shoes,
and buying new shoes.” We also note that evidence that Hurst was a nineteen-
year-old who still lived at home and allowed his mother and sister to cook for him
and do his laundry does not establish that he is unable to care for himself. Because
the trial court had before it competent, substantial evidence to support its
conclusion that Hurst is not mentally retarded under the three-prong test set forth in
Florida law, we find no error in this ruling.
Although Hurst was allowed to present all his mental retardation and other
mental mitigation to the jury, he also contends that the trial court erred in refusing
to submit the question of mental retardation as a bar to the death penalty to the jury
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for its determination. This claim lacks merit. We have repeatedly held that a
defendant has no right under Atkins to a jury determination of whether he is
mentally retarded. See Hodges v. State, 55 So. 3d 515, 526 (Fla. 2010) (holding
that defendant is not entitled to a jury determination of his mental retardation
status), cert. denied, 132 S. Ct. 164 (2011)); Kilgore v. State, 55 So. 3d 487, 510-
11 (Fla. 2010) (reiterating that the capital defendant has no right under Atkins to a
jury determination whether he is mentally retarded); Rodriguez v. State, 919 So. 2d
1252, 1267 (Fla. 2005) (same). Some states have established procedures under
which a jury does determine if a capital defendant is mentally retarded. See, e.g.,
Commonwealth v. Sanchez, 36 A.3d 24, 60-61 (Pa. 2011) (discussing survey of
state law on procedures for determining mental retardation in capital cases).
Florida is not one of those states, and the United States Supreme Court has not
mandated any specific procedure for making the determination of mental
retardation in the capital sentencing context. Thus, the trial court did not err in
refusing to submit to the jury the question of Hurst’s mental retardation as a bar to
the death penalty in this case.
B. Lack of Jury Findings as to Specific Aggravators
and Lack of a Unanimous Advisory Verdict on the Sentence
Hurst next contends that constitutional error occurred in his case because the
advisory jury in the penalty phase was not required to find specific facts as to the
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aggravating factors, 4 and that the jury was not required to make a unanimous
recommendation as to the sentence. In this case, the jury voted seven to five to
recommend a death sentence be imposed. Hurst bases his claims on the United
States Supreme Court’s decision in Ring, which held that capital defendants are
entitled to a jury determination of any fact on which the legislature conditions an
increase in the maximum punishment. 536 U.S. at 589. Hurst recognizes that our
precedent has repeatedly held that Ring does not require the jury to make specific
findings of the aggravators or to make a unanimous jury recommendation as to
sentence, and he asks us to revisit our precedent on the issue in the decisions in
Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002), and King v. Moore, 831 So. 2d
143 (Fla. 2002). In the plurality decisions in both cases, we rejected claims that
Ring applied to Florida’s capital sentencing scheme. We decline to revisit those
decisions in this case.
Hurst contends that the facts of this case support a conclusion that Ring
applies to require the jury to expressly find one or more aggravators and to issue its
recommendation based on a unanimous advisory verdict. He contends that this
case is distinguishable from cases where a jury has unanimously found an
aggravating factor such as conviction of a prior violent felony or that the murder
4. Hurst’s counsel asked for an interrogatory verdict to specify the
aggravators found and the votes on each. The motion was denied.
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was committed in the course of committing, attempting to commit, or flight after
commission of a separate enumerated felony. See § 921.141(5)(b), (d), Fla. Stat.
(2012). There is no prior violent felony aggravator in this case, nor did this jury
convict Hurst of a contemporaneous felony such as robbery. However, we have
rejected the Ring claim in similarly situated cases.
We previously rejected the invitation to revisit our decisions in Bottoson and
King in Peterson v. State, 94 So. 3d 514 (Fla.), cert. denied, 133 S. Ct. 793 (2012),
a case which also did not involve conviction for a prior violent felony or a
contemporaneous enumerated felony, and did not involve a unanimous jury
advisory verdict. There, the majority stated, “We have consistently rejected claims
that Florida’s death penalty statute is unconstitutional.” Id. at 538 (citing Baker v.
State, 71 So. 3d 802, 823-24 (Fla. 2011), cert. denied, 132 S. Ct. 1639 (2012);
Darling v. State, 966 So. 2d 366, 387 (Fla. 2007); Frances v. State, 970 So. 2d 806,
822 (Fla. 2007)). Similarly, in Butler v. State, 842 So. 2d 817, 834 (Fla. 2003),
this Court rejected the Ring claim where there was no aggravating factor based on
a prior violent felony conviction and there was no unanimous jury advisory
sentence. See also Ault v. State, 53 So. 3d 175, 206 (Fla. 2010) (“[T]his Court has
repeatedly and continually rejected such claims” that the advisory verdict must be
unanimous); Coday v. State, 946 So. 2d 988, 1006 (Fla. 2006) (reiterating that it is
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not unconstitutional for a jury to be allowed to recommend death by a simple
majority vote). We continue to adhere to this same body of precedent.
We also note that the Eleventh Circuit Court of Appeals in Evans v.
Secretary, Fla. Dep’t. of Corrections, 699 F.3d 1249 (11th Cir. 2012), cert. denied,
Evans v. Crews, 133 S. Ct. 2393 (2013), reversed a federal district court’s ruling
that Florida’s sentencing scheme violates Ring. The Eleventh Circuit noted that
the United States Supreme Court’s “last word in a Florida capital case on the
constitutionality of that state’s death sentencing procedures” came in Hildwin v.
Florida, 490 U.S. 638 (1989), which predated Ring. Evans, 699 F.3d at 1258. This
Court, in Hildwin v. State, rejected the claim that the sentencing scheme was
unconstitutional because the jury is not required to make specific findings
authorizing the imposition of the death penalty. 531 So. 2d 124, 129 (Fla. 1988).
On review, the United States Supreme Court affirmed our decision in Hildwin and
stated, “[T]he Sixth Amendment does not require that the specific findings
authorizing the imposition of the sentence of death be made by the jury.” Hildwin,
490 U.S. at 640-41. As the Eleventh Circuit noted in Evans, the United States
Supreme Court has never expressly overruled Hildwin, and did not do so in Ring.
The Evans court also agreed with the State that Florida’s sentencing procedures do
provide for jury input about the existence of aggravating factors prior to
sentencing—a process that was completely lacking in the Arizona statute struck
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down in Ring. Evans, 699 F.3d at 1261. For all these reasons, we reject Hurst’s
claim that Florida’s capital sentencing scheme is unconstitutional under Ring.
C. Proportionality
Hurst next contends that the death sentence in this case is not proportional
because it is not one of the most aggravated and least mitigated of first-degree
murders, thus requiring that his death sentence be reduced to life in prison. He
contends that a life sentence should be imposed based on evidence of abnormalities
in his brain due to fetal alcohol syndrome, his low mental functioning, and other
mental and background mitigation. In performing the proportionality review, this
Court has explained:
“[W]e make a comprehensive analysis in order to determine whether
the crime falls within the category of both the most aggravated and the
least mitigated of murders, thereby assuring uniformity in the
application of the sentence.” We consider the totality of the
circumstances of the case and compare the case to other capital cases.
This entails “a qualitative review by this Court of the underlying basis
for each aggravator and mitigator rather than a quantitative analysis.”
In other words, proportionality review “is not a comparison between
the number of aggravating and mitigating circumstances.”
Williams v. State, 37 So. 3d 187, 205 (Fla. 2010) (quoting Offord v. State, 959 So.
2d 187, 191 (Fla. 2007) (citations omitted)). This Court has long recognized an
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obligation to perform a proportionality review. 5 See, e.g., Lamadline v. State, 303
So. 2d 17, 20 (Fla. 1974).
In reviewing proportionality, this Court follows precedent that requires that
the death penalty be “reserved only for those cases where the most aggravating and
least mitigating circumstances exist.” Terry v. State, 668 So. 2d 954, 965 (Fla.
1996). In doing so, we “will not disturb the sentencing judge’s determination as to
‘the relative weight to give to each established mitigator’ where that ruling is
‘supported by competent, substantial evidence in the record.’ ” Blackwood v.
State, 777 So. 2d 399, 412-13 (Fla. 2000) (quoting Spencer v. State, 691 So. 2d
1062, 1064 (Fla. 1996)). We “review the weight the trial court ascribes to
mitigating factors under the abuse of discretion standard.” Smith v. State, 998 So.
2d 516, 527 (Fla. 2008). The Court will also “affirm the weight given an
aggravator if based on competent substantial evidence.” Blake v. State, 972 So. 2d
839, 846 (Fla. 2007). “The weight to be given aggravating factors is within the
discretion of the trial court, and it is subject to the abuse of discretion standard.”
Buzia v. State, 926 So. 2d 1203, 1216 (Fla. 2006).
Hurst contends, inter alia, that his case is similar to Cooper v. State, 739 So.
2d 82, 86 (Fla. 1999), in which the Court vacated the death sentence and imposed a
5. Rule 9.142 (a)(5), Florida Rule of Appellate Procedure, provides that
“[i]n death penalty cases, whether or not insufficiency of the evidence or
proportionality is an issue presented for review, the court shall review these issues
and, if necessary, remand for the appropriate relief.”
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life sentence on the basis of lack of proportionality when compared to other capital
cases. In Cooper, the evidence showed the defendant was eighteen years old at the
time of the crime. Cooper also suffered from borderline mental retardation, brain
damage likely caused by beatings and head trauma as a child, a history of seizures,
schizophrenia, cognitive brain impairment, and an abusive childhood including
being repeatedly threatened with a gun by his father. The trial court in Cooper
found three aggravators and two statutory mitigators, as well as other nonstatutory
mitigation. We conclude that although there was more aggravation in Cooper,
there was also more mitigation than is present in this case. Cooper does not
require us to find Hurst’s sentence disproportionate.
The State relies on Jeffries v. State, 797 So. 2d 573 (Fla. 2001), as a basis on
which to find the sentence in this case proportional. In Jeffries, the murder
occurred in a somewhat similar manner to the instant case—the victim was
stabbed, suffering multiple sharp force injuries, and was beaten. Id. at 575. The
trial court found two aggravators, murder in course of commission of a robbery
and HAC. Id. at 576. The mitigation included findings that the defendant’s
capacity to appreciate the criminality of his conduct was impaired, that the
codefendant was equally culpable and received a plea deal for a twenty-year
sentence, and that Jeffries had a long history of emotional and mental problems, as
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well as drug and alcohol abuse. We held that the death sentence in Jeffries was
proportional when compared to other capital cases. Id. at 583.
More recently, in Allen v. State, 38 Fla. L. Weekly S592 (Fla. Jul. 11, 2013),
we found the death sentence proportionate. The victim was bound and had
chemicals poured on her face. Allen beat the victim with belts, put a belt around
her neck and, in spite of her pleas to stop, strangled her. The autopsy also revealed
facial bruising, bruising on the torso, hand, thigh, knee, and shoulder; and the
victim had contusions on her hands, face, and torso. Her hands showed ligature
marks from having been tied, and her neck showed signs of ligature. Id. at S593.
The trial court in Allen found two aggravators—commission of the murder
in the course of committing or attempting to commit a kidnapping, and that the
murder was especially heinous, atrocious, or cruel. Id. at S594. The nonstatutory
mitigation found by the court included that Allen had been the victim of physical
and possibly sexual abuse, had brain damage due to numerous prior head injuries
resulting in lack of impulse control, suffered a poor childhood environment, and
exhibited helpfulness. The evidence also showed that Allen had significant
organic brain damage and intracranial injuries, and was at the lower end of
intellectual capacity. Testimony was received that a PET scan revealed at least ten
brain injuries, mostly to the right side of Allen’s brain which would affect impulse
control, judgment, and mood, and would make it hard for her to conform her
- 26 -
conduct to the requirements of society. We found the death sentence in Allen
proportionate when compared to sentences in other capital cases. Id. at S600.
Similarly, in Rogers v. State, 783 So. 2d 980 (Fla. 2001), the victim was
murdered by being brutally stabbed, and had bruises, abrasions, and a shallow
defensive wound to her arm. Id. at 986. The trial court found two aggravators—
that the murder was committed for pecuniary gain and that it was especially
heinous, atrocious, or cruel. Id. at 987. The court found one statutory mitigator—
that the defendant’s capacity to appreciate the criminality of his conduct or
conform his conduct to the requirements of law was substantially impaired. Id.This last mitigating factor was based on the trial court’s finding that Rogers suffers
from psychosis and brain damage that may have been exacerbated by long-term
alcohol abuse. Id. at 996. The trial court found other mitigation in Rogers’
difficult family background, abusive childhood, and his exhibition of good
qualities as a father and employee. Id. We upheld the death sentence in Rogers as
proportionate.
Based on the forgoing, we find that Hurst’s death sentence, when compared
to the death sentences in other comparable capital cases, is proportionate.
CONCLUSION
For the reasons expressed above, we affirm Hurst’s sentence of death for the
first-degree murder of Cynthia Harrison.
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It is so ordered.
POLSTON, C.J., and LEWIS, QUINCE, and CANADY, JJ., concur.
PARIENTE, J., concurs in part and dissents in part with an opinion, in which
LABARGA and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring in part and dissenting in part.
I concur in the majority’s conclusion that the trial court did not abuse its
discretion in denying Hurst a successive mental retardation hearing pursuant to
Florida Rule of Criminal Procedure 3.203 prior to the new sentencing proceeding.
I dissent, however, from the majority’s affirmance of Hurst’s sentence of death
because there was no unanimous jury finding of either of the two aggravating
circumstances found by the trial judge—that the murder was heinous, atrocious, or
cruel; and that the murder was committed in the course of a robbery.
No jury ever convicted Hurst of the contemporaneous robbery, so this case
does not fall within the exception to the constitutional requirement of juror
unanimity for a contemporaneous felony conviction or a prior violent felony
conviction as an aggravating circumstance, which automatically demonstrate that
the jury has made the necessary findings to warrant the possibility of a death
sentence. See Johnson v. State, 969 So. 2d 938, 961 (Fla. 2007) (rejecting a
challenge to the constitutionality of the defendant’s death sentence because the
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“murder in the course of a felony aggravator” was premised on separate
convictions, “which satisfies Sixth Amendment requirements”).
In Hurst’s case, the jury recommended death by the slimmest margin
permitted under Florida law—a bare majority seven-to-five vote. Because a
penalty-phase jury in Florida is not required to make specific factual findings as to
the aggravating circumstances necessary to impose the death penalty pursuant to
Florida’s capital sentencing statute, it is actually possible that there was not even a
majority of jurors who agreed that the same aggravator applied. See Peterson v.
State, 94 So. 3d 514, 540 (Fla. 2012) (Pariente, J., concurring as to conviction and
dissenting as to sentence). In my view, Hurst’s death sentence cannot be
constitutionally imposed, consistent with the United States Supreme Court’s
decision in Ring v. Arizona, 536 U.S. 584 (2002), and Florida’s right to trial by
jury, in the absence of a unanimous finding by the jury that any of the applicable
aggravators apply, which is not present here.
I have previously expressed my view that “[t]he absence of a requirement of
a unanimous jury finding as a precondition to a sentence of death is . . . a matter of
constitutional significance.” Butler v. State, 842 So. 2d 817, 838 (Fla. 2003)
(Pariente, J., concurring in part and dissenting in part). Indeed, I continue to
believe that, in light of Ring, Florida’s death penalty statute, as applied in
circumstances like those presented in this case where there is no unanimous jury
- 29 -
finding as to any of the aggravating circumstances, is unconstitutional. See
Peterson, 94 So. 3d at 538 (Pariente, J., concurring as to conviction and dissenting
as to sentence).
As I stated in my opinion dissenting as to the affirmance of the death
sentence in Peterson:
Under our current sentencing scheme, not all defendants who
are convicted of first-degree murder are eligible for a sentence of
death. The trial judge must make additional findings before the death
penalty can be imposed. See generally § 775.082, Fla. Stat. (2011).
Without these findings, a trial court cannot impose a higher sentence
than life imprisonment on the basis of the verdict alone. See
§ 775.082(1), Fla. Stat. (stating that without findings by the court that
a defendant “shall be punished by death, . . . such person shall be
punished by life imprisonment”). It is only after a sentencing hearing
and additional findings of fact regarding aggravators and mitigators
that the sentence of death may be imposed. Not only is this
requirement imposed by Florida law, but it is constitutionally
mandated by the Eighth Amendment to prevent death sentences from
being arbitrarily imposed.
In addition, as interpreted by the United States Supreme Court
in Ring, the Sixth Amendment requires that a jury find those
aggravating factors. As Justice Scalia explained in his concurring
opinion in Ring, the bottom line is that “the fundamental meaning of
the jury-trial guarantee of the Sixth Amendment is that all facts
essential to imposition of the level of punishment that the defendant
receives—whether the statute calls them elements of the offense,
sentencing factors, or Mary Jane—must be found by a jury.” Ring,
536 U.S. at 610 (Scalia, J., concurring).
Id. at 538-39.
“Apart from capital sentencing, the requirement of unanimity has been
scrupulously honored in the criminal law of this state for any finding of guilt and
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for any fact that increases the maximum punishment.” Butler, 842 So. 2d at 837(Pariente, J., concurring in part and dissenting in part). “Florida’s exclusion of the
death penalty from the requirement of jury unanimity cannot be reconciled” with
the Supreme Court’s holdings in Ring that “[t]he right to trial by jury guaranteed
by the Sixth Amendment would be senselessly diminished if it encompassed the
factfinding necessary to increase a defendant’s sentence by two years, but not the
factfinding necessary to put him to death,” and that “the Sixth Amendment applies
to both.” Peterson, 94 So. 3d at 539 (Pariente, J., concurring as to conviction and
dissenting as to sentence) (quoting Ring, 536 U.S. at 609) (emphasis omitted).
It remains my view that Ring requires any fact that qualifies a capital
defendant for a sentence of death to be found by a jury, and that Florida’s state
constitutional right to trial by jury, which is embodied in article I, section 22, of the
Florida Constitution, “requires a unanimous jury finding beyond a reasonable
doubt on the existence of any element necessary to increase an authorized
punishment, most especially the ultimate punishment of the death penalty.” Butler,
842 So. 2d at 838 (Pariente, J., concurring in part and dissenting in part); see also
Coday v. State, 946 So. 2d 988, 1022 (Fla. 2006) (Pariente, J., concurring in part
and dissenting in part). In other words, article I, section 22, is violated in the rare
case where the death penalty is imposed without any of the aggravators that
automatically demonstrate that a jury has made the necessary findings to warrant
- 31 -
the possibility of a death sentence, such as a prior violent felony conviction or that
the murder occurred while in the course of an enumerated felony that was also
found by a jury. This is one of those rare cases.
This case also illustrates how the use of a special verdict form would help
solve the problem, as Hurst’s counsel requested an interrogatory verdict to specify
the aggravators found by the jury and the votes on each, but the motion was denied
in accordance with this Court’s case law preventing the use of penalty-phase
special verdict forms detailing the jurors’ determination concerning aggravating
factors. See State v. Steele, 921 So. 2d 538, 545 (Fla. 2005). Had the jury been
permitted to specify its findings, it is possible that this Court would have evidence
in the record that Hurst’s jury unanimously found the existence of one of the
aggravators found by the trial judge in imposing the death sentence, thereby curing
the constitutional infirmity in this case. Because the jury was not permitted to
indicate its findings, however, this evidence does not appear in our record.
I have previously expressed my view as to the “difficulties created” by this
Court’s decisions that fail to allow or mandate the use of special interrogatories in
death penalty cases to permit the jury to make special findings as to the
aggravators. Aguirre-Jarquin v. State, 9 So. 3d 593, 610 (Fla. 2009) (Pariente, J.,
specially concurring). I once again renew this position here, as the use of a special
verdict form during the penalty phase would enable this Court “to tell when a jury
- 32 -
has unanimously found a death-qualifying aggravating circumstance, which would
both facilitate our proportionality review and satisfy the constitutional guarantee of
trial by jury even when the recommendation of death is less than unanimous.”
Coday, 946 So. 2d at 1024 (Pariente, J., concurring in part and dissenting in part).
Finally, I also take this opportunity to note an evolving concern as to the
possible Eighth Amendment implications of Florida’s outlier status, among those
decreasing number of states that still retain the death penalty, on the issue of jury
unanimity in death penalty cases.6 Except for Florida, every state that imposes the
death penalty, as well as the federal system, requires a unanimous jury verdict as to
the finding of an aggravating circumstance.7 This means that in no other state or
federal court in the country would Hurst have been sentenced to death in this case
6. Since Ring was decided in 2002, six states— Connecticut, Illinois,
Maryland, New Jersey, New Mexico, and New York—have abolished the death
penalty.
7. In Steele, 921 So. 2d at 548-49, this Court explained that, aside from
Florida, only Utah and Virginia did not at that time require a unanimous jury
finding of aggravators. Subsequent state supreme court decisions in those two
states have concluded that a unanimous jury finding of an aggravating
circumstance is required. See Prieto v. Commonwealth, 682 S.E.2d 910, 935 (Va.
2009) (“[W]e hold that in the penalty phase of capital murder trials the death
penalty may not be imposed unless the jury unanimously finds either one or both
of the aggravating factors of ‘vileness’ or ‘future dangerousness’ beyond a
reasonable doubt.”); Archuleta v. Galetka, 267 P.3d 232, 259 (Utah 2011) (“In
Utah, the fact finder in the guilt phase must find—unanimously and beyond a
reasonable doubt—the statutory aggravator that makes death a possible
sentence.”).
- 33 -
in the absence of a unanimous jury finding of an aggravating circumstance.
Florida is a clear outlier.8
In Steele, 921 So. 2d at 548-49, this Court urged the Legislature to
reexamine Florida’s capital sentencing statute in light of Ring and Florida’s outlier
status. I have also previously echoed this suggestion, encouraging the Legislature
to bring Florida “closer to the mainstream of capital sentencing states in regard to
jury findings.” Coday, 946 So. 2d at 1025 (Pariente, J., concurring in part and
dissenting in part).
Although those calls for legislative action have arisen primarily due to Ring
and Sixth Amendment concerns, the Eighth Amendment ramifications of Florida’s
outlier status are also clear. For example, two Justices on the United States
Supreme Court have recently expressed “deep concerns” about the federal
constitutionality of Alabama’s death penalty statute in light of its outlier status on
the issue of jury overrides. See Woodward v. Alabama, 134 S. Ct. 405, 405 (2013)
(Sotomayor, J., with whom Justice Breyer joins as to Parts I and II, dissenting from
denial of certiorari).
8. In addition to Florida’s outlier status as the only state in the country that
allows the death penalty to be imposed without a unanimous jury finding of an
aggravating circumstance, Florida is also one of the only states to permit the jury to
recommend death by a less than unanimous vote.
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The United States Supreme Court has repeatedly explained that “death is
different” from every other form of punishment. See, e.g., Ring, 536 U.S. at 605-
06; Harmelin v. Michigan, 501 U.S. 957, 994 (1991); Gardner v. Florida, 430 U.S.
349, 357 (1977). The Supreme Court has also emphasized the “heightened
reliability demanded by the Eighth Amendment in the determination whether the
death penalty is appropriate in a particular case.” Sumner v. Shuman, 483 U.S. 66,
72 (1987). As this Court has pointed out, “[m]any courts and scholars have
recognized the value of unanimous verdicts,” particularly given that the
“reliability” of death sentences “depends on adhering to guided procedures that
promote a reasoned judgment by the trier of fact.” Steele, 921 So. 2d at 549
(quoting State v. Daniels, 542 A.2d 306, 315 (Conn. 1988)).
While questions of public policy regarding Florida’s capital sentencing
statute are left to the Legislature, the Sixth and Eighth Amendment implications of
Florida’s outlier status on the lack of jury unanimity, which threaten to unravel our
entire death penalty scheme, should be of serious concern. I once again urge the
Legislature, as has former Justice Cantero, to revisit this issue in Florida’s capital
sentencing scheme.
For all these reasons, I dissent from the majority’s affirmance of Hurst’s
death sentence because there is no unanimous finding by the jury that any of the
applicable aggravators apply. The absence of juror unanimity in the fact-finding
- 35 -
necessary to impose the death penalty remains, in my view, an independent
violation of Florida’s constitutional right to trial by jury.
LABARGA and PERRY, JJ., concur.
An Appeal from the Circuit Court in and for Escambia County,
Linda Lee Nobles, Judge - Case No. 1998-CF-001795-A
Nancy Ann Daniels, Public Defender, and David A. Davis and William Carl
McLain, Assistant Public Defenders, Tallahassee, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Stephen Richard White, Assistant
Attorney General, Tallahassee, Florida,
for Appellee
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