Supreme Court of Florida ____________
No. SC2015-0391 ____________
JAMES HERARD, Appellant,
vs.
STATE OF FLORIDA, Appellee.
July 3, 2024
PER CURIAM.
After a jury trial, James Herard was found guilty of 18 gang-
related felonies, including the first-degree murders of Eric Jean-
Pierre and Kiem Huynh. The trial court sentenced Herard to death
for the Jean-Pierre murder and to life without the possibility of
parole for the Huynh murder. Herard now appeals his convictions
and death sentence. 1 For the reasons we explain, we affirm in all
respects.
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. I. BACKGROUND
Guilt Phase
Herard was the second-in-command of the “BACC Street
Crips,” a Lauderhill-based branch of the national Crips gang. In
the early morning hours of November 14, 2008, Herard and two
fellow gang members drove the streets of Lauderhill in search of a
victim for their ongoing body-count competition. They randomly
came upon Eric Jean-Pierre, who had no gang affiliation and just
happened to be walking home from a bus stop. As the gang
members’ car pulled up alongside Jean-Pierre, Herard’s co-
passenger Tharod Bell reached out from the vehicle with a 20-gauge
shotgun. Herard told Bell to “bust it, bust it, bust it,” prompting
the latter to shoot Jean-Pierre in the chest at point-blank range.
The blast blew away part of Jean-Pierre’s heart and killed him
almost instantly.
That murder was one of many gang-related crimes that Herard
and his associates committed between June and December 2008.
Those crimes included Herard’s murder of Kiem Huynh, which
occurred during the robbery of a Dunkin’ Donuts store in Tamarac.
There were also robberies and shootings at Dunkin’ Donuts stores
-2- in Plantation (where Herard had been an employee), Sunrise, and
Delray Beach, along with shootings that targeted rival gang
members in Lauderhill. On December 2, 2008, Herard and another
gang member assaulted two people and stole their pit bull.
Lauderhill detectives who witnessed the incident immediately
arrested Herard, ending his crime spree.
An indictment and a May 2014 trial on 19 felony counts
ensued. The backbone of the evidence at trial consisted of
incriminating statements that Herard made to law enforcement
during a series of interrogations in the two days or so after his
arrest for stealing the pit bull. About the Jean-Pierre murder, for
example, Herard told investigators that Tharod Bell would not have
pulled the trigger if Herard himself had not provoked the shooting
by repeatedly telling Bell to “bust it.” The State also presented
evidence linking Herard to the 20-gauge shotgun used in many of
the shootings (including the two murders) and to a white Toyota
Camry seen in surveillance footage near many of the crimes.
Herard did not testify at trial. Defense counsel sought to
counter the State’s evidence by arguing that Herard’s statements to
law enforcement were inconsistent (he initially denied having shot
-3- anyone), unreliable, and involuntary. Counsel emphasized that
Herard was only 19 years old at the time of the police questioning.
The defense also stressed that police had been unable to recover the
shotgun used in the murders and other crimes, and it maintained
that there was no physical or scientific evidence implicating Herard.
The jury found Herard guilty on 18 counts and not guilty on a
robbery count. The offenses of conviction consisted of: 2 counts of
first-degree murder; 1 count of racketeering; 1 count of conspiracy
to commit racketeering; 1 count of directing the activities of a
criminal gang; 7 counts of robbery (4 with a firearm); 3 counts of
attempted first-degree murder with a firearm; 2 counts of attempted
second-degree murder with a firearm; and 1 count of aggravated
battery.
Penalty Phase
The same jury returned three weeks later for the penalty
phase, at which the State sought imposition of the death penalty for
both the Jean-Pierre murder and the Huynh murder. 2 As to the
2. Before the start of the penalty phase, the court ordered a psychological evaluation of Herard to determine if he was
-4- Jean-Pierre murder, the State sought to prove three aggravating
circumstances: prior violent felony; cold, calculated, and
premeditated; and committed by a criminal gang member.
§ 921.141(5)(b), (i), (n), Fla. Stat. (2014). Herard presented
mitigating evidence through the testimony of two expert and five lay
witnesses. The experts, Dr. Gilbert Raiford and Dr. Myriam
Glemaud, chiefly testified about the negative impact Herard’s
upbringing had on his social, psychological, and behavioral
development. The lay witnesses, Herard’s family members, testified
as to his intellect, good nature, and respectful attitude. They
claimed these attributes would render him a valuable asset in
assisting other inmates if given a life sentence.
By a vote of 8 to 4, the jury recommended that Herard be
sentenced to death for the murder of Eric Jean-Pierre. A majority of
the jury recommended a sentence of life imprisonment for the
murder of Kiem Huynh.
competent. Dr. Atiya evaluated Herard and found that he was competent to proceed.
-5- After conducting a September 2014 Spencer 3 hearing at which
Herard himself testified, the trial court on January 23, 2015, issued
an order imposing a death sentence for the Jean-Pierre murder.
The court found that the State had proven the three proposed
aggravating circumstances beyond a reasonable doubt. Indeed, the
court found the aggravators “overwhelming.”
As to mitigation, the trial court found that Herard had failed to
establish any of his five proposed statutory mitigating
circumstances: extreme emotional or mental disturbance; minor
participant; extreme duress; substantially impaired capacity; and
age. § 921.141(6)(b), (d)-(g), Fla. Stat. (2014). But the court found
that Herard had established 19 non-statutory mitigating
circumstances. 4
3. Spencer v. State, 615 So. 2d 688 (Fla. 1993). 4. The trial court found the following non-statutory mitigating factors were established: (1) Defendant was raised without a father; (2) Defendant was raised in very poor financial circumstances and his mother was a strict disciplinarian who believed in punishments considered child abuse today; (3) Defendant was repeatedly subjected and forced to kneel for an unbearable amount of time and had his fingers burnt; (4) Defendant has always had a very close, loving relationship with his mother; (5) Defendant maintained very good, respectful relationships with his aunts, uncles, and numerous cousins; (6) Defendant has a big heart, many times going
-6- The trial court gave “great weight” to each of the three proven
aggravators and “little weight” to each of the established mitigators.
And, based on a qualitative assessment, it concluded that the
aggravators “far outweigh[ed]” the mitigators. Consistent with the
jury’s recommendations, the trial court sentenced Herard to death
out of his way to help unfortunate others; (7) Defendant befriended Omar Hunter, who suffered from sickle-cell anemia and gave him transportation for treatments when Mr. Hunter had no one else; (8) Defendant, during his incarceration, had a helpful attitude towards others. Many inmates appeared and testified about the help and guidance he provided and how he encouraged fellow inmates to become productive even though incarcerated; (9) Defendant wrote a novel while awaiting trial; (10) Defendant talked two fellow inmates out of giving up and committing suicide; (11) Defendant might be helpful and productive while incarcerated; (12) Defendant is deeply spiritual; (13) Defendant consistently attended church and participated during his childhood; (14) Defendant helped fellow inmates learn English and Mathematics while incarcerated; (15) Defendant obtained employment to help his mother financially; (16) Defendant never received the help and attention he needed to mature as an adult; (17) Defendant only finished ninth grade; (18) Defendant started drinking at age seven; his father gave him his first drink, and again as a 14 year old he was drinking vodka, rum, tequila, and Hennessy. In middle school he smoked marijuana and when entering high school was smoking marijuana five to six times a day; and (19) Dr. Glemaud’s testimony supports the non-statutory mitigator that Defendant’s behavior is attributable to his environment, which did not support the chance for growth and development.
-7- for the Jean-Pierre murder and to life without the possibility of
parole for the Huynh murder.
This direct appeal followed.
II. ANALYSIS
On appeal, Herard argues that the trial court erred by: (1)
denying Herard’s due process-based motion to dismiss; (2) denying
Herard’s motions to suppress incriminating statements; (3)
admitting physical evidence Herard claims was unrelated to the
crimes charged; (4) excluding Herard’s expert witness testimony
about false confessions; and (5) sentencing Herard in a manner that
violated the Sixth and Eighth Amendments. As we must, we also
consider whether there is sufficient evidence to sustain Herard’s
conviction for the murder of Eric Jean-Pierre.
Denial of Herard’s Motion to Dismiss
Herard’s first claim sounds in due process and relates to the
trial court’s dismissal of the first jury venire. Jury selection in
Herard’s case initially began on February 11, 2014. A few days
later, with jury selection still underway, a death warrant was signed
in a different case where the defendant was represented by Kevin
Kulik, Herard’s penalty-phase counsel. Kulik, who had been
-8- participating in jury selection in Herard’s case, unsuccessfully
attempted to withdraw as counsel in the death warrant case. The
trial court tried and failed to secure replacement penalty-phase
counsel for Herard. So, with Kulik temporarily unavailable for
Herard’s case, the trial court granted the State’s request to strike
the remaining panel of prospective jurors. The trial court then
recessed the case.
When his case started up again a month later, Herard sought
dismissal of the pending charges on due process grounds. He
argued that he had been “extremely pleased” with the remaining
jury pool when the initial venire was dismissed, and he maintained
that the State had sought the strike solely to gain a tactical
advantage. The trial court denied Herard’s motion, and Herard now
argues that doing so was reversible error.
To support his argument, Herard relies principally on the
Fourth District Court of Appeal’s decision in State v. Goodman, 696
So. 2d 940 (Fla. 4th DCA 1997). In Goodman, after a jury had been
selected but before it was sworn, the State “nolle prossed” the case
and then refiled the same charges 30 minutes later. Id. at 940.
The trial court found, and the district court agreed, that the State
-9- had acted solely to avoid trying the case to a jury that included “a
member whom it had improperly sought to strike” on racial
grounds. Id. at 943. On those facts, the Goodman court affirmed
the trial court’s ruling that the State had violated the defendant’s
due process rights.
This case is nothing like Goodman. The record here gives no
indication that the State acted in bad faith or for an improper
purpose. On the contrary, faced with the temporary unavailability
of Herard’s penalty-phase counsel (Kevin Kulik), it was reasonable
for the State to ask the trial court to dismiss the remaining jury
venire and start over once Kulik became available. In his briefing
here, Herard does not dispute that even his guilt-phase counsel
(Mitch Polay) agreed that jury selection should not continue in
Kulik’s absence. Herard has not shown a violation of his due
process rights.
Admission of Herard’s Statements
Herard next challenges the trial court’s denial of his motions
to suppress various statements he made to law enforcement from
December 2 through 4, 2008. Those statements were made: (1) in
the Lauderhill Police Department interview room on December 2,
- 10 - 2008; (2) in the Lauderhill Police Department booking area on
December 2, 2008; (3) in the Broward Sheriff’s Office Public Safety
Building interview room on December 3, 2008; and (4) in the
Broward County Main Jail on December 4, 2008. The trial court
denied Herard’s motions after holding a pretrial evidentiary hearing.
In assessing Herard’s claims of error, we defer to the trial
court’s findings of fact as long as they are supported by competent,
substantial evidence, and we review de novo the trial court’s
application of law to those facts. Delhall v. State, 95 So. 3d 134,
150 (Fla. 2012); Thomas v. State, 894 So. 2d 126, 136 (Fla. 2004).
Applying these standards here, we conclude that the trial court did
not err in denying Herard’s motions to suppress.
1. Lauderhill Police Department interview room.
Herard’s initial custodial interrogation was conducted at the
Lauderhill Police Department. The interrogation took place after
Herard’s arrest for stealing the pit bull. Before questioning began, a
detective read Herard his Miranda 5 rights from a waiver of rights
form. Herard initialed the form to indicate that he understood his
5. Miranda v. Arizona, 384 U.S. 436 (1966).
- 11 - rights. The detective then read aloud the remaining portion of the
form, which affirmed the voluntariness of Herard’s statement and
his willingness to answer the detectives’ questions without an
attorney. When the detective finished reading, Herard said, “I don’t
agree to that,” and added that he wanted an attorney. The detective
replied, “Oh, okay, that’s no problem.”
Immediately thereafter, as the detective collected her
paperwork to leave the room, Herard said: “Hold on, hold on. If I
get an attorney do I gotta wait?” A brief conversation ensued where
the detective explained to Herard that he would not wait in the
interview room, but would be booked and remain there until an
attorney arrived. Herard then said, “I don’t want an attorney.” The
detective responded, “Do you want to talk or not?” Herard then
asked to sign the paperwork. The detective again asked, “Do you
want to talk to us?” Herard answered “yes” and proceeded to sign
the waiver of rights form. During the ensuing interview, Herard
made incriminating statements about the theft of the pit bull.
Herard argues that the trial court erred in denying his motion
to suppress any statements he made to the Lauderhill detectives—
and that, indeed, all the statements he made over two days of
- 12 - questioning were tainted and inadmissible. According to Herard,
once he invoked his right to an attorney, there should have been no
further questioning without an attorney present. The trial court
rejected that argument after finding that Herard himself reinitiated
communication with the police and then validly waived his Miranda
rights.
Our Court’s recent decision in State v. Penna, 49 Fla. L.
Weekly S119 (May 2, 2024), explained the legal test that governs a
claim like Herard’s. At the threshold, “[w]hen a suspect
unequivocally invokes the Miranda right to counsel, the officers
must immediately stop questioning the suspect.” Id. at S120. The
parties here have assumed that Herard’s invocation of his right to
counsel was unequivocal, so we will, too. That takes us to the next
steps in the analysis.
There can be no subsequent interrogation of the suspect
without counsel present unless two conditions are met: (1) the
suspect must reinitiate contact with the police; and (2) the suspect
must knowingly and voluntarily waive his earlier-invoked Miranda
rights. Id. “The latter inquiry turns on the totality of the
- 13 - circumstances.” Id. at S121. We have no difficulty finding these
conditions met here.
When Herard stated that he wanted an attorney, the
Lauderhill detectives acknowledged the request and began to leave
the room. But Herard immediately reinitiated communication,
asking whether he would be booked and if he would have to wait for
an attorney. After a detective answered Herard’s questions, Herard
indicated that he wanted to sign the waiver form. The detective
then asked a couple of follow-up questions to clarify Herard’s
wishes before giving him the form to sign. The entire exchange—
from the detective reading the rights disclosure and waiver form, to
Herard saying he wanted an attorney, to Herard then changing his
mind and signing the form—took less than three minutes. Under
these circumstances, the trial court was right to deny Herard’s
motions to suppress the statements he made to the Lauderhill
detectives.
2. Lauderhill Police Department booking area.
After the Lauderhill detectives finished questioning Herard, he
was taken to the Broward Sheriff’s Office. On his way out of the
Lauderhill Police Department, Herard looked into the waiting room
- 14 - where uniformed officers from Sunrise, Lauderhill, and the Broward
Sheriff’s Office were gathered. Without prompting, Herard stated:
“Sunrise, what is Sunrise doing here? Oh ya, Sunrise. Where is
Delray?” At trial, the State used these comments to help establish
Herard’s connection to the Dunkin’ Donuts armed robbery that
occurred in Delray Beach. Herard claims that his statement should
have been suppressed, but we disagree.
Miranda warnings are not required unless the defendant is
both “in custody and under interrogation.” Davis v. State, 698 So.
2d 1182, 1188 (Fla. 1997). Though Herard was clearly in custody,
his statements about Sunrise and Delray were not the product of
interrogation. Rather, they were entirely spontaneous and
unprompted. We find no error in the trial court’s denial of the
motions to suppress these statements.
3. Broward Sheriff’s Office Public Safety Building interview room.
Herard made the next set of statements in response to
questioning by officers from various law enforcement agencies while
he was in custody at the Broward Sheriff’s Office from the early
morning through the afternoon of December 3, 2008. It is
- 15 - undisputed that Herard was again Mirandized and that he signed a
new waiver of rights form before this interrogation began.
Nonetheless, Herard maintains that his subsequent statements
were involuntary. Herard points to the length of time he was in
custody (starting with his arrest the day before) and says that law
enforcement did not give him enough bathroom breaks or other
breaks between questioning. He notes that he twice had to urinate
in a McDonald’s cup (provided earlier by law enforcement as part of
a meal) because no one answered when he knocked on the interview
room door. Herard vaguely mentions improper “promises of
leniency,” but because he makes no specific argument on that
point, we deem it forfeited.
In its order denying Herard’s motion to suppress, the trial
court found the following facts:
Defendant was in custody at the Broward Sheriff’s Office for approximately 12 hours. He was fed, was allowed to take at least three naps which totaled at least 3.5 hours, was given at least two bathroom breaks, and other breaks in between questioning. While this Court found it unsettling that Defendant urinated twice in his McDonald’s cup, he was in fact afforded bathroom breaks.
- 16 - The trial court summed up its ruling by explaining that Herard “was
not threatened or coerced, nor was he deprived of any of his basic
needs including food, rest and an opportunity to use the bathroom.”
“Whether a confession is voluntary depends on the totality of
the circumstances surrounding the confession.” Sliney v. State,
699 So. 2d 662, 667 (Fla. 1997). When the voluntariness of a
confession is in dispute, it is the State’s burden to prove
voluntariness by a preponderance of the evidence. Id. Proof that a
defendant validly waived his Miranda rights is a significant but not
dispositive factor in determining the voluntariness of a confession.
Id. at 669.
We find no error in the trial court’s ruling. Its factual findings
are supported by the record, and its conclusion about the
voluntariness of Herard’s statements is consistent with precedents
of this Court finding confessions voluntary under comparable
circumstances. See, e.g., Perez v. State, 919 So. 2d 347, 361-62
(Fla. 2005) (voluntary confession stemming from 25-hour interview
where the defendant was permitted to take smoking and restroom
breaks, provided with food and drink, and slept for about six to
eight hours); Chavez v. State, 832 So. 2d 730, 749 (Fla. 2002)
- 17 - (upholding voluntariness of a confession where the defendant was
in custody for over 54 hours but provided with food, drink, and
cigarettes as requested, given frequent breaks and a six-hour rest
period, and repeatedly Mirandized).
4. Broward County Main Jail.
Finally, Herard contends that the trial court erred by not
suppressing statements he made to law enforcement on December
4, 2008, at the Broward County Main Jail. Around 6:00 p.m. on
December 4, two Sunrise detectives visited Herard in jail for
questioning. At the outset, Herard was Mirandized, waived his
rights, and signed a written waiver of rights form. The detectives’
purpose in interviewing Herard was to investigate a Dunkin’ Donuts
robbery and a separate attempted murder, both of which had
occurred in Sunrise in November 2008, and both of which would
eventually be included among the crimes charged in this case. At
trial, the detectives testified about Herard’s admission that he
participated in the Delray Dunkin’ Donuts robbery and that he was
the shooter in the attempted murder in Sunrise.
Earlier that day, Herard had attended his first appearance
hearing for the pit bull theft. There, Herard was aided by the Public
- 18 - Defender’s Office, which had him execute a “Notice of Defendant’s
Invocation of His/Her Right to Remain Silent and Right to Counsel.”
Herard maintains that because he invoked his right to counsel at
his first appearance for the pit bull robbery, the Sunrise detectives
were prohibited from questioning him on the afternoon of December
4 without counsel present. The trial court disagreed, and so do we.
In Sapp v. State, 690 So. 2d 581, 584-86 (Fla. 1997), this
Court held that under both federal law and article 1, section 9 of
the Florida Constitution, a claim of rights form is ineffective to
invoke a suspect’s Miranda right to counsel if signed before
custodial interrogation has begun or is imminent. This is because
the “Miranda right to counsel is a prophylactic rule that does not
operate independent from the danger it seeks to protect against—
‘the compelling atmosphere inherent in the process of in-custody
interrogation’—and the effect that danger can have on a suspect’s
privilege to avoid compelled self-incrimination.” Id. at 585 (quoting
Alston v. Redman, 34 F.3d 1237, 1246 (3d Cir. 1994)).
Sapp controls here. When Herard signed the form purporting
to invoke his Miranda rights, an interrogation was neither underway
nor imminent. Hours later, when the detectives met with him in the
- 19 - county jail, Herard was again informed of his Miranda rights, and
he validly waived them.
To the extent Herard makes an argument based on his Sixth
Amendment right to counsel, that argument is also unavailing.
Unlike the Fifth Amendment-based Miranda right to counsel, the
Sixth Amendment right to counsel is offense-specific. See Owen v.
State, 986 So. 2d 534, 544-45 (Fla. 2008); Durocher v. State, 596
So. 2d 997, 999 (Fla. 1992) (attachment of Sixth Amendment right
to counsel for charged crime did not preclude police questioning
about other crime). Assuming a Sixth Amendment right to counsel
attached at Herard’s December 4 first appearance, that right
pertained only to the charge for the pit bull incident. Herard was
still only a suspect in the crimes he was questioned about later that
day—the Dunkin’ Donuts robberies and the Sunrise attempted
murder. Therefore, the detectives’ questioning of Herard did not
implicate his Sixth Amendment right to counsel, rendering it
unnecessary to address the potential relevance of Herard’s waiver of
his Miranda rights to remain silent and to counsel at the outset of
the December 4 interview. See Montejo v. Louisiana, 556 U.S. 778,
786 (2009) (a valid waiver of Miranda rights “typically does the
- 20 - trick” for effecting valid a waiver of the Sixth Amendment right to
counsel).
Admission of Physical Evidence
Herard next argues that the trial court committed reversible
error by admitting several pieces of physical evidence seized from
the house of Jonathan Jackson, the leader of the BACC Street Crips
gang. The contested evidence consists of a composition notebook, a
spiral notebook, ledger paper, a computer printout, a banana style
magazine clip, a BB gun, and a composite photographic exhibit of
the items. The notebooks and paper contained information about
gang membership, meetings, and activities. Herard makes two
claims. First, he contends the evidence is unduly prejudicial and
lacked relevance, at least to the extent the evidence pertained to
Jackson’s involvement in gangs other than the BACC Street Crips.
Second, he alleges that the search and seizure of Jackson’s house
was unlawful, rendering the seized items inadmissible. Herard
presents no argument on the search and seizure claim, so we deem
that issue forfeited.
We find no abuse of discretion in the admission of evidence
related to Herard’s involvement in the BACC Street Crips, an issue
- 21 - directly relevant to the racketeering and gang-related charges in the
indictment. To the extent there could have been error in the
admission of evidence about Jackson’s leadership of other gangs,
any such error was harmless.
Expert Witness Testimony
Next, Herard claims that the trial court erred by refusing to
admit the expert testimony of Mr. Gregroy DeClue, a licensed
psychologist. DeClue would have testified about false confessions
and related “inherent problems” with the “Reid Technique,” a
commonly used method of police interrogation “pioneered by John
E. Reid and Associates, aimed at extracting confessions and
evaluating suspect credibility.” United States v. Jacques, 744 F.3d
804, 808 n.1 (1st Cir. 2014). In the proffered testimony, DeClue
said that the Reid Technique is one that can lead to true
confessions and to false confessions, and that it is unknown what
percentage of confessions obtained through the Reid Technique are
false. He also said that the Reid Technique was used in this case.
Finally, he said that safeguards exist to make a false confession less
likely; but he could not say whether such safeguards were used in
- 22 - this case, because he had not seen all the video footage of Herard’s
police interviews.
The admission of expert testimony is governed by section
90.702, Florida Statutes (2014). Among other requirements, the
proposed testimony must be “the product of reliable principles and
methods,” and it must be the case that “[t]he witness has applied
the principles and methods reliably to the facts of the case.”
§ 90.702(2)-(3), Fla. Stat. Here the trial court excluded DeClue’s
testimony for several reasons, including that DeClue was
unprepared to testify reliably to the interrogation techniques—
including any safeguards against false confessions—used in this
case. For related reasons, the trial court also questioned the
relevance of DeClue’s testimony.
To resolve this issue, we need not decide whether expert
testimony about the phenomenon or prevalence of false confessions
could ever be admissible. DeClue was not prepared reliably to
address the specifics of Herard’s case, including whether law
enforcement used adequate safeguards in its questioning. And
DeClue’s proposed testimony about the purported link between the
Reid Technique and false confessions was equivocal and potentially
- 23 - confusing to the jury. Under these circumstances, we find no
abuse of discretion in the trial court’s decision to exclude DeClue’s
testimony.
Herard’s Death Sentence
The trial court sentenced Herard to death on January 23,
2015, the jury having recommended that sentence by a vote of 8 to
4. The court conducted Herard’s sentencing proceedings under the
statutory scheme that the United States Supreme Court partly
invalidated in Hurst v. Florida, 577 U.S. 92 (2016). There the Court
held that Florida’s (since amended) capital sentencing statute
violated the Sixth Amendment to the extent Florida law “required
the judge alone to find the existence of an aggravating
circumstance,” a predicate to the defendant’s eligibility for a death
sentence. Id. at 103.
In State v. Poole, 297 So. 3d 487 (Fla. 2020), we upheld a
death sentence imposed under our state’s pre-Hurst v. Florida
sentencing procedures and following an 11 to 1 jury
recommendation in favor of death. Id. at 493. We found the Sixth
Amendment rule of Hurst v. Florida satisfied in Poole because that
jury had unanimously found the defendant guilty of a
- 24 - contemporaneous violent felony. Id. at 508. Partly receding from
our own decision in Hurst v. State, 202 So. 3d 40 (Fla. 2016), we
further held that (1) the weighing of aggravating and mitigating
factors is not a factual determination or “element” for purposes of
the federal or state jury trial guarantee; and (2) neither the Eighth
Amendment nor any provision in our state constitution requires
jury sentencing in capital cases, or a unanimous jury
recommendation, or indeed any jury recommendation at all. Poole,
297 So. 3d at 503-05.
There is no dispute that Herard’s death sentence satisfies the
constitutional requirements explained in Poole. As in Poole, the
aggravating circumstances in Herard’s case include the prior violent
felony aggravator, i.e., that “[t]he defendant was previously
convicted of another capital felony or of a felony involving the use or
threat of violence to the person.” § 921.141(5)(b), Fla. Stat. Here,
the same jury that found Herard guilty of murdering Eric Jean-
Pierre also found him guilty of committing many other violent
felonies, including the first-degree murder of Kiem Huynh. The
State also introduced evidence of Herard’s violent felony convictions
in other cases. These contemporaneous and prior violent felony
- 25 - convictions amply “satisfied the [Sixth Amendment] requirement
that a jury unanimously find a statutory aggravating circumstance
beyond a reasonable doubt.” Poole, 297 So. 3d at 508.
Herard now argues that our decision in Poole is wrong and
that we should recede from it. But Herard has offered no good
reason for us to do so, and we decline the invitation. Also,
consistent with our Court’s precedents, we reject Herard’s argument
that he was sentenced under a death penalty scheme that did not
meaningfully narrow the class of defendants eligible for a death
sentence. See, e.g., Johnson v. State, 969 So. 2d 938, 961 (Fla.
2007) (pre-2016 death penalty sentencing statute sufficiently
narrows class of eligible offenders); Lightbourne v. State, 438 So. 2d
380, 385 (Fla. 1983) (statutory listing of aggravators and mitigators
is not unconstitutionally vague).
We find no merit in Herard’s challenges to his death sentence.
Sufficiency of the Evidence
Finally, in cases where a death sentence has been imposed, we
must independently review the record to determine whether
competent, substantial evidence supports the underlying murder
conviction. See Fla. R. App. P. 9.142(a)(5); Kirkman v. State, 233
- 26 - So. 3d 456, 469 (Fla. 2018). “In conducting this review, we view the
evidence in the light most favorable to the State to determine
whether a rational trier of fact could have found the existence of the
elements of the crime beyond a reasonable doubt.” Rodgers v.
State, 948 So. 2d 655, 674 (Fla. 2006) (citing Bradley v. State, 787
So. 2d 732, 738 (Fla. 2001)).
To prove first-degree premeditated murder, the State had to
establish: (1) that Eric Jean-Pierre is dead; (2) that the death of
Jean-Pierre was premeditated; and (3) that the death of Jean-Pierre
resulted from Herard’s criminal act. See Glover v. State, 226 So. 3d
795, 804 (Fla. 2017). Under the law of principals, it was not
necessary for the State to prove that Herard was the actual shooter.
See § 777.011, Fla. Stat. (2008) (one who “aids, abets, counsels,
hires, or otherwise procures [the] offense to be committed . . . is a
principal in the first degree and may be charged, convicted, and
punished as such”); see also Staten v. State, 519 So. 2d 622, 624
(Fla. 1988) (“In order to be guilty as a principal for a crime
physically committed by another, one must intend that the crime be
committed and do some act to assist the other person in actually
committing the crime.”).
- 27 - In Herard’s videotaped statement played for the jury, he
discussed the murder of Jean-Pierre with Broward Sheriff’s Office
detectives. Herard told the detectives that, together with Tharod
Bell and another gang member, he drove looking for a “body” for
Bell because it was his turn to kill someone. Herard explained that
they were in a competition to see who could commit the most
murders. They picked Jean-Pierre at random, and as they
approached him, Herard told Bell to “bust it, bust it, bust it.”
Herard even told the detectives that “you might as well give me that
body because Tharod would not have done that if I didn’t provoke
it.” The jury also heard evidence from which it could have
concluded that the shotgun Bell used to kill Jean-Pierre is the same
one Herard used in various other shootings and armed robberies.
In sum, a rational jury could have concluded that Tharod Bell
shot and killed Eric Jean-Pierre with Herard’s intentional and active
aid and encouragement, as part of a plan that Bell and Herard
shared. Competent, substantial evidence supports Herard’s murder
conviction.
- 28 - III. CONCLUSION
Because Herard has not demonstrated any reversible error, we
affirm his convictions and death sentence.
It is so ordered.
MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur. LABARGA, J., concurs in result with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
LABARGA, J., concurring in result.
I agree with the majority that under the circumstances of this
case, the trial court did not err in denying Herard’s motion to
suppress the statements he made to law enforcement.
However, in discussing the statements Herard made in the
interview room at the Lauderhill Police Department, the majority
cites this Court’s recent decision in Penna v. State, 49 Fla. L.
Weekly S119 (Fla. May 2, 2024), which held that when a defendant
voluntarily reinitiates contact with law enforcement, “there is no
per se requirement that an officer remind or readvise [an accused]
- 29 - of his Miranda[6] rights.” I dissented in Penna, because I disagree
with the majority’s conclusion that this Court may not interpret the
Fifth Amendment in a way that grants more protections to Florida’s
citizens. I reaffirm my dissent in Penna here.
Additionally, I reaffirm my dissent in Lawrence v. State, 308
So. 3d 544 (Fla. 2020), wherein this Court receded from its
decades-long practice of conducting proportionality review in cases
involving direct appeals of sentences of death.
For these reasons, I can only concur in the result.
An Appeal from the Circuit Court in and for Broward County, Paul L. Backman, Judge - Case No. 062009CF004654A8881
Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum, Fort Lauderdale, Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Lisa- Marie Lerner, Assistant Attorney General, West Palm Beach, Florida,
for Appellee
6. Miranda v. Arizona, 384 U.S. 436 (1966).
- 30 -