Rodney Tyrone Lowe v. State of Florida

Supreme Court of Florida
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No. SC12-263
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RODNEY TYRONE LOWE,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
October 19, 2018
PER CURIAM.
This case is before the Court on direct appeal from a resentencing of death.
We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Rodney Tyrone Lowe
appeals his sentence of death for the 1990 first-degree murder of Donna Burnell.
The trial judge sentenced Lowe to death after the new penalty phase jury
recommended the death penalty by a vote of twelve to zero. We first set forth the
factual and procedural background of this case and then address Lowe’s claims,
including his Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616 (2016), claim and
his claim that his death sentence is disproportionate. For the reasons explained
below, we affirm Lowe’s sentence of death.
FACTUAL AND PROCEDURAL BACKGROUND
Lowe was convicted by a jury and sentenced to death for the July 1990 first-
degree murder of Donna Burnell. The jury also convicted Lowe of attempted
robbery. We set forth the following facts in Lowe’s first direct appeal:
On the morning of July 3, 1990, Donna Burnell was working as a
clerk at the Nu-Pack convenience store in Indian River County when a
would-be robber shot her three times with a .32 caliber handgun. Ms.
Burnell suffered gunshot wounds to the face, head, and chest and died
on the way to the hospital. The killer fled the scene without taking
any money from the cash drawer.
During the week following the shooting, investigators received
information linking the defendant, Rodney Lowe, to the crime. Lowe
was questioned by investigators at the police station and, after
speaking to his girlfriend, gave a statement that implicated him in the
murder. Following this statement, Lowe was arrested and indicted for
first-degree murder and attempted robbery.
At trial, the State presented witnesses who testified that, among
other things, Lowe’s fingerprint had been found at the scene of the
crime, his car was seen leaving the parking lot of the Nu-Pack
immediately after the shooting, his gun had been used in the shooting,
his time card showed that he was clocked-out from his place of
employment at the time of the murder, and Lowe had confessed to a
close friend on the day of the shooting. The State also presented, over
defense objection, the statement Lowe gave to the police on the day of
his arrest. Lowe advanced no witnesses or other evidence in his
defense. After closing arguments, the jury returned a verdict finding
Lowe guilty of first-degree murder and attempted armed robbery with
a firearm as charged.
Lowe v. State, 650 So. 2d 969, 971 (Fla. 1994).
At the conclusion of the original penalty phase, the jury, by a vote of nine to
three, recommended death. Id. at 972. The trial court followed the jury’s
recommendation and sentenced Lowe to death, finding two aggravators: (1) the
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defendant was previously convicted of a felony involving the use or threat of
violence to the person; and (2) the capital felony was committed while the
defendant was engaged in or was an accomplice in an attempt to commit robbery.
Id. The trial court also found that the mitigators did not outweigh the aggravators.
Id. In addition to the sentence of death, the trial court sentenced Lowe to fifteen
years’ imprisonment for the attempted robbery conviction. Id.On direct appeal, Lowe raised ten guilt phase issues and seven penalty phase
issues. Id.1 We rejected Lowe’s arguments on all claims and affirmed his
1. Lowe asserted that: (1) the trial court erred in denying Lowe’s motion to
suppress his confession; (2) the trial court erred in allowing the jury to hear certain
portions of Lowe’s taped interrogation; (3) the trial court erred in admitting a box
of Lowe’s personal items; (4) he was denied his constitutional rights to effective
assistance of counsel and the equal protection of the law when the trial court
declined to appoint two attorneys for his defense; (5) the trial court erred in failing
to conduct a hearing under Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973);
(6) the trial court erred in denying a motion for disqualification; (7) county court
Judge Wild lacked jurisdiction to preside over the instant felony; (8) the trial court
erred in giving the State’s special jury instruction; (9) the trial court erred in
overruling defense counsel’s objections to the State’s closing arguments and in
denying a motion for mistrial; (10) the trial court erred in granting the State’s
motion in limine; (11) the trial court erred in denying the defense’s requested
penalty phase instruction regarding the presence of the child at the murder scene;
(12) the trial court erred in instructing the jury on the heinous, atrocious, or cruel
(HAC) and cold, calculated, and premeditated (CCP) aggravating circumstances;
(13) the State’s penalty phase argument was improper; (14) the trial court gave
excessive weight to the prior violent felony aggravator; (15) the trial judge erred in
allowing evidence of the circumstances surrounding Lowe’s prior felony to be
admitted in the penalty phase; (16) the trial judge erred in failing to inquire into the
whereabouts of two defense witnesses who failed to appear during the penalty
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convictions and sentence of death. 650 So. 2d at 971. On October 2, 1995, the
United States Supreme Court denied certiorari. Lowe v. Florida, 516 U.S. 887(1995).
Lowe filed an initial motion for postconviction relief pursuant to Florida
Rule of Criminal Procedure 3.851. Lowe v. State, 2 So. 3d 21, 28 (Fla. 2008).
Following several amended postconviction motions and amendments to these
motions, the trial court held a Huff2 hearing. 2 So. 3d at 28. The trial court
summarily denied twelve of the thirty-three claims and held an evidentiary hearing
on the remaining twenty-one claims. Id. Lowe filed two supplemental claims after
the hearing, and an additional evidentiary hearing was set for the Brady3 violation
claim. 2 So. 3d at 28. After the second evidentiary hearing, the trial court issued
an order denying all of Lowe’s claims. Id.Lowe then filed a successive postconviction motion based on newly
discovered evidence and also filed a motion for rehearing. Id. The trial court held
a hearing on the motion for rehearing and the first successive postconviction
motion. Id. On March 18, 2005, the trial court issued an order denying a new trial
phase; and (17) the trial court did not consider or weigh mitigation. See Lowe v.
State, 2 So. 3d 21, 28 n.1 (Fla. 2008).
2. Huff v. State, 622 So. 2d 982 (Fla. 1993).
3. Brady v. Maryland, 373 U.S. 83 (1963).
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but granting a new penalty phase based on the motion for rehearing and the first
successive motion. Id. at 29. Lowe appealed the trial court’s denial of part of his
postconviction motion, raising five claims. Id.4 Lowe also petitioned for a writ of
habeas corpus, raising three claims. Id.5 The State cross-appealed. 2 So. 3d at 29.
4. Lowe claimed that:
(1) he was denied an adversarial testing at the guilt phase of his trial
because trial counsel was ineffective, the State suppressed material
exculpatory evidence, and newly discovered evidence has been
disclosed, and for these reasons the jury did not know that Dwayne
Blackmon was the shooter; (2) evidence that Lowe did not act alone
was never presented to the jury because counsel failed to properly
investigate and the State withheld evidence that multiple parties were
involved in the crime; (3) because counsel was ineffective and the
State withheld material evidence, critical impeachment of Dwayne
Blackmon was never presented to the jury; (4) trial counsel rendered
ineffective assistance by failing to object to irrelevant and
inflammatory evidence; and (5) trial counsel rendered ineffective
assistance by failing to challenge the admissibility of Lowe’s
statement on the ground that it was obtained in violation of his Fifth
Amendment rights, and by failing to impeach Patricia White.
Lowe, 2 So. 3d at 29.
5. Lowe claimed that:
(1) appellate counsel was ineffective for failing to raise several claims
on direct appeal; (2) Florida’s capital sentencing statute is
unconstitutional on its face and as applied because it violates the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution; and (3) Lowe’s death sentence is unconstitutional
because the State used prior convictions based on acts committed by
Lowe when he was a juvenile to establish an aggravating factor, in
violation of the Eighth Amendment and Roper v. Simmons, 543 U.S.
551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
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This Court affirmed the trial court’s denial of relief on all claims raised by Lowe,
affirmed the trial court’s order granting a new penalty phase, and denied habeas
relief. Id. at 46.
The new penalty phase commenced on September 12, 2011. On September
23, 2011, the jury unanimously recommended death. At the Spencer6 hearing held
on October 28, 2011, no additional evidence of aggravation or mitigation was
presented. On January 26, 2012, the trial court followed the jury’s
recommendation and sentenced Lowe to death, finding that five aggravators,
merged to four, outweighed one statutory mitigator and various nonstatutory
mitigators.7 This appeal follows.
Lowe, 2 So. 3d at 42.
6. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
7. The trial court found five aggravators, merged to four: (1) under sentence
of imprisonment/on community control (great weight); (2) prior violent felony
(great weight); (3A) murder in the course of a felony (great weight) merged with
(3B) pecuniary gain; and (4) avoid arrest (great weight). The trial court found one
statutory mitigator—statutory age (little weight). The trial court rejected the
statutory mitigator that Lowe was a minor participant in a homicide committed by
another person. Regarding the ten nonstatutory mitigators argued by Lowe, the
trial court made the following findings: (1) good behavior while in confinement
(moderate weight); (2) family relationships (little weight); (3) creative ability (not
a mitigating circumstance—no weight); (4) maturity (little weight); (5) religious
faith (little weight); (6) work ethic (little weight); (7) extracurricular sporting
activities (not a mitigating circumstance—no weight); (8) Lowe is emotionally
supportive of his sister (no weight); (9) low risk of future danger (little weight);
and (10) good courtroom behavior (little weight).
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ISSUES ON APPEAL
Now on appeal from the new penalty phase, Lowe raises the following
eighteen claims: (1) the trial court improperly granted the State a cause challenge
to a prospective juror; (2) the trial court erred in overruling defense counsel’s
objection to the State’s use of a mannequin; (3) the State’s use of a computer-
generated diagram of the crime scene as a demonstrative aid was improper; (4) the
trial court erred in admitting Officer Ambrum’s testimony regarding Lowe’s
possible sentence for a violation of community control; (5) the trial court erred in
restricting mitigating evidence and limiting cross-examination; (6) the trial court
erred in excluding the defense expert’s testing results due to a discovery violation;
(7) comments made by the State during closing amounted to fundamental error; (8)
the trial court erred in sending prejudicial evidence not introduced at trial to the
jury room for consideration during deliberations; (9) the trial court erred in
precluding the jury from considering evidence of Lowe’s limited role in the killing,
disproportionate treatment compared to others, and a lawful evaluation of the
aggravators; (10) the trial court erred in not instructing the jury to make a
culpability finding before it considered imposing a death sentence; (11) the jury
was misled regarding sentencing options by the trial court and the State; (12) the
trial court erred in not independently weighing the aggravating and mitigating
circumstances; (13) the aggravators found were not submitted to the jury properly
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and were not supported by competent, substantial evidence; (14) the trial court did
not apply the correct law and its mitigation findings are not supported by record
evidence; (15) the trial court erred in denying Lowe’s special verdict form and
instructions; (16) the incomplete record on appeal requires reversal; (17) death is
not a proportionate punishment in this case; and (18) cumulative error. We address
each issue in turn.
I. Cause Challenge to Prospective Juror
Based on the responses prospective juror Charles Simard provided on his
juror questionnaire regarding the death penalty, the State conducted the following
voir dire:
(Prosecutor) Mr. Butler: You indicated also on your
questionnaire that you don’t believe in the death penalty?
Charles Simard: That’s right.
Mr. Butler: Now at first glance it would look then like it might
be difficult for you to sit as a juror in a case where the only issue is
whether the Defendant receives a death sentence or life without the
possibility of parole for twenty-five years; is that fair?
Charles Simard: Yes.
....
Mr. Butler: Given your personal opposition to the death
penalty, are you going to be able to engage in that weighing process,
or do you think that because of where you stand personally you’re
always going to tilt those scales towards -- towards a life sentence?
Charles Simard: Yes, I’d probably go for life.
Mr. Butler: And that’s even though the Judge would tell you
you’re supposed to weigh it?
Charles Simard: Yes.
....
(Defense counsel) Mr. Garland: Do you think as you sit here
today that you could put aside your personal opinions, and listen to
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Judge Pegg’s instructions and make a decision as to whether or not
you could recommend life or death in this case?
Charles Simard: I think so.
Mr. Garland: You think you can follow the law?
Charles Simard: Uh-huh.
Mr. Garland: Is that a yes?
Charles Simard: Yes.
At sidebar, the State moved for a cause challenge, arguing that Mr. Simard
told the defense he could follow the law, but told the State otherwise. The State
argued that “there’s certainly a reasonable doubt as to whether [Simard] can be fair
and impartial.” Defense counsel objected, arguing that Mr. Simard’s responses did
not rise to the level of a cause challenge, and suggesting that “if the State wants to
use a peremptory that’s up to them.” The trial court granted the State’s challenge,
finding that it was “not convinced” by Mr. Simard. The State later withdrew its
cause challenge and substituted a peremptory challenge before the jury was sworn
in. Defense counsel did not make a specific objection to the substitution.
Lowe argues that Mr. Simard merely voiced a general objection to the death
penalty and thus the trial court reversibly erred by granting the State’s cause
challenge. Lowe further argues that the error was not cured by the trial court’s
subsequent decision to allow the State to substitute a peremptory strike against Mr.
Simard. Lowe relies on this Court’s decision in Ault v. State, 866 So. 2d 674 (Fla.
2003). The State counters that Mr. Simard’s answers were inconsistent and the
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trial court thus made the proper credibility finding. The State further contends that
Ault is distinguishable. We conclude that Ault does not entitle Lowe to relief.
In Ault, we concluded that it was reversible error for the trial court to have
dismissed a prospective juror for cause where the juror’s responses to questioning
indicated “that she could put her personal feelings aside and be fair in the penalty
phase and that she could be fair in the guilt and penalty phases even though she
opposed the death penalty.” Id. at 685-86. We also concluded that the erroneous
removal for cause was not subject to a harmless error analysis. Id. at 686. We
relied on Gray v. Mississippi, 481 U.S. 648, 664-65 (1987), and rejected the State’s
argument that “the error was harmless as the State had two peremptory challenges
left at the end of voir dire questioning and could have used one of these to strike”
the juror at issue. Ault, 866 So. 2d at 686.
At the outset, we note that unlike Ault, Gray, and other cases rejecting the
“unexercised peremptory argument,” this case involves the trial court permitting
the State to substitute a peremptory strike before the jury was sworn, as opposed to
the State presenting an argument on appeal regarding what the State would have
done at trial. We also note that Lowe did not object to the substitution.
Nevertheless, because we conclude that the trial court did not err in granting the
initial cause challenge, we need not reach the question of whether such a
substitution can cure an erroneous removal for cause.
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We review a trial court’s ruling on a cause challenge under an abuse of
discretion standard. Singleton v. State, 783 So. 2d 970, 973 (Fla. 2001). We have
held that “[a] juror should be excused for cause if there is any reasonable doubt
about the juror’s ability to render an impartial verdict.” Id. “However, prospective
jurors may not be excused for cause simply because they voice general objections
to the death penalty.” Ault, 866 So. 2d at 684 (citing Witherspoon v. Illinois, 391
U.S. 510, 522 (1968)). Instead, as it relates to a prospective juror’s views on
capital punishment, “[t]he relevant inquiry . . . is ‘whether the juror’s views would
“prevent or substantially impair the performance of his duties as a juror in
accordance with [the court’s] instructions and [the juror’s] oath.” ’ ” Id.(alterations in original) (quoting Gray, 481 U.S. at 658 (quoting Wainwright v.
Witt, 469 U.S. 412, 424 (1985))). The Supreme Court has recognized that “there
will be situations where the trial judge is left with the definite impression that a
prospective juror would be unable to faithfully and impartially apply the law. . . .
[T]his is why deference must be paid to the trial judge who sees and hears the
juror.” Witt, 469 U.S. at 425-26.
In Ault, we ordered a new penalty phase after concluding that the trial court
erroneously dismissed a potential juror for cause based on the juror’s “opposition
to the death penalty.” Ault, 866 So. 2d at 683. But we did so because the trial
court’s determination was based on an “erroneous recitation of [the prospective
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juror’s] statements.” Id. at 685. Among other things, we noted that, despite the
State’s argument to the contrary, the prospective juror never indicated that she
“would not impose death even if the aggravating circumstances outweighed the
mitigating.” Id. Here, on the other hand, Mr. Simard gave two conflicting
responses, one of which specifically informed the prosecutor that he would
“probably go for life” irrespective of the trial court’s instruction regarding the
weighing of the evidence. The statement was more than merely voicing a general
objection to the death penalty. Moreover, Mr. Simard then gave an “uh-huh”
response when asked by defense counsel whether he could follow the law, before
being asked again and stating “yes.” The trial judge personally observed Mr.
Simard and was “not convinced.” On this record, we cannot say that the trial court
abused its discretion in concluding that Mr. Simard could not “faithfully and
impartially apply the law.” Witt, 469 U.S. at 426; see also Taylor v. State, 638 So.
2d 30, 32 (Fla. 1994) (“The trial judge found [the prospective juror’s] answers
conflicting and properly exercised the court’s discretion in excusing [her].”).
Accordingly, Lowe is not entitled to relief as to this claim.
II. The State’s Use of a Mannequin
During the State’s direct examination of the medical examiner, the State
sought to use a mannequin as a demonstrative aid in order to show the position of
the gun in relation to Burnell’s body. Defense counsel objected to the use of the
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mannequin, arguing that the anatomical figure had zero probative value “as far as
assisting the jury in determining where the bullet came from” and noting that the
medical examiner testified that he could not opine as to specific trajectories. The
trial court overruled the objection, questioning what the difference was if the
medical examiner was “off a few degrees one way or another” and noting that the
mannequin was “just a gray faceless body part” and not a gruesome reproduction
of the victim. The medical examiner then used the mannequin, which was slightly
taller and thinner than Burnell and had dowels inserted into it, to demonstrate the
relative trajectories of the three bullets that entered the victim’s body. The medical
examiner testified that because he could not state what position Burnell was
actually in when she was shot, he could only give anatomical, not spatial,
trajectories, and that the trajectories had a small degree of error.
“The standard of review for the use of a demonstrative aid at trial is abuse of
discretion.” Williams v. State, 967 So. 2d 735, 752 (Fla. 2007). In State v.
Duncan, 894 So. 2d 817 (Fla. 2004), we affirmed the standard set out in Brown v.
State, 550 So. 2d 527, 528 (Fla. 1st DCA 1989), that:
Demonstrative exhibits to aid the jury’s understanding may be utilized
when relevant to the issues in the case, but only if the exhibits
constitute an accurate and reasonable reproduction of the object
involved. The determination as to whether to allow the use of a
demonstrative exhibit is a matter within the trial court’s discretion.
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Duncan, 894 So. 2d at 829 (quoting Brown, 550 So. 2d at 528). In Duncan, we
concluded that it was within the trial court’s discretion to allow an eyewitness to
demonstrate the attack by using a dummy in place of the victim. Id. at 829-30.
Among other things, we noted that the “dummy was used to aid the jury’s
understanding of a relevant issue . . . and there is no claim that the exhibit was not
an accurate and reasonable reproduction of the attack.” Id. at 830. We also noted
that there was no claim that “the dummy was altered to resemble the victim and
thereby evoke a more emotional action from the members of the jury.” Id.
Here, the use of the mannequin satisfies Duncan. The mannequin was used
to set out the circumstances of the crime and to attempt to establish aggravation.
The mannequin was used to demonstrate the location of the gunshot wounds, the
angle of impact against the skin, and the incapacitating nature of each gunshot.
The jury was advised that the trajectories were anatomical, not spatial, and had a
small degree of error. There only were slight differences between Burnell’s size
and the mannequin’s dimensions, and there is nothing to suggest that the
mannequin was altered to resemble Burnell. Accordingly, the trial court did not
abuse its discretion, and Lowe is not entitled to relief as to this claim.
III. The State’s Use of a Computer-Generated Diagram
During opening statements, the State used a computer-generated diagram of
the crime scene, that is, the interior of the Nu-Pack convenience store. Defense
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counsel asked to approach the bench. At sidebar, defense counsel noted that the
diagram “appears to be some sort of computer recreation of the event or the store.”
Defense counsel also noted that they had “never seen” the diagram and that they
could not see it from the defense table. Defense counsel then noted that “it’s just a
diagram, but still.” The State explained that “it’s just the diagram,” that there were
no “figures or anything,” and that it would not be introduced into evidence.
Defense counsel then stated for the record that “it is animated and there’s moving
along as [the prosecutor] talks.” The trial judge overruled defense counsel’s
objection and concluded that the diagram was a demonstrative aid, it was not a
recreation of the crime scene, it was just “a picture,” there was no animation of a
building, and there were no people. The trial judge then sent out the jury and had
the seating rearranged to accommodate defense counsel and Lowe. Lowe now
argues that the trial court failed to conduct a proper Richardson8 inquiry after the
defense objected to the State’s use of the computer animation.
We review the trial court’s decision to allow the use of the computer-
generated diagram under an abuse of discretion standard. Williams, 967 So. 2d at
752. “It is well settled that the use of ‘demonstrative devices to aid the jury’s
comprehension is well within the court’s discretion.’ ” McCoy v. State, 853 So. 2d
8. Richardson v. State, 246 So. 2d 771 (Fla. 1971).
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396, 405 (Fla. 2003) (quoting United States v. Possick, 849 F.2d 332, 339 (8th Cir.
1988)). Demonstrative aids may be used when they are “relevant to the issues in
the case” and “constitute an accurate and reasonable reproduction of the object
involved.” Brown, 550 So. 2d at 528.
Here, the State used the computer-generated diagram as a demonstrative aid
to help the jury visualize where the crime took place. The State used the picture to
identify specific locations in the store that would be relevant to the aggravation the
State hoped to prove in the case. There is nothing to suggest that the diagram was
an inaccurate or unreasonable reproduction of the interior of the Nu-Pack store.
Moreover, there is nothing to suggest that the diagram was an animated recreation
of the crime or included depictions of the people involved.
Lowe fails to explain how this “diagram” that was “not a recreation
situation,” that was never admitted into evidence, and that was never used with any
witness constitutes a discovery request violation. Even assuming that a
Richardson inquiry was required, we see no conceivable prejudice to Lowe. See
Smith v. State, 7 So. 3d 473, 505-06 (Fla. 2009) (noting that failure to conduct a
Richardson hearing is not per se reversible error); State v. Schopp, 653 So. 2d
1016, 1020 (Fla. 1995) (“[T]here are cases . . . where a reviewing court can say
beyond a reasonable doubt that the defense was not prejudiced . . . .”). Lowe
presents no explanation of how the diagram could have “materially hindered the
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defendant’s trial preparation or strategy.” Smith, 7 So. 3d at 506 (quoting Scipio v.
State, 928 So. 2d 1138, 1150 (Fla. 2006)). The only case cited by Lowe, Jones v.
State, 32 So. 3d 706, 710-11 (Fla. 4th DCA 2010), is wholly distinguishable, as it
involved the late disclosure by the State, in the middle of the trial, of a threat
allegedly made by the defendant against the victim.
The trial court did not abuse its discretion in allowing the State to use the
computer-generated diagram. Consequently, we deny relief as to this claim.
IV. Officer Ambrum’s Testimony
Lowe argues that Officer Ambrum, who was Lowe’s probation officer at the
time of Burnell’s murder, erroneously testified regarding the maximum sentence
Lowe faced for the violation of community control (VOCC) and that the erroneous
testimony was used to mislead the jury regarding the avoid arrest aggravator.
Lowe also contends that the State relied on this testimony during its closing to
argue for the aggravator. We conclude that these arguments were not preserved at
trial and that Lowe cannot demonstrate fundamental error.
During direct examination, after multiple sustained objections caused the
State to have to rephrase its question, the State asked Officer Ambrum what “the
maximum penalty Mr. Lowe would look at under the law at that time if he was
violated under community control.” Officer Ambrum testified that he “believe[d]
it would be somewhere in the area of thirty years.” Defense counsel did not object.
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On cross-examination, defense counsel asked Officer Ambrum about that
testimony given that Lowe had been sentenced as a youthful offender for the
previous robbery he committed in 1987. Officer Ambrum was clearly uncertain
regarding how the youthful offender statute worked and the impact a new
substantive crime would have on Lowe’s community control:
Q. Now, certainly your answer would be different if you were
told that the person were sentenced as a youthful offender; correct?
A. At that time I’m not sure what they -- I know that there’s
been some changes with the -- whether or not they were in violation,
I’m not sure what the law was on that at that time.
....
Q. Isn’t it true that someone sentenced as a youthful offender is
looking at a different potential maximum sentence than someone
convicted as an adult?
A. Possibly.
Q. Thus the different classifications; correct?
A. But I have seen youthful offenders go back to court on a
violation. Are you talking about being out -- sentenced outside of
youthful offender, too?
Q. So you’re aware of the youthful offender statute; correct?
A. If I understand you correctly you’re asking me if -- if he
would have only be (sic) able to be sentenced to six years probation?
Q. I’m asking is there a difference between being sentenced as
a youthful offender -- your knowledge, is there a difference between
being sentenced as a youthful fender (sic) and as an adult?
A. Yes, absolutely.
Q. And the distinction is with regard to potential maximum
penalty; correct?
A. To my knowledge it’s the initial sentence, not potential.
Despite Officer Ambrum’s clearly uncertain testimony, the State in its closing
argument did make one mention of Officer Ambrum’s testimony that Lowe “could
get up to thirty years for violating his community control.” The State did so in the
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overall context of arguing the avoid arrest aggravator and that Lowe “does not like
to get caught” and knew he would go back to prison if he were arrested for the Nu-
Pack robbery. The State also mentioned that Lowe would get more time for any
new offense. Lowe did not object to the State’s closing argument.
The State concedes on appeal that Officer Ambrum misstated the law and
that in no event would the maximum sentence be more than six years, less credit
for time served. However, the State argues that the misstatement does not render
the sentence fundamentally unfair and does not detract from the evidence
supporting the avoid arrest aggravator, given that Officer Ambrum’s testimony was
not the thrust of the State’s argument for the aggravator. We agree.
Admission of evidence is within the trial court’s discretion, and its ruling
will be upheld absent an abuse of discretion. Williams v. State, 967 So. 2d 735,
747-48 (Fla. 2007). Likewise, control of prosecutorial argument lies with the trial
judge and will not be disturbed absent an abuse of discretion. Esty v. State, 642
So. 2d 1074, 1079 (Fla. 1994). “To preserve error for appellate review, the general
rule is a contemporaneous, specific objection must occur during trial at the time of
the alleged error.” Gore v. State, 964 So. 2d 1257, 1265 (Fla. 2007). When an
alleged error is unpreserved—as is the case here—“this alleged error must
constitute a fundamental error” in order to be reversible. Doty v. State, 170 So. 3d
731, 743 (Fla. 2015). To constitute fundamental error, it must be shown that the
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error “ ‘reaches down into the validity of the trial itself’ and that a sentence of
death ‘could not have been obtained without the assistance of the alleged error.’ ”
Id. (quoting Snelgrove v. State, 107 So. 3d 242, 257 (Fla. 2012)).
We conclude that Officer Ambrum’s testimony and the State’s reliance on
that testimony do not rise to the level of fundamental error. During the specific
segment of closing argument in which the State argued for the avoid arrest
aggravator, the State did not mention Officer Ambrum’s testimony and instead
largely focused on the fact that when Lowe walked into the Nu-Pack store, he
recognized Burnell from another store where he had become friends with her. And
the State argued that, unlike the previous robbery Lowe committed in 1987, he did
not want to leave behind a witness who could identify him. The State then went
through the facts that supported its conclusion that Lowe killed Burnell because he
wanted to avoid arrest and not leave a witness. Namely, the State explained that:
Lowe spent time in the store getting a soda and putting a hamburger in the
microwave and had a chance to reflect before making the conscious choice to kill
Burnell; Lowe then shot Burnell three times; common sense dictated that the first
gunshot was to the top of Burnell’s head as she was bent over tending to her three-
year-old nephew9; there were no signs of a struggle; Burnell offered no resistance
9. In our original decision affirming Lowe’s conviction and death sentence,
we referred to the three-year-old child as Burnell’s son. Lowe, 650 So. 2d at 975-
- 20 -
as she was with her nephew; Lowe did not wear gloves or a mask; and there were
numerous pieces of evidence, including the position of Burnell’s body, indicating
that Burnell was shot before any attempt was made to retrieve the money from the
register. The State then summed up its argument for the avoid arrest aggravator:
Why do you do that but to avoid an arrest, avoid being recognized,
avoid being apprehended?
Why would you kill the clerk first? Because his motivation
changed. He wanted to eliminate Donna Burnell who he knew, and
who knew him from six months earlier at Fran’s Market.
That’s the aggravator of avoiding an arrest.
While the State did later mention Officer Ambrum’s testimony, it was not central
to the State’s argument for the aggravator. Moreover, with respect to the
aggravator, the trial court’s sentencing order made no mention of the possible
sentence Lowe would face for a VOCC and only mentioned that Lowe was on
community control and would have returned to prison. The trial court also found
that a death sentence was justified even without the avoid arrest aggravator.
Lowe has not shown that the aggravator, much less his death sentence,
“could not have been obtained without the assistance of the alleged error.” Doty,
170 So. 3d at 743. Accordingly, we deny Lowe relief as to this claim.
76. Testimony in the new penalty phase revealed that the child was Burnell’s
nephew, but Burnell was raising him as her own and trying to adopt him.
- 21 -
V. Trial Court’s Restriction of Mitigation and Cross-Examination
Lowe argues the trial court erred in sustaining the State’s objections to
testimony implicating Lorenzo Sailor in the shooting and to the admission of
Dwayne Blackmon’s sworn affidavit. Testimony was presented that Lowe, Sailor,
and Blackmon had twice before gone to the Nu-Pack store together intending to
rob the store but left both times without committing the robbery due to the
presence of potential witnesses. It was Lowe’s position that Sailor and Blackmon
were also involved in the third and final attempted robbery that resulted in
Burnell’s murder. Lowe claims that the trial court’s rulings unlawfully restricted
his mitigation presentation and limited his cross-examination of Officer Green.
Regarding Sailor, Lowe sought to present bad character testimony that Sailor
and another individual, sometime before and unrelated to Burnell’s murder, had
been seen by Officer Ewert pointing guns at traffic after Officer Ewert responded
to reports of shots being fired at an elementary school. Sailor later pointed the gun
at Officer Ewert before he (Sailor) and the other individual dropped their guns and
ran through the woods. Lowe argued that the testimony was relevant to the
defense’s theory that Sailor participated in the robbery of the Nu-Pack store and
was a potential suspect who was not investigated. The defense further argued that
the gun incident with Officer Ewert showed Sailor’s “proclivity for pointing guns
at law enforcement” and that Sailor was “not afraid to engage in gun play.”
- 22 -
Admission of evidence is within the trial court’s discretion, and its ruling
will be affirmed absent an abuse of discretion. Williams, 967 So. 2d at 747-48.
Relevant evidence is evidence that “tend[s] to prove or disprove a material fact.”
§ 90.401, Fla. Stat. (2017). In the penalty phase context, the jury may not be
barred from considering “any aspect of a defendant’s character or record and any
of the circumstances of the offense” offered as mitigation. Lockett v. Ohio, 438
U.S. 586, 604 (1978). “[T]he sentencer may not be precluded from considering . . .
any constitutionally relevant mitigating evidence.” Buchanan v. Angelone, 522
U.S. 269, 276 (1998).
We conclude that the trial court properly excluded the testimony regarding
Sailor. Even if credible evidence showed Sailor to be involved in Burnell’s
murder—which the trial court concluded was not shown—Sailor’s prior criminal
act of pointing a gun at traffic and at Officer Ewert had no relevance to any aspect
of Lowe’s character or record, or to any circumstances of the murder and
attempted robbery.10 Accordingly, the trial court did not abuse its discretion.
Regarding Blackmon’s affidavit, Blackmon, who was deceased at the time
of the resentencing trial, had signed an affidavit in October 1990 in which he stated
10. In any event, Lowe was improperly offering Sailor’s prior act of
misconduct solely to prove Sailor’s bad character or propensity. See § 90.404(1),
(2)(a), Fla. Stat. (2017).
- 23 -
that Officer Green and another officer had made certain promises and threats.
During cross-examination of Officer Green, Lowe attempted to impeach Officer
Green with Blackmon’s affidavit. The State objected to the introduction of the
affidavit into evidence as well as to any direct reading from the affidavit. The trial
court eventually sustained the objection but ruled that, among other things, defense
counsel could directly ask Officer Green “any questions . . . about whatever he said
to Mr. Blackmon,” including whether he intimidated or threatened Blackmon.
Defense counsel then asked Officer Green whether he made certain specific
promises and threats to Blackmon. Officer Green denied doing so.
“To impeach a witness by use of a prior inconsistent statement pursuant to
section 90.608, Florida Statutes (2008), the prior statement must be both (1)
inconsistent with the witness’s in-court testimony, and (2) the statement of the
witness.” Wilcox v. State, 143 So. 3d 359, 383 (Fla. 2014). The State cites Wilcox
for the proposition that a witness may never be impeached with another person’s
affidavit. The State misreads Wilcox. In Wilcox, this Court concluded that the trial
court did not abuse its discretion in sustaining the State’s objection to an attempt to
impeach a witness with an arrest affidavit. Id. at 384. We approved the trial
court’s decision not on the basis that the affidavit was an affidavit of another
person but rather, in part, on the basis that the statements in the affidavit “were not
‘statements of the witness’ as contemplated by section 90.608.” Id. at 383.
- 24 -
Namely, the affidavit only included a summation of statements made by four
witnesses and briefly stated that those witnesses “denied any knowledge or
involvement” in the crime. Id. Moreover, in Williamson v. State, 961 So. 2d 229,
234-35 (Fla. 2007), this Court in a postconviction case theorized that the defendant
there could have introduced, under section 90.608, the affidavit of an unavailable
(deceased) declarant to impeach one of the State’s key witnesses through prior
inconsistent statements and to show the witness’s bias in favor of the State,
assuming the witness first denied the statements. Ultimately, this Court in
Williamson concluded that the affidavit was inadmissible as substantive evidence
and that even assuming the affidavit was admissible to impeach the witness, the
affidavit would not have probably produced an acquittal or conviction of a lesser
included offense on retrial. Id. at 235.
Here, even assuming that Lowe should have been permitted to introduce
Blackmon’s affidavit—but only to the extent that the purported statements could
be isolated to Officer Green, and only after the proper foundation had been laid and
Officer Green first denied making the statements—any such error was harmless.
Prior to the State’s objection, defense counsel made the jury aware of Blackmon’s
affidavit (which defense counsel was holding) and the general accusations against
Officer Green. After the objection was sustained, defense counsel directly
questioned Officer Green regarding whether he ever threatened Blackmon with the
- 25 -
electric chair, whether he mentioned to Blackmon that he could be prosecuted as
an accomplice and serve fifty to one hundred years, and whether he told Blackmon
that in order for Blackmon to receive reward money he would have to testify that
Lowe committed the murder. It is clear from the context that the jury understood
that Lowe was questioning Officer Green regarding the specific accusations
Blackmon made against Officer Green. Accordingly, we conclude that Lowe is
not entitled to relief as to this claim.11
VI. Defense Expert’s Testing Results
Lowe argues that the trial court, without an adequate Richardson hearing
and consideration of alternatives, excluded scientific statistical evidence that would
have supported the lack of future violence mitigator.
During the latter portion of defense counsel’s direct examination of its
medical expert, Dr. Riebsame, defense counsel asked him whether he had enough
information to form a risk assessment regarding the likelihood or absence of
Lowe’s future violence. Dr. Riebsame answered in the affirmative and then
11. We also note that during Lowe’s prior postconviction case, Lowe
argued to this Court that Blackmon had “attempted to recant his affidavit and
accused the assistant public defenders of forcing him to sign the affidavit even
though some of the facts in the affidavit were not true.” Lowe, 2 So. 3d at 36.
Blackmon himself testified at the postconviction evidentiary hearing that, among
other things, “most of the statements in the affidavit were either lies or statements
that had been twisted.” Id.- 26 -
discussed how he looks at certain risk factors in coming up with a probability of
low, medium, or high risk of reoffending or doing something violent again. Dr.
Riebsame went on to note that “we can even do what’s known as an actuarial
assessment like your insurance agent would do” and testified that “the most widely
used actuarial statistical tool” for predicting future violence is called the “violence
risk appraisal guide.” After explaining that this tool involves looking to the
presence or absence of various factors, Dr. Riebsame then briefly discussed those
factors. When defense counsel then asked Dr. Riebsame “where does Mr. Lowe
fall on that scale,” the State objected and asked to approach. At sidebar, the State
objected, on the basis of a discovery violation, to Dr. Riebsame discussing the
specific test results. The State explained that it had deposed Dr. Riebsame one
month earlier and that the statistical tool was neither discussed during the
deposition nor listed in Dr. Riebsame’s report that was provided to the State prior
to the deposition.12 Defense counsel explained that he had just found out about it
in the hall while discussing Dr. Riebsame’s testimony with him. The trial court
sent the jury out and conducted a Richardson hearing. The State argued that it was
“completely prejudiced,” given that, based on Dr. Riebsame’s deposition, the State
12. For unexplained reasons, Dr. Riebsame appears to have performed the
statistical analysis at issue during the one-month period between the date of his
deposition and the day he testified at trial, even though he testified that it was “the
most widely used actuarial statistical tool for predicting violence in the future.”
- 27 -
chose not to bring its expert, Dr. Rifkin, for rebuttal. The State also argued that the
discovery violation was taking place on what was effectively the last day of the
new penalty phase and that the State had no ability to cross-examine or even
research whether such testing met the Frye13 standard. The defense countered that
they had already gotten “well into” Dr. Riebsame’s testimony on the subject before
the objection.
The trial court concluded that the discovery violation was not intentional but
was also not trivial and impaired the State’s ability to cross-examine or to present
its own testimony. The trial court noted that the violation was taking place “at the
eleventh hour and fifty-ninth minute” and involved a subject with which the State
was not familiar. The trial judge ruled that Dr. Riebsame was “not precluded from
giving his opinion, he’s just precluded from saying I conducted this test and on the
basis of this test I’m concluding this.” Defense counsel then pointed out that Dr.
Riebsame had other bases to talk about his opinion, and the trial court made clear
that Dr. Riebsame was free to testify to those things but was simply precluded from
discussing the calculations he made after his deposition.
When the jury returned, Dr. Riebsame testified that he was able to render an
expert opinion regarding Lowe’s likelihood of future violence based on the
13. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
- 28 -
information he knew about Lowe “and the testing” he carried out. Dr. Riebsame
then explained the factors that diminished the risk of Lowe reoffending, as well as
the risk factors that increased the likelihood of Lowe reoffending. He also testified
that the risk varied based on whether Lowe was in or out of custody, with Lowe
presenting “a minimal risk of a violent offense” if in custody. Finally, when asked
whether there are “greater factors that lower or increase” the risk, Dr. Riebsame
testified that the greater lowering factors were that Lowe was now forty years old
as opposed to twenty years old when he carried out the violent offense and violated
community control, that Lowe continued to have no history of a substance abuse
problem, and that Lowe had no severe mental health disorder. On cross-
examination, the State did not attack Dr. Riebsame’s conclusions on the basis of a
lack of statistical analysis testing. Instead, the State asked Dr. Riebsame whether
he would agree that human behavior “is extremely unpredictable,” and the doctor
answered in the affirmative. The State then asked questions which indicated that
Lowe previously behaved well while he was at a juvenile facility and again when
he went to the Department of Corrections in 1988 but that each time when he got
out he reoffended. And Dr. Riebsame testified “that’s true.”
When a trial court has notice of a discovery violation, Richardson holds that
the trial court’s discretion can only be properly exercised once it has determined:
(1) whether the violation was willful or inadvertent; (2) whether it was trivial or
- 29 -
substantial; and (3) whether it had a prejudicial effect on the opposing party’s trial
preparation. Richardson, 246 So. 2d at 775. This Court will then review the
record “to determine if this full inquiry was made and if the trial court’s actions
pursuant to the inquiry were proper.” McDuffie v. State, 970 So. 2d 312, 321 (Fla.
2007). This Court will reverse a trial court’s decision on a Richardson hearing
only upon a showing of abuse of discretion. See Rimmer v. State, 59 So. 3d 763,
787 (Fla. 2010). We have previously noted that the exclusion of evidence for a
discovery violation “should only be imposed when there is no other adequate
remedy.” McDuffie, 970 So. 2d at 321. Moreover, this “extreme sanction [is] to
be employed only as a last resort and only after the court determines no other
reasonable alternative exists to overcome the prejudice and allow the witness to
testify.” Delhall v. State, 95 So. 3d 134, 162 (Fla. 2012). That is especially true
when there is “a defense discovery violation, because there are few rights more
fundamental than the right of an accused to present evidence or witnesses in his
own defense.” Id. at 162-63 (citing McDuffie, 970 So. 2d at 321).
Here, it appears the trial court excluded the testimony as a “first resort,” id.
at 163, as opposed to a last resort. Indeed, the trial court does not appear to have
“considered less extreme alternatives before excluding the testimony.” Dawson v.
State, 20 So. 3d 1016, 1018 (Fla. 4th DCA 2009). However, we conclude that any
error by the trial court was harmless beyond a reasonable doubt.
- 30 -
Prior to the State’s objection, the jury was made aware that Dr. Riebsame
conducted a risk assessment using a statistical model for predicting future violence
known as the “violence risk appraisal guide.” And the jury was made aware of the
various factors that are relevant to that risk assessment. Defense counsel himself
recognized that the defense had gone “well into” Dr. Riebsame’s testimony on the
subject before the State objected. After the State’s objection, the jury was
permitted to hear Dr. Riebsame’s expert opinion regarding Lowe’s likelihood of
future violence, including Riebsame’s other bases for his opinion. The full context
of the record reveals that Dr. Riebsame’s expert opinion was that there was a low
risk of Lowe engaging in violence in the future. And Dr. Riebsame testified that
he formed his expert opinion based on the information he knew about Lowe as
well as “the testing” he “carried out.” He further testified that he “appl[ied] that
information to what we know are specific factors associated with reoffending or
not reoffending in a violent fashion.” The jury was clearly informed that Dr.
Riebsame’s determination was that Lowe had a low risk of future dangerousness
and that the determination was made, in part, by the use of a statistical model.
Moreover, the trial court found the mitigator proven. We conclude that “there is
no reasonable possibility” that the trial court’s failure to consider any alternative
remedies contributed to Lowe’s death sentence. Delhall, 95 So. 3d at 164.
Accordingly, we deny relief as to this claim.
- 31 -
VII. State’s Comments during Closing Argument
Lowe argues that the State made several improper comments during its
closing argument that warrant reversal. Specifically, he claims that the State used
victim impact statements to compare the worth of Burnell and Lowe and that the
State argued to the jury that Lowe had been sentenced to death before and should
be again because nothing had changed since then.
Control of prosecutorial argument lies within the trial court’s sound
discretion, and will not be disturbed absent an abuse of discretion. Esty, 642 So.
2d at 1079. “Wide latitude is permitted in arguing to a jury. Logical inferences
may be drawn, and counsel is allowed to advance all legitimate arguments.”
Breedlove v. State, 413 So. 2d 1, 8 (Fla. 1982) (citations omitted). However,
prosecutorial argument “must not be used to inflame the minds and passions of the
jurors so that their verdict reflects an emotional response to the crime or the
defendant rather than the logical analysis of the evidence in light of the applicable
law.” Bertolotti v. State, 476 So. 2d 130, 134 (Fla. 1985). “Any error in
prosecutorial comments is harmless, however, if there is no reasonable possibility
that those comments affected the verdict.” King v. State, 623 So. 2d 486, 488 (Fla.
1993).
Lowe points to the following statements made by the State during its closing
arguments:
- 32 -
How about the Defendant has changed and grown spiritually
since he was convicted of first-degree murder? Well, that’s good,
that’s a good thing. But, really, when you stack it up against Donna
Burnell’s life, really, is that mitigating? Donna Burnell used her
rosary every night. Is that really mitigating compared to what he did
on July 3rd of 1990?
....
They [Lowe’s family] care about him. They love him. Donna
Burnell loved her family. Her family cared about her.
....
He is a caring and loving brother. We love the ones we have in
our family. We love our family and we love that part of it. But
Donna Burnell cared and loved her family, too.
....
We know he wasn’t doing well, we know what he was up to.
We know what he was up to. Planning robberies, guns. Murdering
innocent store clerks.
Does this outweigh what happened to Donna Burnell? Does it?
Think about what Rodney Lowe did that morning. Think about
what he came from, what he was doing, his activities. His behavior
prior to that. Does that outweigh what happened to Donna Burnell?
....
Whether or not this Defendant matured over the last twenty
years, behaved well in prison doesn’t take away what happened to
Donna Burnell.
Donna Burnell was a human being who cared about her family.
Mr. Lowe should be held accountable for taking away that life.
Lowe did not contemporaneously object to any of these statements. Thus, Lowe is
entitled to relief only if the “[u]nobjected-to comments . . . rise to the level of
fundamental error.” Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007). To meet
this burden in the sentencing context, Lowe “must demonstrate that the error
‘reaches down into the validity of the trial itself’ and that a sentence of death
‘could not have been obtained without the assistance of the alleged error.’ ”
- 33 -
Hayward v. State, 24 So. 3d 17, 42 (Fla. 2009) (quoting Simpson v. State, 3 So. 3d
1135, 1146 (Fla. 2009)).
In Wheeler v. State, 4 So. 3d 599, 610-11 (Fla. 2009), we cautioned the State
and its prosecutors that it is improper to use victim impact evidence to urge juries
“to compare the worth of the life of the victim against that of [the defendant],” but
we declined to find fundamental error in that case because the unobjected-to
prosecutorial comments were not “shown to have deprived [the defendant] of a fair
penalty phase” and were not “shown to be so inflammatory that the jury’s advisory
verdict could not have been obtained without it.” In Hayward, we again voiced
our disapproval regarding prosecutorial use of victim impact evidence to
“compar[e] the life or choices of the victim with that of the defendant.” 24 So. 3d
at 42-43. But we declined to find fundamental error in that case after viewing the
unobjected-to prosecutorial comments “in the context of the entire closing
argument and in light of the evidence presented in the penalty phase,” namely, “the
strength of the evidence against [the defendant] and the gravity of the aggravators.”
Id. at 42.
In light of Wheeler and Hayward, we conclude that the State’s comments
comparing Burnell’s life and Lowe’s life do not rise to the level of fundamental
error. The comments at issue represented a very brief portion of the State’s entire
closing. Moreover, the comments were made in the context of discussing three
- 34 -
nonstatutory mitigators—family relationships, religious faith, and maturity—each
of which the trial court found and weighed in the sentencing calculus. On this
record, including the evidence presented and the fact that the jury was instructed
on the proper use of victim impact testimony, it cannot be said that the unobjected-
to comments deprived Lowe of a fair penalty phase or were “so inflammatory” that
a sentence of death could not have been obtained without it. Wheeler, 4 So. 3d at
611.
Lowe also argues that the State impermissibly argued to the jury that he had
been sentenced to death before and should be again because nothing had changed
since then. Lowe did not make a contemporaneous objection to the State’s closing,
and we conclude that the State’s references to the prior death sentence do not
amount to fundamental error. In Teffeteller v. State, 495 So. 2d 744, 745-47 (Fla.
1986), we rejected a similar argument from a defendant who claimed that it was
reversible error for the jury to have been informed of his prior death sentence that
had been vacated by this Court. We did so on two separate grounds. First, we
examined the record and concluded “that the prior sentence did not in any way
play a significant role in th[e] proceeding and was not prejudicial to the
[defendant].” Id. at 747. We also noted that the defendant’s own witness, and the
defendant himself, provided testimony that alluded to the defendant’s prior
sentence. Id. at 746. And we noted that none of the witness testimony mentioned
- 35 -
“the prior jury’s recommendation, only that a death sentence had been imposed by
the original trial judge.” Id. at 747. Second, we concluded that the issue was
unpreserved and that any error, including the prosecutor mentioning the prior
sentence during closing argument, was not fundamental. Id. In a concurring
opinion, Justice Barkett noted that “because the defendant himself advised the jury
of his prior status on death row,” a new penalty phase was not required. Id. at 748(Barkett, J., concurring specially).
Here, before the State’s closing argument, several of Lowe’s own
witnesses—through testimony elicited by defense counsel—informed the jury of
Lowe’s prior status on death row. First, Dale Resinella testified that he was the
chaplain on death row and that he had provided counsel to Lowe. Later, Ron
McAndrew, a retired warden, was asked by defense counsel if Lowe was “housed
on death row” in a cell by himself, to which McAndrew responded in the
affirmative. Finally, Lowe’s mental health expert, Dr. Riebsame, described
Lowe’s case as a “postconviction appeal” involving “a person [who] has been on
death row for 20 years.” Although the State mentioned during closing that Lowe
had been on death row for twenty years, it was only after defense counsel elicited
testimony from its witnesses of the same fact. Moreover, a review of the record
reveals that the State did not make the prior sentence a key feature of the
proceedings. Id. at 746. And we do not find that the State’s brief comments were
- 36 -
“so prejudicial or inflammatory that a new sentencing proceeding is required.” Id.at 747 (citing Blair v. State, 406 So. 2d 1103 (Fla. 1981)).
Accordingly, we deny relief as to this claim.
VIII. Evidence in Deliberation Room
Lowe argues that it was fundamental error for the trial court to allow a letter
his mother, Sherri Lowe, wrote to him in 1988 to be given to the jury during
deliberations, given that the letter was not admitted into evidence in the
resentencing proceedings and contained prejudicial information. The letter was
part of a box of personal contents that had been admitted into evidence as State’s
Exhibit 32 during the original trial. We reject Lowe’s claim of fundamental error.
On cross-examination, the State presented Sherri with the letter and asked
whether she recalled saying that, among other things, she thought the course Lowe
was on “was leading to death.” After Sherri testified that it “was certainly my
handwriting, but I don’t remember,” defense counsel made a general objection and
asked to approach. At sidebar, defense counsel asked if the letter was from the box
of contents, and the prosecutor answered in the affirmative. The prosecutor
explained that she was going to “admit it into evidence.” Defense counsel
countered that he did not know it was coming in and had not had a chance to read
it. The trial judge then dismissed the jury for lunch, and defense counsel was given
a chance to read the letter during the lunch break. After lunch, and before the jury
- 37 -
was recalled, the trial judge asked if counsel for both sides had “worked out any
problems with [the letter].” Both responded in the affirmative. Without objection,
the State then asked more questions of Sherri regarding the letter, while apparently
inadvertently failing to have the letter admitted into evidence. Sherri testified that
she recognized her handwriting and the letter itself and that she was very
concerned about Lowe’s behavior. On redirect, defense counsel asked Sherri,
“What else is in that letter?” She responded:
I was encouraging him to do what’s right. I mean, we’ve always
taught him bible principal, what is right and what is wrong, to obey or
disobey. Now, of course I was encouraging him to go forth, to repent
and turn around and go forth in a positive manner, according together
[sic] scriptures.
Defense counsel then asked Sherri if she included a scripture verse in the letter,
and she said “yes.”
After closing arguments, the trial judge and counsel for both parties
discussed the evidence that was going to be sent back to the jury. The trial judge
specifically asked about the box identified as State’s 32 and whether there was “a
stipulation between the parties as to whether [the box] will go back to the jurors.”
The State responded that it had “agree[d] with the defense” that the box containing
“a lot of personal items and some other stuff” would not be sent back to the jury.
But the State specifically noted that the “letter that was used” would indeed be sent
back. Defense counsel did not object or suggest that the State’s response did not
- 38 -
accurately reflect what had been agreed to. The trial court then asked defense
counsel if he had agreed not to send the box back, and he responded in the
affirmative.
“As a general rule, it is improper to allow materials into the jury’s
deliberation room that have not been admitted into evidence if the materials are of
such character as to influence the jury.” Gonzalez v. State, 136 So. 3d 1125, 1145
(Fla. 2014). “However, it is not per se reversible error when any unauthorized
materials are present in the jury room. Rather, where an objection is raised,
Florida courts have applied a harmless error analysis.” Id. (citing Keen v. State,
639 So. 2d 597, 599 (Fla. 1994); State v. Hamilton, 574 So. 2d 124, 129-30 (Fla.
1991)). Given the absence of any specific, contemporaneous objection, either to
the examination of Sherri with the letter or to the trial court sending the letter back
to the jury room, Lowe is entitled to relief only if the purported error rises to the
level of fundamental error. See Merck, 975 So. 2d at 1061.
We have recognized that “[a] party may not invite error and then be heard to
complain of that error on appeal.” Pope v. State, 441 So. 2d 1073, 1076 (Fla.
1983); see also Tomas v. State, 126 So. 3d 1086, 1088 (Fla. 4th DCA 2012)
(finding defendant consented to the unauthorized materials being given to the jury
and thus any error was invited error). We have also recognized, in the context of
certain erroneous jury instructions, a fundamental error analysis exception “where
- 39 -
defense counsel affirmatively agreed to or requested the incomplete instruction.”
State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994), receded from on other grounds by
State v. Spencer, 216 So. 3d 481 (Fla. 2017). However, we also recognized in that
context that the exception did not apply “where defense counsel merely acquiesced
to [the incomplete] instructions.” Spencer, 216 So. 3d at 486; see, e.g., Black v.
State, 695 So. 2d 459, 461 (Fla. 1st DCA 1997) (“[D]efense counsel must be aware
that an incorrect instruction is being read and must affirmatively agree to, or
request, the incomplete instruction.”).
Given this record, defense counsel’s conduct goes well beyond mere
acquiescence. Moreover, we conclude that any error was not fundamental. We
agree with the State that the content of the letter was largely duplicative of Sherri’s
testimony—both on cross-examination and redirect—as well as certain other
testimony, including from Dr. Riebsame. That is, Lowe had gotten into trouble at
school and committed other crimes during his teen years, Sherri was concerned
with his behavior, the family tried to counsel Lowe, Sherri encouraged Lowe to go
forth and repent in accordance with the Bible, Lowe’s brother had also been in
trouble, and Lowe had been shunned by his family and their church congregation.
See Bottoson v. State, 443 So. 2d 962, 966 (Fla. 1983) (“There is no prejudice
where the information conveyed by the unauthorized materials merely duplicates
- 40 -
evidence that had been properly presented to the jury at the trial.”). Consequently,
we deny relief as to this claim.
IX. Evidence Not Considered by Jury
Lowe argues the jury was precluded from considering evidence of his
limited role in the killing, his disproportionate treatment compared to others
involved, and a lawful evaluation of the aggravators. In support, Lowe points to
the juror questionnaires as well as the instructions given at the outset and
conclusion of the penalty phase. The instructions informed the jury that Lowe had
been found guilty of first-degree murder and that the jury should only consider the
sentence to be imposed, not guilt. Lowe contends that these instructions prevented
the jury from considering “substantial” mitigation and accurately assessing
aggravation. We find Lowe’s argument unavailing.
In this Court’s previous decision to uphold the trial court’s grant of a new
penalty phase, we found ineffective assistance of counsel under Strickland14
regarding counsel’s failure to “discover[] evidence to call into question
Blackmon’s alibi and Blackmon’s contention that he did not participate in the
crimes.” Lowe, 2 So. 3d at 40. That evidence included testimony from Lisa Miller
and Ben Carter “that Blackmon had confessed to his involvement in the crime
14. Strickland v. Washington, 466 U.S. 668 (1984).
- 41 -
during a conversation at Blackmon’s grandmother’s house.” Id. at 41. This Court
noted that although “there were some inconsistencies between the testimony of
Miller and that of Carter as to the specific details of the crime,” “the testimony of
both witnesses provided credible support for two of the mitigating circumstances
raised by defense counsel” and rejected by the trial court, namely, “the
disproportionate punishment mitigator and the relatively minor participation
mitigator.” Id. And this Court noted that although there was evidence presented
“that proved that Lowe was involved in the crime,” the evidence did “not
conclusively prove Lowe acted alone.” Id. at 41-42.
During the new penalty phase, the State’s theory continued to be that Lowe
acted alone. And the defense’s theory was that Lowe was a minor participant.
During its opening statement, defense counsel informed the jury that the evidence,
including “statements that were made by others after the fact,” would show that
Lowe did not act alone and was not the shooter. Defense counsel later called
Miller and Carter—former girlfriend and boyfriend who had fourteen felony
convictions and eleven felony convictions, respectively—who testified about
admissions made by Blackmon years later while Blackmon was threatening other
people. Miller claimed that Blackmon admitted to being the shooter, and Miller
also claimed to have brought Blackmon’s confession to the attention of several
detectives. Carter similarly claimed that Blackmon admitted to being the shooter,
- 42 -
but Carter later claimed that Blackmon on several occasions said that Lorenzo
Sailor was the shooter. Carter also denied ever telling the police about a
conversation he overheard in which Lowe admitted he was the shooter. The State
later presented several rebuttal witnesses to impeach both Miller and Carter. Those
witnesses included Steve Kerby, a retired investigator with the State Attorney’s
Office, who testified that, a few days after Burnell’s murder, Carter told him that
he (Carter) overheard a conversation in which Lowe told Blackmon that he (Lowe)
had attempted to rob the convenience store and had shot the attendant. During
closing, defense counsel continued to argue that Lowe was not the shooter, instead
asserting that Sailor was the shooter.
Defense counsel requested the minor participant mitigator instruction, which
the trial court granted. The trial court instructed the jury that it could consider as a
mitigating circumstance that Lowe “was an accomplice in a capital felony
committed by another person, and his participation was relatively minor.” The
jury was also informed that “mitigating circumstances may include any aspect of
the Defendant’s character, background, or life, or any circumstance of the offense
that reasonably may indicate that the death penalty is not an appropriate sentence
in this case.” And the jury was repeatedly informed that its recommendation must
be based only upon the evidence and the instructions.
- 43 -
Despite being permitted to argue minor participation, including presenting
the testimony of Miller and Carter, and despite the jury being instructed regarding
the mitigator, Lowe argues that instructing the jury to not concern itself with
Lowe’s guilt misled the jury into believing it “could give no effect to” the minor
participant mitigator. Lowe argues that although he was allowed to present the
mitigation, the fact that the jury believed it could not consider the mitigation
violates Lockett and Eddings v. Oklahoma, 455 U.S. 104 (1982).
“Jury instructions are subject to the contemporaneous objection rule, and in
the absence of a contemporaneous objection at trial, relief regarding error in the
instructions can be granted on appeal only if that error is fundamental.” Floyd v.
State, 850 So. 2d 383, 403 (Fla. 2002). “Fundamental error is that which ‘reaches
down into the validity of the trial itself to the extent that a verdict . . . could not
have been obtained without [that] error.’ ” Id. (alterations in original) (quoting
Archer v. State, 673 So. 2d 17, 20 (Fla. 1996)). Here, Lowe did not object to the
instruction, and he fails to show that fundamental error, or any error for that matter,
occurred.
As an initial matter, we note that defense counsel himself during closing
“ma[d]e it clear” to the jury that the defense was “not contesting that Rodney Lowe
is guilty of first degree murder” and was instead asking the jury “to look at the
evidence” and “take into consideration that someone else was in that store with
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Rodney Lowe on July 3rd, 1990.” Even putting aside that fact, we find no error in
the instructions given to the jury. Moreover, in the absence of evidence to the
contrary, we presume that jurors follow the trial court’s instructions. See Hurst v.
State (Hurst), 202 So. 3d 40, 63 (Fla. 2016) (“In a capital case, the gravity of the
proceeding and the concomitant juror responsibility weigh even more heavily, and
it can be presumed that the penalty phase jurors will take special care to understand
and follow the law.”), cert. denied, 137 S. Ct. 2161 (2017). Here, the jury heard
testimony related to Lowe’s role in the crime. After being properly instructed, the
jury made a unanimous recommendation that the death penalty was appropriate.
There is nothing to suggest that the jury was led to believe it could not consider the
minor participant mitigator. And the trial court’s sentencing order reveals that the
trial court rejected the minor participant mitigator for several reasons, including
that the trial court found neither Miller nor Carter to be credible and that the
evidence established that Lowe acted alone. Accordingly, we deny Lowe relief on
this claim.
X. Culpability Finding
Lowe argues that this Court’s previous decision to remand for a new penalty
phase required the trial court to make Enmund v. Florida, 458 U.S. 782 (1982), and
Tison v. Arizona, 481 U.S. 137 (1987), findings and that the trial court therefore
- 45 -
fundamentally erred by failing to give the Enmund/Tison instruction. The State
counters that Lowe declined an Enmund/Tison instruction. We deny Lowe relief.
As an initial matter, nowhere in our previous decision did we mention
Enmund or Tison let alone indicate that we were remanding for resentencing for an
Enmund/Tison finding. Instead, as noted above, we found ineffective assistance of
counsel under Strickland regarding counsel’s failure to “discover[] evidence to call
into question Blackmon’s alibi and Blackmon’s contention that he did not
participate in the crimes.” Lowe, 2 So. 3d at 40. That evidence included testimony
from both Miller and Carter regarding Blackmon’s purported confessions to
shooting Burnell. Id. at 41. And we noted that the testimony “provided credible
support for two of the mitigating circumstances raised by defense counsel,”
including “the disproportionate punishment mitigator.” Id.During the charge conference, the trial judge specifically raised the issue of
giving an Enmund/Tison instruction. After questioning whether either side was
requesting the instruction, defense counsel stated, “Well, before we tell you we’re
not gonna ask for it, I again would just ask for the evening to make sure that I don’t
wanna ask for it.” Defense counsel then indicated they would research the issue
and email the prosecutor to “have that worked out.” The next day, defense counsel
did not ask for an Enmund/Tison instruction and instead announced they were
“okay” with revised instructions that had been provided by the prosecutor. After
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the trial court instructed the jury, Lowe agreed the instructions were read in
accordance with the trial court’s rulings.
Jury instructions “are subject to the contemporaneous objection rule, and,
absent an objection at trial, can be raised on appeal only if fundamental error
occurred.” State v. Delva, 575 So. 2d 643, 644 (Fla. 1991). Fundamental error
occurs only when the omission is material to what the jury must consider in order
to reach its verdict. Id. at 645. Lowe did not object to the absence of an
Enmund/Tison instruction and therefore this claim is unpreserved. Indeed, defense
counsel requested time to research the specific issue and, after being granted the
time, declined to request the instruction. On this record, any error was invited, and
Lowe may not “be heard to complain of that error on appeal.” Pope, 441 So. 2d at
1076. In any event, Lowe is unable to show fundamental error. Lowe points to
this Court’s decisions in Jackson v. State, 502 So. 2d 409, 413 (Fla. 1986), and
Diaz v. State, 513 So. 2d 1045, 1048 n.2 (Fla. 1987), as mandating reversal. We
disagree.
In Enmund, the Supreme Court held that, in the context of felony murder, it
was unconstitutional to impose the death penalty on a defendant “who aids and
abets a felony in the course of which a murder is committed by others but who
does not himself kill, attempt to kill, or intend that a killing take place or that lethal
force will be employed.” 458 U.S. at 797. The Supreme Court later clarified that
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Enmund’s requisite culpability finding could be made by “an appellate court, a trial
judge, or a jury.” Cabana v. Bullock, 474 U.S. 376, 392 (1986).
In the wake of Enmund and Cabana, this Court, out of concern that an
appellate court’s factual findings may in some cases be inadequate, set forth a
procedure for trial courts to follow “in appropriate cases.” Jackson, 502 So. 2d at
413. Under that procedure, the penalty phase jury is first to be instructed “that in
order to recommend a sentence of death, the jury must first find that the defendant
killed or attempted to kill or intended that a killing take place or that lethal force be
employed.” Id. And the trial court judge is “to make an explicit written finding
that the defendant killed or attempted to kill or intended that a killing take place or
that lethal force be employed, including the factual basis for the finding, in its
sentencing order.” Id.In Tison, the Supreme Court expanded the Enmund culpability requirement,
holding that “major participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the Enmund culpability
requirement.” 481 U.S. at 158. And in the wake of Tison, this Court modified its
previously announced procedures to reflect that Tison had expanded the culpability
requirement. Diaz, 513 So. 2d at 1048 n.2. Again, we did so because “an
appellate court’s factual findings may be inadequate in some cases.” Id.- 48 -
As an initial matter, Lowe points us to no authority to support reversal,
based on lack of an Enmund/Tison jury instruction, in a case in which the
convicted defendant is the only person to have been conclusively linked to the
crime and in which there is no evidence showing that any other person has ever
even been charged with the same crime. Moreover, Lowe’s mandatory reversal
argument ignores that in Diaz, this Court, in rejecting a defendant’s argument
regarding lack of an Enmund instruction, itself made the requisite culpability
finding, “[b]ased on our review of the record.” Id. at 1048. Here, although Lowe
consistently argued that he was not the only participant and that someone else was
the shooter, the trial court’s sentencing order makes clear that, among other things,
Miller and Carter were not credible witnesses and that the evidence established that
Lowe acted alone. And the sentencing order makes clear why the trial court
concluded that Lowe acted alone. The fact that the sentencing order does “not
engage in a specific Enmund/Tison analysis” does not change our conclusion.
Pearce v. State, 880 So. 2d 561, 575 (Fla. 2004) (rejecting the defendant’s
Enmund/Tison argument because the defendant’s role in the murder was
“explained in detail in the sentencing order” and was “supported by the evidence”).
The record here supports the finding that Lowe “was not merely an aider or
abetter in a felony where a murder was committed by others.” Stephens v. State,
787 So. 2d 747, 760 (Fla. 2001). And the record supports the finding of “major
- 49 -
participation in the felony committed, combined with reckless indifference to
human life.” Tison, 481 U.S. at 158. Lowe is not entitled to relief on this claim.
XI. Sentencing Options
Because Lowe committed the first-degree murder in 1990, the two
sentencing options available at the time of his new penalty phase were either death
or life imprisonment without the possibility of parole for twenty-five years. See
§ 775.082(1), Fla. Stat. (1989). That is the case even though at the time of Lowe’s
new penalty phase, the Legislature had amended the sentencing statute to eliminate
any possibility of parole in life sentences for first-degree murder. See Bates v.
State, 750 So. 2d 6, 10 (Fla. 1999) (concluding that the amended sentencing statute
did not apply retroactively); see also ch. 94-228, § 1, at 1577, Laws of Fla. Lowe
argues that the jury was misled regarding the effect of a life sentence and was
prejudiced by the State’s argument relying on the prior death sentence. More
specifically, he argues that because the jury was told he would be credited for time
served and because he was precluded from discussing the improbability of his
release on parole and from mentioning his fifteen-year consecutive sentence for
attempted robbery, the jury was misled as to the effect of a life sentence without
the possibility of parole for twenty-five years. We disagree.
Before voir dire, the State filed a motion in limine seeking to preclude Lowe
from arguing that, given how the parole system works, he would not be released
- 50 -
after serving the mandatory twenty-five years of his sentence if the judge
sentenced him to life. The trial court eventually ruled that neither side could argue
anything related to the parole system, including that Lowe, who had already served
approximately twenty years in prison, could get out in a few years if given a life
sentence.15 The trial court also ruled that the jury could be informed of Lowe’s
conviction for attempted robbery but could not be informed whether the fifteen-
year sentence was consecutive or concurrent.
During voir dire, a potential juror asked the prosecutor whether with a life
sentence, there is a chance for parole after twenty-five years. The prosecutor
explained that Lowe would be eligible for parole after twenty-five years but that it
did not mean he would get out, that Lowe would only be “eligible for parole,” that
the parole decision was not up to the courts, and that it was not something the
prospective juror should consider. The prosecutor then asked the prospective juror
whether he understood what she (the prosecutor) was saying, and the prospective
juror responded in the affirmative.
Another prospective juror then asked the prosecutor whether Lowe would
receive credit for time served and asked when Lowe was originally sentenced. The
prosecutor answered that Lowe would receive credit for time served. As the
15. The prosecutor explained that the State would not be arguing that if
given a life sentence, Lowe might get out in just a few short years.
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prosecutor was answering the second part of the question, defense counsel objected
and stated that it was improper to respond to such questions. During the ensuing
sidebar, the trial court referenced this Court’s case law, including Gore v. State,
706 So. 2d 1328 (Fla. 1997), for the proposition that if the jury asks such
questions, the jury may be told the truth. And the trial court observed that the
prosecutor properly answered the questions. After the sidebar, the trial judge
directly addressed the prospective juror. The trial judge explained that Lowe
would indeed receive credit for time served and then emphasized that parole
eligibility should not factor into deliberations:
THE COURT: Also, but, as far as eligibility, none of us in the
judicial system have anything to do with whether a person is either
granted parole or not granted parole, so we’re unable to speculate on
the likelihood of parole and it just is out of our hands.
On the other hand, also, that should not be a consideration. The
only consideration that you should make in making your
determination is the aggravating factors and the mitigating factors.
That should not enter into your decision making in your deliberations.
Neither of these two prospective jurors was selected to sit on the actual jury.
In instructing the jury prior to deliberations, the trial judge informed the jury
of the two sentencing options. The trial judge also repeatedly explained that the
jury was to base its decision only on the evidence and the jury instructions. The
trial judge later explained: “Before you ballot you should carefully weigh, sift and
consider the evidence, realizing that a human life is at stake, and bring your best
judgment to bear in reaching your advisory sentence.” After being instructed, the
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jury deliberated for approximately two hours before unanimously recommending a
sentence of death.
Lowe fails to establish error. This Court has repeatedly addressed the issue
of whether, in a resentencing proceeding for a defendant who committed a pre-
1994 first-degree murder, the trial court abuses its discretion by answering (or not
answering) questions posed by the actual jury regarding parole eligibility and
credit for time served if given a life sentence. See, e.g., Armstrong v. State, 73 So.
3d 155, 173-74 (Fla. 2011) (finding no abuse of discretion in the trial court’s
decision to instruct the jury that the defendant would be credited with time served,
even though the trial court did not also instruct the jury that the defendant “was not
guaranteed parole at or after 25 years”); Green v. State, 907 So. 2d 489, 496-99
(Fla. 2005) (finding no abuse of discretion in the trial court’s decision to instruct
the jury that the defendant would receive credit for time served and that “there is
no guarantee that the defendant would be granted parole at or after 25 years”).16
This Court has also repeatedly declined to find error when the trial court excludes
certain irrelevant testimony or argument regarding a defendant’s other convictions
or the likelihood of parole. See, e.g., Merck, 975 So. 2d at 1059-60 (finding the
16. In 2014, subsequent to Lowe’s new penalty phase, Florida’s Standard
Criminal Jury Instruction 7.11 was amended based on Green. See In re Standard
Jury Instructions in Criminal Cases—Report No. 2013-03, 146 So. 3d 1110, 1120
(Fla. 2014).
- 53 -
trial court did not abuse its discretion “in excluding proffered expert testimony
regarding Florida’s parole procedures and [the defendant’s] likelihood of being
paroled”); Bates, 750 So. 2d at 11 (rejecting the defendant’s argument that it would
have been “relevant mitigation” for the jury to hear about his other consecutive
sentences). The trial court’s decisions and instructions here were consistent with
our precedent. And the prospective jurors were repeatedly told not to concern
themselves with the likelihood of parole. Accordingly, there is no error.
We also reject Lowe’s reliance on Hitchcock v. State, 673 So. 2d 859 (Fla.
1996). We have made clear that Hitchcock error occurs when the State argues that
a defendant nearing the expiration of the twenty-five years should be sentenced to
death in order to avoid the possibility of parole. See, e.g., Merck, 975 So. 2d at1060 n.3; Bates, 750 So. 2d at 11; Gore, 706 So. 2d at 1333. Here, the State never
argued or suggested that Lowe should be sentenced to death because he would
otherwise soon be eligible for parole. The record does not support the conclusion
that the State “inject[ed] [the defendant’s] future dangerousness into its evidence or
argument.” Bates, 750 So. 2d at 11. Lastly, we reject Lowe’s related argument
that he was prejudiced by the State’s “rel[iance] on the prior death sentence”
during closing argument. Not only was the issue unpreserved, but, as noted above,
several of Lowe’s own witnesses informed the jury of Lowe’s prior status on death
row. Lowe is not entitled to relief on this claim.
- 54 -
XII. Sentencing Order
Lowe claims he is entitled to a new penalty phase on the grounds that the
trial court did not independently weigh the aggravating and mitigating
circumstances and thus did not comply with section 921.141, Florida Statutes, and
Spencer. He argues that the sentencing order is a verbatim adoption of the State’s
sentencing memorandum with respect to the aggravation and analysis sections.
And he points to some inconsistencies between the weight assigned to certain
mitigators in the mitigation and analysis sections. We deny Lowe relief.
At the Spencer hearing, the trial court requested that both sides submit a
sentencing memorandum. In its sentencing order, the trial court ended up adopting
virtually all of the State’s sentencing memorandum with respect to the aggravation
section and most of the State’s memorandum with respect to the analysis section.
With respect to the mitigation section, the sentencing order did not wholly copy the
memorandum of either party; rather, the sentencing order generally followed the
format in Lowe’s memorandum and then explained the trial court’s findings with
respect to each proposed mitigator. Although the trial court did overall adopt
substantial portions of the State’s memorandum verbatim, a review of the
memoranda and the sentencing order reveals that the trial court independently
engaged in the weighing process. For example, in rejecting the minor participation
mitigator, the trial court noted that among other things it personally found both
- 55 -
Lisa Miller and Ben Carter to be not credible or believable witnesses. In addition,
the trial court personally assigned a weight to each of the aggravators in the
aggravation section and to each of the mitigators in the mitigation section. The
trial court also included several paragraphs of its own in the analysis section,
including a discussion of the jury’s unanimous recommendation.
Lowe cites to Morton v. State, 789 So. 2d 324, 333 (Fla. 2001), as requiring
reversal. We disagree. In Morton, the issue was whether the death sentence
imposed by the resentencing judge should be reversed “because the trial judge
adopted a majority of the findings from the original sentencing judge’s sentencing
order.” Id. at 334. Although we cautioned resentencing judges to avoid adopting
prior sentencing orders or substantial parts thereof, we rejected the defendant’s
argument for a new penalty phase because, among other things, “the resentencing
order included differences indicating that the resentencing judge did fulfill his
statutory responsibilities.” Id. We find sufficient differences exist in this case
between the State’s memorandum and the sentencing order to show that the trial
court independently engaged in the weighing process. See Valle v. State, 778 So.
2d 960, 964 n.9 (Fla. 2001) (“In the sentencing context, this Court has held that the
trial court may not request that the parties submit proposed orders and adopt one of
the proposals verbatim without a showing that the trial court independently
weighed the aggravating and mitigating circumstances.”); see also Farr v. State,
- 56 -
124 So. 3d 766, 781-82 (Fla. 2012) (rejecting the defendant’s postconviction claim
that the sentencing order “simply cop[ied] the State’s sentencing memorandum
verbatim,” given that the trial judge made certain changes to the memorandum).
Regarding the inconsistencies Lowe references in the trial court’s weighing
of certain mitigators, we find they do not show abdication by the trial judge of its
responsibility and do not hamper this Court’s review. These inconsistencies
appear to stem from the fact that the trial court personally assigned a weight to
each of the mitigators in the mitigation section and then later adopted most of the
State’s memorandum with respect to the analysis section, in which the State
discussed weight to be assigned to the proposed mitigators. However, we agree
with the State that these inconsistencies are generally minor, and we find that any
error is harmless beyond a reasonable doubt. For example, there is no significant
difference here between an initial finding that mitigation evidence is entitled to
“little weight” and a subsequent mention of that mitigation being entitled to “little
to no weight.” Regarding the “good behavior while in confinement” mitigator,
which the trial court initially assigned “moderate weight” but later mentioned in
the analysis section as being not mitigating and “only entitled to little or no
weight,” we conclude that this inconsistency does not make a significant difference
in the overall calculus, particularly given that the trial court found that four
- 57 -
aggravators were proven and assigned each “great weight.” Accordingly, Lowe is
not entitled to relief as to this claim.
XIII. Aggravators
Lowe argues the following aggravators were unlawfully presented to the
jury and applied to him as a basis for his death sentence: (1) on community control;
(2) prior violent felony; and (3) avoid arrest. Lowe also argues that he was denied
fundamental fairness under the principle of former jeopardy where the State had
not sought the community control, avoid arrest, and pecuniary gain aggravators in
the original penalty phase. We conclude that Lowe is not entitled to relief.
In reviewing the finding of an aggravating circumstance,
[I]t is not this Court’s function to reweigh the evidence to determine
whether the State proved each aggravating circumstance beyond a
reasonable doubt—that is the trial court’s job. Rather, [this Court’s]
task on appeal is to review the record to determine whether the trial
court applied the right rule of law for each aggravating circumstance
and, if so, whether competent substantial evidence supports its
finding.
Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997) (footnote omitted); see also
Occhicone v. State, 570 So. 2d 902, 905 (Fla. 1990) (“When there is a legal basis
to support finding an aggravating factor, we will not substitute our judgment for
that of the trial court . . . .”).
First, Lowe challenges the community control aggravator, notwithstanding
the fact that he conceded the aggravator during closing argument. He argues that
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the aggravator only applies to those “on community control” and that individuals
sentenced under the youthful offender statute—as was the case with Lowe and the
previous robbery he committed in 1987—are instead put in a “community control
program.” We disagree. A simple look at the relevant statutes reveals that the
definition of “community control” under section 948.001(3), Florida Statutes
(2011), is virtually identical to the definition of “community control program” in
section 958.03(2), Florida Statutes (2011), of the Florida Youthful Offender Act.
Moreover, chapter 948 itself repeatedly refers to a “community control program.”
In other words, the Legislature clearly uses the terms interchangeably. The trial
court did not err in finding that Lowe qualified for the aggravator.
Second, Lowe challenges the prior violent felony aggravator, again
notwithstanding the fact that he conceded the aggravator during closing argument.
Lowe argues that the aggravator was unlawfully applied because his conviction
was for robbery without a weapon for which he was given a youthful offender
sentence, and the crime was not life threatening. “Whether a crime constitutes a
prior violent felony is determined by the surrounding facts and circumstances of
the prior crime.” Gonzalez, 136 So. 3d at 1150 (quoting Spann v. State, 857 So. 2d
845, 855 (Fla. 2003)). Additionally, “any evidence showing the use or threat of
violence to a person during the commission of such felony would be relevant in a
sentencing proceeding.” Delap v. State, 440 So. 2d 1242, 1255 (Fla. 1983).
- 59 -
For Lowe’s prior conviction of robbery, the facts were that after the victim
(Crosby) drove his van home from the library one evening and pulled into his own
driveway, Lowe, who had earlier broken into and was quietly hiding in the back of
Crosby’s van, grabbed Crosby from behind, put something sharp up against
Crosby’s neck, which Crosby thought might have been a knife, told Crosby “don’t
move, don’t turn around, I don’t want to hurt you,” and instructed Crosby to turn
over his wallet and leave the keys on the dashboard. Crosby complied, and Lowe
fled with the van before being apprehended. The trial court here relied on these
surrounding facts and circumstances and did not err in finding that Lowe qualified
for the aggravator.17 In any event, we have previously noted that, for purposes of
this aggravator, “robbery is as a matter of law a felony involving the use or threat
of violence.” Simmons v. State, 419 So. 2d 316, 319 (Fla. 1982).
17. Lowe also invites this Court to hold that even though he was adjudicated
guilty and convicted of the previous robbery, the prior violent felony aggravator is
inapplicable because he was a juvenile at the time and was sentenced as a youthful
offender. We decline to do so. See Lowe, 2 So. 3d at 46 (finding prior juvenile
convictions can be used to establish an aggravating factor); Green v. State, 975 So.
2d 1090, 1112-13 (Fla. 2008) (noting that under Florida’s youthful offender
statute, “[i]f the trial court adjudicates the defendant guilty of the charged offense
and orders a youthful offender sentence, then the adjudication counts as a
conviction”); England v. State, 940 So. 2d 389, 406-07 (Fla. 2006) (concluding
that Roper does not prohibit the use of prior juvenile felony convictions as an
aggravating circumstance); Campbell v. State, 571 So. 2d 415, 418 (Fla. 1990)
(finding that prior juvenile convictions can be considered to support the prior
violent felony aggravator), receded from on other grounds by Trease v. State, 768
So. 2d 1050 (Fla. 2000).
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Third, Lowe argues the avoid arrest aggravator was not supported by the
evidence. He claims that the only relevant fact cited by the trial court was that he
knew Burnell. “To establish the avoid arrest aggravating factor where the victim is
not a law enforcement officer, the State must show beyond a reasonable doubt that
the sole or dominant motive for the murder was the elimination of a witness.”
Connor v. State, 803 So. 2d 598, 610 (Fla. 2001). “In such cases, proof of the
intent to avoid arrest or detection must be very strong.” Hernandez v. State, 4 So.
3d 642, 667 (Fla. 2009) (citing Riley v. State, 366 So. 2d 19, 22 (Fla. 1978)).
“Mere speculation on the part of the state that witness elimination was the
dominant motive behind a murder cannot support the avoid arrest aggravator.”
Consalvo v. State, 697 So. 2d 805, 819 (Fla. 1996). “Likewise, the mere fact that
the victim knew and could identify defendant, without more, is insufficient to
prove this aggravator.” Id. “However, this factor may be proved by circumstantial
evidence from which the motive for the murder may be inferred, without direct
evidence of the offender’s thought processes.” Farina v. State, 801 So. 2d 44, 54
(Fla. 2001).
Here, the sentencing order lays out all of the evidence from which the trial
court concluded that there was no other plausible explanation for the murder other
than to eliminate Burnell as a witness. That evidence included: Lowe’s statement
that he knew Burnell, that he was unaware she worked at the Nu-Pack store, and
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that he knew her from when she worked at a different store; Lowe was on
community control and would return to prison if he committed another robbery;
the absence of evidence showing any struggle or resistance; Burnell had a three-
year-old child with her and posed no threat; the silent hold-up alarm was not
activated; Lowe wore no mask or gloves; Lowe’s fingerprints on the hamburger
wrapper indicated he had time to reflect on his actions before the murder; Burnell
was shot three times, including twice from very close range; the gunshot wound to
the top of Burnell’s head was likely the first shot and indicated she was bending
over at the time; and various other pieces of evidence indicating that Burnell was
shot before any attempt was made to remove money from the register, including
the position of Burnell’s body when she was found lying on her back. The trial
court cited Jennings v. State, 718 So. 2d 144, 151 (Fla. 1998), as support that the
avoid arrest aggravator can be circumstantially established through these types of
factors, including whether the defendant knew and could be identified by the
victim, whether the defendant used gloves or wore a mask, whether the victim
offered resistance or posed a threat, and whether the killing was a product of
reflection as opposed to a reactionary act.
We conclude that any error in the trial court’s decision to present the avoid
arrest aggravator to the jury and to find that the aggravator was proved was
harmless beyond a reasonable doubt. As an initial matter, Lowe’s reliance on
- 62 -
Calhoun v. State, 138 So. 3d 350 (Fla. 2013), and Wilcox is misplaced. In
Calhoun, we struck the trial court’s finding of the avoid arrest aggravator as
speculative because “[m]ost of the facts on which the trial court relied in support of
finding this aggravator were based on [the defendant’s] attempts to avoid arrest
after [the victim’s] death, not on his motive to kill [the victim].” Calhoun, 138 So.
3d at 362. In Wilcox, we struck the aggravator because the only relevant evidence
“support[ed] the theory that [the defendant] murdered [the victim] to protect his
family,” not to eliminate a witness. Wilcox, 143 So. 3d at 385-86. Here, the
circumstantial evidence relied on by the trial court is related to and consistent with
the theory that Lowe’s sole or dominant motivation for the murder was witness
elimination. See Farina, 801 So. 2d at 54; see also McMillian v. State, 94 So. 3d
572, 580-81, 581 n.16 (Fla. 2012) (finding the medical examiner’s testimony
together with the totality of the evidence proved the sequence of shots); Serrano v.
State, 64 So. 3d 93, 114 (Fla. 2011) (upholding the avoid arrest aggravator in part
because the victim was personally known to the defendant, and there was no
evidence that the victim offered resistance or posed a threat); McLean v. State, 29
So. 3d 1045, 1051 (Fla. 2010) (concluding that the evidence supported giving the
avoid arrest aggravator instruction to the jury, including that the victims “were
compliant and helpless” and the defendant “did not wear a mask or otherwise
disguise his appearance”); Buzia v. State, 926 So. 2d 1203, 1211 (Fla. 2006)
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(affirming the avoid arrest aggravator in part because the victim did not pose an
immediate threat to the defendant). Even if we were to conclude that the
circumstantial evidence in this case was insufficient to prove the avoid arrest
aggravator and that the aggravator should be stricken, any error by the trial court
would be harmless. The trial court concluded that the aggravators “far outweigh”
the mitigation offered by Lowe, and three other aggravators would remain—prior
violent felony, community control, and pecuniary gain. The trial court assigned
great weight to each of these three aggravators and expressly made clear that they
“alone justify the imposition of the death penalty in this case.” There is no
reasonable possibility that any potential error affected the sentence imposed. See
Middleton v. State, 220 So. 3d 1152, 1172 (Fla. 2017), cert. denied, 138 S. Ct. 829(2018) (“Because we conclude that there is no reasonable possibility that the
erroneous findings of the avoid arrest and CCP aggravators contributed to
Middleton’s death sentence, the errors were harmless.”). Lowe is not entitled to
relief.
Finally, Lowe argues that his constitutional rights were violated when the
State sought, and the trial court found, aggravators that were not sought by the
State and were not found by the trial court in the original penalty phase. Although
the record reflects that Lowe sought only to exclude the CCP and HAC
aggravators, he now argues that the State should not have been permitted to seek
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the aggravators of community control, avoid arrest, and pecuniary gain. We have
repeatedly stated, in the same context of a resentencing proceeding stemming from
a previously vacated death sentence, that this Court applies the “clean slate” rule.
See, e.g., Way v. State, 760 So. 2d 903, 917 (Fla. 2000) (“[T]he resentencing judge
is not obligated to find the same aggravating and mitigating circumstances that
were established in the original sentencing proceeding.”); Preston v. State, 607 So.
2d 404, 409 (Fla. 1992) (noting that a resentencing must be allowed “to proceed in
every respect as an entirely new proceeding”); Teffeteller, 495 So. 2d at 745 (“The
resentencing should proceed de novo on all issues bearing on the proper sentence
. . . .”). Accordingly, Lowe is not entitled to relief.
XIV. Mitigators
Lowe argues that the trial court’s treatment of mitigation rendered his capital
sentence unconstitutional. He argues that the trial court: (1) unlawfully relied on
the prior death sentence affirmance; (2) failed to apply the correct law and weight
to the statutory age mitigator; (3) improperly assessed the “family relationships”
mitigator and used it as aggravation; (4) improperly and arbitrarily used
nonstatutory aggravation; and (5) failed to give any weight to uncontested
mitigation. This Court requires the sentencing judge to “expressly evaluate in his
or her written sentencing order each statutory and non-statutory mitigating
circumstance proposed by the defendant.” Ferrell v. State, 653 So. 2d 367, 371
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(Fla. 1995). “The finding of whether a mitigating circumstance has been
established is a question of fact that will not be overturned where it is supported by
competent, substantial evidence.” Fletcher v. State, 168 So. 3d 186, 218 (Fla.
2015) (citing Blanco v. State, 706 So. 2d 7, 10 (Fla. 1997)). “This Court reviews a
trial court’s assignment of weight to mitigation under an abuse of discretion
standard.” Bevel v. State, 983 So. 2d 505, 521 (Fla. 2008); see also Trease v. State,
768 So. 2d 1050, 1055 (Fla. 2000) (receding from Campbell v. State, 571 So. 2d
415 (Fla. 1990), “to the extent [Campbell] disallows trial courts from according no
weight to a mitigating factor”).
First, Lowe claims that the trial court erroneously relied on this Court’s prior
affirmance of his original death sentence. This argument is insufficiently briefed
and otherwise without merit. In the analysis section of its sentencing order, the
trial court began by noting that, under Morton, it should not rely on the prior
sentencing order. The trial court then noted as “instructive” the fact that this Court
previously upheld Lowe’s initial death sentence based upon the presence of only
two aggravators. After pointing out that the new penalty phase involved the State
proving those same two aggravators, as well as two additional ones, the trial court
then set forth its lengthy analysis of the weighing process explaining why the four
proven aggravators, each of which was assigned great weight, “far outweigh” “the
mitigation offered by the defendant.” Although the trial court referenced our
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previous decision, the trial court independently engaged in the weighing process.
Next, Lowe takes issue with the trial court’s findings regarding the statutory
age mitigator, given that Lowe was just over twenty years old at the time of the
murder. He argues that the trial court unlawfully attributed “little weight” and then
“little to no weight” to the mitigator and that greater weight should have been
assigned due to “the scientifically and constitutionally recognized immaturity of
youth and the profoundly mitigating effect of age, both in the caselaw and expert
testimony” presented at trial. He also argues that the trial court erroneously
required a nexus of age to the offense. We find no abuse of discretion.
As an initial matter, a trial court is not required to assign great weight to the
age mitigator. “We have long held that the fact that a defendant is youthful,
‘without more, is not significant.’ ” Mahn v. State, 714 So. 2d 391, 400 (Fla. 1998)
(quoting Garcia v. State, 492 So. 2d 360, 367 (Fla. 1986)). “In Florida, numerical
age alone may not be mitigating if not linked to some other material characteristic
(e.g., immaturity).” Lebron v. State, 982 So. 2d 649, 660 (Fla. 2008). Lowe’s
reliance on Lockett and other cases is unavailing because Lowe was not barred
from presenting age as mitigation. Indeed, the trial court considered the mitigator,
determined that it was proved, and assigned it little weight. A review of the entire
context of the sentencing order reveals that the trial court was not convinced that
the evidence showed a link between Lowe’s age and “some other material
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characteristic.” Id. The trial court acknowledged that there was testimony to the
effect that Lowe was immature at the time, but the trial court relied on certain other
evidence in reaching its conclusion that Lowe’s age did not in and of itself
significantly reduce the degree of his culpability, including that Lowe had been
living on his own for several years, maintained gainful employment, and lived with
a steady girlfriend in a middle-class neighborhood. See Sanchez-Torres v. State,
130 So. 3d 661, 673-74 (Fla. 2013) (rejecting nineteen-year-old capital defendant’s
claim that the trial court erred in failing to give great weight to the age mitigator,
given that the defendant’s age was not “linked with some other characteristic of
[the defendant] or the crime,” and the record “painted a picture of a responsible
and reliable young man who had faced difficulties in his life, but had nevertheless
consistently held and excelled at the same job for years, provided financial
assistance to others, and shouldered numerous responsibilities”); see also Lebron,
982 So. 2d at 664 (finding no abuse of discretion in assigning limited weight to
certain mitigators because the evidence did not provide “a crucial, missing nexus
between these mitigation findings and the life of [the defendant] before the time of
the murder”). Lowe has not shown an abuse of discretion.
Next, Lowe argues that the trial court improperly assessed the “family
relationships” mitigator and used it as aggravation by incorrectly finding that he
came from a “loving, normal functioning family.” He argues that the trial court
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should have instead found certain other mitigation, including that he was exposed
to an alcoholic, brutally abusive father and was shunned by his family—despite the
fact that Lowe never suggested to the trial court that he had proven such
mitigation. In any event, we reject Lowe’s claim and conclude that any error is
harmless beyond a reasonable doubt.
In his sentencing memorandum, Lowe contended that the following relevant
mitigating circumstance had been proven: “The Defendant is a loving family
member and capable of maintaining family relationships.” In its sentencing order,
the trial court determined that Lowe had proven the following “family
relationships” mitigator, which it assigned little weight: “The Defendant comes
from a loving, normal functioning family. He has maintained relationships with
his mother and sister during his long period of incarceration.” In the analysis
section of the sentencing order, the trial court discussed, as not particularly
mitigating, Lowe’s “love for his family and the emotional support he has provided
them over the course of his confinement.” The trial court later discussed Lowe’s
“normal upbringing, free from abuse or deprivation,” and explained that Lowe’s
normal life did not mitigate a death sentence.
The essence of Lowe’s argument is that instead of focusing solely on
Lowe’s love for his family, the trial court erred by also finding that Lowe’s family
loved him and that he had a normal upbringing. We disagree that the trial court
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used nonstatutory aggravation. At worst, the trial court misinterpreted the specific
mitigation proposed by Lowe. However, it is difficult to fault the trial court for
doing so, given that Lowe himself presented the testimony of his mother, Sherrie,
who very much painted the picture of Lowe having a normal life in an average
family that did lots of activities together, including many related to church. She
testified that Lowe was an easy child to raise until about age fifteen, and she
attributed Lowe’s troubles as stemming entirely from peer pressures coming from
outside the home, in particular from kids who had very lenient boundaries. She
also painted the picture of Lowe’s father as a very responsible family man. She
did mention that she and Lowe’s father separated for “a short time” when Lowe
was twelve years old because Lowe’s father usually drank one night per week and
would sometimes use inappropriate language when doing so. But she also testified
that during their six-week separation, Lowe’s father made positive changes
including that he stopped drinking. Lastly, she testified that she and Lowe’s father
had guidelines for disciplining their children depending on the infraction, including
revoking privileges and administering some corporal punishment.
Although Lowe also presented the testimony of Dr. Riebsame, who testified
that Lowe’s criminal activity problems in middle adolescence began “in response
to what’s going on in the household”—i.e., running away from his father’s
discipline, being embarrassed by Jehovah’s Witnesses evangelizing, and being
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shunned by his family and the congregation—the trial court was free to reject that
testimony in favor of Lowe’s mother’s testimony. See Hampton v. State, 103 So.
3d 98, 117 (Fla. 2012) (“A trial court may reject mitigation based on expert
testimony, even if that testimony is uncontroverted, ‘where it is difficult to square
with the other evidence in the case.’ ” (quoting Morton, 789 So. 2d at 330)).
Moreover, regarding corporal punishment, Dr. Riebsame himself made it very
clear that he was not testifying that the punishment Lowe received was abusive.
In the end, even assuming that the trial court should not have considered
Lowe’s loving family and normal upbringing and should have instead found
mitigation involving negative family relationships, there is no reasonable
possibility that the mitigation would be sufficient to outweigh the substantial
aggravation in this case. We deny relief.
Next, Lowe argues that the trial court used unfounded nonstatutory
aggravation by making certain comments that were “totally unrelated to any of the
aggravation.” We disagree. When read in context, almost all of the complained-of
comments—i.e., that Lowe unlawfully possessed a firearm, was given a great
chance to rehabilitate himself, and otherwise made his own decision to commit a
murder—go directly to explaining why the trial court assigned great weight to the
community control aggravator. The trial court explained that Lowe committed the
murder while being on community control for only a relatively short period of
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time, that the terms of his community control prohibited him from possessing a
firearm, and that he blatantly flouted the rules by which he agreed to abide. There
is nothing improper about the trial court’s explanation of the weight it assigned to
the aggravator in the overall context of weighing the aggravation and mitigation.
To the extent any remark by the trial court can be considered improper, we
conclude that it “does not reflect an underlying improper sentencing rationale.”
Oyola v. State, 158 So. 3d 504, 509 (Fla. 2015). We deny Lowe’s claim.
Finally, Lowe argues that the trial court assigned no weight to much
nonstatutory mitigation without adequately explaining its decision, thus violating
Trease. Here, the trial judge personally assigned “no weight” to three of the ten
nonstatutory mitigators proposed by Lowe, and two of those three were determined
by the trial judge to “not in fact” be mitigating circumstances. Although the
sentencing order later contains some inconsistencies and may be “less than a model
of clarity,” Armstrong v. State, 642 So. 2d 730, 739 (Fla. 1994), it is apparent that
the trial court considered each of the mitigating circumstances proposed by Lowe
and determined that such circumstances hardly distinguished Lowe from other
members of society, were supported by “underwhelming” evidence, or were in fact
not mitigating. To the extent the trial judge should have gone into greater detail,
any error was harmless beyond a reasonable doubt. See Deparvine v. State, 995
So. 2d 351, 381 (Fla. 2008) (concluding that any error in not treating certain
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mitigation in greater detail was harmless beyond a reasonable doubt, given that
four proven aggravators were each assigned “great weight” and that little weight
was given to the mitigating circumstances described in the sentencing order). We
deny Lowe’s claim.
XV. Hurst v. Florida
Lowe relies on Ring v. Arizona, 536 U.S. 584 (2002), to argue that the trial
court erred in denying his requests for special verdict forms and jury instructions to
separately and unanimously find each aggravator beyond a reasonable doubt.
While Lowe’s appeal was pending, the United States Supreme Court issued its
decision in Hurst v. Florida, and on remand we issued our decision in Hurst. In
the wake of Hurst v. Florida and Hurst, we granted supplemental briefing to
address the impact of those decisions on Lowe’s sentence.
In Davis v. State, 207 So. 3d 142, 175 (Fla. 2016), cert. denied, 137 S. Ct.
2218 (2017), this Court held that a jury’s unanimous recommendation of death is
“precisely what we determined in Hurst to be constitutionally necessary to impose
a sentence of death” because a “jury unanimously f[inds] all of the necessary facts
for the imposition of [a] death sentence[] by virtue of its unanimous
recommendation[].” Here, the jury was informed that before it could consider the
death penalty, it must first determine that at least one aggravating circumstance has
been proven beyond a reasonable doubt. Also, as in Davis, the jury was informed
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“that it needed to determine whether sufficient aggravators existed and whether the
aggravation outweighed the mitigation before it could recommend a sentence of
death.” Id. at 174. Among other things, the jury was also informed that, regardless
of its findings, it was neither compelled nor required to recommend a sentence of
death. Despite the mitigation presented and the fact that the jury was properly
informed that it may consider mitigating circumstances proven by the greater
weight of the evidence, the jury unanimously recommended that Lowe be
sentenced to death. “Th[is] recommendation[] allow[s] us to conclude beyond a
reasonable doubt that a rational jury would have unanimously found that there
were sufficient aggravators to outweigh the mitigating factors.” Id.
This Court has consistently relied on Davis to deny Hurst relief to
defendants who have received a unanimous jury recommendation of death. See,
e.g., Cozzie v. State, 225 So. 3d 717, 733 (Fla. 2017), cert. denied, 138 S. Ct. 1131(2018); Morris v. State, 219 So. 3d 33, 46 (Fla.), cert. denied, 138 S. Ct. 452(2017); Tundidor v. State, 221 So. 3d 587, 607-08 (Fla. 2017), cert. denied, 138 S.
Ct. 829 (2018); Oliver v. State, 214 So. 3d 606, 617-18 (Fla.), cert. denied, 138 S.
Ct. 3 (2017); Truehill v. State, 211 So. 3d 930, 956-57 (Fla.), cert. denied, 138 S.
Ct. 3 (2017). Lowe’s arguments do not compel departing from our precedent.
Because the Hurst error in Lowe’s penalty phase was harmless beyond a
reasonable doubt, he is not entitled to a new penalty phase.
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XVI. Incomplete Record on Appeal
Lowe argues that certain missing items render the record incomplete and
prevent a complete review. We reject Lowe’s claim because, among other things,
he fails to explain how he is prejudiced by any of the missing items or has been
hindered from presenting meritorious appellate issues tied to any of the items. See
Rodriguez v. State, 919 So. 2d 1252, 1287 (Fla. 2005) (“Rodriguez has not
sufficiently pled this claim as he has not explained what issues he was unable to
raise as a result of any missing or inaccurate record. Thus, Rodriguez is not
entitled to relief on this claim.”); Johnson v. State, 442 So. 2d 193, 195 (Fla. 1983)
(“In the absence of some clear allegation of prejudicial inaccuracy we see no
worthwhile end to be achieved by remanding for new trial.”).
First, Lowe claims that the absence of the completed juror questionnaires,
which were destroyed, precludes proper review. Lowe’s argument primarily
focuses on the trial court’s decision to grant the State’s challenge for cause (later
changed to a peremptory strike) regarding prospective juror Charles Simard—an
issue we have already addressed. Lowe asserts that there are “substantial grounds
for reversal based on the trial court’s exclusion of Mr. Simard that cannot be
developed adequately” without the questionnaires. But Lowe fails to identify any
such grounds. See Armstrong v. State, 862 So. 2d 705, 721 (Fla. 2003)
(“Armstrong has failed to link a meritorious appellate issue to the allegedly
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missing record and thus cannot establish that he was prejudiced by its absence.”).
In any event, the record reflects that the entire voir dire was transcribed, and both
parties had copies of the questionnaires from which they were able to question the
prospective jurors. The absence of the questionnaires has not hindered our ability
to conduct meaningful review on this issue. Lowe does not identify any other
potential voir dire errors. We deny relief.
Second, Lowe asserts that meaningful appellate review is precluded because
the court reporter did not certify the accuracy of the transcription of certain
recordings played during the resentencing, including Lowe’s statement, and there
are a number of inaudible sections. Here, the reporter transcribed what was played
to the jury and certified that such was done to the best of her ability. Moreover, the
reporter certified the accuracy of the transcript at the end of each volume. In any
event, Lowe fails to identify what specific prejudice has resulted from the
inaudible portions of the trial transcript. See Jones v. State, 923 So. 2d 486, 489
(Fla. 2006) (“[T]his Court requires that the defendant demonstrate that there is a
basis for a claim that the missing transcript would reflect matters which prejudice
the defendant.”); Darling v. State, 808 So. 2d 145, 163 (Fla. 2002) (“Darling has
failed to demonstrate what specific prejudice, if any, has been incurred because of
the missing transcripts.”). We deny relief.
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Finally, Lowe argues that without the computer-generated diagram used by
the State during opening argument and the mannequin used by the medical
examiner during his testimony, this Court cannot determine whether the use of
either item was improper. As an initial matter, these items were not entered into
evidence or otherwise documented by Lowe. They were not items that could
supplement the record under Florida Rule of Appellate Procedure 9.200(a)(1).
Moreover, as we explained earlier in this opinion, the trial court did not abuse its
discretion in permitting the use of either item. We deny relief.
XVII. Proportionality Review
Lowe also challenges the proportionality of his death sentence.
Proportionality review is not a quantitative analysis involving comparing the
number of aggravators and mitigators, but a qualitative review of the underlying
basis for each aggravating and mitigating factor and of the totality of the
circumstances as compared to other capital cases. See Gregory v. State, 118 So. 3d
770, 785-86 (Fla. 2013). In conducting our proportionality analysis, we “will
accept the weight assigned by the trial court to the aggravating and mitigating
factors.” Hayward, 24 So. 3d at 46. “Further, we will not disturb the weight
assigned to a particular mitigating circumstance absent an abuse of discretion by
the trial court.” Jeffries v. State, 222 So. 3d 538, 548 (Fla. 2017). As always, we
keep in mind that the death penalty is “reserved for only the most aggravated and
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least mitigated of first-degree murders.” Urbin v. State, 714 So. 2d 411, 416 (Fla.
1998).
In following the jury’s unanimous recommendation of death, the trial court
found the following five aggravating circumstances, merged to four: (1) under
sentence of imprisonment/community control (great weight); (2) prior violent
felony (great weight); (3A) murder in the course of a felony (great weight) merged
with (3B) pecuniary gain; and (4) avoid arrest (great weight). The trial court found
one statutory mitigator, statutory age (little weight). Regarding the ten
nonstatutory mitigators argued by Lowe, the trial court gave them all little to no
weight, except for good behavior while in confinement, which the trial court gave
moderate weight. Lowe argues that this case is nowhere near the most aggravated
and least mitigated of cases. We disagree and conclude that Lowe’s death sentence
is proportionate under Florida law, with or without the avoid arrest aggravator. We
have affirmed other cases with similar aggravation and mitigation. See, e.g.,
Bryant v. State, 785 So. 2d 422, 437 (Fla. 2001) (finding death sentence
proportionate in armed-robbery-turned-murder of store owner shot three times at
close range, with three aggravators of prior violent felony, murder committed
during course of robbery, and avoid arrest, and one nonstatutory mitigator); Miller
v. State, 770 So. 2d 1144, 1146 n.1, 1150 (Fla. 2000) (finding death sentence
proportionate with two aggravators of prior violent felony and robbery/pecuniary
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gain, no statutory mitigators, and ten nonstatutory mitigators); Pope v. State, 679
So. 2d 710, 716 (Fla. 1996) (finding death sentence proportionate in robbery-
murder with two aggravators of prior violent felony and pecuniary gain, two
statutory mitigators, and several nonstatutory mitigators).
Lowe cites to Terry v. State, 668 So. 2d 954, 965 (Fla. 1996), and Yacob v.
State, 136 So. 3d 539, 550 (Fla. 2014), in support of his argument that Lowe’s case
is the archetype of a “robbery gone bad.” We disagree. As an initial matter, Terry
and Yacob both involved far less weighty aggravation than Lowe’s case. Terry
involved the two aggravators of (1) during the course of a robbery merged with
pecuniary gain and (2) prior violent felony, and this Court noted that, among other
things, the prior violent felony aggravator did not “represent an actual violent
felony previously committed by” the defendant. Terry, 668 So. 2d at 965. And
Yacob involved the single merged aggravator of during the course of a robbery and
pecuniary gain. Yacob, 136 So. 3d at 551. Moreover, it cannot reasonably be said
that Lowe’s case involves a “robbery gone bad.” There is no indication that
Burnell resisted or impeded an attempted robbery. Instead, the record establishes
that a decision was made to shoot Burnell three times, including twice from very
close range, before any attempt was made to retrieve the money. Terry and Yacob
are wholly distinguishable.
We also find Johnson v. State, 720 So. 2d 232, 238 (Fla. 1998), to be
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distinguishable. Johnson involved the two aggravators of prior violent felony and
burglary/pecuniary gain, the statutory mitigator of age, and six nonstatutory
mitigators, one of which the trial court accorded substantial weight. Id. This Court
noted that the prior violent felony aggravator was “not strong when the facts are
considered” because the aggravator was based in part on an aggravated assault
upon the defendant’s brother based on a misunderstanding. Id. And in balancing
the two aggravators, one of which was “not strong,” against the mitigators, this
Court vacated the death sentence while noting that it was a “close question.” Id.Lowe’s case involves aggravation that is more substantial and mitigation that is
less weighty. We similarly find Ballard v. State, 66 So. 3d 912 (Fla. 2011), to be
distinguishable. Ballard was a single aggravator case (CCP) with several statutory
mitigators and numerous nonstatutory mitigators. Id. at 916 n.1. Lowe’s case
involves several aggravators assigned great weight. Finally, Lowe cites to Brooks
v. State, 918 So. 2d 181, 208 (Fla. 2005), receded from in part by State v.
Sturdivant, 94 So. 3d 434 (Fla. 2012), in support of the proposition that Lowe’s
death sentence is disproportionate when compared to his equally or more culpable
codefendants. But as noted above, the trial court’s sentencing order makes clear
that the trial court concluded that Lowe acted alone. The record supports that
finding.
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XVIII. Cumulative Error
As his final claim, Lowe argues cumulative error. In this appeal, Lowe
presented several preserved arguments claiming error. We determined that those
arguments either involved no errors or errors that were harmless and not
prejudicial to Lowe. Lowe also presented several unpreserved arguments claiming
error. See Evans v. State, 177 So. 3d 1219, 1238 (Fla. 2015) (“[W]e also consider
[unobjected-to errors] in this analysis.”). We determined that those arguments
were either without merit or involved error that was invited or not fundamental or
both. In the end, after reviewing the record and the entire context of the penalty
phase, we conclude that the cumulative effect of any errors in this case did not
deprive Lowe “of a fair penalty phase hearing.” Card v. State, 803 So. 2d 613, 622
(Fla. 2001). Because Lowe has failed to establish that any errors occurred that
individually or cumulatively entitle him to a new penalty phase, we deny relief.
CONCLUSION
For the reasons stated above, we affirm Lowe’s death sentence.
It is so ordered.
LABARGA and LAWSON, JJ., concur.
CANADY, C.J., concurs specially with an opinion, in which POLSTON, J.,
concurs.
LEWIS, J., concurs in result and dissents in part with an opinion.
QUINCE, J., concurs in part and dissents in part with an opinion.
PARIENTE, J., dissents with an opinion.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
CANADY, C.J., concurring specially.
I concur in the opinion except regarding the Hurst issue, on which I would
conclude that there was no error. The jury’s verdict convicting Lowe of attempted
armed robbery with a firearm satisfies the requirement of Hurst v. Florida that an
aggravator be found by the jury. See Hurst v. State, 202 So. 3d 40, 77-82 (Fla.
2016) (Canady, J., dissenting).
POLSTON, J., concurs.
LEWIS, J., concurring in result and dissenting in part.
Although I am in agreement with the result of the majority’s opinion, I write
to voice my disagreement with the majority’s conclusion that Lowe’s avoid arrest
aggravator is supported by competent, substantial evidence. When the victim is
not a law enforcement officer, proof of intent to avoid arrest and detection must be
very strong. Green v. State, 975 So. 2d 1081, 1087 (Fla. 2008) (citing Jones v.
State, 963 So. 2d 180, 186 (Fla. 2007)). Competent, substantial evidence does not
support the conclusion that the sole or dominant motive behind Burnell’s murder
was witness elimination as is required by our jurisprudence. Cf. Wilcox v. State,
143 So. 3d 359, 384-86 (Fla. 2014) (reversing a finding of the avoid arrest
aggravator because the evidence failed to demonstrate that the dominant motive for
the murder was to avoid arrest); Green, 975 So. 2d at 1086-88 (same); Jones, 963
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So. 2d at 186-87 (same); Hurst v. State, 819 So. 2d 689, 695-96 (Fla. 2002) (same);
Connor v. State, 803 So. 2d 598, 610 (Fla. 2001) (same); Geralds v. State, 601 So.
2d 1157, 1164 (Fla. 1992) (same); Cook v. State, 542 So. 2d 964, 970 (Fla. 1989)
(same); Garron v. State, 528 So. 2d 353, 360 (Fla. 1988) (same); Perry v. State,
522 So. 2d 817, 820 (Fla. 1988) (same); Floyd v. State, 497 So. 2d 1211, 1214-15
(Fla. 1986) (same); Caruthers v. State, 465 So. 2d 496, 499 (Fla. 1985) (same);
Rembert v. State, 445 So. 2d 337, 340 (Fla. 1984) (same). Here the evidence does
not support a finding that Lowe’s dominant motive was to avoid arrest. Lowe
knew the victim, however, this Court has stated that “the mere fact that the victim
knew and could identify defendant, without more, is insufficient to prove this
aggravator.” Hurst, 819 So. 2d at 696 (quoting Consalvo v. State, 697 So. 2d 805,
819 (Fla. 1996)). Thus, while the evidence reflects that Lowe may have had
several motives for killing Burnell, it does not support a finding that Lowe’s
dominant motive was to avoid arrest. Accordingly, I would conclude that the
majority’s holding with regard to Lowe’s avoid arrest aggravator is contrary to this
Court’s fundamental jurisprudence. For the reasons set forth above, I concur in
result only and dissent in part.
QUINCE, J., concurring in part and dissenting in part.
I concur with my colleagues that Lowe is not entitled to relief on the
majority of his claims; however, I cannot agree that the Hurst error in this case is
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harmless beyond a reasonable doubt. The majority supports this conclusion by
relying primarily on the jury’s unanimous recommendation for death. The
majority finds that because the jury unanimously recommended death, the Court
can conclude beyond a reasonable doubt that a rational jury would have
unanimously found all of the findings necessitated by Hurst, 202 So. 3d at 44. I
respectfully disagree for three reasons.
First, the trial judge improperly curtailed Lowe’s ability to fully inform the
jury regarding the operation of Florida’s parole system and Lowe’s consecutive
fifteen-year sentence for robbery. Additionally, the prosecutor and the trial court
explained to the jury that Lowe would get credit for time served and that the court
could not speculate as to when Lowe would be released on parole. As the majority
states, after the State told the jurors that Lowe would get credit for time served, the
court explained:
Also, but, as far as eligibility, none of us in the judicial system
have anything to do with whether a person is either granted parole or
not granted parole, so we’re unable to speculate on the likelihood of
parole and it is just out of our hands.
On the other hand, also, that should not be a consideration. The
only consideration that you should make in making your
determination is the aggravating factors and the mitigating factors.
That should not enter into your decision-making deliberations.
The majority concludes that there was no error in the trial court’s
instructions to the jury. In support of this holding, the Court relies on Armstrong,
where we found no error where the jury was informed that the capital defendant on
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resentencing was entitled to credit for time served for life without the possibility of
parole for twenty-five years option. 73 So. 3d at 173-74. In light of Hurst,
however, this Court’s opinion in Armstrong no longer supports the conclusion that
this type of error—incompletely explaining to the jury Florida’s parole system or
credit for time served—is harmless.
Armstrong argued “that the trial court abused its discretion when it failed to
instruct the jury that [he] was not guaranteed parole at or after 25 years.” Id. at
173. We stated that case law “does not require that a jury be instructed on the
eligibility of parole,” and denied relief because “[t]he jury instruction below was
not confusing, misleading, . . . contradictory,” or “a misstatement of law.” Id. at
174. The jury also asked whether Armstrong would be entitled to credit for time
served, and the trial court instructed the jury that he would. Id. The majority
concluded:
[E]ven if the trial court abused its discretion, it would be of no
consequence, because any error is harmless. Armstrong had already
been convicted of the crime. It cannot be said that this instruction
would have caused the jury to arrive at a conclusion they would not
have otherwise reached as there is substantial aggravation in the
instant case that provides independent support for the jury
recommendation. Accordingly, we conclude that the trial court did
not abuse its discretion below.
Id.Justice Pariente concurred in part and dissented in part in Armstrong, writing
that she “would reverse for a new penalty phase” due to “the trial judge’s answer to
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a question from the jury regarding sentencing options.” Id. at 175 (Pariente, J.,
concurring in part and dissenting in part). Justice Pariente explained that it was
“apparent on the face of the jury’s inquiry that the jurors had a very logical
question regarding the effect of a recommendation of life and wanted to know in
advance how such a recommendation would work in this case, since the defendant
had already served seventeen years of any sentence to be imposed.” Id. at 176.
She concluded “that by not answering the question to explain that the twenty-five
years was not the defendant’s actual sentence, but rather the minimum length of a
sentence of life, and that there was no guarantee of parole at or after twenty-five
years, the court gave the jurors a confusing and incomplete answer, leading them to
believe that he would be released in another eight years.” Id.This explanation of how the trial court’s incomplete explanation as to parole
and credit for time served is even more compelling post-Hurst for the conclusion
that defendants in this situation are entitled to a new penalty phase. It is
impossible to know the true effect the information the jury received regarding
Lowe’s previous death sentence and the lack of appropriate information it received
regarding the parole system and Lowe’s other sentences had on its unanimous
recommendation for death. However, it is clear these errors could have very easily
influenced the jury’s perception of the case and had an adverse impact on the
jury’s unanimous recommendation.
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Second, the jury was improperly informed that Lowe had previously been
sentenced to death. During the State’s closing argument, it referenced Lowe’s
prior death sentence four times:
(1) “You’ve heard he’s on – has been on death row for the last twenty
years. We’re asking you to impose the death sentence. Nothing has
changed since 1990.”
(2) “He’s been on death row for twenty years, he’s watched 24/7; of
course he’s gonna act well. He does well in a structured environment,
absolutely. That’s not the problem.”
(3) “Now you’ve heard the testimony. Nothing has changed since
1990. Nothing. The Defendant’s story is still the same, and we’ve
shown you that it’s not true, and as a result of that you should send
him back to death row.”
(4) “With your recommendations you can send Rodney Lowe back to
death row, and that’s what I’m asking you to do.”
These statements, in my view, amount to fundamental error. The majority opinion
correctly cites to Teffeteller, wherein we held that “a death sentence which has
been vacated by this Court should not play a significant role in resentencing
proceedings.” 495 So. 2d at 745. There, the defendant argued that it was
reversible error to inform the jury of his prior sentence of death. Id. at 745. In
finding that testimony from the State’s psychiatric expert did not amount to
reversible error, we relied on previous testimony from the defendant’s witness and
the defendant himself that informed the jury of his prior death sentence. Id. at 747.
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The defendant also argued that the State’s comments during closing
improperly informed the jury of his prior death sentence. Id. In rejecting that
argument, we found that “the single sentence” that referenced the defendant’s prior
sentence “was not so prejudicial or inflammatory that a new sentencing proceeding
[was] required.” Id. Here, however, the State’s comments went beyond a single
sentence. The State mentioned several times during its closing that Lowe had been
previously sentenced to death and nothing had changed since Lowe’s initial
sentence of death was imposed. While Lowe did not object during the State’s
closing, these comments may have influenced the jury and preconditioned it to
recommend a death sentence.
Third, we cannot know that the jury found each aggravating factor
unanimously, despite the jury’s unanimous death sentence recommendation.
Because one of the aggravators found by the trial court for the murder in this
case—that the capital felony was committed to avoid arrest—requires specific
factual findings, Hurst requires that the jury, not the trial judge, make that
determination. The jury made no such determination in Lowe’s case. By ignoring
the record and concluding that all aggravators were unanimously found by the jury,
the majority is engaging in the exact type of conduct the United States Supreme
Court cautioned against in Hurst v. Florida, 136 S. Ct. at 622.
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Because harmless error review is neither a sufficiency of the evidence
review nor “a device for the appellate court to substitute itself for the trier-of-fact
by simply weighing the evidence,” State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.
1986), I cannot conclude beyond a reasonable doubt that the errors here were
harmless, and I would vacate Lowe’s death sentence and remand for resentencing.
PARIENTE, J., dissenting.
This is Lowe’s direct appeal from resentencing. I dissent because several
errors in Lowe’s resentencing cry out for this Court to grant Lowe a new penalty
phase. Not only did the jury consider an improper aggravating factor of avoid
arrest, as explained by Justice Lewis’s separate opinion,18 but the jury was also
misled regarding certain key aspects that undoubtedly affected its considerations in
recommending between life and death, as explained by Justice Quince’s separate
opinion.19 Therefore, because the jury was presented with the improper avoid
arrest aggravating factor, received misleading instructions as to its sentencing
options, and was further misled as to Lowe receiving credit for time served, we
18. Concurring in result and dissenting in part op. at 82-83 (Lewis, J.).
19. Concurring in part and dissenting in part op. at 84-89 (Quince, J.).
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cannot conclude that the Hurst20 error in Lowe’s resentencing was harmless
beyond a reasonable doubt. See Davis v. State, 207 So. 3d 142, 175 (Fla. 2016).
Hurst necessarily changed how this Court reviews the information that the
jury considered in making its recommendation as to the appropriate sentence in
each case. This Court has made clear that a proper understanding of Florida’s
parole system and defendants receiving credit for time served affects the jury’s
ability to understand its sentencing options. Hitchcock v. State, 673 So. 2d 859,
863 (Fla. 1996). Former Justice Anstead and I have both expressed the importance
of the trial court’s role in fully informing the jury as to the reality of Florida’s
parole system. Justice Anstead explained in Green v. State, 907 So. 2d 489 (Fla.
2005):
[E]ven assuming [the trial court’s] response [to the jury’s inquiry] was
technically accurate, the response was clearly flawed for what it did
not tell the jurors. First, we should be clear that the response given
certainly did not favor the defendant since it told the jury that with a
life sentence the defendant would soon be eligible for parole, not in
twenty-five years, but in ten, a very short time, indeed, if the jury is
concerned, as jurors logically would be, with keeping a killer off the
streets for a long time.
Id. at 505 (Anstead, J., concurring in part and dissenting in part) (emphasis added);
see Armstrong v. State, 73 So. 3d 155, 176 (Fla. 2011) (Pariente, J., concurring in
20. Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 137 S.
Ct. 2161 (2017); see Hurst v. Florida, 136 S. Ct. 616 (2016).
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part and dissenting in part). I echoed this sentiment in Armstrong, joined by
Justice Labarga, stating:
[U]nlike the trial judge, the jury has no working knowledge of the
actual length of the sentence that a defendant is facing if it
recommends the option of life without the possibility of parole for 25
years. Therefore, to the extent that its vote for life or death may hinge
on concerns that the defendant may be released from prison, the jury
should be informed of all relevant information that bears upon the
ultimate length of the prison sentence. In this context, the jury is
solely dependent upon the instructions from the trial court and the
answers to questions regarding the actual sentence.
73 So. 3d at 178 (Pariente, J., concurring in part and dissenting in part) (emphasis
added); see concurring in part and dissenting in part op. at 85-86 (Quince, J.).
In this case, the cumulative effect of the errors in Lowe’s resentencing—the
improper avoid arrest aggravating factor, misleading the jury as to the effect of its
sentencing options, and references to Lowe’s prior death sentence—require this
Court to vacate Lowe’s death sentence and remand for a new penalty phase
pursuant to Hurst. As in Armstrong, the jury’s inquiry in this case “regarding the
effect of a recommendation of life” was a “very logical question,” considering that
Lowe had already served twenty “years of any sentence to be imposed.” 73 So. 3d
at 176 (Pariente, J., concurring in part and dissenting in part); see Green, 907 So.
2d at 505 (Anstead, J., concurring in part and dissenting in part). However, as a
result of the incomplete information given in response to this inquiry, the jury—
without understanding Florida’s parole system or knowing that Lowe had an
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outstanding consecutive fifteen-year sentence for robbery—was misled to believe
that Lowe could be released within five years of resentencing, if sentenced to life
with the possibility of parole after twenty-five years instead of death. In fact, the
trial court’s answer in this case suggested that Lowe would be eligible for release
in even less time than what was suggested in Hitchcock, Green, and Armstrong.
Further, the trial court did not allow Lowe to inform the jury of his
consecutive fifteen-year sentence for robbery. Even if Lowe was granted parole
within a few years of resentencing, he would still be required to serve an additional
fifteen years in prison. Therefore, despite the prosecutor’s and trial court’s
suggestions, it was impossible that Lowe would be released sooner than twenty
years after resentencing.
The majority concludes that Lowe has not established error, noting that
“[n]either of the[] two prospective jurors” who asked questions prompting this
explanation “was selected to sit on the actual jury.” Majority op. at 52. However,
regardless of whether the inquisitive prospective jurors were empaneled, the jury
pool heard the information and could have understood the information to suggest
that Lowe could be released soon after resentencing. This Court cannot speculate
about the effect this incomplete information had on the jury. Once the jury was
told that Lowe would receive credit for time served and was eligible for parole
after twenty-five years, the defense should have been allowed to properly explain
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Florida’s parole system and inform the jury of Lowe’s consecutive fifteen-year
sentence.
Exacerbating the error of misleading the jury as to its sentencing options, the
jury heard multiple references to Lowe’s prior death sentence throughout the
resentencing. In one instance, Chaplain Resinella discussed during direct
examination his time as the chaplain on death row and providing counsel to Lowe.
In another instance, Warden McAndrew testified on direct examination:
DEFENSE: Now, you’ve heard that [Lowe] is housed on death row.
He’s by himself in a cell?
WARDEN: Yes he is.
See majority op. at 36. Dr. Riebsame also referenced Lowe’s time on death row
during his direct examination, stating:
RIEBSAME: Often times also more volumes, particularly in a case
where there’s, you know, a postconviction appeal and a person has
been on death row for twenty years.
See id.Finally, as Justice Quince explains, the prosecutor made four references to
Lowe’s prior death sentence during closing argument and argued that the jury
should impose the same sentence imposed before. Concurring in part and
dissenting in part op. at 87 (Quince, J.); see majority op. at 32-33, 35, 54. Contrary
to the majority’s assertions, the references to the prior death sentence in Teffeteller
v. State, 495 So. 2d 744 (Fla. 1986), which this Court determined did not warrant
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reversal, are distinguishable. See concurring in part and dissenting in part op. at
87-88 (Quince, J.). Even if Lowe’s witnesses referenced Lowe’s prior death
sentence, the State’s comments during closing argument compounded the error and
went far beyond “merely mentioning the prior sentence of death.” Teffeteller, 495
So. 2d at 747.
Considering the cumulative effect of these errors in Lowe’s resentencing in
conjunction with the improper aggravating factor of avoid arrest, as explained by
Justice Lewis, it is clear that Lowe’s defense was prejudiced. The jury was left
with the improper impression that Lowe could have been released from prison
shortly after resentencing if sentenced to life instead of death. This impression
could have easily “influenced the jury and preconditioned it to recommend a death
sentence.” Concurring in part and dissenting in part op. at 88 (Quince, J.). Thus, it
is impossible for this Court to determine how the inappropriate information the
jury received and the information the jury did not receive affected the jury’s
unanimous recommendation for death.
CONCLUSION
As this Court stated in Wood v. State, 209 So. 3d 1217 (Fla. 2017), “Our
inquiry post-Hurst must necessarily be the effect of any error on the jury’s
findings, rather than whether beyond a reasonable doubt the trial judge would have
still imposed death.” Id. at 1233 (emphasis added). The errors in Lowe’s
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resentencing could have easily tainted the jury’s recommendation for death.
Therefore, I would vacate Lowe’s death sentence and remand for a new penalty
phase.
Accordingly, I dissent.
An Appeal from the Circuit Court in and for Indian River County,
Robert L. Pegg, Judge - Case No. 311990CF000658AXXXXX
Antony P. Ryan, Regional Counsel, Steven H. Malone, Special Assistant Regional
Counsel, and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal
Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell,
Assistant Attorney General, West Palm Beach, Florida,
for Appellee
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