Opinion · Supreme Court of Florida
Khadafy Kareem Mullens v. State of Florida
Khadafy Kareem Mullens v. State of Fla., 41 Fla. L. Weekly Supp. 279 (Fla. 2016)
- Type
- Opinion
- Court
- Supreme Court of Florida
- Jurisdiction
- Florida
- Date
- 2016-06-16
- Topic
- general
holding that the State bears a heightened burden of proof when the avoid-arrest aggravator is applied to non-law enforcement victims | finding that Hurst is not applicable to defendants who waived the right to a penalty phase jury | finding that Hurst is not applicable to defendants who waived the right to a penalty phase jury | stating that a trial court “may conclude that a particular mitigating circumstance exists, but assign it no weight” | explaining that a defendant “cannot subvert the right to jury factfinding by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence” | declining to grant Hurst v. Florida relief where the defendant had knowingly, voluntarily, and intelligently waived a penalty-phase jury prior to the decision in Hurst v. Florida | remanding for entry of written order of competency where trial court made an oral competency finding but failed to enter a written order as required by statute | declining to grant Hurst v. Florida relief where the defendant had knowingly, voluntarily, and intelligently waived a penalty-phase jury prior to the decision in Hurst v. Florida | affirming the death sentence of a defendant who waived a penalty phase jury and explaining that a defendant "cannot subvert the right to jury factfinding by waiving that right and then suggesting that a subsequent development in the law has fundamentally undermined his sentence" | “authentication for the purpose of admission is a relatively low threshold that only requires a prima facie showing that the proffered evidence is authentic” | “The district courts of this state have interpreted this language [Fla. R. Crim. P. 3.212(b | “authentication is a relatively low threshold that only requires a prima facie showing that the proffered evidence is authentic; the ultimate determination of the authenticity of the evidence is a question for the fact-finder” | “[A]uthentication for the purpose of admission is a relatively low threshold that only requires a prima facie showing that the proffered evidence is authentic; the ultimate determination of the authenticity of the evidence is a question for the fact- finder.”
Citator
- Cited by
- 34 opinions
Supreme Court of Florida
____________
No. SC13-1824
____________
KHADAFY KAREEM MULLENS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[June 16, 2016]
PER CURIAM.
Khadafy Kareem Mullens pleaded guilty to two counts of first-degree
murder for the murders of Mohammad Uddin and Ronald Hayworth, and one count
of attempted first-degree murder of Albert Barton. After Mullens waived his right
to a penalty phase proceeding by a jury, the trial court sentenced Mullens to death
for the murders of Uddin and Hayworth and life imprisonment for the attempted
murder of Barton. Mullens now appeals his sentences. We have jurisdiction. See
art. V, § 3(b)(1), Fla. Const.
FACTS AND PROCEDURAL HISTORY
The Central Food Mart in St. Petersburg was a convenience store equipped
with a visible, but inoperative videocassette recording device (VCR), as well as at
least seven other concealed devices that recorded and captured the events that
occurred in the store on the evening of August 17, 2008. Spencer Peeples and
Mullens entered the store on that evening and initiated a robbery of Uddin, the
clerk who was working in the store that evening. Peeples brandished a gun and
together with Mullens, demanded money from the cash register. At one point,
Peeples tucked his hand into his shirt to prevent his fingerprints from being left on
the register. While the three men stood behind the counter as Uddin opened the
register, Hayworth entered the store and stood quietly at the counter.
After Peeples and Mullens removed cash from the register, they asked Uddin
about the inoperative VCR equipment. Peeples removed the equipment and
handed it to Mullens, who placed it in a plastic bag. Peeples returned to the
counter, filled another plastic bag with lottery tickets, and handed a small box to
Hayworth across the counter at Hayworth’s request. Hayworth left the counter to
approach the door, but did not exit the store. Peeples and Mullens dragged Uddin
from the counter to the entrance of the store and at gunpoint demanded the keys to
Uddin’s car, but Uddin refused. The three men returned to the counter where
Peeples took a green carton of Newport cigarettes and handed it to Mullens, who
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placed it in a plastic bag. As Peeples continued to demand the keys from Uddin,
Mullens walked around the store and spoke to Hayworth before returning to the
store entrance. Peeples eventually obtained the keys from Uddin, handed the gun
to Mullens, and indicated that he would return shortly with Uddin’s car before he
exited.
Mullens stood in front of the door and alternatively looked outside the door
and back at the counter at Uddin. When Mullens opened the door and leaned
outside, Uddin reached for a telephone and dialed a number. Mullens saw the
movement and ran toward him with the gun pointed at Uddin. Mullens pushed
Uddin back toward the phone and struggled with Uddin before shooting Uddin
once in the head.
Mullens then walked away from the counter and grabbed the arm of
Hayworth, who had remained in the store but was not standing in front of the door
or blocking Mullens’s exit. Mullens pushed Hayworth to the floor and shot him in
the head as well. As Mullens exited the store, he placed the gun in his pocket.
Barton then opened the door of the store, but balked as Mullens attempted to pull
him into the store. Barton and Mullens struggled and Mullens fired several shots at
Barton. Barton eventually fell to the ground and crawled away, at which point
Mullens abandoned Barton and picked up the bag full of lottery tickets before he
exited the store.
-3-
After reviewing footage from the operative surveillance equipment, officers
issued a “Be On The Lookout” notice with a description of Peeples, Mullens, and
Uddin’s stolen car. Peeples was arrested driving Uddin’s car in the early morning
of August 18, and he gave a voluntary statement to officers. Officers also
recovered from Uddin’s car a cylinder from a revolver and a pack of Newport
cigarettes. In his statement, Peeples indicated that he only intended to commit a
robbery, not murder. Peeples also consented to a search of his apartment, from
which officers recovered the lottery tickets, VCR equipment, and clothing that
matched that worn by both of the assailants in the video recordings. Detectives
Rodney Tower and Brian Taylor later saw Mullens in an alley and arrested him
because they recognized him from the surveillance footage. When Mullens was
arrested, officers searched him and found lottery tickets with serial numbers that
matched those taken from the store.
On September 4, 2008, a grand jury indicted Mullens and Peeples on two
counts of first-degree murder and one count of attempted first-degree murder,
although the joint indictments were eventually severed. Between July and
September 2011, a hearing was conducted to determine whether Mullens was
competent to proceed. Dr. Jill Poorman testified that in her opinion, Mullens was
competent to proceed, although Dr. Scot Machlus offered an opinion to the
contrary. Dr. Peter Bursten, a psychologist, opined that while Mullens suffered
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from antisocial personality disorder, he did not display any symptoms consistent
with an Axis I disorder. Bursten also offered an opinion that Mullens was
malingering. However, Dr. Machlus testified that in his opinion it would be
difficult for someone of Mullens’s intelligence level and behavioral patterns to
malinger. The trial court orally found that Mullens was competent to proceed. On
April 29, 2013, Mullens pleaded guilty to the first-degree murders of Uddin and
Hayworth and the attempted first-degree murder of Barton. During the penalty
phase, he waived the right to present evidence to a jury,1 and aggravating and
mitigating evidence was received by the trial court.
During the testimony of Detective Tower, the State introduced video
recordings and still photographs obtained from the surveillance cameras. Defense
counsel objected that the State could not establish a sufficient foundation for this
evidence to be admitted through Tower, who did not immediately respond to the
crime scene and did not know how the footage was downloaded into an accessible
format. Law enforcement personnel from the City of St. Petersburg were initially
unable to access the surveillance footage. Tower contacted Robert Dematti of
Able Solutions, who assisted law enforcement personnel in retrieving and
1. The State objected to Mullens’s waiver of a penalty-phase jury. The trial
court conducted a colloquy of Mullens and accepted the waiver.
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accessing the surveillance footage. The court admitted the material into evidence
over the objections of defense counsel.
The State also presented testimony from Detective Taylor, who interviewed
eyewitnesses and supervised the search of Peeples’s apartment. One witness,
Russell Watson, informed Taylor that an individual, later identified as Peeples, had
approached him earlier that day, indicated that Peeples was armed, and invited him
to participate in the robbery of the Central Food Mart. Watson declined, but
observed Peeples enter the convenience store later that day. Another witness
informed Taylor that she watched a driver in Uddin’s gray Toyota Camry, which
had been parked in front of the store that day, drive away from the store, make a U-
turn, and return to the store. Officer Willard Smith also testified that the serial
numbers of the lottery tickets found in Mullens’s possession matched those
registered to the Central Food Mart. Dr. Jon Thogmartin, the medical examiner,
also testified that the cause of death for both Uddin and Hayworth was a gunshot
wound to the head, and that while Uddin lost consciousness immediately, there
was a possibility that Hayworth did not. The State did not present testimony from
Dematti, who assisted law enforcement with the surveillance footage, or Barton,
the surviving witness.
After the State concluded the presentation of penalty-phase evidence,
Mullens presented various witnesses in mitigation. Ali Sultan, another local
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convenience store owner, testified that he knew Peeples had a reputation for
violence and intimidation. He stated that he and Peeples were involved in an
ongoing dispute, and on the day of the crimes, Peeples had first come to Sultan’s
store, looking for Sultan, but Sultan was not there at the time. Sultan also testified
that while he did not know Mullens well, he was a known local drug addict who
seemed “simple” to Sultan.
Several family members and friends of Mullens also testified with respect to
Mullens’s childhood and character. During much of Mullens’s childhood,
Mohammad Ibrahim, his father, was incarcerated, leaving Cassandra Washington,
his mother, to care for several children while she completed her education.
Cassandra often relied on her oldest child, Shandra, to supervise the children while
she worked or attended school. Relatives described Mullens’s childhood home as
cluttered, decrepit, and lacking food to feed the family. At one point, Cassandra
and her family were evicted.
When Ibrahim was released from prison, he offered little support to Mullens,
Cassandra, or the rest of the family. He verbally and physically abused Cassandra
in front of the children, and when Mullens observed this, he removed his younger
sister Kendra from the room. Ibrahim abused drugs and stole food stamps, the
household television, and a Mickey Mouse watch from Shandra to purchase drugs.
-7-
Additionally, he taught both Shandra and Mullens to shoplift when they were
children.
During one of the periods of Ibrahim’s incarceration, Cassandra married
Levi McClendon, who also had problems with substance abuse. Cassandra
testified that McClendon was tougher on Mullens than the rest of the children.
Sharon Mullens, the sister of Ibrahim and aunt of Mullens, testified that she did not
like the interactions between Mullens and McClendon.
Family members and friends described Mullens as a happy, outgoing, and
loving child who was easily manipulated and influenced, especially by his older
brother, Wesley. Wesley once directed Mullens to break into a neighbor’s garage
and steal bicycles. Mullens also cared for his younger sister Kendra and always
attempted to make sure that Kendra would not go hungry, even if it required that
he steal food for her. Kenneth Mullens, the uncle of Mullens, testified that
Mullens was fiercely protective of his family and recounted an incident in which
Mullens physically attacked someone who had threatened his cousin during a
football game. Kenneth considered taking in Mullens to live with his family, but
his wife feared that Mullens would negatively influence their own children.
Mullens was described as an immature child, but when he grew older, he
underwent wild mood swings and began to act inappropriately. As a teenager, he
asked his mother, who worked at a family planning center, to speak to his
-8-
girlfriend about birth control so that she would agree to have sex with him. When
he was fifteen, his mother eventually told Mullens that he could no longer live in
her home, and he was arrested and incarcerated in an adult facility shortly
thereafter. After he was released from prison at the age of sixteen, his demeanor
upon his return to Cassandra’s home was markedly different. Mullens became
angry, hostile, and paranoid. It was difficult to maintain a conversation with him,
due to his rapid and discordant speech. Neighbors approached Cassandra, asking
her to force him to leave the neighborhood, and she contemplated poisoning her
son, “to put him out of his misery.”
In addition to behavioral problems, evidence was presented regarding
Mullens’s substance abuse. Sultan testified that Mullens was one of the local
addicts. Cassandra testified that after Mullens was released from prison in 2007
and returned to her home, he used marijuana, and she suspected that he also used
cocaine. Michael Wonka, Mullens’s roommate at the time of his arrest, testified
that they regularly consumed drugs together. Mullens also told Dr. Machlus that
he began using drugs when he was eleven years old and began drinking at thirteen,
although Dr. Machlus admitted that such reports were not necessarily reliable.2
2. Dr. Machlus noted that it would be unusual for an individual to begin
using cocaine at age eleven, alcohol at thirteen, inhalants at thirteen or fourteen,
and marijuana at fifteen, as Mullens reported.
-9-
Mullens also presented evidence regarding his mental health. According to
testimony from Cassandra Washington, several relatives in her family suffered
from mental illness, including diagnoses of schizophrenia, depression, and
alcoholism. Ibrahim testified that he suffered from bipolar disorder and post-
traumatic stress disorder (PTSD). Dr. Machlus testified that given this family
history, Mullens had a genetic predisposition toward certain mental illnesses,
which was exacerbated by his own substance abuse. While Mullens was
incarcerated in 2007, prior to the murders, he was diagnosed with bipolar I disorder
and schizophrenia, Axis I disorders, as well as avoidant personality disorder and
independent personality disorders, Axis II disorders. When Dr. Machlus first
attempted to evaluate his competency, Mullens acted inappropriately, but after he
received medication, Dr. Machlus noted that he became more focused and
cooperative. Family members also noted that it became easier to maintain
conversations with him. Dr. Machlus opined that Mullens (1) committed the
murders while under an extreme emotional or mental disturbance, and (2) acted
under the duress of Peeples during the robbery.
Mullens presented evidence of two other proposed mitigating circumstances.
Dr. Machlus testified that Mullens informed him that he had been sexually abused
by McClendon when he was a child and on eight occasions during a prior
incarceration. Both Cassandra and Ibrahim also testified that Mullens exhibited
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paranoia regarding sexual abuse after he was released from prison. Ibrahim also
testified that he named Mullens after Muammar Gaddafi, whom he respected for
opposing the administration of President Reagan.
The trial court issued its sentencing order on August 23, 2013. It found the
existence of three aggravating circumstances with respect to each murder: (1)
Mullens had been convicted of prior violent felonies under section 921.141(5)(b),
Florida Statutes (including a prior conviction for aggravated battery, the
contemporaneous murders of Uddin and Hayworth, and the attempted murder of
Barton); (2) the capital felonies were committed during the course of a robbery,
section 921.141(5)(d), which merged with pecuniary gain, section 921.141(5)(f);
and (3) the capital felonies were committed for the purpose of avoiding lawful
arrest, section 921.141(5)(e). The court assigned great weight to each aggravating
circumstance.
The court found that two statutory mitigating circumstances applied. First,
the court concluded that the capital felony was committed while Mullens was
under the influence of an extreme mental or emotional disturbance, section
921.141(6)(b), and assigned it moderate weight. The court noted that while
Mullens had been diagnosed with bipolar disorder, personality disorder (not
otherwise specified), and polysubstance abuse, there was no evidence of Mullens’s
precise mental state during the murders because Dr. Machlus did not ask Mullens
- 11 -
about his mental state at that time. The court also found that Mullens’s capacity to
appreciate the criminality of his conduct or conform his conduct to the
requirements of the law was substantially impaired, section 921.141(6)(f), and
assigned it moderate weight. This circumstance was based on the evidence
presented by members of his family that detailed his difficult childhood, mental
health, history of substance abuse, and the lack of protective factors that might
otherwise insulate someone from the negative consequences of such a childhood.
Regarding nonstatutory mitigation, the court explained that of the thirty-one
circumstances that Mullens presented as mitigation, sixteen had been addressed as
statutory mitigation and would not be reconsidered as nonstatutory mitigation. 3
The court consolidated the remaining factors into nine nonstatutory mitigating
circumstances: (1) Mullens was sexually abused as a child and while in prison (not
proven and given no weight); (2) his mental illness can be successfully treated
(some weight); (3) he is immature, impulsive, and easily manipulated (little
3. These sixteen factors include Mullens’s: (1) genetic predisposition to
psychological disorders; (2) genetic predisposition to substance dependency; (3)
exposure to parental conflict; (4) exposure to and victim of child abuse and
neglect; (5) poor parental attachment; (6) exposure to family drug and alcohol
abuse; (7) exposure to family criminal behavior; (8) abuse at the hands of his older
brother; (9) residential instability; (10) impoverished childhood; (11) poor
academic performance; (12) incarceration as a juvenile in an adult facility; (13)
diagnosis of bipolar disorder; (14) diagnosis of polysubstance abuse; (15)
diagnosis of a personality disorder; and (16) being taught to commit crimes when
he was five years old by his father.
- 12 -
weight); (4) he acted under the domination and control of Peeples (some weight);
(5) he has a low IQ and poor academic achievement scores (little weight); (6) he
accepted responsibility for his crimes (little weight); (7) his family and friends love
and support him (little weight); (8) he was “too far gone to be helped” at ten years
old (not proven and given no weight); and (9) he was named after Muammar
Gaddafi (not mitigating and given no weight).
Upon review of the weight assigned to all of the established aggravating and
mitigating circumstances, the court sentenced Mullens to death for the murders of
both Uddin and Hayworth, and life imprisonment for the attempted murder of
Barton. This review follows.
DISCUSSION
Authentication of Surveillance Video Recordings and Photographs
Mullens’s principal claim is that the trial court permitted the State to enter
into evidence DVDs and still photographs derived from the surveillance footage
without first authenticating them. He asserts that Detective Tower was not
qualified to authenticate the surveillance footage because Tower did not
immediately respond to the crime scene and was unfamiliar with the surveillance
equipment. Further, Mullens alleges that the State could have called either
Dematti, the technician who assisted law enforcement with the surveillance
footage, or Barton, the surviving witness.
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We review conclusions by the trial court regarding authentication for abuse
of discretion. Coday v. State, 946 So. 2d 988, 1000
(Fla. 2006). The standard required to authenticate evidence first admitted during the penalty phase of a capital trial is a novel issue for this Court. Generally, the proponent of photographic or videographic evidence bears the burden of establishing that the evidence is a fair and accurate representation of the events depicted. See § 90.901, Fla. Stat. (2008). The requirement of authentication is “satisfied by evidence sufficient to support a finding that the document in question is what the proponent claims.” Id. We have indicated that authentication for the purpose of admission is a relatively low threshold that only requires a prima facie showing that the proferred evidence is authentic; the ultimate determination of the authenticity of the evidence is a question for the fact-finder. Gosciminski v. State,132 So. 3d 678, 700
(Fla. 2013). For example, in Gosciminski, we rejected a claim that a receipt was insufficiently authenticated because it did not include specific details regarding the cash register, cashier, or the transaction number.Id.
Despite lacking these details, the receipt did contain the store’s logo and return policy, as well as details that were corroborated by the testimony of a witness; therefore, it was sufficiently authenticated to be admitted during the guilt phase of a capital trial.Id.
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However, the paramount consideration in this case is the fact that
evidentiary standards in the sentencing phase of a capital felony are relaxed:
Upon conviction or adjudication of guilt of a defendant of a capital
felony, the court shall conduct a separate sentencing proceeding to
determine whether the defendant should be sentenced to death . . . . In
the proceeding, evidence may be presented as to any matter that the
court deems relevant to the nature of the crime and the character of
the defendant and shall include matters relating to any of the
aggravating or mitigating circumstances . . . . Any such evidence
which the court deems to have probative value may be received,
regardless of its admissibility under the exclusionary rules of
evidence, provided the defendant is accorded a fair opportunity to
rebut any hearsay statements. However, this subsection shall not be
construed to authorize the introduction of any evidence secured in
violation of the Constitution of the United States or the Constitution
of the State of Florida.
§ 921.141(1), Fla. Stat. (2008) (emphasis added). Therefore, relevant evidence that
does not otherwise offend the rights guaranteed to a criminal defendant by the
Constitutions of Florida or of the United States is admissible during the penalty
phase of a capital trial.
We conclude that the State satisfied its burden to establish that the DVDs
were relevant to the penalty phase of Mullens’s capital trial. The surveillance
footage depicts the events of the robbery, which escalated into the murders of
Uddin and Hayworth and attempted murder of Barton. Accordingly, this evidence
was relevant to the consideration of the aggravating and mitigating circumstances,
particularly the avoid arrest aggravating circumstance that is discussed below.
Although Tower admitted that he was not present in the store during the crimes,
- 15 -
nor could he explain the operation of the surveillance footage or the transfer to
DVDs, his testimony nonetheless provided a sufficient foundation to support their
admission. He testified that after he watched the footage, he was able to identify
and apprehend Mullens and Peeples within hours. A search of Peeples’s apartment
yielded clothing that matched that worn by the assailants in the surveillance
footage. Cf. United States v. Cox, 544 Fed. Appx. 908, 912
(11th Cir. 2013) (“If,
however, there is independent evidence of the accuracy of the tape recordings
admitted at trial, we shall be extremely reluctant to disturb the trial court’s decision
even though at the time that decision was made the government had not carried its
particularized burden of going forward.” (citation omitted)).4 Tower was also
present when Dematti from Able Solutions, the business that installed the
surveillance footage, arrived at the store and assisted law enforcement in viewing
the footage recorded earlier that day. Additionally, the events depicted in the
DVDs are internally consistent, and there are no claims that either the DVDs were
altered, or the footage mistakenly identified Mullens.
4. It should be noted that the court in Cox applied the federal authentication
standard, which requires the proponent of photographs or audio recordings to show
“(1) the competency of the operator; (2) the fidelity of the recording equipment; (3)
the absence of material deletions, additions, or alterations in the relevant part of the
tape; and (4) the identification of the relevant speakers.” 544 Fed. Appx. at 912
(citation omitted).
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Admittedly, the DVDs in this record are not perfect. The video recordings
on several of the DVDs freeze, and the video playback of one camera recorded
from an exterior vantage point is almost entirely frozen. However, authentication
does not require that the evidence in question be perfect, only that the evidence is
what the proponent purports it to be. See Gosciminski, 132 So. 3d at 700
. Further, such a problem is a problem of credibility, rather than admissibility. Once the DVDs were admitted, it became the task of the fact-finder—here, the trial court— to determine whether the problems with the playback affected the ultimate credibility of the evidence. Cf.id.
(“Once a prima facie showing of authenticity is
made, the evidence comes in, and the ultimate question of authenticity is for the
jury.” (citing Charles W. Ehrhardt, Florida Evidence, § 901.1, at 1092-93 (2013
ed.))).
This evidence was clearly relevant to the consideration of the aggravating
and mitigating circumstances. Mullens does not assert that he was denied the
opportunity to rebut any hearsay statements contained within the footage, nor does
he suggest that the admission of the DVDs in any way violated his rights under the
Florida or United States Constitutions, which are the only evidentiary limitations
expressed in section 921.141(1). In light of the relaxed evidentiary standards of a
capital penalty phase, we hold that the trial court did not abuse its discretion
regarding the authentication of the DVDs and still photographs.
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Avoid Arrest Aggravating Circumstance
Mullens next alleges that the State failed to prove beyond a reasonable doubt
that Mullens’s sole or dominant motive to kill Uddin and Hayworth was to
eliminate them as witnesses, thereby avoiding arrest. This claim of error is related
in part to the authentication of the DVDs, which we have explained were properly
admitted into evidence. Mullens also asserts that his behavior as depicted on the
recordings, the timing between the shootings, and his various mental health
problems all support a reasonable alternative theory that he acted impulsively when
he shot and killed Uddin and Hayworth.
When a defendant challenges the aggravation found by the trial court, we
review the record to ensure that the trial court applied the correct law and that
competent, substantial evidence exists to support the findings of the trial court.
Calhoun v. State, 138 So. 3d 350
, 361 (Fla. 2013) (citing McWatters v. State,36 So. 3d 613, 641
(Fla. 2010)). Any errors regarding improper aggravation are reviewed for harmless error. Wilcox v. State,143 So. 3d 359, 386-87
(Fla. 2014), cert. denied,135 S. Ct. 1406
(2015); Calhoun, 138 So. 3d at 362.
When the avoid arrest aggravating circumstance is found to apply to victims
who are not law enforcement officers, this Court has explained that the State bears
a higher burden of proof:
[T]he State must demonstrate beyond a reasonable doubt that the sole
or dominant motive for the murder was witness elimination.
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Hernandez v. State, 4 So. 3d 642, 667
(Fla. 2009); see also 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, and mere
speculation on behalf of the State that witness elimination was the
dominant motive is insufficient to support the aggravating
circumstance. Id.; see also Riley v. State, 366 So. 2d 19, 22
(Fla.
1978). However, it is not necessary for the State to present direct
statements by the defendant to establish a motive of witness
elimination. Rather, even without direct evidence of the offender’s
thought processes, the aggravating factor can be supported by
circumstantial evidence through inference from the facts shown.
Swafford v. State, 533 So. 2d 270
, 276 n.6 (Fla. 1988). Wilcox,143 So. 3d at 384-85
.
This heightened standard of proof requires more than a simple inference that
the defendant might have been motivated by the concern to eliminate a witness.
See Connor, 803 So. 3d at 610. This aggravating circumstance is not satisfied
simply because a victim might have been able to identify the defendant. E.g.,
Davis v. State, 148 So. 3d 1261, 1278
(Fla. 2014) (citing Farina v. State,801 So. 2d 44, 54
(Fla. 2001)). We have stricken the avoid arrest aggravating circumstance if the evidence suggests that the defendant killed the victim because: the victim was screaming; the victim was on the phone; or the defendant panicked. Cook v. State,542 So. 2d 964, 970
(Fla. 1989); Garron v. State,528 So. 2d 353, 360
(Fla. 1988); Perry v. State,522 So. 2d 817, 820
(Fla. 1988).
However, when we have concluded that this aggravating circumstance was
properly found by the trial court, additional evidence of affirmative conduct of the
- 19 -
defendant to avoid detection often supports the inference that the defendant acted
with the intent to eliminate witnesses and avoid prosecution:
While [the fact that the victims knew and could identify the
defendant] alone is insufficient to prove the avoid arrest aggravator,
we have looked at any further evidence presented, such as whether the
defendant used gloves, wore a mask, or made any incriminating
statements about witness elimination; whether the victims offered
resistance; and whether the victims were confined or were in a
position to pose a threat to the defendant.
Buzia v. State, 926 So. 2d 1203, 1210
(Fla. 2006) (emphasis omitted); see Jennings v. State,718 So. 2d 144, 151
(Fla. 1998) (affirming avoid arrest aggravating circumstances because the defendant “used gloves, did not use a mask, and stated that if he ever committed a robbery, he would not leave any witnesses”); see also Cole v. State,36 So. 3d 597, 607
(Fla. 2010) (approving the avoid arrest aggravating circumstance when the defendant transported a victim before killing the victim); Looney v. State,803 So. 2d 656, 676-78
(Fla. 2001) (affirming trial court’s finding of avoid arrest where the defendant knew the victims well and committed the murders after they had already completed the robbery and secured a getaway vehicle); Foster v. State,778 So. 2d 906, 918
(Fla. 2000) (affirming avoid arrest aggravating circumstance upon evidence that a group, of which the defendant was a member, decided to kill the victim to prevent the victim from reporting the group to law enforcement); Fotopoulos v. State,608 So. 2d 784
, 792
- 20 -
(Fla. 1992) (concluding that evidence that the victim intended to blackmail the
defendant was sufficient to support the avoid arrest aggravating circumstance).
In Consalvo v. State, 697 So. 2d 805, 819
(Fla. 1996), the defendant challenged the trial court’s finding of the avoid arrest aggravating circumstance. During trial, a witness testified that Consalvo told him that he shot the victim after she discovered him in her home, threatened to call the police, reached for the phone, and began to scream.Id.
We stated that this testimony, along with the facts that the defendant knew the victim and the victim pressed charges against the defendant for an earlier crime, supported the trial court’s finding of the avoid arrest aggravating circumstance.Id.
Such facts made Consalvo’s claim distinguishable from Garron, where the defendant’s motive was unclear, and Cook, where the defendant instinctively reacted when he shot the victim.Id. at 819-20
.
The only evidence that establishes the avoid arrest aggravating circumstance
in this case is the surveillance footage from inside the store. We conclude that the
footage provides competent, substantial evidence that supports the findings of the
trial court that Mullens acted with the sole or dominant intent to eliminate
Hayworth and Barton as witnesses who might identify him to law enforcement.
Regarding the murder of Uddin, the surveillance footage reveals that Mullens
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quickly shot Uddin after he saw Uddin with a phone in his hand.5 We have
stricken the avoid arrest aggravating circumstance when the only evidence in
support of this circumstance was the fact that the defendant saw the victim with a
phone in hand. Garron, 528 So. 2d at 360
(“The fact that [a potential witness] was on the telephone at the time of the shooting hardly infers any motive on the appellant’s part.”). This reaction is distinguishable from Consalvo, where the defendant knew the victim; the victim had intended to prosecute the defendant for an earlier crime; and the victim had actually threatened to call the police.697 So. 2d at 819-20
. We therefore conclude that the trial court incorrectly applied the law
regarding the avoid arrest aggravating circumstance with respect to the murder of
Uddin.
However, Mullens’s actions following the murder of Uddin indicate that he
acted with the primary intention of avoiding arrest and prosecution. After Uddin
was shot, Mullens walked away from Uddin and, instead of exiting the store,
Mullens searched for Hayworth, who did not block Mullens’s exit. As the trial
court noted in its sentencing order:
Finding him in one of the store’s aisles, the Defendant forcefully
grabbed Hayworth’s arm and spun him about, getting him into a
position where he could be more easily shot. Hayworth was not
resisting the Defendant and was pleading for the Defendant to let him
5. The record does not reflect whom Uddin called, or if he even successfully
dialed any number.
- 22 -
live. Ignoring Hayworth’s pleas, the Defendant raised the revolver
and fired a shot into Hayworth’s head. Like Uddin, Hayworth had
been passive and submissive during the robbery and remained so up
until his death. He had obeyed all orders from the Defendant and
Peeples and stood exactly where they told him to during the robbery.
Hayworth posed absolutely no threat to the Defendant.
See Farina, 801 So. 2d at 54-55
(noting that victims offered no resistance and did not impede the exit of the defendant in affirming the avoid arrest aggravating circumstance). Further, Mullens began to exit the store and had placed the gun in his pocket when Barton attempted to enter. When Barton hesitated, Mullens grabbed Barton, dragged him into the store, and engaged in an altercation with Barton that resulted in Mullens firing several shots at Barton before Mullens ultimately exited the store. Additionally, Mullens took with him the inoperative surveillance equipment that Peeples had earlier disconnected and removed from its shelf, and neither Mullens nor Peeples wore masks. See Buzia,926 So. 2d at 1210
; Jennings,718 So. 2d at 151
. These actions clearly constitute sufficient
circumstantial evidence that Mullens’s sole or dominant intent in killing Hayworth
and attempting to kill Barton was to eliminate them as witnesses. Therefore, we
affirm the finding of the avoid arrest aggravating circumstance.
Campbell Error
The next error that Mullens asserts is that the sentencing order issued by the
trial court violates the requirements established in Campbell v. State, 571 So. 2d 415, 419
(Fla. 1990), receded from in part by Trease v. State,768 So. 2d 1050
,
- 23 -
1055 (Fla. 2000). He alleges that the trial court failed to address two proposed
nonstatutory mitigating circumstances: (1) that he was protective and nurturing of
his younger sister, and (2) he was kind and helpful to his roommate. He also
asserts that the trial court erred when it refused to consider some of the mitigating
factors proposed as nonstatutory mitigation because the court concluded that such
evidence qualified as statutory mitigation. He also claims that the court improperly
found that the allegations that he had been the victim of sexual abuse were not
supported by competent, substantial evidence. We conclude that there is no merit
to these claims.
This Court has emphasized the need for trial courts to clearly and expressly
delineate findings related to aggravation and mitigation in written sentencing
orders. Oyola v. State, 99 So. 3d 431, 446
(Fla. 2012) (citing Campbell,571 So. 2d at 419-20
). This emphasis on procedure enables this Court to conduct a proper and meaningful review of a death sentence on appeal. Walker v. State,707 So. 2d 300, 319
(Fla. 1997). We review findings of aggravating and mitigating circumstances for competent, substantial evidence. See Ault v. State,53 So. 3d 175, 187
(Fla. 2010). However, the weight assigned to each circumstance is reviewed for abuse of discretion. E.g., Oyola,99 So. 3d at 445
; Ault,53 So. 3d at 187
. We review any errors made in the sentencing order for harmless error. Ault,53 So. 3d at 187
(citing Lebron v. State,982 So. 2d 649, 661
(Fla. 2008));
- 24 -
Singleton v. State, 783 So. 2d 970, 977
(Fla. 2001). An error made during the penalty phase is harmless if there is no reasonable possibility that a lesser sentence would have resulted without the error. Rogers v. State,511 So. 2d 526, 535
(Fla. 1987) (citing State v. DiGuilio,491 So. 2d 1129, 1138
(Fla. 1986)).
In Campbell, we held that a trial court must clearly consider whether each
proposed mitigating circumstance (1) is actually mitigating in nature; and (2) has
been established by the preponderance of the evidence. 571 So. 2d at 419
; see Oyola,99 So. 3d at 446
. The court then must assign weight to every established mitigating and aggravating circumstance and weigh the aggravating and mitigating circumstances in determining whether the death penalty is the appropriate punishment. Campbell,571 So. 2d at 419-20
. We later clarified that the court may conclude that a particular mitigating circumstance exists, but assign it no weight. Trease,768 So. 2d at 1055
. In this analysis, a trial court is also permitted to aggregate several related nonstatutory mitigating circumstances. Gonzalez v. State,136 So. 3d 1125, 1166
(Fla.), cert. denied,135 S. Ct. 193
(2014); Ault,53 So. 3d at 194
. Indeed, the Court indicated in Campbell that it is preferable for trial courts to aggregate proposed nonstatutory factors into categories of related conduct.571 So. 2d at 419
n.3.
The trial court below found that the State had proven beyond a reasonable
doubt three aggravating circumstances: prior violent felony (great weight);
- 25 -
committed during the course of a robbery, merged with pecuniary gain (great
weight); and avoid arrest (great weight). The court noted that the prior violent
felony included both an earlier conviction for aggravated battery and convictions
for the murders of Uddin and Hayworth and the attempted murder of Barton. It
also found that Mullens established two statutory mitigating circumstances: (1)
Mullens committed the crimes under the influence of an extreme emotional or
mental disturbance (moderate weight); and (2) his capacity to appreciate the
criminality of his conduct or conform his conduct to the requirements of law was
substantially impaired (moderate weight). The court made the following findings
with respect to nonstatutory mitigating circumstances: (1) Mullens was sexually
abused as a child and while in prison (not established; no weight); (2) his mental
illness can be treated (some weight); (3) he is immature, impulsive, and easily
manipulated (little weight); (4) he acted under the domination and control of
Peeples (some weight); (5) he has a low IQ and poor academic achievement scores
(little weight); (6) he took responsibility for his crimes (little weight); (7) he has
loving and supportive family and friends (little weight); (8) his family members
considered him to be “too far gone” by the age of ten years old (not proven; no
weight); and (9) his father named him after Muammar Gaddafi (not mitigating; no
weight).
- 26 -
Number of Proposed Mitigating Circumstances
Mullens asserts that the court failed to address two proposed nonstatutory
mitigating circumstances: (1) that he was protective and nurturing of his sister
Kendra; and (2) that prior to his arrest, he was kind and helpful to his roommate
Michael Wonka. Relatedly, Mullens alleges an apparent inconsistency regarding
the number of proposed mitigating circumstances that violates Campbell. Mullens
submitted a sentencing memorandum that proposed thirty-five nonstatutory
mitigating circumstances, but the sentencing order reported thirty-one proposed
nonstatutory mitigating circumstances.6 Although the sentencing order does not
6. The thirty-five factors that Mullens proposed were: (1) his genetic
predisposition to psychological disorders; (2) genetic predisposition to substance
dependency; (3) exposure to parental conflict; (4) exposure to and victim of child
abuse and neglect; (5) poor parental attachment; (6) exposure to family drug and
alcohol abuse; (7) exposure to family criminal behavior; (8) abuse at the hands of
his older brother; (9) residential instability; (10) impoverished childhood; (11) poor
academic performance; (12) incarceration as a juvenile in an adult facility; (13)
diagnosis of bipolar disorder; (14) diagnosis of polysubstance abuse; (15)
diagnosis of a personality disorder; (16) low IQ; (17) low academic achievement
scores; (18) low cognitive scores; (19) sexual abuse by his stepfather; (20) victim
of sexual battery while incarcerated; (21) being taught to commit crimes when he
was five years old by his father; (22) his mental illness can be successfully treated;
(23) he took responsibility for his crimes by pleading guilty; (24) he took
responsibility for his crimes by waiving a sentencing recommendation by a jury;
(25) he did not initiate or plan the robbery; (26) Peeples provided the gun; (27)
Mullens’s immaturity; (28) impulsivity; (29) he is gullible and easily manipulated;
(30) he acted under the domination and control of Peeples; (31) he has the love and
support of many family members and friends; (32) he was protective of and
nurturing to his younger sister, Kendra; (33) he was kind and helpful to Michael
Wonka; (34) by the age of ten years old, his relatives thought he was “too far gone
- 27 -
address the discrepancy regarding the number of proposed nonstatutory mitigating
circumstances, the trial court explained that proposed factors numbers one through
fifteen and 21 had been considered and addressed as statutory mitigation. The
remaining factors were consolidated into the following nine categories: (1) the
sexual abuse he allegedly suffered; (2) his mental illness; (3) his immaturity,
impulsivity, and ability to be manipulated; (4) the fact that he acted under the
influence of Peeples; (5) his low IQ and poor achievement scores; (6) the fact that
he took responsibility for his crimes because he pleaded guilty and waived the right
to an advisory sentence by a jury; (7) the fact that he has loving and supporting
friends and family; (8) the fact that some of his relatives thought he was “too far
gone” to be helped when he was ten years old; and (9) the fact that his father
named him after Muammar Gaddafi.
We hold that Mullens is not entitled to relief on this claim. The trial court
aggregated several related nonstatutory factors into general categories for its
consideration, which was permissible. See Gonzalez, 136 So. 3d at 1166
; Ault,53 So. 3d at 194
. The court did not overlook the proposed circumstance that Mullens
was kind and helpful to Wonka, but in fact referenced the testimony of Wonka as
part of the general nonstatutory category that Mullens has loving and supportive
to be helped”; and (35) his father named him after Muammar Gaddafi, whom his
father respected.
- 28 -
friends and family. This factor was assigned little weight. Regarding Mullens’s
relationship with his sister, Kendra, it appears that the trial court considered this to
be part of the statutory mitigation that Mullens’s capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law
was substantially impaired, although the court did not indicate that this
circumstance was one of the sixteen circumstances already considered as statutory
mitigation.7 In finding that this statutory mitigating circumstance applied, the
court referenced the impoverished childhoods that Mullens and his siblings
endured, as well as the abuse inflicted on Mullens, his mother, and his siblings by
Mullens’s father. Because the court did consider the effects that Mullens’s
difficult childhood had on himself and his family as mitigation, we conclude that
any error by the trial court in overlooking Mullens’s relationship with his late sister
Kendra is harmless, particularly in light of the fact that the trial court found the
existence of three aggravating circumstances and assigned great weight to each.
See Sparre v. State, 164 So. 3d 1183, 1198
(Fla. 2015) (concluding that a
potentially overlooked mitigating circumstance was harmless in light of the
evidence of guilt and established aggravating circumstances).
7. Mullens’s relationship with Kendra was not apparently encompassed by
the general nonstatutory category that Mullens “has loving and supportive family
and friends” who testified that they will continue to support Mullens during his
incarceration because Kendra had passed away before Mullens’s trial.
- 29 -
With respect to the discrepancy in the number of proposed nonstatutory
mitigating circumstances, we conclude that any error is also harmless. See Merck
v. State, 975 So. 2d 1054
, 1066 n.5 (Fla. 2007) (noting that factual errors in
sentencing orders are reviewed for harmless error). Other than the two allegedly
absent factors considered above or the errors discussed below, Mullens does not
indicate which specific nonstatutory mitigating circumstances the trial court may
have overlooked. Although the trial court found that two statutory mitigating
circumstances were established, each meriting moderate weight, and seven
established nonstatutory mitigating factors ranging from none to some weight, such
mitigation did not outweigh the great weight assigned to each of three aggravating
circumstances. We therefore conclude that there was no reasonable possibility that
a lesser sentence would have been imposed in the absence of such an error.
Refusal to Reconsider Statutory Mitigation as Nonstatutory Mitigation
Mullens also claims that the court improperly refused to consider sixteen
proposed nonstatutory mitigating circumstances. In its sentencing order, the court
stated that it had already considered these mitigating circumstances in finding the
existence of two statutory mitigating circumstances. Accordingly, the court
refused to find that those mitigating circumstances qualified as nonstatutory
mitigation as well.
- 30 -
Although a trial court must evaluate established mitigating circumstances,
Mullens offers no support for his claim that a trial court must reconsider evidence
as nonstatutory mitigation after the court has already concluded that such evidence
qualifies as statutory mitigation. In Ault, the trial court rejected the defendant’s
contention that his mental health qualified as either statutory or nonstatutory
mitigation. 53 So. 3d at 189
. On review, this Court affirmed the rejection of this evidence as statutory mitigation, but concluded that the trial court erred when it then refused to consider such evidence as nonstatutory mitigation.Id. at 188-90
(“However, the rejection of statutory mental health mitigation did not require the
trial court to reject brain damage as an independent nonstatutory mitigating
factor.”).8
In Oyola, this Court also held that the trial court’s mitigation analysis was
insufficient. 99 So. 3d at 446-47
. There, the trial court concluded that Oyola’s
mental health issues did not rise to the level of statutory mitigation, and provided
the following analysis regarding nonstatutory mitigation: “The alleged non-
statutory mitigation included serious drug abuse, an abusive home life as a child,
created a cycle of violence, and mental disorder. While the evidence did establish
such circumstances, the Court only gives such circumstances slight weight in
8. The Court in Ault ultimately concluded that this error, along with other
sentencing errors, was harmless. 53 So. 3d at 196
.
- 31 -
weighing the aggravating circumstances against the mitigating circumstances.” Id.
We explained that such a cursory review of the mitigating evidence failed to meet
the specific sentencing procedure articulated in Campbell. Id. at 447.
However, these cases do not support Mullens’s claim that a Campbell error
occurred below. Unlike Ault, the trial court below accepted the proposed evidence
as statutory mitigation and simply did not recount that evidence again as
nonstatutory mitigation as well. The error in Oyola emerged because the trial court
failed to detail its conclusions regarding mitigation. Essentially, Mullens asks this
Court to require a trial court to “double count” mitigating evidence that has already
been found to have established statutory mitigation as nonstatutory mitigation as
well, something this Court has not yet mandated.
Furthermore, we have previously indicated that the proportionality analysis
that we perform following an appropriately detailed sentencing order by the trial
court is not a simple matter of counting the number of aggravating circumstances
against the mitigating circumstances; rather, this is a qualitative analysis. See
Brown v. State, 143 So. 3d 392, 407
(Fla.), cert. denied,135 S. Ct. 726
(2014); Muehleman v. State,3 So. 3d 1149, 1166
(Fla. 2009). Therefore, there is no
purpose to be served by requiring trial courts to recount factors as both statutory
and nonstatutory mitigation. We conclude that the trial court did not err in refusing
- 32 -
to find that the factors that supported Mullens’s statutory mitigation also qualified
as nonstatutory mitigation.
Allegations of Sexual Abuse
Mullens also insists that the trial court erred when it improperly concluded
that no competent, substantial evidence supported the nonstatutory mitigating
circumstance that he was sexually abused as a child and as an adult in prison. We
disagree.
Although a trial court must consider and weigh each established mitigating
circumstance, it may reject a proposed mitigating factor if the record lacks
competent, substantial evidence to support that circumstance. Coday, 946 So. 2d at 1001-03
. A trial court may even reject uncontroverted expert opinion testimony regarding proposed mitigating evidence if that opinion is unsupported by the record. Hoskins v. State,965 So. 2d 1, 16-17
(Fla. 2007); Nelson v. State,850 So. 2d 514, 530
(Fla. 2003); Philmore v. State,820 So. 2d 919, 935-37
(Fla. 2002); Foster v. State,679 So. 2d 747, 755
(Fla. 1996). For example, in Philmore, this Court approved the rejection by the trial court that the defendant suffered from an extreme mental or emotional disturbance during the commission of the capital crime after the State extensively cross-examined the expert witness for the defense.820 So. 2d at 937
; see also Nelson,850 So. 2d at 530
(affirming rejection of expert
opinion largely derived from defendant’s self-reporting of hallucinations and
- 33 -
depression). We have also found that the omission of allegations of sexual abuse
submitted as nonstatutory mitigation was harmless because the only evidence of
this allegation was testimony from the defendant’s father, who indicated that he
only learned of the alleged abuse several years later. Caylor v. State, 78 So. 3d 482, 497-98
(Fla. 2011) (“The appellant himself never testified regarding the
allegation and never gave any description of the abuse or how it may have affected
him.”).
The sentencing order in this case provides the following analysis with
respect to this issue:
The Defendant alleges that he was sexually abused as a child by
his step-father and that he was also sexually abused while incarcerated
in prison. However, no competent evidence was presented during the
penalty phase to substantiate these claims. Accordingly, the Court
finds that this non-statutory mitigation has not been proven and
therefore accords it no weight.
During the penalty phase, Mullens presented testimony from Dr. Machlus, who
informed the court that Mullens reported to him that he was sexually abused by his
stepfather as a child and on eight separate occasions while incarcerated. However,
Dr. Machlus admitted during cross-examination that Mullens had failed to report
these allegations prior to the interview, which was conducted during the course of
Mullens’s competency evaluation. He also admitted that Mullens may have been
malingering, which was consistent with similar suggestions proffered by other
experts during the competency hearing. Thus, the record provides a basis to
- 34 -
question the validity of Dr. Machlus’s conclusions. See Philmore, 820 So. 2d at 937
; Nelson,850 So. 2d at 530
.
Additionally, although other witnesses for Mullens testified that they
suspected that he had been sexually assaulted by his stepfather and while he was
incarcerated, such testimony only amounted to speculation. Indeed, one such
witness, Mullens’s father Ibrahim, admitted that it was difficult to pinpoint exactly
when he first suspected that Mullens had been sexually abused in prison because
Ibrahim himself was incarcerated for much of the relevant period of Mullens’s life
and because he was high on drugs during his intermittent periods of freedom. We
therefore agree with the trial court’s finding that there was no competent,
substantial evidence in the record to support this mitigating circumstance.
Moreover, to the extent that the trial court failed to detail the specific reasons that
it did not find that this mitigating circumstance had been proven—i.e., the lack of
credibility of Dr. Machlus’s conclusions and the speculative nature of the
testimony offered by Mullens’s family members—we conclude that any error is
harmless. See Caylor, 78 So. 3d at 497-98
.
The sentencing order provided by the trial court was detailed and it
extensively reviewed the facts of the crimes, as well as the aggravating and
mitigating circumstances before the court. The court explained why it found that
certain aggravating and mitigating circumstances had been established (or not),
- 35 -
assigned weight to each established circumstance, and weighed the aggravation
and mitigation before it sentenced Mullens to death, as Campbell requires.
Although sentencing orders must provide sufficient detail to enable this Court to
conduct a meaningful review, see Ault, 53 So. 3d at 187
, there is by no means a requirement that a sentencing order must pedantically or repeatedly address each individual factor proposed as mitigation. See Campbell,571 So. 2d at 419
n.3
(“As with statutory mitigating circumstances, proposed nonstatutory circumstances
should generally be dealt with as categories of related conduct rather than as
individual acts.”). We therefore conclude that the sentencing order satisfied the
requirements of Campbell and reject Mullens’s assertions of error.
Proportionality
Mullens also claims that the death sentence is not proportionate for the
crimes committed because he asserts that the murders resulted from a robbery gone
awry. As noted above, this is a qualitative evaluation of the reasons for the
established aggravating and mitigating circumstances. Brown, 143 So. 3d at 407
; Muehleman,3 So. 3d at 1166
. Accordingly, we consider all of the aggravating and mitigating circumstances in comparison to similar cases where we have upheld the death penalty. McLean v. State,29 So. 3d 1045, 1052
(Fla. 2010). Additionally,
the Court accepts the weight assigned to the aggravating and mitigating
- 36 -
circumstances, unless there is no competent, substantial evidence to support such a
finding. Hayward v. State, 24 So. 3d 17, 46
(Fla. 2009).
When it appears that a murder has occurred in the course of a “robbery gone
wrong,” we have on some occasions concluded that the death penalty is
disproportionate. E.g., Yacob v. State, 136 So. 3d 539, 550-52
(Fla. 2014); Jones v. State,963 So. 2d 180, 187-88
(Fla. 2007) (vacating death penalty because only a single aggravating circumstance remained); Larkins v. State,739 So. 2d 90, 95
(Fla. 1999) (noting the extensive mental health evidence presented as mitigation); see also Urbin v. State,714 So. 2d 411, 417
(Fla. 1998) (finding the fact that the defendant was a minor at the time of the crime to be “particularly compelling” (citing Livingston v. State,565 So. 2d 1288
(Fla. 1988)). Relatedly, this Court has indicated that where only a single valid aggravating circumstance exists, a sentence of death may be inappropriate. See Green v. State,975 So. 2d 1081, 1088
(Fla. 2008) (“[A]bsent unusual circumstances, death is not indicated in a single- aggravator case where there is substantial mitigation.”); Jones,963 So. 2d at 189
.
Mullens insists that this case is similar to Yacob, in which we held that the
death penalty was not proportionate. 136 So. 3d at 550. In that case, the defendant
entered a convenience store and initiated a robbery. Id. at 541. During the course
of the robbery, he asked the clerk if the security camera had any videotape or CD
that recorded store activity. Id. The clerk answered in the negative, and as Yacob
- 37 -
prepared to exit the store, the clerk reached for a switch to automatically lock the
doors of the store. Id. In response, Yacob shot at the clerk before ultimately
finding a different point of exit from the store. Id. During sentencing, the trial
court found the existence of two aggravating circumstances, commission during
the course of a robbery and pecuniary gain, which merged into a single aggravating
circumstance. Id. at 544. Rather than qualify as one of the most aggravated and
least mitigated murders, the Court concluded that this murder instead was the result
of a botched robbery and held that the death penalty was disproportionate. Id. at
550-52.
However, we consider Yacob to be distinguishable for several reasons.
First, in finding the sentence in Yacob to be disproportionate, this Court noted that
the facts of Yacob were similar to cases that resulted from botched robberies and
that were also found to be disproportionate. 136 So. 3d at 550-52 (citing Scott v.
State, 66 So. 3d 923, 925
(Fla. 2011); Johnson v. State,720 So. 2d 232, 236
(Fla. 1998); Sinclair v. State,657 So. 2d 1138, 1142-43
(Fla. 1995); Thompson v. State,647 So. 2d 824, 827
(Fla. 1994)). Notably, Yacob and the cases upon which it
relied involved only one count of first-degree murder. See id.9 Likewise, in other
cases in which we have found the death penalty to be disproportionate because we
9. The defendant in Thompson was also convicted of attempted first-degree
murder. 720 So. 2d at 233
.
- 38 -
concluded that the first-degree murders resulted from a botched robbery, the
defendant killed only one victim. See Jones, 963 So. 2d at 181, 184
; Larkins,739 So. 2d at 91-92
; Urbin,714 So. 2d at 413
. By contrast, the fact that Mullens
committed two counts of first-degree murder and attempted to commit a third
count of first-degree murder after he and Peeples had completed the robbery
distinguishes this case from other cases that involved “robberies gone wrong.”
Additionally, we reversed the sentence in Yacob in part because there was
only a single valid aggravating circumstance. See 136 So. 3d at 552. Even if we
were to strike the avoid arrest aggravating circumstance here, two aggravating
circumstances, prior violent felony and that the murders were committed during
the course of a robbery, would remain. Therefore, this case is not one in which
only a single valid aggravating circumstance exists, which might support the
imposition of a life sentence. See Green, 975 So. 2d at 1088
.
Rather, we conclude that this case is closer to McLean, 29 So. 3d 1045
, and Troy v. State,948 So. 2d 635
(Fla. 2006), in which we affirmed the imposition of the death penalty. In McLean, the trial court found the existence of three aggravating circumstances—the defendant was on felony probation at the time of the capital offense; prior violent felony, including both a contemporaneous conviction and a prior conviction for armed robbery; and the murder was committed during the course of a robbery.29 So. 3d at 1049
. The court also
- 39 -
found the same two statutory mitigating circumstances that were found in this case,
as well as six categories of nonstatutory mitigation, but concluded that the
aggravation outweighed the mitigation. Id. at 1049-50
. Similarly, we upheld the sentence of death in Troy, after the trial court found four aggravating circumstances—the murder was especially heinous, atrocious, and cruel; prior violent felony; committed by a defendant under community control; and committed during the course of a sexual battery and robbery—the same two statutory mitigating circumstances, and sixteen nonstatutory mitigating circumstances.948 So. 2d at 654-55
.
Here, the trial court concluded that the great weight assigned to each of three
aggravating circumstances outweighed the established mitigation. We conclude
that competent, substantial evidence supports the findings of the trial court
regarding aggravation and mitigation. Therefore, we affirm the imposition of the
death penalty in this case.
Sufficiency
Although Mullens does not raise the issue, this Court has an independent
obligation to review the record for competent, substantial evidence that supports
his convictions. E.g., Brown, 143 So. 3d at 407
(citing Blake v. State,972 So. 2d 839, 850
(Fla. 2007); Fla. R. App. P. 9.142(a)(5)). However, when a defendant
pleads guilty to a capital offense, this Court instead must consider whether that
- 40 -
plea was knowing, intelligent, and voluntary. Tanzi v. State, 964 So. 2d 106, 121
(Fla. 2007) (citing Winkles v. State,894 So. 2d 842, 847
(Fla. 2005); Lynch v. State,841 So. 2d 362, 375
(Fla. 2003)).
After a competency hearing in 2011, in which the court found that Mullens
was competent to proceed, Mullens was represented by counsel and pleaded guilty
on April 29, 2013. During a colloquy with the court, Mullens stated that he
understood that by pleading guilty to two counts of first-degree murder, he faced
either death or life imprisonment. The court confirmed that Mullens understood
that he chose to waive his right to have a jury decide his guilt and recommend an
advisory sentence. The State also provided a factual basis for two counts of first-
degree murder and one count of attempted murder, and the court accepted the plea.
See Russ v. State, 73 So. 3d 178, 199-200
(Fla. 2011) (finding the defendant’s
guilty plea was knowingly, intelligently, and voluntarily made). Therefore, we
conclude that the plea was knowingly, intelligently, and voluntarily made, and it
provides competent, substantial evidence to support Mullens’s convictions.
Written Order of Competency
Finally, Mullens insists that this matter must be remanded to the trial court
for a written order of competency. Florida Rule of Criminal Procedure 3.212(b)
requires a trial court to consider a defendant’s competency before proceeding
further. “If the court finds the defendant competent to proceed, the court shall
- 41 -
enter its order so finding and shall proceed.” Fla. R. Crim. P. 3.212(b); see also
Fla. R. Crim. P. 3.212(c)(7) (applying identical language for competency
determinations where a defendant has been found competent after having been
previously committed for treatment). The district courts of this state have
interpreted this language to require a written order of competency; when a trial
court has issued only an oral finding of competency, the district courts have
typically remanded for a nunc pro tunc written order of competency. See, e.g.,
Williams v. State, 130 So. 3d 763, 764
(mem.) (Fla. 2d DCA 2014); Razuri v. State,126 So. 3d 261, 261-62, n.1
(mem.) (Fla. 3d DCA 2010); Molina v. State,946 So. 2d 1103
, 1105 n.1 (Fla. 5th DCA 2006); White v. State,548 So. 2d 765, 768
(Fla. 1st DCA 1989); see also Boone v. State,805 So. 2d 1040, 1041
(Fla. 4th DCA 2002) (remanding for written order of competency, but not specifying a nunc pro tunc order). Additionally, this Court recently indicated that a trial court must delineate its findings regarding the competency of the defendant in a written order. Dougherty v. State,149 So. 3d 672, 676, 679
(Fla. 2014) (noting that the claim in
that case was procedurally barred because the defendant first raised the issue in a
postconviction proceeding nearly seven years after his initial competency
proceeding, but reviewing the competency procedures outlined in Florida Rules of
Criminal Procedure 3.210-3.212).
- 42 -
The State insists that Mullens waived his right to seek a written competency
order through his plea agreement. We disagree. The plea agreement entered into
between Mullens and the State indicates that Mullens waived his “right to appeal
the facts of the case.” The trial court orally found Mullens to be competent on
September 16, 2011, and neither party disputes his competency. Mullens’s request
that this case be remanded for a nunc pro tunc written order of competency does
not seek to challenge the facts of this case. Therefore, we remand this matter to the
trial court for the entry of a written order of competency, nunc pro tunc to
September 16, 2011.
Hurst
During the pendency of Mullens’s appeal, the United States Supreme Court
issued its decision in Hurst v. Florida, 136 S. Ct. 616
(2016). The Court held that Florida’s capital sentencing scheme violated the Sixth Amendment under Ring v. Arizona,536 U.S. 584
(2002). Following that decision, Mullens requested leave to
file supplemental briefing to address the effects of Hurst on his appeal, which we
granted.
We need not extensively consider the implications of Hurst to determine that
Mullens cannot avail himself of relief pursuant to Hurst. Hurst said nothing about
whether a defendant could waive the Sixth Amendment right to jury factfinding in
sentencing procedures as recognized by Ring and Apprendi v. New Jersey, 530
- 43 -
U.S. 466 (2000). In light of the fact that Mullens waived this right, his argument
that his sentence must be commuted to life imprisonment pursuant to section
775.082(2), Florida Statutes (2008), fails.
Although the United States Supreme Court has not directly addressed
whether a defendant can waive his or her rights to jury factfinding in the specific
context of capital sentencing, the Court has concluded that defendants are free to
waive the general right to jury factfinding that was recognized in Apprendi:
[N]othing prevents a defendant from waiving his Apprendi rights. . . .
If appropriate waivers are procured, States may continue to offer
judicial factfinding as a matter of course to all defendants who plead
guilty. Even a defendant who stands trial may consent to judicial
factfinding as to sentence enhancements, which may well be in his
interest if relevant evidence would prejudice him at trial.
Blakely v. Washington, 542 U.S. 296, 310
(2004). Even more broadly, it has long been recognized that defendants may entirely waive their right to a jury trial. E.g., Singer v. United States,380 U.S. 24, 32-35
(1965); Patton v. United States,281 U.S. 276, 308
(1930), abrogated on other grounds by Williams v. Florida,399 U.S. 78
(1970); State v. Upton,658 So. 2d 86, 87
(Fla. 1995).
Other states have reached similar conclusions in the context of capital
sentencing. In states where defendants who pleaded guilty to capital offenses
automatically proceeded to judicial sentencing, courts have held that Ring did not
invalidate their guilty plea and associated waiver of jury factfinding. State ex rel.
Taylor v. Steele, 341 S.W.3d 634, 646-47
(Mo. 2011); State v. Piper, 709 N.W.2d
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783, 803-07 (S.D. 2006) (citing Colwell v. State, 59 P.3d 463
(Nev. 2002); Moore v. State,771 N.E.2d 46
(Ind. 2002)); State v. Downs,604 S.E.2d 377, 380
(S.C. 2004); State v. Murdaugh,97 P.3d 844, 852-54
(Ariz. 2004); see also Lewis v. Wheeler,609 F.3d 291, 309
(4th Cir. 2010) (refusing to grant federal habeas corpus relief pursuant to Ring, explaining that “neither Apprendi nor Ring holds that a defendant who pleads guilty to capital murder and waives a jury trial under [Virginia’s] capital sentencing scheme retains a constitutional right to have a jury determine aggravating factors”). These courts reasoned that the defendants knew that when they entered a guilty plea, they fully forfeited their right to a jury trial. Taylor,341 S.W.3d at 647-48
; Colwell,59 P.3d at 474
; Moore,771 N.E.2d at 49
. A subsequent change in the law regarding the right to jury sentencing did not render that initial waiver involuntary. Murdaugh,97 P.3d at 853
(citing Brady v. United States,397 U.S. 742
(1970)). Moreover, where defendants have strategically chosen to proceed before a judge alone in order to avoid a death sentence, their jury waivers have been upheld. Taylor,341 S.W.3d at 647-48
; Murdaugh,97 P.3d at 853
.
Unlike the capital sentencing schemes at issue in Taylor, Piper, Colwell,
Moore, Downs, and Lewis, in Florida, a defendant who pleaded guilty to a capital
offense retained the right to present mitigating evidence to a jury, which, prior to
Hurst, would issue an advisory sentence. See § 921.141(1), Fla. Stat. (2008). As
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with a guilty plea, in which a defendant waives his or her right to a jury
determination of guilt, a waiver of the right to jury sentencing will be upheld if that
waiver is knowingly, voluntarily, and intelligently made. Winkles v. State, 21 So. 3d 19, 23
(Fla. 2009) (citing Grim v. State,971 So. 2d 85, 101
(Fla. 2007)); Griffin v. State,820 So. 2d 906, 912
(Fla. 2002).
In this case, Mullens waived his right to jury sentencing after he pleaded
guilty to two counts of first-degree murder. Moreover, the State contested this
waiver, although it recognized that Mullens had that right and the trial court could,
in its discretion, accept or reject his waiver.10 The trial court conducted a thorough
colloquy and asked Mullens if he understood the right that he was relinquishing
and that he was subject to sentences of either death or life imprisonment. The trial
court was fully cognizant of Mullens’s status and his background. After the
persistent questions by the trial court, the following exchange occurred:
[MULLENS]: Sir, it seem[s] like you keep asking the same thing like
I’m making the wrong decision or something.
THE COURT: No. I’m just making sure so the record’s clear that
you’ve talked about it enough and that you’re comfortable that you’re
making the right decision for you.
10. See, e.g., Grim, 971 So. 2d at 101
(explaining that a trial court may exercise discretion in convening a jury for sentencing purposes, even if the defendant has validly waived the right to an advisory jury) (citing Muhammad v. State,782 So. 2d 343, 361
(Fla. 2001); State v. Carr,336 So. 2d 358, 359
(Fla.
1976)).
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[MULLENS]: I’m absolutely positive, sir.
THE COURT: Okay. All right. . . .
(Emphasis added.) Upon review of this record, we conclude that Mullens’s waiver
was knowing, voluntary, and intelligent.
If a defendant remains free to waive his or her right to a jury trial, even if
such a waiver under the previous law of a different jurisdiction automatically
imposed judicial factfinding and sentencing, we fail to see how Mullens, who was
entitled to present mitigating evidence to a jury as a matter of Florida law even
after he pleaded guilty and validly waived that right, can claim error. As our sister
courts have recognized, accepting such an argument would encourage capital
defendants to abuse the judicial process by waiving the right to jury sentencing and
claiming reversible error upon a judicial sentence of death. Piper, 709 N.W.2d at
808 (citing People v. Rhoades, 753 N.E.2d 537, 544
(Ill. 2001)). This we refuse to
permit. Accordingly, Mullens cannot subvert the right to jury factfinding by
waiving that right and then suggesting that a subsequent development in the law
has fundamentally undermined his sentence. We reject his claim that his sentence
should be commuted to life imprisonment.
CONCLUSION
We conclude that Mullens knowingly, intelligently, and voluntarily pleaded
guilty to the charged offenses. Additionally, Mullens is not entitled to relief on
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any of the errors that he alleges. We also determine that Mullens is not entitled to
relief pursuant to Hurst. Therefore, we affirm his sentences and remand for entry
of a written order of competency, nunc pro tunc to September 16, 2011.
It is so ordered.
LABARGA, C.J., and LEWIS, QUINCE, and PERRY, JJ., concur.
PARIENTE, J., concurs with an opinion.
LEWIS, J., specially concurs with an opinion, in which LABARGA, C.J., and
PARIENTE, J., concur.
CANADY, J., concurs in result with an opinion, in which POLSTON, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PARIENTE, J., concurring.
I concur in the affirmance of the defendant’s conviction and death sentence.
The defendant entered a plea of guilty for the tragic murder of two victims and the
attempted murder of a third victim—all of whom he shot at close range. The grim
sequence of the robbery and ensuing murders was documented by the convenience
store’s security camera. The defendant, who was twenty-four years old at the time
of the murders, waived a penalty phase before a jury. I agree that the defendant
knowingly, voluntarily, and intelligently waived his right to a jury trial, and that
therefore the defendant “cannot avail himself to relief pursuant to Hurst.” Majority
op. at 43.
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I write only to highlight, as demonstrated through the trial court’s excellent
sentencing order, the sentencing judge’s profound understanding of how Mullens’s
dysfunctional upbringing influenced the person he became as an adult:
However, while the Court firmly believes that the Defendant
was well aware of the criminality of his actions, competent evidence
was presented that suggests that the Defendant’s ability to conform his
conduct to the requirements of law was substantially impaired. In
addition to Dr. Machlus’s testimony regarding the Defendant’s mental
health, the Court also heard testimony from several of the Defendant’s
family members regarding his upbringing. The totality of their
testimonies painted a very bleak picture of the Defendant’s childhood
and background.
The Defendant’s father was incarcerated in prison for the
majority of the Defendant’s life. However, during the periods of his
release, his father admitted to brutally beating the Defendant’s mother
in front of the Defendant and his siblings, and to also viciously
beating the children themselves. Like his father, the Defendant’s
brother also took to inflicting violence on the Defendant, horribly
beating him on several occasions. In addition to these beatings, the
Defendant’s father was constantly seeking out narcotics and abusing
them in front of the Defendant. His father would often steal
household funds as well as others’ property to pay for drugs and
alcohol. The Defendant was no older than five when his father taught
him how to shoplift in order to supply the family with food and other
items they needed. Similarly, the Defendant’s mother was an
alcoholic who abused both alcohol and marijuana in the presence of
the Defendant. His parents’ addictions led to a lack of residential
stability and inadequate resources to supply food, clothes or utilities,
forcing the Defendant and his siblings to go without these items.
The testimony from the Defendant’s family members made
clear that throughout his formative years, the Defendant was exposed
to severe physical and emotional abuse, rampant alcohol and drug
abuse and lessons on how to commit crimes. Compounding the
effects of the Defendant’s childhood is the lack of any “protective
factors.” Dr. Machlus testified that the Defendant did not have any of
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the protective factors that would typically insulate an individual from
experiencing the negative consequences of such an upbringing.
Additionally, when the Defendant was sixteen years old he was
sentenced to prison. The Defendant’s mother testified that when he
returned from prison, the Defendant was “very different,” and that he
had become “angry” and “paranoid.” She testified that his behavior
worsened to the point that their neighbors were concerned enough to
start a petition to have Defendant removed from the neighborhood.
Having tried to convince the Defendant to seek professional help and
failing, even the Defendant’s mother thought his condition had
become so irrevocable that she believed he would have been better off
dead.
Furthermore, both Dr. Machlus and the Defendant’s mother
testified as to the Defendant’s predisposition to psychological
disorders and substance abuse. It was well established that the
Defendant’s lineage is saturated with individuals who suffered not
only from psychological disorders, but also severely abused drugs and
alcohol. As previously noted, Dr. Machlus testified that individuals
who suffer from both Bipolar Disorder and substance abuse are six
times more likely to commit violent criminal acts as opposed to those
individuals who suffer solely from Bipolar Disorder. Given the
Defendant’s mental health and substance abuse history, family
upbringing and lack of protective factors, it is evident that the
Defendant lacks the ability to conform his conduct to the requirements
of law.
While the Court has no doubt that the Defendant was well
aware of the criminality of his actions, it is the combination of the
Defendant’s mental health and substance abuse issues along with his
upbringing that indicate the Defendant lacked the capacity to conform
to the requirements of law. In light of the foregoing, the Court finds
that this factor has been proven and accords it moderate weight.
As long as we continue to have a death penalty in Florida, we will see that
many of the defendants who sit on death row have backgrounds similar to the
history and life of Khadafy Kareem Mullens. While Mullens’s multiple traumas,
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including his numerous adverse childhood experiences, serve as substantial non-
statutory mitigation, I cannot disagree with the trial court’s weighing of the
aggravating circumstances against the mitigating circumstances, nor with our
conclusion that the death sentence in this case was proportional, and agree that this
case is dramatically different from Yacob v. State, 136 So. 3d 539, 550-52
(Fla.
2014), a case we reduced to life. Accordingly, I concur in the affirmance of
Mullens’s conviction and death sentence.
LEWIS, J., specially concurring.
I agree with the conclusions reached by the Court today. However, I write
to express my concern that this decision should not in any way be understood to
eliminate or undermine the legal procedures regarding the admission of
nontestimonial evidence. See Johnson v. State, 660 So. 2d 637, 645
(Fla. 1995)
(“The rules of evidence may be relaxed during the penalty phase of a capital trial,
but they emphatically are not to be completely ignored.”); see also § 921.141(1),
Fla. Stat. (2008) (“[T]his subsection shall not be construed to authorize the
introduction of any evidence secured in violation of the Constitution of the United
States or the Constitution of the State of Florida.”)
Courts in Florida have held that authentication of surveillance footage
during the determination of guilt is satisfied upon the testimony of an individual,
such as an employee or business owner, who was familiar with the installation and
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operation of the surveillance equipment. Dragani v. State, 759 So. 2d 745, 746
(Fla. 5th DCA 2000) quashed in part on other grounds,791 So. 2d 1083
(Fla. 2001); Dolan v. State,743 So. 2d 544, 546
(Fla. 4th DCA 1999). Additionally, in Wagner v. State,707 So. 2d 827, 830
(Fla. 1st DCA 1998), the First District held
that authentication was satisfied upon testimony from a police officer who
installed, operated, and explained the chain of custody of a video camera.
However, no court in Florida has concluded that authentication of evidence that
proves the guilt of a defendant can be satisfied only upon the testimony of an
officer who was familiar with the investigation, but ultimately could not verify the
reliability of the recording device. I would caution trial courts against relying on
the decision today to support such an evidentiary ruling made outside the context
of the sentencing phase of a capital trial.
Rather, the conclusions reached today must be considered in the relatively
rare context that this defendant pleaded guilty to a capital offense and waived the
right to an advisory sentence by a jury of his peers. Additionally, there were
absolutely no allegations that the surveillance footage was materially altered, nor is
there any suggestion that law enforcement officers mistakenly identified Mullens
after viewing the footage. Many of the evidentiary restrictions in the Florida
Evidence Code, including the requirement that evidence must be authenticated
before it can be admitted, exist to prevent juror confusion and to guarantee
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criminal defendants the right to a fair trial. See, e.g., § 90.403, Fla. Stat. (2008)
(excluding relevant but unduly prejudicial or confusing evidence); § 90.802, Fla.
Stat. (2008) (generally excluding hearsay evidence). When there are no jurors to
potentially confuse and the defendant has conceded his or her guilt, relevant,
nontestimonial evidence that is not otherwise of questionable origin is admissible
during a penalty phase of a capital trial. See § 921.141(1), Fla. Stat.
However, the fact that evidence need only be relevant during the sentencing
phase of a capital trial should not be interpreted to mean that trial courts can or
should admit evidence that is patently unreliable. The definition of relevant
evidence is “evidence tending to prove or disprove a material fact.” § 90.401, Fla.
Stat. (2008). Further, authentication is central to the understanding of relevancy:
The authentication requirement may be viewed as an aspect of
relevancy. In a contract action, for example, evidence in the form of a
writing is relevant as proof of the actual terms of an alleged agreement
only if it is shown to be the very document to which the parties
somehow manifested their assent, or at least a true copy of that
document. In this sense, it is actually [Federal Rule of Evidence] 401
and [Federal Rule of Evidence] 402 that impose the requirement to
authenticate, for these provisions define relevancy and make it a
condition of admissibility.
Christopher B. Mueller & Laird C. Kirkpatrick, 5 Federal Evidence § 9.2 (4th ed.
2015) (emphasis added). Therefore, it follows that evidence that is obviously
unreliable, fabricated, or of unknown origin is necessarily irrelevant.
- 53 -
Accordingly, the proponent of nontestimonial, non-self-authenticating
evidence cannot simply proffer for admission such evidence alone to establish its
relevancy. For example, this Court has held that in the absence of evidence linking
a given weapon to the charged offense, the weapon itself is irrelevant and
inadmissible. Agatheas v. State, 77 So. 3d 1232, 1236
(Fla. 2011) (holding that it is insufficient to establish the relevancy of a particular gun by simply introducing it and instead requiring the prosecution to somehow link that gun to the crime). Likewise, the foundation for photographic and videographic evidence can be established either through the testimony of a witness with knowledge under the pictorial testimony theory of admission, or upon additional proof of the reliability of the recording under the silent witness theory. Hannewacker v. City of Jacksonville Beach,419 So. 2d 308, 311
(Fla. 1982); Bryant v. State,810 So. 2d 532, 536
(Fla. 1st DCA 2002) (citing Charles W. Ehrhardt, Florida Evidence, § 401.2 at 114 (2001 ed.)); Dolan,743 So. 2d at 545-46
.
In this case, the testimony of Detective Tower—who responded to the crime
scene, arrested Mullens after viewing the surveillance footage, and testified after
Mullens admitted his guilt—provided a sufficient foundation for the admission of
the surveillance footage. I therefore concur in the decision of the Court.
LABARGA, C.J., and PARIENTE, J., concur.
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CANADY, J., concurring in result.
I agree with the decision to affirm the convictions and sentences. But I
disagree with the conclusion that the “trial court incorrectly applied the law
regarding the avoid arrest aggravating circumstance with respect to the murder of
Uddin.” Majority op. at 22. Contrary to the unelaborated assertion in Garron v.
State, 528 So. 2d 353, 360
(Fla. 1988), when a victim is slain while attempting to
make a phone call during the course of a robbery, a strong inference arises that the
defendant first concluded that the phone call was likely being made to summon the
police and then acted against the victim to thwart phone contact with the police and
thereby to avoid arrest for the robbery. The imputation of another motive to the
defendant in such circumstances can only be produced by a flight of fancy. I also
disagree with remanding for a written order on competency, which is an
unnecessary and useless act.
POLSTON, J., concurs.
An Appeal from the Circuit Court in and for Pinellas County,
Philip James Federico, Judge - Case No. 522008CF018029XXXXNO
Howard L. Dimmig, II, Public Defender, and Cynthia Jean Dodge, Assistant Public
Defender, Tenth Judicial Circuit, Bartow, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Timothy Arthur
Freeland, Assistant Attorney General, Tampa, Florida,
for Appellee
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