Michael James Jackson v. State of Florida
This text of Michael James Jackson v. State of Florida (Michael James Jackson v. State of Florida) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Supreme Court of Florida ____________
No. SC2023-1298 ____________
MICHAEL JAMES JACKSON, Appellant,
vs.
STATE OF FLORIDA, Appellee.
December 18, 2025
PER CURIAM.
Michael James Jackson and three codefendants robbed,
kidnapped, and ultimately murdered James and Carol Sumner, a
frail couple in ill health, by burying them alive in 2005. Jackson
was convicted of these crimes in 2007 and, for each murder, was
originally sentenced to death after the trial judge followed the jury’s
8-4 advisory recommendation of death.
Jackson’s death sentences were vacated in 2017 based on this
Court’s holding in Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016),
receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020), “that in order for the trial court to impose a sentence of death, the
jury’s recommended sentence of death must be unanimous.” In the
wake of Hurst, the legislature amended section 921.141, Florida
Statutes, to provide that, among other things, a sentence of death
in a jury trial could only be imposed based on a unanimous jury
recommendation of death. See ch. 2017-1, § 1, Laws of Fla.
For various reasons, Jackson’s resentencing did not take place
until May 2023. By that time, Hurst’s relevant holding and the
corresponding amendment to section 921.141 were no longer in
effect. Rather, in 2020, Poole receded from Hurst’s requirement that
a jury unanimously recommend death. See 297 So. 3d at 491. And
in early 2023—after a nonunanimous (11-1) jury recommendation
of death in a school-shooting case resulted in a life sentence for
that defendant, Nikolas Cruz—the legislature amended section
921.141 to provide that a trial court may impose a sentence of
death based on the recommendation of eight or more jurors. See
ch. 2023-23, § 1, Laws of Fla.
The 2023 amendments to section 921.141 went into effect
prior to and were applied at Jackson’s resentencing. There, the jury
-2- again returned 8-4 recommendations of death for each murder, and
the trial court again imposed two death sentences.
Jackson now appeals, raising fourteen issues, many of which
focus on the 2023 amendments to section 921.141. We have
jurisdiction, see art. V, § 3(b)(1), Fla. Const., and affirm.
I. BACKGROUND
A. Guilt Phase and Initial Penalty Phase
The evidence presented at Jackson’s guilt phase was
recounted in our decision on initial direct appeal. See Jackson v.
State, 18 So. 3d 1016, 1020-23 (Fla. 2009). In short, “[i]n July of
2005, Jackson and codefendants Tiffany Ann Cole, Bruce Kent
Nixon, Jr., and Alan Lyndell Wade robbed, kidnapped, and
murdered James and Carol Sumner.” Id. at 1020. They did so after
“the Sumners allowed Cole and Jackson to stay with them in their
Jacksonville home.” Id. While staying with the Sumners, Jackson
noticed they were “frail and would be easy victims,” and he
“informed Wade of the Sumners’ financial position, which included
$90,000 from the sale of their South Carolina home.” Id. Jackson,
Wade, and Cole hatched a scheme, and Wade invited Nixon to join
them. Id. at 1021. “At the time of the crimes, Wade and Nixon were
-3- eighteen years old, and Jackson and Cole were twenty-three years
old.” Id.
Days before the murders, and in preparation therefor,
Jackson, Wade, and Nixon dug “a six-foot-deep hole in a remote
area of Georgia.” Id. Then, on the evening of July 8, 2005, after
Carol Sumner allowed Wade and Nixon to enter her house, Wade
and Nixon held the Sumners at “gunpoint” using a “toy gun” and
bound them with duct tape. Id. Jackson then entered the home
“and began searching for bank statements and automated-teller-
machine (ATM) cards.” Id. Wade and Nixon later “ordered the
victims to climb into the trunk of the Sumners’ Lincoln Town Car.”
Id. With the Sumners “trapped in the trunk of the vehicle,” the
codefendants drove that and another vehicle to the Georgia
gravesite. Id.
At the gravesite, the Sumners “were placed in the deep hole,”
id. at 1022, and “buried alive,” id. at 1023. Over the next several
days, Jackson was captured by “[p]hoto surveillance . . . using the
Sumner ATM card several times.” Id. at 1022. Jackson also
impersonated James Sumner during telephone calls with the bank
and the Jacksonville Sheriff’s Office. Id. Ultimately, Jackson, Cole,
-4- and Wade were arrested in South Carolina. Id. at 1023. Nixon,
who was also arrested, “revealed the burial location,” id., entered
into a plea agreement, and testified at Jackson’s trial, id. at 1021 &
n.2. Among other things, Nixon testified that “Jackson was in
charge.” Id. at 1021.
For his part, Jackson, both to investigators and at trial,
attempted to pin the kidnapping and murders on Wade and Nixon.
Id. at 1023. But the jury convicted Jackson on all counts,
including two counts of first-degree murder. Id. at 1020, 1023.
In Jackson’s initial penalty phase, he declined to present
mitigation, and the jury “recommended death sentences for the
murders of both victims by votes of eight to four.” Id. at 1024. The
trial court imposed a death sentence for each murder after finding
eight aggravating factors and concluding that, among other things,
the aggravators “far outweighed” one “statutory” mitigator (age) and
three “nonstatutory” mitigating circumstances. Id.
This Court affirmed Jackson’s convictions and sentences on
direct appeal. Id. at 1036.
B. Initial Postconviction Motion; Jackson’s Concessions
Jackson sought postconviction relief under Florida Rule of
-5- Criminal Procedure 3.851. In 2011, while his motion was pending,
Jackson returned to court to waive all guilt-related issues and to
acknowledge that the crimes were his idea and that he “was, in fact,
the leader.” Jackson v. State, 127 So. 3d 447, 456, 458-59 (Fla.
2013). The postconviction court later denied Jackson’s claims. Id.
at 459. This Court affirmed the denial of postconviction relief and
denied Jackson’s petition for writ of habeas corpus. Id. at 477.
C. Successive Postconviction Motion—Hurst and Poole
After this Court decided Hurst, “Jackson filed a successive
postconviction motion seeking Hurst relief. The postconviction
court granted Jackson a new penalty phase, and the State did not
appeal the order granting relief.” State v. Jackson, 306 So. 3d 936,
938 (Fla. 2020). The order granting Jackson a new penalty phase
was issued in June 2017.
In early 2020, when Poole receded from Hurst’s unanimous-
recommendation requirement, Jackson’s new penalty phase had
not yet begun. Id. at 938-39. Seeking to apply Poole to Jackson’s
case, the State moved the circuit court to dismiss Jackson’s
resentencing and maintain his death sentences. Id. After the
circuit court denied the State’s motion, the State petitioned this
-6- Court to direct the circuit court to reinstate Jackson’s death
sentences. Id. at 937, 939. This Court denied the State’s petition,
concluding that “Jackson’s vacated death sentences [could not] be
retroactively reinstated.” Id. at 945.
D. Jackson’s 2023 Resentencing
Jackson’s resentencing took place in 2023, after the 2023
amendments to section 921.141 went into effect. Days after the
Free access — add to your briefcase to read the full text and ask questions with AI
Supreme Court of Florida ____________
No. SC2023-1298 ____________
MICHAEL JAMES JACKSON, Appellant,
vs.
STATE OF FLORIDA, Appellee.
December 18, 2025
PER CURIAM.
Michael James Jackson and three codefendants robbed,
kidnapped, and ultimately murdered James and Carol Sumner, a
frail couple in ill health, by burying them alive in 2005. Jackson
was convicted of these crimes in 2007 and, for each murder, was
originally sentenced to death after the trial judge followed the jury’s
8-4 advisory recommendation of death.
Jackson’s death sentences were vacated in 2017 based on this
Court’s holding in Hurst v. State, 202 So. 3d 40, 44 (Fla. 2016),
receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020), “that in order for the trial court to impose a sentence of death, the
jury’s recommended sentence of death must be unanimous.” In the
wake of Hurst, the legislature amended section 921.141, Florida
Statutes, to provide that, among other things, a sentence of death
in a jury trial could only be imposed based on a unanimous jury
recommendation of death. See ch. 2017-1, § 1, Laws of Fla.
For various reasons, Jackson’s resentencing did not take place
until May 2023. By that time, Hurst’s relevant holding and the
corresponding amendment to section 921.141 were no longer in
effect. Rather, in 2020, Poole receded from Hurst’s requirement that
a jury unanimously recommend death. See 297 So. 3d at 491. And
in early 2023—after a nonunanimous (11-1) jury recommendation
of death in a school-shooting case resulted in a life sentence for
that defendant, Nikolas Cruz—the legislature amended section
921.141 to provide that a trial court may impose a sentence of
death based on the recommendation of eight or more jurors. See
ch. 2023-23, § 1, Laws of Fla.
The 2023 amendments to section 921.141 went into effect
prior to and were applied at Jackson’s resentencing. There, the jury
-2- again returned 8-4 recommendations of death for each murder, and
the trial court again imposed two death sentences.
Jackson now appeals, raising fourteen issues, many of which
focus on the 2023 amendments to section 921.141. We have
jurisdiction, see art. V, § 3(b)(1), Fla. Const., and affirm.
I. BACKGROUND
A. Guilt Phase and Initial Penalty Phase
The evidence presented at Jackson’s guilt phase was
recounted in our decision on initial direct appeal. See Jackson v.
State, 18 So. 3d 1016, 1020-23 (Fla. 2009). In short, “[i]n July of
2005, Jackson and codefendants Tiffany Ann Cole, Bruce Kent
Nixon, Jr., and Alan Lyndell Wade robbed, kidnapped, and
murdered James and Carol Sumner.” Id. at 1020. They did so after
“the Sumners allowed Cole and Jackson to stay with them in their
Jacksonville home.” Id. While staying with the Sumners, Jackson
noticed they were “frail and would be easy victims,” and he
“informed Wade of the Sumners’ financial position, which included
$90,000 from the sale of their South Carolina home.” Id. Jackson,
Wade, and Cole hatched a scheme, and Wade invited Nixon to join
them. Id. at 1021. “At the time of the crimes, Wade and Nixon were
-3- eighteen years old, and Jackson and Cole were twenty-three years
old.” Id.
Days before the murders, and in preparation therefor,
Jackson, Wade, and Nixon dug “a six-foot-deep hole in a remote
area of Georgia.” Id. Then, on the evening of July 8, 2005, after
Carol Sumner allowed Wade and Nixon to enter her house, Wade
and Nixon held the Sumners at “gunpoint” using a “toy gun” and
bound them with duct tape. Id. Jackson then entered the home
“and began searching for bank statements and automated-teller-
machine (ATM) cards.” Id. Wade and Nixon later “ordered the
victims to climb into the trunk of the Sumners’ Lincoln Town Car.”
Id. With the Sumners “trapped in the trunk of the vehicle,” the
codefendants drove that and another vehicle to the Georgia
gravesite. Id.
At the gravesite, the Sumners “were placed in the deep hole,”
id. at 1022, and “buried alive,” id. at 1023. Over the next several
days, Jackson was captured by “[p]hoto surveillance . . . using the
Sumner ATM card several times.” Id. at 1022. Jackson also
impersonated James Sumner during telephone calls with the bank
and the Jacksonville Sheriff’s Office. Id. Ultimately, Jackson, Cole,
-4- and Wade were arrested in South Carolina. Id. at 1023. Nixon,
who was also arrested, “revealed the burial location,” id., entered
into a plea agreement, and testified at Jackson’s trial, id. at 1021 &
n.2. Among other things, Nixon testified that “Jackson was in
charge.” Id. at 1021.
For his part, Jackson, both to investigators and at trial,
attempted to pin the kidnapping and murders on Wade and Nixon.
Id. at 1023. But the jury convicted Jackson on all counts,
including two counts of first-degree murder. Id. at 1020, 1023.
In Jackson’s initial penalty phase, he declined to present
mitigation, and the jury “recommended death sentences for the
murders of both victims by votes of eight to four.” Id. at 1024. The
trial court imposed a death sentence for each murder after finding
eight aggravating factors and concluding that, among other things,
the aggravators “far outweighed” one “statutory” mitigator (age) and
three “nonstatutory” mitigating circumstances. Id.
This Court affirmed Jackson’s convictions and sentences on
direct appeal. Id. at 1036.
B. Initial Postconviction Motion; Jackson’s Concessions
Jackson sought postconviction relief under Florida Rule of
-5- Criminal Procedure 3.851. In 2011, while his motion was pending,
Jackson returned to court to waive all guilt-related issues and to
acknowledge that the crimes were his idea and that he “was, in fact,
the leader.” Jackson v. State, 127 So. 3d 447, 456, 458-59 (Fla.
2013). The postconviction court later denied Jackson’s claims. Id.
at 459. This Court affirmed the denial of postconviction relief and
denied Jackson’s petition for writ of habeas corpus. Id. at 477.
C. Successive Postconviction Motion—Hurst and Poole
After this Court decided Hurst, “Jackson filed a successive
postconviction motion seeking Hurst relief. The postconviction
court granted Jackson a new penalty phase, and the State did not
appeal the order granting relief.” State v. Jackson, 306 So. 3d 936,
938 (Fla. 2020). The order granting Jackson a new penalty phase
was issued in June 2017.
In early 2020, when Poole receded from Hurst’s unanimous-
recommendation requirement, Jackson’s new penalty phase had
not yet begun. Id. at 938-39. Seeking to apply Poole to Jackson’s
case, the State moved the circuit court to dismiss Jackson’s
resentencing and maintain his death sentences. Id. After the
circuit court denied the State’s motion, the State petitioned this
-6- Court to direct the circuit court to reinstate Jackson’s death
sentences. Id. at 937, 939. This Court denied the State’s petition,
concluding that “Jackson’s vacated death sentences [could not] be
retroactively reinstated.” Id. at 945.
D. Jackson’s 2023 Resentencing
Jackson’s resentencing took place in 2023, after the 2023
amendments to section 921.141 went into effect. Days after the
effective date of the 2023 amendments, Jackson filed a “Motion to
Continue, or in the Alternative, Motion to Proceed Under the
Unanimity Law,” asserting that the statutory changes “raise[d]
multiple objectionable issues.” Jackson later filed additional
motions raising numerous legal arguments against applying the
new statute. His arguments included: res judicata; laches; Eighth
Amendment arbitrariness; bill of attainder; equal protection; lack of
adequate safeguards; proportionality; lack of unanimity rendering
Florida as an extreme outlier; evolving standards of decency; that
the new statute violates Caldwell v. Mississippi, 472 U.S. 320
(1985); Sixth Amendment right to unanimity; that section
775.022(3), Florida Statutes, required the 2023 amendments to be
applied prospectively; and that text messages between his lead
-7- prosecutor and a state representative sent during the enactment of
the 2023 amendments precluded the new statute from applying.
The judge, after holding hearings, denied Jackson’s motions,
concluding that the 2023 amendments applied to the new penalty
phase. The case then proceeded to jury selection.
During the new penalty phase, the State sought to prove, for
each murder, the same eight aggravators from the initial penalty
phase. In furtherance thereof, the State presented testimony from
certain individuals, including codefendant Nixon’s perpetuated
testimony from Jackson’s 2007 trial (Nixon refused to testify at
Jackson’s resentencing). For his part, Jackson presented the
testimony of family members, friends, character witnesses, and
defense experts. In doing so, Jackson proposed twenty-five
mitigating circumstances, almost all of which (except age) would be
considered “nonstatutory.” See § 921.141(7)(h), Fla. Stat.
For each murder, the jury unanimously found all eight
aggravators proven beyond a reasonable doubt. After conducting
the weighing process involving the proven aggravators and the
mitigating circumstances found to exist, the jury returned an 8-4
recommendation of death for each murder.
-8- The circuit court followed the jury’s recommendations and
sentenced Jackson to death for each murder. In doing so, the court
found all eight aggravators found by the jury, assigning weight as
follows: (1) Jackson was previously convicted of a felony and was on
felony probation at the time of the first-degree murder (great
weight); (2) Jackson was convicted of another capital felony prior to
this proceeding (based on the contemporaneous murder) (great
weight); (3) the first-degree murder was committed while Jackson
was engaged in the commission of any kidnapping (great weight); (4)
the first-degree murder was committed for the purpose of avoiding
or preventing a lawful arrest (great weight); (5) the first-degree
murder was committed for financial gain (great weight); (6) the first-
degree murder was especially heinous, atrocious, or cruel (HAC)
(very great weight); (7) the first-degree murder was committed in a
cold, calculated, and premeditated manner without any pretense of
moral or legal justification (CCP) (very great weight); and (8) the
victim was particularly vulnerable due to advanced age or disability
(very great weight).
The court also found each proposed mitigating circumstance
was established, assigning weight as follows: (1) Jackson was
-9- prenatally exposed to drugs and alcohol (little weight); (2) Jackson
suffers from neurological deficits relating to prenatal exposure (little
weight); (3) Jackson experienced physical neglect beginning in
infancy (little weight); (4) Jackson was abandoned by his mother at
an early age (little weight); (5) Jackson’s mother promised to visit at
various times before age 11 but never followed through (no weight);
(6) Jackson has never known his father (little weight); (7) Jackson’s
grandfather resented having to raise him (little weight); (8) Jackson
has impaired social skills (no weight); (9) Jackson was bullied as a
child (little weight); (10) At age 12, Jackson’s grandparents
separated. Jackson and his grandmother moved to Boulder Bluff,
where there were more negative influences. This move also took
him away from Stephanie Stewart and her family (some weight); (11)
Jackson’s bad behavior escalated after the move to Boulder Bluff
(little weight); (12) Jackson was exposed to domestic violence in the
home of his aunt (little weight); (13) Jackson’s mother, aunt, and
uncle were substance abusers (little weight); (14) Jackson’s uncle,
with whom he spent a great deal of time, is mentally ill and has
been institutionalized (little weight); (15) Jackson was treated for
Attention Deficit Hyperactivity Disorder (ADHD) off and on during
- 10 - childhood (little weight); (16) Due to Jackson’s hyperactivity, a
cardboard box was placed around his desk during class at age 9
(little weight); (17) Jackson was held back in third and sixth grades
(little weight); (18) A psychoeducational evaluation was never
performed on Jackson, despite being recommended (no weight); (19)
Jackson has found God and devoted his life to religious study,
earning many certificates for discipleship (little weight); (20)
Jackson accepts responsibility for his actions and has voluntarily
waived appeals relating to his guilt (some weight); (21) Jackson was
23 years old at the time of the offense (little weight); (22) Jackson
has recently formed a relationship with his sister, Melissa Russell
(no weight); (23) Jackson is very important to his grandmother,
Dimples Inabinet, who considers him to be her son (little weight);
(24) Jackson has expressed a desire to teach others about God (no
weight); and (25) Jackson has been diagnosed with
Neurodevelopmental Disorder Associated with Prenatal Alcohol
Exposure (ND-PAE), which is a diagnosis under the Fetal Alcohol
Spectrum Disorder (FASD) umbrella, as well as Traumatic Brain
Injury, Conduct Disorder, Separation Anxiety Disorder, and
Attention Deficit Disorder (some weight).
- 11 - After independently weighing the aggravating factors against
the mitigating circumstances, the court “wholly agree[d] with the
jury’s recommendation.” In the end, the court found that “the
aggravating factors heavily outweigh the mitigating circumstances
and that death is the only proper penalty for the murders.”
This appeal followed.
II. APPEAL
Jackson raises fourteen issues, many of which target the 2023
amendments to section 921.141. We begin our analysis by
reviewing certain statutory (and decisional law) changes, including
the 2023 amendments, that occurred between the time of Jackson’s
crimes and his resentencing. We then explain why none of
Jackson’s issues (or sub-issues) warrant a new penalty phase. In
addressing Jackson’s issues, we first address those targeting the
2023 amendments and then address those alleging errors at his
resentencing proceeding.
A. Legal Landscape
At the time of Jackson’s crimes and initial penalty phase,
section 921.141 authorized a jury, based on a majority vote (7-5), to
recommend an advisory sentence of either life imprisonment or
- 12 - death. See ch. 96-302, § 1, Laws of Fla. The statute also permitted
the trial court to override either recommendation. Florida’s then
capital sentencing scheme was later deemed by the United States
Supreme Court to be unconstitutional on the ground that the
scheme, in violation of the Sixth Amendment, “required the judge
alone to find the existence of an aggravating circumstance” “that is
necessary for imposition of the death penalty.” Hurst v. Florida, 577
U.S. 92, 102, 103 (2016).
In the wake of that Supreme Court decision, the legislature
amended section 921.141 to correct the constitutional infirmity by
providing that the jury must unanimously find the existence of at
least one aggravator to render the defendant eligible for a sentence
of death. See ch. 2016-13, § 3, Laws of Fla. The legislature also
provided that a sentence of death could only be imposed based on a
recommendation of ten or more jurors, and that if fewer than ten
jurors recommend death, then the jury’s recommendation shall be
for a life sentence. Moreover, the legislature provided that the court
could continue to override a recommendation of death but could no
longer override a recommendation of life. See id.
- 13 - A few months after those legislative changes, this Court
announced holdings that went well beyond the Supreme Court’s
decision. Of relevance, this Court held that the Sixth and Eighth
Amendments require a jury to unanimously recommend a sentence
of death. See Hurst, 202 So. 3d at 59-60. Following Hurst, the
legislature unsurprisingly amended section 921.141 to provide that
a sentence of death could only be imposed based on a unanimous
jury recommendation. See ch. 2017-1, § 1, Laws of Fla.
In 2020, Poole recognized the errors in and receded from most
of Hurst, including its unanimous-recommendation holdings. See
297 So. 3d at 491, 504-05. The legislature initially left section
921.141 unchanged after Poole. But in early 2023, months after
the jury in the Parkland shooting case returned a nonunanimous
death recommendation for that defendant (Nikolas Cruz), the
legislature amended section 921.141 to allow a judge to impose a
sentence of death upon the recommendation of eight or more jurors,
and to provide that if fewer than eight jurors recommend death,
then the jury’s recommendation must be for a life sentence. See ch.
2023-23, § 1, Laws of Fla. The legislature left in place the judge’s
ability to override only a recommendation of death.
- 14 - As noted earlier, the 2023 amendments went into effect prior
to and were applied at Jackson’s resentencing.
B. Challenges to the 2023 Amendments
In his initial brief, Jackson raises six issues (with some sub-
issues) targeting the 2023 amendments themselves or their
application at his second penalty phase. Each one fails.
1.
Jackson attacks the statute’s nonunanimity (8-4) provision on
four grounds. Jackson’s attacks are inadequately briefed,
foreclosed by precedent, and/or otherwise without merit.
a.
Jackson first asserts that “non-unanimous verdicts allow a
jury to make a decision without the agreement of members in the
minority” and that “[t]his creates a breeding ground for racial
discrimination in conflict with the Fourteenth Amendment’s
guarantee of equal protection and the Eighth Amendment’s
guarantee of capital verdicts uninfected by racial discrimination.”
Jackson references the racial composition of his jury but insists
that his challenge to the statute “is facial, not as applied.” In
support of his claim that there is no set of circumstances in which
- 15 - the statute can be constitutionally applied, Jackson points to the
legislative record of the 2023 amendments. He offers citations
where, for example, certain witnesses or representatives opined that
the Supreme Court’s decision in Ramos v. Louisiana, 590 U.S. 83
(2020), undermines Poole, or suggested that nonunanimity might
negatively impact the Black community. Jackson also notes that
certain legislators and witnesses used the label “rogue” or “activist”
to describe the juror who guaranteed a life sentence for Nikolas
Cruz, the defendant in the Parkland shooting case.
Jackson’s attack—grounded in the Eighth Amendment and in
equal protection—largely relies on Ramos, which acknowledged that
some laws permitting nonunanimous verdicts were designed to
dilute the influence of African-American jurors. 590 U.S. at 88.
But Ramos involved the Sixth Amendment and “nonunanimous
convictions,” id. at 87, not the Eighth Amendment, equal protection,
or the selection phase of a capital trial. Indeed, the question Ramos
answered in the affirmative was “whether the Sixth Amendment . . .
requires a unanimous verdict to convict a defendant of a serious
offense.” Id. at 88; see also id. at 114 (Sotomayor, J., concurring in
part) (“Ramos does not bring an equal protection challenge . . . .”).
- 16 - In the end, Jackson’s Eighth Amendment claim fails under
existing precedent recognizing that “the Eighth Amendment does
not require a jury’s favorable recommendation before a death
penalty can be imposed.” Poole, 297 So. 3d at 505 (citing Spaziano
v. Florida, 468 U.S. 447, 464-65 (1984)). Jackson does not explain
how a statute requiring eight or more jurors to recommend a death
sentence can facially violate a constitutional provision that itself
does not require a jury recommendation of death.
As far as equal protection, the State answers that Jackson
“appears to raise a Fourteenth Amendment disparate-impact claim”
under Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977). Jackson cites Arlington
Heights, but not until his reply brief. Putting aside the imprecise
briefing, Jackson’s challenge fails. Arlington Heights stands for the
proposition that “[p]roof of racially discriminatory intent or purpose
is required to show a violation of the Equal Protection Clause.” 429
U.S. at 265. Jackson comes nowhere close to “proving” a racially
discriminatory intent or purpose motivated the decision to abandon
unanimity.
- 17 - b.
Second, Jackson launches an Eighth Amendment “evolving
standards of decency” attack on nonunanimity. But as Poole
explained, we are bound by Spaziano’s “hold[ing] that the Eighth
Amendment does not require a jury’s favorable recommendation
before a death penalty can be imposed.” Poole, 297 So. 3d at 505.
Jackson’s argument regarding evolving standards is thus
“irrelevant.” Id. at 509 (Lawson, J., concurring specially).
c.
Third, Jackson asserts that section 921.141 violates the Sixth
Amendment and Hurst v. Florida by not requiring jury unanimity on
the “finding” of whether the aggravators outweigh the mitigating
circumstances found to exist. See § 921.141(2)(b)2.b., Fla. Stat.
This argument also runs up against Poole, which, relying on
Supreme Court precedent, held that the weighing “finding” in
section 921.141 is a “selection finding” and “not a ‘fact’ ” for
purposes of the Sixth Amendment. 297 So. 3d at 503.
d.
Fourth, Jackson briefly asserts “[i]n the alternative” that “the
Sixth Amendment jury right the framers understood included a
- 18 - right to unanimity for life and death decisions.” This attack also
fails. See Poole, 297 So. 3d at 504 (“[T]he Sixth Amendment, as
interpreted in Spaziano, does not require any jury recommendation
of death, much less a unanimous one.”).
2.
Jackson claims that section 775.022(3), enacted in 2019,
barred the “retrospective application of the 2023 amendment to
Florida’s capital sentencing statute.” We reject this claim.
Section 775.022(3) provides in relevant part that, subject to
exceptions, “the reenactment or amendment of a criminal statute
operates prospectively.” Section 775.022(2) defines “criminal
statute” as “a statute, whether substantive or procedural, dealing in
any way with a crime or its punishment, defining a crime or a
defense to a crime, or providing for the punishment of a crime.”
The parties seemingly agree that the 2023 amendments were
procedural and fall within the definition of “criminal statute.” They
disagree as to whether the 2023 amendments were applied
“prospectively” or “retroactively.” 1 The State gets it right.
1. In a pretrial motion filed May 12, 2023, and in argument to the court on May 15, 2023, Jackson focused solely on the statutory
- 19 - In Love v. State, 286 So. 3d 177 (Fla. 2019), we explained that
“whether a new procedural statute applies in a pending case will
generally turn on the posture of the case” and that “if the new
procedure does apply, that is not in and of itself a retrospective
operation of the statute.” Id. at 187. Love held that procedural
changes altering the burden of proof at pretrial immunity hearings
under Florida’s “Stand Your Ground” law applied to pending cases
in which the “immunity hearings . . . take place on or after the
statute’s effective date.” Id. at 188. Doing so was “essentially,
giving the statute prospective application.” Id. Here, we conclude
that applying section 921.141’s procedural changes to a Hurst
resentencing that began after the amendments went into effect, for
crimes that occurred in 2005, was similarly a “prospective
term “prospectively.” Similarly, in his initial brief, Jackson argues that the 2023 amendment was impermissibly applied “retroactively to a resentencing . . . for a crime that occurred in 2005.” But in his reply brief, Jackson shifts the focus of his argument to other statutory language, namely that “the reenactment or amendment of a criminal statute . . . does not affect or abate . . . [t]he prior operation of the statute or a prosecution or enforcement thereunder.” § 775.022(3)(a), Fla. Stat. This is improper. And we are hardly persuaded by Jackson’s argument that the 2017 version of section 921.141 had “prior operation” in his case.
- 20 - application”—one that thus did not run afoul of section 775.022(3).
3.
Jackson advances a res judicata claim, the gist of which is
that the 2017 order granting Hurst relief was a “final judgment” that
“imposed a duty on the trial court to hold a resentencing that
applied Hurst v. State.”2 Not so.
“The doctrine of res judicata bars relitigation in a subsequent
cause of action not only of claims raised, but also claims that could
have been raised.” Topps v. State, 865 So. 2d 1253, 1255 (Fla.
2004) (citing Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 107
(Fla. 2001)). Here, the 2017 order did no more than confirm that,
under the decisional law at the time, Jackson was entitled to
resentencing.
Even if the 2017 order contemplated Hurst-compliant
procedures at resentencing, res judicata is still inapplicable. The
2. The State suggests Jackson’s arguments “more aptly sound under the law-of-the-case doctrine.” But that doctrine “do[es] not apply unless the issues are decided on appeal.” State v. McBride, 848 So. 2d 287, 290 (Fla. 2003) (citing Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001)). The 2017 order granting Hurst relief was never appealed.
- 21 - doctrine is subject to exceptions, including that it yields to
intervening changes in the law. C.f. Thompson v. Thompson, 93 So.
2d 90, 92 (Fla. 1957) (“[I]t is well settled that res judicata is not a
defense in a subsequent action where the law under which the first
judgment was obtained is different from that applicable to the
second action.” (citing Wagner v. Baron, 64 So. 2d 267 (Fla. 1953))).
Importantly, we have also said that “resentencing is a de novo
proceeding in which the decisional law effective at the time of the
resentencing applies.” State v. Fleming, 61 So. 3d 399, 400 (Fla.
2011). Poole, not Hurst, was “the decisional law effective at the time
of [Jackson’s] resentencing.” Id. That we declined to “reinstate[]”
Jackson’s vacated sentences post-Poole, see 306 So. 3d at 937, in
no way meant that Hurst would control at resentencing.
4.
Jackson argues that the legislature, in response to goading by
his prosecutors, targeted him to ensure that the 2023 amendments
(Senate Bill 450 or SB 450) would apply at his resentencing. This,
says Jackson, “strip[ped] him of the right to a unanimous jury” and
amounted to a “bill of attainder.” See art. I, § 10, cl. 1, U.S. Const.
(“No State shall . . . pass any Bill of Attainder . . . .”); see also art. I,
- 22 - § 10, Fla. Const. (“Prohibited laws.—No bill of attainder . . . shall be
passed.”). We disagree.
In support of his targeting claim, Jackson cites certain
legislator comments made while SB 450 was being enacted. He
claims the comments “highlighted one and only one pending capital
case—this one.” But the comments instead primarily refer to
certain completed cases—perceived miscarriages of justice—that
involved nonunanimous death recommendations, most notably that
of Nikolas Cruz. Indeed, Jackson acknowledged below that “[t]he
catalyst for th[e] new law” was “Cruz’s life sentence.”
Jackson also cites text messages between the lead prosecutor
and a legislator (the prosecutor’s former colleague) in which the
prosecutor repeatedly asks if SB 450 would be in effect at the time
of Jackson’s resentencing. These text exchanges, says Jackson,
amount to “goad[ing]” by prosecutors for the legislature to target
Jackson. And yet the first text sent by the prosecutor was on April
13, 2023, weeks after SB 450 had already passed in the senate and
the same day that its companion bill passed in the house.
Jackson—record cites and all—falls far short of establishing
that SB 450 amounts to a bill of attainder. This Court has said
- 23 - that “[a] bill of attainder is a law that legislatively determines guilt
for prior conduct and inflicts punishment upon an identifiable
individual without the protections of a judicial trial.” Mayes v.
Moore, 827 So. 2d 967, 972 (Fla. 2002) (citing Cassady v. Moore,
737 So. 2d 1174, 1178 (Fla. 1st DCA 1999)). Jackson obviously
cannot meet that definition.
The Supreme Court has described bills of attainder as
“legislative acts, no matter what their form, that apply either to
named individuals or to easily ascertainable members of a group in
such a way as to inflict punishment on them without a judicial
trial.” United States v. Lovett, 328 U.S. 303, 315 (1946). Jackson
cannot meet this definition either.
SB 450 does not “name[]” Jackson or any other “individuals.”
Nor does SB 450 apply “to easily ascertainable members of a
group.” Rather, SB 450 applies to defendants convicted of capital
murder, including certain Hurst-resentencing defendants like
Jackson. SB 450 is thus a “rule[] of general applicability.” United
States v. Brown, 381 U.S. 437, 461 (1965).
Jackson also provides no authority to support the proposition
that a procedural change “inflict[s] punishment” for purposes of a
- 24 - bill of attainder. Jackson’s “best” case might be Dugger v. Williams,
593 So. 2d 180 (Fla. 1991), which said that “some procedural
matters have a substantive effect.” Id. at 181. But this Court said
that in the context of “ex post facto violation[s].” Id. And Williams
involved the application of a law that impermissibly “diminish[ed] a
substantial substantive advantage that [defendant] would have
enjoyed under the law existing at the time he committed his
offense.” Id. at 182. Whatever “substantial substantive advantage”
Jackson “would have enjoyed,” if any, certainly did not “exist[] at
the time he committed [the murders],” when the 7-5 statute was in
effect.
Finally, Jackson fails to adequately brief the “without a
judicial trial” prong of Lovett. Perhaps that is because the new
procedural rules apply at a trial. We reject this claim.
5.
Jackson argues that Florida’s “lack of Eighth Amendment
safeguards [has] resulted in an arbitrary, capricious, and
unconstitutional sentence.” Jackson presents both a facial and as-
applied challenge to Florida’s sentencing scheme. We reject both.
Jackson’s facial challenge is built on the following purportedly
- 25 - “discarded . . . safeguards”: the abandonment of comparative
proportionality review in Lawrence v. State, 308 So. 3d 544 (Fla.
2020); the abandonment of relative culpability review in Cruz v.
State, 372 So. 3d 1237 (Fla. 2023); the 2023 amendments;
“aggravator creep”; and this Court purportedly “no longer actively
polic[ing] capital cases for error.”
This Court has repeatedly rejected similar Eighth Amendment
facial challenges. Last year, for example, this Court rejected a
“safeguards” argument that relied in part on “aggravator creep” and
Lawrence. See Miller v. State, 379 So. 3d 1109, 1127 (Fla.), cert.
denied, 145 S. Ct. 241 (2024); see also, e.g., Wells v. State, 364 So.
3d 1005, 1015 (Fla. 2023) (rejecting facial overbreadth challenge
based on aggravator creep and Lawrence). Our holding in Cruz
“does not alter our analysis.” Wells, 364 So. 3d at 1015. As Cruz
explained, “relative culpability review is neither constitutionally
required nor consistent with ensuring that a constitutional capital
sentence was rendered.” 372 So. 3d at 1245. Nor do the 2023
amendments alter our analysis. Again, “the Eighth Amendment
does not require a jury’s favorable recommendation before a death
penalty can be imposed.” Poole, 297 So. 3d at 505 (citing Spaziano,
- 26 - 468 U.S. at 464-65). As far as Jackson’s suggestion that this Court
rubber-stamps death sentences, it warrants no response other than
a strong caution to counsel.
Lastly, in his “facial” challenge, Jackson references the jury
instructions, decisions by the resentencing judge, and other Hurst
resentencings, without explaining how these points factor into a
facial challenge. In any event, we address them elsewhere.
Jackson’s as-applied challenge largely turns on the fact that
“twice juries have refused to unanimously sentence him to death,”
that no codefendant of his was sentenced (or resentenced) to
death, 3 and that most Hurst-resentencing defendants were
resentenced under the unanimity requirement. According to
Jackson, his sentences turn on “timing and geography”—rather
than on Jackson masterminding the buried-alive murders.
As an initial matter, the relevance of Jackson’s 8-4 jury
3. None of Jackson’s codefendants are on death row. As noted above, Nixon “enter[ed] into a plea agreement” and “received concurrent sentences of forty-five years’ imprisonment.” Jackson, 18 So. 3d at 1021 & n.2. Wade and Cole—like Jackson—originally received death sentences followed by Hurst relief. Unlike Jackson, however, Wade and Cole were resentenced to life in prison (Wade under the 12-0 statute, Cole under the 2023 amendments).
- 27 - recommendations is unclear; his current and former sentences were
authorized under the statutory schemes then in effect. Jackson’s
codefendants’ sentences are similarly not relevant; to the extent
Jackson—the self-confessed ringleader—argues relative culpability,
it “is neither constitutionally required nor consistent with ensuring
that a constitutional capital sentence was rendered.” Cruz, 372 So.
3d at 1245. Finally, Jackson’s claim regarding other Hurst
defendants sounds in equal protection and is addressed below.
6.
Jackson claims his trial and sentence violated equal
protection. Conceding that rational basis review applies, he cites
Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), arguing
that the State created a “class of one” in that he “so far” is the only
Hurst-resentencing defendant, of the “less than 60 [who] remained
to be resentenced when [Senate Bill 450 became law],” to be
sentenced to death under the 8-4 statute. To the extent this claim
is adequately briefed, it fails. Jackson’s argument is grounded in
the meritless notion that all Hurst-resentencing defendants must
receive the “benefit” of the procedures enacted in response to the
erroneous holdings of Hurst.
- 28 - Village of Willowbrook does not support Jackson’s claim.
There, the respondent brought a “class of one” claim against the
Village, and the Supreme Court held that her allegations were
“sufficient to state a claim for relief under traditional equal
protection analysis.” Id. at 564-65. The respondent “allege[d] that
she ha[d] been intentionally treated differently from others similarly
situated and that there [was] no rational basis for the difference in
treatment.” Id. at 564. Specifically, she alleged that the Village
demanded a 33-foot easement before agreeing “to connect [her]
property to the municipal water supply,” even though “the Village
only required a 15-foot easement from other property owners.” Id.
at 563. Here, even assuming Jackson otherwise sufficiently alleges
a claim of equal protection, there is plainly a rational basis for
applying the 2023 amendments at a Hurst resentencing taking
place after the effective date of the procedural amendments.
For its part, the State says Dobbert v. Florida, 432 U.S. 282
(1977), controls. Dobbert rejected an equal protection claim from a
petitioner who committed murders prior to Furman v. Georgia, 408
U.S. 238 (1972), but was tried and sentenced to death under
Florida’s “new death penalty procedure” enacted after Furman. 432
- 29 - U.S. at 287-88, 301. Prisoners who were tried and sentenced to
death under Florida’s pre-Furman statute, however, had their death
sentences commuted to life sentences by this Court. Id. at 301
(citing Anderson v. State, 267 So. 2d 8 (Fla. 1972); In re Baker, 267
So. 2d 331 (Fla. 1972)). Dobbert rejected the petitioner’s argument
that “the imposition of the death sentence upon him pursuant to
the new statute which was in effect at the time of his trial denie[d]
him equal protection.” Id. Dobbert reasoned that “Florida obviously
had to draw the line at some point” and that the petitioner was
“simply not similarly situated to those . . . whose cases had
progressed sufficiently far in the legal process as to be governed
solely by the old statute.” Id. Jackson’s claim pales in comparison
to the unsuccessful claim in Dobbert.
C. Alleged Errors at Resentencing
Jackson’s remaining eight issues focus on decisions by the
judge and statements by the prosecutor. These claims do not
warrant a new penalty phase.
Jackson claims the court’s final instructions were inaccurate
and misleading in violation of section 921.141 and Caldwell v.
- 30 - Mississippi, 472 U.S. 320 (1985). The crux of his claim is that the
court, over “consistent[]” objection, “including under the Eighth
Amendment and Caldwell,” made repeated and unqualified
references to the jury returning a “recommendation,” without
instructing the jury that a “recommendation” of life—unlike a
recommendation of death—was binding on the court. Jackson
notes that the Committee on Standard Jury Instructions later put
out model instructions informing the jury that “[i]f fewer than 8
jurors vote for the death penalty, the Court must sentence the
defendant to life in prison without the possibility of parole.” Fla.
Std. Jury Instr. (Crim.) 7.11. Jackson says the absence of that
instruction (or something like it) misled the jury and lessened the
jury’s sense of responsibility. According to Jackson, had the jury
been informed of its power to issue a binding recommendation of
life, the “four life jurors” would have “fought longer” to secure one
more vote.
We conclude that the jury should have been instructed about
the binding effect of a life recommendation—that, after all, is
consistent with what the statute says. And it is unclear why that
did not happen. But that was not the nature of Jackson’s
- 31 - arguments below. Indeed, our review of the record reveals that the
Caldwell issue Jackson advances is not the Caldwell issue argued
below. We disapprove this sleight of hand. And we conclude that
the unpreserved error here was far from fundamental.
Jackson misrepresents the nature of defense counsel’s
“consistent[]” objections. The objections were that the term
“recommendation” by itself—despite its use in section 921.141—
diminished the jury’s sense of responsibility. Indeed, Jackson’s
position, articulated prior to the penalty phase, was that the
amended statute itself violates Caldwell.
The relevant events began on May 10, 2023, when Jackson
filed a motion raising objections to the 2023 amendments. Among
other things, Jackson raised a Caldwell claim challenging the
amended statute. He claimed that the statute’s repeated use of the
term “recommendation,” when “viewed in combination with the jury
receiving permission to recommend a sentence of death with the
agreement of only eight jurors,” ultimately “bake[d] Caldwell error
into the statute (which will inevitably be included in the jury
instructions).” (Emphasis added.) Thus, Jackson’s claim focused on
- 32 - the word “recommendation” and on nonunanimous death
recommendations, not on the effect of a life recommendation.
Jackson’s motion provides the relevant backdrop and shows
what defense counsel had in mind when defense counsel began
repeatedly voicing instruction-based objections during the penalty
phase whenever the judge said “recommendation.” As early as the
questioning of one potential juror during jury selection, after the
judge mentioned “a jury recommendation,” defense counsel
“[o]bject[ed] to recommendation” and “object[ed] to the
recommendation language.” In overruling the objection, the judge
noted “that that’s exactly what the statute says in the jury
instruction.” Later, during the questioning of a different prospective
juror, defense counsel objected on the same ground and was given
“a standing objection.” Simply put, defense counsel’s objections
were not to—as Jackson claims—the “unadorned and unqualified
use of the term ‘recommendation,’ with respect to a life vote,” but to
the term “recommendation” itself.
Jackson does point to one instance—the only instance
supported by his record citations—where defense counsel expressed
“concern[] about the idea that it’s suggested to the jury that their
- 33 - verdict is advisory when if they return a verdict of life it is not
advisory. It is life. The Court shall impose it.” But context
matters. Those comments were made after the judge—who was
seemingly under the mistaken impression that the 2023
amendments reverted the law back to the pre-Hurst days—proposed
that the jury instructions not only use the term “recommendation”
but also “advisory.” It was in that context that defense counsel
expressed “concern[]” and noted that “a verdict of life . . . is not
advisory.” The judge responded by saying: “But in the instructions
we tell them that if their recommendation is life that’s it. It’s over.”
Defense counsel then promptly agreed with the judge by saying
“Right.” This agreement reflects counsel’s belief that the
instructions included the binding-effect language—meaning that
counsel would have had no reason to argue that its omission
resulted in Caldwell error. As such, this exchange reinforces that
the binding effect of a life recommendation was not the basis of
defense counsel’s repeated objections.
In closing arguments, defense counsel at one point even stated
to the jury that “the law makes the final decision the Judge has.”
But counsel made other statements strongly suggesting the jury
- 34 - could bind the judge with a “life recommendation.” Indeed, counsel
not only said that “[i]t takes five jurors to get a life sentence,” but
counsel went on to “assure” the jurors that the judge would “follow
[their] recommendation” and that, in the end, “[their] decision is the
final decision.”
As to the final charge, the judge did not use the term
“advisory,” instead using the terms “verdict,” “decision,” and, of
course, “recommendation.” The judge also instructed the jurors to
act with “regard to the gravity of the[] proceedings” and implored
them to “carefully consider and weigh the evidence realizing that a
human life is at stake.” Although the judge and defense counsel
had agreed the instructions would inform jurors of the binding
effect of a life recommendation, the instructions—for unexplained
reasons—did not. But that oversight, which gave rise to the issue
advanced on appeal, was not the issue argued below.
b.
As just shown, Jackson quietly attempts to transform defense
counsel’s Caldwell objections into a different Caldwell and
instructional error claim on appeal. This he cannot do.
As to the jury instruction, yes, there was error in the sense
- 35 - that the court failed to specify how the jury’s recommendation
would inform the scope of the judge’s sentencing discretion. But we
disagree with Jackson that the court “misled” the jury into believing
the court could simply disregard its recommendation. 4 Quite the
opposite.
As an initial matter, the judge in the final charge not only used
the term “recommendation,” but also the terms “verdict” and
“decision.” Moreover, the judge instructed the jurors to act with
“regard to the gravity of the[] proceedings” and implored them to
“carefully consider and weigh the evidence realizing that a human
life is at stake.” Obviously, the judge conveyed to the jury the
significance of its role rather than minimizing its responsibility.
Even defense counsel, after explaining that “[i]t takes five jurors to
get a life sentence,” “assure[d]” the jurors—without objection—that
4. Jackson’s “instructional error” claim relies solely on Butler v. State, 493 So. 2d 451 (Fla. 1986), in which an “extremely misleading and confusing jury instruction” amounted to harmful error. Id. at 453. Butler is easily distinguished. Putting aside that the issue there was preserved, the instruction was not only “unrelated to the evidence,” id. at 452, but it “was misleading and contradictory” in the sense that it “virtually negated the defendant’s only defense, that of self-defense,” id. at 453.
- 36 - their “decision is the final decision.”
There is plainly no fundamental error. It cannot be said that
the unpreserved error here “reaches down into the validity of the
trial itself to the extent that the jury’s recommendation of death
could not have been obtained without the assistance of the alleged
error.” Cruz v. State, 320 So. 3d 695, 715 (Fla. 2021) (citing Smiley
v. State, 295 So. 3d 156, 172 (Fla. 2020)). Jackson, of course—
given that he portrays an unpreserved claim as “consistent[ly]”
argued—does not explain how any error here would be
fundamental.
Jackson does, however, offer a theory of prejudice—one that is
devoid of merit and, perhaps unsurprisingly, cannot be squared
with the record. Jackson theorizes that, if instructed on their
power to return a binding life recommendation, then the “four life
jurors” would have “fought longer” to secure one more vote. That
theory is not only speculative, but it is wholly at odds with defense
counsel’s own statements to the jury. Jackson fails to mention that
defense counsel stressed to the jurors during closing arguments
that, as was discussed during jury selection, they were not to
attempt to sway other jurors. Indeed, counsel reminded them that
- 37 - they had “promised” and “agreed” “to not bully, not force someone
to change their opinion, not to go against someone’s opinion, to let
them make their individual decision.”
As to Caldwell, even putting aside Jackson’s improper
presentation of his transformed Caldwell claim, we are hardly
convinced by Jackson’s briefing that the instructional error here
amounts to a Caldwell violation.
Caldwell addressed “whether a capital sentence is valid when
the sentencing jury is led [by the prosecutor] to believe that
responsibility for determining the appropriateness of a death
sentence rests not with the jury but with the appellate court which
later reviews the case.” 472 U.S. at 323. The Caldwell plurality
concluded “that the prosecutor’s argument rendered the capital
sentencing proceeding inconsistent with the Eighth Amendment’s
heightened ‘need for reliability in the determination that death is
the appropriate punishment in a specific case.’ ” Id. (quoting
Woodson v. North Carolina, 428 U.S. 280, 305 (1976)). Justice
O’Connor wrote separately, concluding that “the prosecutor’s
remarks were impermissible because they were inaccurate and
misleading in a manner that diminished the jury’s sense of
- 38 - responsibility.” Id. at 342 (O’Connor, J., concurring in part and
concurring in the judgment).
The Supreme Court has since explained that Justice
O’Connor’s position in Caldwell was “controlling” and that the
“infirmity identified in Caldwell” was thus that the jury was
“affirmatively misled regarding its role in the sentencing process.”
Romano v. Oklahoma, 512 U.S. 1, 9 (1994). Here, the jury was not
“affirmatively misled” in the way the jury was in Caldwell, even
more so given that the judge implored the jurors to “carefully”
perform their duty and be mindful of “the gravity of the[]
proceedings.”
Jackson points to two state supreme court decisions, namely
Commonwealth v. Montalvo, 205 A.3d 274 (Pa. 2019), and Clark v.
Commonwealth, 833 S.W.2d 793 (Ky. 1991), that seemingly stand
for the broad proposition that the repeated use of the term
“recommendation” violates Caldwell. See Montalvo, 205 A.3d at
299; Clark, 833 S.W.2d at 795. That proposition, of course, was the
issue Jackson advanced below, not the issue he advances on
appeal. In any event, Clark and Montalvo are distinguishable for
various reasons, including that the law in those jurisdictions
- 39 - seemingly rested the sentencing decision solely in the hands of “the
jury,” Montalvo, 205 A.3d at 297, and “not . . . the trial judge,”
Clark, 833 S.W.2d at 796.
For some reason, Jackson does not cite other decisions that
are more like the mutated Caldwell claim he attempts to advance
on appeal. See, e.g., Mapes v. Coyle, 171 F.3d 408, 414-15 (6th Cir.
1999) (rejecting a “ ‘recommendation’ issue” Caldwell claim in
which the defendant argued that the judge “repeatedly told the jury
that its job was merely to recommend a sentence,” even though,
under the relevant Ohio statute, “a ‘recommendation’ not to impose
the death penalty would be binding on the court”); cf. Jones v.
United States, 527 U.S. 373, 381-82 (1999) (citing Romano and
rejecting the notion “that a death sentence is arbitrary within the
meaning of the Eighth Amendment if the jury is not given any bit of
information that might possibly influence an individual juror’s
voting behavior”).
In the end, Jackson falls far short of establishing that a new
penalty phase is warranted.
Jackson, citing Lockett v. Ohio, 438 U.S. 586 (1978), and
- 40 - Eddings v. Oklahoma, 455 U.S. 104 (1982), claims the court
violated the Eighth Amendment by barring the jury’s consideration
of codefendant Wade’s life sentence. Jackson argues that Wade’s
life sentence was a mitigating factor. And he cites decisions in
which this Court—without deciding the issue—mentioned that a
codefendant’s sentence was considered as “mitigation.” E.g., Hertz
v. Jones, 218 So. 3d 428, 431 (Fla. 2017).
The State counters by citing cases from other jurisdictions
holding that a codefendant’s life sentence is not “mitigation,” see,
e.g., Coulter v. State, 438 So. 2d 336, 345 (Ala. Crim. App. 1982),
and by arguing that informing the jury about a codefendant’s
sentence would lead to “a trial-within-a-trial” regarding the
codefendant’s “aggravation and mitigation.” The State alternatively
argues that, given Wade’s prior death sentence that was reversed
only because of Hurst, any probative value of Wade’s life sentence
would be “substantially outweighed by the danger of unfair
prejudice, confusion of issues, [or] misleading the jury.” See §
90.403, Fla. Stat.; see also Meyer v. Branker, 506 F.3d 358, 375-76
(4th Cir. 2007) (holding “that the Constitution does not mandate
admission of a co-perpetrator’s sentence”).
- 41 - We conclude that Jackson’s Eighth Amendment claim was not
preserved in the manner now being presented. And any error falls
far short of fundamental error.
The relevant events began with the State’s “Motion in Limine
Regarding Proportionality” filed on May 27, 2022—before Jackson’s
and Wade’s cases were severed. In its motion, the State sought an
order “prohibiting arguments or questions regarding the
comparison of this death penalty case with other murders.” Citing
this Court’s decision in Lawrence, the State reasoned that “no juror
could ever properly conduct a proportionality analysis as [to] all
other death penalty cases.” (Emphasis added.)
At a hearing on May 31, 2022, defense counsel for Wade
sought to distinguish “appellate proportionality review” from
“mitigation.” Wade’s counsel did so in the context of seeking to
argue that Wade was “not the worst of the worst.” After the judge
expressed his understanding that the State’s motion applied only to
jury selection, the prosecutor indicated that the motion was
intended to apply throughout trial but only encompassed “unknown
cases.” Indeed, the prosecutor had “no problem with defense
counsel saying Mr. Wade is not the worst of the group.” The judge
- 42 - again indicated “that the matter [regarded] jury selection,” in which
case he “agree[d]” with the State. Days later, the court entered an
order granting in part and denying in part the State’s motion “to the
extent Defendant may not rely upon other specific unrelated cases
in making proportionality arguments.”
Fast forward one year to May 22, 2023, after the State rested
its case in Jackson’s new penalty phase. (Wade had since been
resentenced to life.) Counsel for Jackson brought up the State’s
proportionality motion from a year earlier and indicated to the judge
that “pursuant to [the court’s order],” the defense intended to
introduce Wade’s judgment and sentence. After objection, the
judge—who also presided over Wade’s resentencing—indicated that
the jury was “not going to know what sentence I was imposing
against Mr. Wade.” Defense counsel pressed the court on whether
it was “reversing [its] prior ruling.” After the judge admitted to
having “no clue” whether any ruling was being reversed, the judge
reiterated, “It’s not coming in.” Defense counsel then “want[ed] the
record to be clear” in terms of the court’s 2022 ruling regarding
“making proportionality arguments.”
The Eighth Amendment claim Jackson advances was simply
- 43 - not preserved. The only argument Jackson raised below was that
the 2022 order regarding “proportionality arguments” somehow
authorized an eventual life sentence for Wade to later be presented
to Jackson’s jury. Defense counsel for Jackson never mentioned
“mitigation,” Lockett, Eddings, the Eighth Amendment, or any
decision from this Court. Other record citations by Jackson do not
establish that this issue was properly presented. 5 In the end, any
error that may have occurred was far from fundamental.
Jackson claims that, in violation of the Sixth and Eighth
Amendments and Florida law, he was precluded from impeaching
codefendant Nixon, whose perpetuated testimony from Jackson’s
2007 trial was introduced after Nixon refused to testify at Jackson’s
5. For example, Jackson cites “a hearing in April of 2022,” before the State filed the “proportionality” motion, at which the prosecutor stated that he had not researched whether it would be “appropriate” to “comment[] on another jury’s verdict.” That comment came in the context of discussing whether a verdict in one codefendant’s case would be sealed before completion of the other case. In response, counsel for Wade argued that “it possibly might deny [Wade] a possible mitigator” if Jackson received a life sentence and then Wade was prevented from “argu[ing] the fact that [Wade] was less culpable.” This exchange hardly supports the conclusion that Jackson—in May 2023—preserved the claim he advances.
- 44 - resentencing in 2023. Jackson says that Nixon recanted at
codefendant Wade’s resentencing in 2022 and that when Jackson
sought to introduce that recantation, the judge denied the request.
According to Jackson, the judge’s decision resulted in “a death
verdict from a jury oblivious to the fact that a key state witness had
recanted.” In his reply brief, Jackson concedes that no specific
objection or legal argument was presented after the judge denied
the request. Jackson thus requests “revers[al] under the preserved
general objections or under fundamental error.” We reject this
claim.
At Wade’s resentencing, Nixon briefly attempted to limit his
own culpability. After Nixon testified that Wade told him they had
to dig a hole, that they stole shovels, that Nixon found the remote
location, and that Nixon, Wade, and Jackson dug the hole, the
prosecutor asked if Nixon knew or later learned the purpose of the
hole. Nixon began purportedly recanting by answering in the
negative. He also said that his prior testimony was what his lawyer
“wanted [Nixon] to say.” At that point, the court took a recess, and
Nixon never returned to testify. Nixon attempted to explain himself
outside the jury’s presence, including that he was on drugs at the
- 45 - time of the murders. Nixon later invoked the Fifth Amendment.
At Jackson’s resentencing, Nixon again invoked the Fifth
Amendment, and the judge found Nixon “unavailable to testify.”
Days later, defense counsel “ask[ed] to introduce Mr. Nixon’s prior
testimony [from Wade’s resentencing].” The judge, who was aware
of the content of that testimony, denied the request. Defense
counsel moved on without objection or any legal argument.
Even assuming the court erred, Jackson cannot establish
fundamental error. Indeed, any error would be harmless beyond a
reasonable doubt given, among other things, Jackson’s own
admissions—including in court—regarding his involvement as the
mastermind of the crimes. Nixon’s purported recantation does not
undermine the factual narrative of the murders. See Jackson, 18
So. 3d at 1021-22. Nor would it undermine any aggravator or
bolster any proposed mitigating circumstance.
Jackson claims the prosecutor’s “repeated misconduct”
deprived Jackson of a fair sentencing trial. Jackson points to more
than a dozen comments by the prosecutor and places them into two
categories: (1) comments denigrating mitigation; and (2) comments
- 46 - injecting fear and emotion into the sentencing determination.
The record reveals that, other than three alleged denigration
remarks, the comments all went without proper objection. We
separately address the two categories of alleged errors, and we
conclude that although the prosecutor may have made questionable
comments at times, the comments fall well short—individually or
cumulatively—of amounting to fundamental error. Including the
objected-to comments, no new penalty phase is warranted.
This Court has said “that a prosecutor cannot improperly
denigrate mitigation during a closing argument.” Delhall v. State,
95 So. 3d 134, 167-68 (Fla. 2012) (quoting Williamson v. State, 994
So. 2d 1000, 1014 (Fla. 2008)). Jackson claims the prosecutor
denigrated mitigation in its entirety and several of its components.
We first address the few comments met with any objection.
The first objected-to comment was that “[m]itigation is a
biased, paid for industry.” But that comment, viewed in context,
does not “appear[] designed to invalidate the mitigation entirely.”
Id. at 168. Rather, the comment appears aimed at establishing the
bias of Jackson’s paid experts. Indeed, immediately after that
- 47 - comment and later in closing, the prosecutor challenged the
experts’ testimony, including by questioning the suggestion that
Jackson was “[s]everely brain damaged,” given that his IQ was “well
over a hundred.” We find no harmful error.
Second, after arguing that Jackson “was the leader, he was
the oldest, he was the felon, not the 18[-]year[-]old kids he got to do
his work for him,” the prosecutor said this: “Judge him not by what
you heard in this courtroom. Judge him by when he was free.”
This comment was objected to as a “mischaracterization of the law.”
And the judge informed the jurors that he “will tell [them] what the
law is when it comes time to do it.” We find no reversible error.
Third, Jackson objected when the prosecutor questioned
whether Jackson’s “remorse” was something for which he was
“supposed to get credit.” This comment was made in the context of
the prosecutor explaining to the jurors that it was their job to
“decide whether or not it’s mitigation to say you are sorry after you
are caught” or whether Jackson was instead attempting to avoid
death row. We have said that a prosecutor can “attempt[] to rebut
mitigating evidence argued by the defense,” Cruz, 320 So. 3d at 718
(alteration in original) (quoting Poole v. State, 997 So. 2d 382, 395
- 48 - (Fla. 2008)), including “nonstatutory mitigating evidence of
remorse,” Walton v. State, 547 So. 2d 622, 625 (Fla. 1989) (citing
Agan v. State, 445 So. 2d 326 (Fla. 1983)). Here, the prosecutor did
just that, questioning the sincerity of Jackson’s remorse and, in
support, referencing past actions by Jackson. Moreover, the
prosecutor “did not label the mitigation as aggravation.” Cruz, 320
So. 3d at 718. We find no harmful error.
Finally, the prosecutor, during cross-examination of defense
expert Dr. Ouaou, asked—over objection—whether the results of
neuropsychological testing performed by Dr. Ouaou “excuse[d]”
Jackson’s actions. This Court has said that “[i]mproper denigration
includes comments characterizing mitigation as ‘flimsy,’ ‘phantom,’
and ‘excuses.’ ” Id. (quoting Carr v. State, 156 So. 3d 1052, 1065
(Fla. 2015)). That did not happen here. The prosecutor’s isolated
use of the word “excuse” was made in the context of asking about
Jackson’s mental status and whether the testing results suggested
he lacked the ability to know it was wrong “to bury two people
alive.” We find no harmful error.
As to the unobjected-to comments, they do not support a
finding of fundamental error. Regarding mitigation in its entirety,
- 49 - Jackson points to this comment by the prosecutor: “Do not judge
him by the clergy who visit him or by the lectures from paid
advocates but by his behavior when he was free.” Although not
particularly well-worded, the comment appears designed to “simply
urge less weight” to the mitigators, Delhall, 95 So. 3d at 168, and
more weight to the aggravation. Indeed, the prosecutor’s reference
to Jackson’s “behavior when he was free” was followed by this
comment: “This is the type of evidence that Lady Justice considers
powerful, weighty.”
Regarding mitigation “components,” Jackson points to certain
additional comments regarding his “remorse.” But, again, the
prosecutor was permitted to “attempt[] to rebut mitigating evidence
argued by the defense.” Cruz, 320 So. 3d at 718 (alteration in
original) (quoting Poole, 997 So. 2d at 395).
Jackson also points to comments about his “Messianic Jewish
faith.” One of Jackson’s proposed mitigators was that he has found
God and devoted his life to religious study. Among other things,
Jackson presented testimony from his spiritual advisor, John
Slatten, who testified about Messianic Jewish faith, including that
“regular Jews don’t accept us,” and testified that Jackson was “the
- 50 - most ardent and zealous follower of Jesus of Yeshua that [Slatten]
minister[ed] to in prison.” Jackson points to three unobjected-to
comments, namely: (1) that Jackson was a “South Carolina kid that
somehow celebrat[es] Passover like he is a religious Jew”; (2) that
“Jews for Jesus” was “a small fringe religion”; and (3) that the jury
should “not judge [Jackson] by the clergy who visit him.” The State
correctly asserts that the prosecution may “call[] into doubt the
sincerity of [Jackson’s] professed beliefs.” But the State concedes
that some of these comments “approached a line.”
We conclude that the first two comments were clearly
inappropriate. 6 Those comments did not simply challenge the
sincerity of Jackson’s profession of certain beliefs. Instead, they
disparaged the religious beliefs that he professed. The comments
focused on the content of the beliefs—not the sincerity with which
they were held. Nevertheless, we cannot conclude, on this record,
that the two otherwise isolated comments amount to fundamental
6. We note that the ethical rules governing lawyer conduct specifically prohibit “knowingly, or through callous indifference” “disparag[ing]” a party “on account of . . . religion.” R. Regulating Fla. Bar 4-8.4(d).
- 51 - error, i.e., error without which “the jury’s recommendation [and the
sentence] of death could not have been obtained.” Allen v. State,
416 So. 3d 291, 311 (Fla. 2025) (alteration in original) (quoting
Colley v. State, 310 So. 3d 2, 17 (Fla. 2020)); see Ritchie v. State,
344 So. 3d 369, 386 (Fla. 2022) (rejecting claim of cumulative
fundamental error and concluding that “the interests of justice d[id]
not require a new penalty phase” where certain unobjected-to
“improper prosecutorial comments were isolated statements in an
otherwise proper closing argument that, on the whole, asked the
jury to return a death recommendation based on the evidence”).
For his part, Jackson does not explain how these two
inappropriate comments support a finding of fundamental error.
Nor do the two cases he cites support such a finding. See Cutter v.
Wilkinson, 544 U.S. 709, 718 (2005) (addressing “the question
whether [the Religious Land Use and Institutionalized Persons Act
of 2000]’s institutionalized-persons provision, § 3 of the Act, is
consistent with the Establishment Clause of the First Amendment”);
Dawson v. Delaware, 503 U.S. 159, 160, 168-69 (1992) (holding
that “the First and Fourteenth Amendments prohibit[ed] the
introduction in a capital sentencing proceeding of the [irrelevant]
- 52 - fact that the defendant was a member of an organization called the
Aryan Brotherhood,” and noting that the wrongful admission of the
evidence would be subject to harmless error review on remand).
As to the final unobjected-to comment in this category,
Jackson argues the prosecutor invalidated Jackson’s right to
present state-funded experts when the prosecutor made certain
comments, including “let’s analyze what the $40,000 gets you,
analyze whether or not it’s garbage in and garbage out.” Although
the prosecutor could have been more tactful, the bias of the paid
experts was, again, fair game, particularly given that the prosecutor
in closing also engaged with their testimony.
Nor do the unobjected-to comments in the second category—a
“dissertation on evil” and a “golden rule” violation—support a
finding of fundamental error.
This Court has said that “a prosecutor may not ‘impermissibly
inflame[] the passions and prejudices of the jury with elements of
emotion and fear.’ ” Cruz, 320 So. 3d at 720 (alteration in original)
(quoting Brooks v. State, 762 So. 2d 879, 900 (Fla. 2000)). Cruz
also said that a prosecutor may not give a “dissertation on evil,” id.
- 53 - (quoting King v. State, 623 So. 2d 486, 488 (Fla. 1993)), which
“effectively caution[s] the jurors that they would be cooperating with
evil should they recommend[] life imprisonment,” id. But “the use
of the term evil alone during closing statements does not entitle a
defendant to a new trial.” Rigterink v. State, 193 So. 3d 846, 876
(Fla. 2016) (citing Lugo v. State, 845 So. 2d 74, 107 (Fla. 2003)).
Here, the prosecutor framed this case as an attempt to punish
evil crimes. In opening, for example, the prosecutor referenced the
“evil . . . acts,” the “vile and cruel acts,” the “soulless darkness
where these crimes were conceived,” and that “some evil is just too
great to tolerate,” before referencing “the especially heinous,
atrocious and cruel that one human being is capable of.” See Fla.
Std. Jury Instr. (Crim.) 7.11(8) (addressing HAC aggravator and
defining “heinous” to mean “extremely wicked or shockingly evil”).
The prosecutor used similar language in closing.
Perhaps the prosecutor could have used the word “evil” with
less frequency. But the cases on which Jackson relies, namely
Cruz, 320 So. 3d 695, and Rigterink, 193 So. 3d 846, do not
support a finding of fundamental error. In Cruz, the defendant
“failed to show how the prosecutor’s comments improperly inflamed
- 54 - the passions of the jury and amount[ed] to fundamental error.” 320
So. 3d at 720. And in Rigterink, this Court found that “[t]o the
extent [the prosecutor’s closing remarks describing the defendant
as evil] were used to support the HAC aggravating factor, they were
improper.” 193 So. 3d at 876. But this Court concluded that the
defendant “failed to establish prejudice.” Id. We reasoned that HAC
was otherwise proven and so was the prior violent felony
aggravator, “two of the weightiest aggravating circumstances.” Id.
Here, unlike in Rigterink, the prosecutor’s remarks were largely
aimed at the defendant’s acts, not at the defendant himself.
Moreover, this case involves eight aggravators—including HAC and
prior violent felony. And there is no suggestion that HAC was not
otherwise proven. Lastly, we note that Jackson himself used the
phrase “evil spirit” during his confession to a news show. Jackson
is not entitled to a new penalty phase.
Jackson next claims that the prosecutor’s comments regarding
“evil” and “soulless darkness” impermissibly framed Jackson as
“inherently dangerous.” This, says Jackson, was prohibited by
Delhall. This case falls short of Delhall, where “the prosecutor
argued numerous times, sometimes over objection and sometimes
- 55 - without objection, that [the defendant] is ‘violent,’ ‘dangerous,’ that
he ‘can’t be fixed,’ that ‘he acts with violence,’ and ‘[f]rom a school
child he was violent.’ ” 95 So. 3d at 168 (second alteration in
original). Delhall vacated the death sentence based on “cumulative
errors” that included “improper advocacy . . . even after an objection
was sustained” and after the court “specifically admonish[ed] [the
prosecutor] to stop.” Id. at 170. That is not this case.
Jackson also claims the prosecutor impermissibly “used his
opening to bolster the State’s decision to pursue death.” Jackson
cites this comment: “The state is presenting this case because some
evil is just too great to tolerate. . . . Some evil can only sufficiently
be punished by imposing a just sentence of the ultimate
punishment.” This, says Jackson, runs afoul of cases like Pait v.
State, 112 So. 2d 380, 384 (Fla. 1959), where the prosecutor
wrongly “conveyed to the jury the fact that he and his staff had
considered the matter before trial and had concluded that the death
penalty should be requested.” See also Brooks v. State, 762 So. 2d
879, 901-02 (Fla. 2000) (concluding that trial court abused its
discretion in overruling defense counsel’s objection “that the
prosecutor impermissibly argued ‘prosecutorial expertise’ ”). Here,
- 56 - the prosecutor’s comments are less direct than those in Pait or
Brooks and fall more into the “appropriate” realm of “urg[ing] the
jury to prescribe the supreme penalty on the basis of the evidence
which the jury hears.” Pait, 112 So. 2d at 384.
Lastly, Jackson claims the prosecutor violated the “golden
rule” of summations. A “golden rule” argument impermissibly
“invite[s] the jurors to place themselves in the victim’s position
during the crime and imagine the victim’s suffering.” Braddy v.
State, 111 So. 3d 810, 842 (Fla. 2012) (quoting Mosley v. State, 46
So. 3d 510, 520 (Fla. 2009)). Improper “golden rule” arguments
also include “creating an imaginary first-person script depicting the
victim’s suffering or death.” Id. at 849 (citing Urbin v. State, 714 So.
2d 411, 421 (Fla. 1998)).
Here, Jackson says the prosecutor fabricated an “imaginary
script” of the victims’ dying thoughts. He points to the following
comment the prosecutor made in closing while arguing for HAC:
You know, Carol and Reggie Sumner saw a gun in that house. Remember the little toy gun, the little BBs? And when they are in that hole and they realize that they are not getting out of that hole they may have thought about that gun putting two bullets in the back of their heads in this.
- 57 - That comment was met by an objection of “[i]mproper argument,”
which was overruled. That “nonspecific objection” does “not
preserve[]” “an imaginary first-person script . . . golden rule
argument.” Id. at 850. And Jackson certainly cannot establish
fundamental error.
As an initial matter, it is not entirely clear that, as Jackson
asserts, “[t]he prosecutor wanted the jury to imagine a suffering so
great that the victims wished for an execution-style death.” It
seems plausible that the prosecutor instead suggested that the
victims wondered if they were going to be executed. In any event,
theorizing whether the victims—while duct-taped and in the hole—
wondered about the “gun” with which they were earlier held at
“gunpoint,” seems like a reasonable inference based on the
evidence. This case is more like Rogers v. State, 957 So. 2d 538
(Fla. 2007). There, the prosecutor theorized that, while dying from
two stab wounds, the victim was “reflecting back on her life,”
including “on her children that she would never see again” and “on
her mother who loved her so dearly.” Id. at 549. Rogers concluded
that the “arguments were not improper because they were based
upon facts in evidence—the victim was stabbed twice, she struggled
- 58 - with her assailant, and she remained alive for at least a short
period of time,” and that “the prosecutor was describing the
heinousness of the crime for the purpose of establishing the HAC
aggravator.” Id. Here, the comments can similarly be said to be
“common-sense inference[s]” made in the context of arguing for
HAC. See id. (quoting Banks v. State, 700 So. 2d 363, 366 (Fla.
1997)).
Jackson asserts that the four preceding points of error—i.e.,
(1) Caldwell and instructional error; (2) Wade’s life sentence; (3)
Nixon’s impeachment; and (4) prosecutorial misconduct—are
“indisputable errors . . . subject to cumulative-error analysis.” And
he says that the cumulative prejudice was not “harmless beyond a
reasonable doubt.” That statement, of course, assumes that the
alleged errors were properly preserved. But as just explained, other
than three alleged denigration-of-mitigation comments by the
prosecutor (none of which involve harmful error), none of the
alleged errors were preserved. So, the more appropriate question is
“whether the combined prejudice resulting from any errors . . .
amounts to fundamental error.” Ritchie, 344 So. 3d at 388. And we
- 59 - unhesitatingly answer in the negative.
We have already concluded that any potential errors in the
prosecutor’s comments do not cumulatively amount to fundamental
error. Because Nixon’s supposed recantation does not undermine
Jackson’s confessions or impact any aggravation or mitigating
circumstances, any error in excluding that recantation has no effect
on a cumulative-error analysis. Nor does the omission in the jury
instruction add much weight in favor of Jackson. Indeed, we have
little reason to believe the jury viewed its role as anything but
immensely important. Lastly, even assuming that the fact of
Wade’s life sentence was nonstatutory “mitigation,” we conclude
that any error falls short of being “outcome-determinative,” id. at
389, for purposes of the fundamental error standard.
Jackson requests a remand for a new sentencing order on the
ground that the court failed to explain why it gave “no weight” to
five “established” nonstatutory mitigating circumstances. See supra
Section I.-D (circumstances 5, 8, 18, 22, and 24). Jackson claims
the court violated the Eighth Amendment under Eddings by
“refusing to consider” those five circumstances. And he asserts that
- 60 - “under Florida caselaw, which clashes with Eddings, trial judges
must at least give written justification for refusing to give any
weight to mitigation.” We conclude that no remand is warranted.
In Rogers v. State, 285 So. 3d 872 (Fla. 2019), after outlining
the requirements for a capital sentencing order, this Court
reiterated that “the determination of mitigating and aggravating
circumstances and the respective weight assigned to each [are]
within the trial court’s discretion.” Id. at 889 (alteration in original)
(quoting Griffin v. State, 820 So. 2d 906, 913 (Fla. 2002)). And this
Court receded from the “requirement that a trial court expressly
articulate why the evidence presented warranted the allocation of a
certain weight to a mitigating circumstance.” Id. at 890.
Months later, this Court in Newberry v. State, 288 So. 3d 1040
(Fla. 2019), rejected the defendant’s argument that “the trial court
erred when it found five mitigating circumstances were established
but ‘not mitigating.’ ” Id. at 1048-49. This Court found no abuse of
discretion, reasoning it was “apparent that the trial court
considered each of the mitigating circumstances proposed by [the
defendant] and determined that such circumstances were in fact
not mitigating and assigned them no weight.” Id. at 1049. Here, it
- 61 - appears the trial court similarly considered each proposed
mitigating circumstance, including five that the court determined
“were in fact not mitigating and assigned them no weight.” Id.
Accordingly, we find no error.
Eddings does not require a different conclusion. Eddings
reversed a death sentence where, in violation of Lockett, “the
sentencer” had impermissibly “refuse[d] to consider, as a matter of
law, any relevant mitigating evidence,” 455 U.S. at 113-14, even
though “Lockett requires the sentencer to listen” to mitigating
circumstances presented by the defendant, id. at 115 n.10. Here,
the trial court listened. That the trial court accorded no weight to
certain asserted mitigating factors does not violate Lockett. See
Trease v. State, 768 So. 2d 1050, 1055 (Fla. 2000) (recognizing that
Lockett “do[es] not preclude the sentencer from according [a]
mitigating factor no weight”).
7.
Jackson claims the court “constitutionally erred in permitting
racially discriminatory cause exclusions of jurors opposed to the
death penalty.” Jackson sought an order barring death
qualification of his jury. Citing certain studies and “[r]acism in
- 62 - government and the criminal justice system,” Jackson argued that
death qualification in Duval County disproportionately excludes
“jurors of color,” which would deprive Jackson of “the right to have
a jury that is representative of ones [sic] peers.” The court denied
Jackson’s motion. The court did not err in doing so.
Jackson largely recounts the contents of a study that
“examined twelve Duval County capital trials,” and he “lists the
races and selection outcomes” of jurors in his case. Jackson does
not point to any individual potential juror who was erroneously
excluded. Instead, he argues that people of color—despite, in his
words, having “greater opposition to the death penalty”—are
disproportionately excluded from capital juries.
Jackson cannot sidestep Lockhart v. McCree, 476 U.S. 162
(1986), which held “that the Constitution does not prohibit the
States from ‘death qualifying’ juries in capital cases.” Id. at 173. In
doing so, Lockhart declined to extend “[t]he limited scope of the fair-
cross-section requirement” to “petit juries, as opposed to jury
panels or venires.” Id. at 173-74. Lockhart further concluded that
“death qualification” would not violate the “fair-cross-section
requirement” “even if [the Court] were willing to extend the fair-
- 63 - cross-section requirement to petit juries.” Id. at 174. Lockhart
reached its decision over a dissent warning that death qualification
would “disproportionately affect the representation of blacks on
capital juries.” Id. at 201 (Marshall, J., dissenting).
Jackson argues that the dissent in Lockhart “knew better”
than the majority. To the extent Jackson seeks to overturn
Lockhart, he is in the wrong venue.
8.
Finally, Jackson claims the court abused its discretion by
denying his motion seeking a continuance or, in the alternative, to
proceed under Hurst. He presents two points of error. First, he
asserts that the failure to continue the case until after model jury
instructions were released resulted in the trial court erroneously
charging the jury. Second, he asserts that the denial of his motion
“deprived his lawyers of a meaningful opportunity to research and
raise all viable challenges to the new law.” We reject both points.
The abuse of discretion standard regarding a trial court’s
ruling on a motion for continuance “is generally not met ‘unless the
court’s ruling on the continuance results in undue prejudice to the
defendant.’ ” Smith v. State, 170 So. 3d 745, 758 (Fla. 2015)
- 64 - (quoting Snelgrove v. State, 107 So. 3d 242, 250 (Fla. 2012)).
Jackson cannot establish undue prejudice.
Jackson’s point of error regarding the jury charge is just a
repackaging of his failed Caldwell claim. And as to Jackson’s
claimed deprivation of an opportunity to raise “all viable
challenges,” the record reflects that—as outlined earlier—defense
counsel raised and argued numerous challenges, including: res
judicata; arbitrariness; bill of attainder; equal protection; lack of
adequate safeguards; evolving standards of decency; statutory
Caldwell violation; right to unanimity; and section 775.022(3)
precluding retroactivity. Jackson fails to identify any meritorious
challenge he would have raised had he been granted a continuance.
Indeed, at one hearing, defense counsel asserted there were
“perhaps” additional arguments that could be made.
III. CONCLUSION
For the reasons stated above, we affirm the death sentences
imposed at Jackson’s resentencing.
It is so ordered.
MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur. LABARGA, J., concurs in result with an opinion.
- 65 - NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
LABARGA, J., concurring in result.
“The unusual severity of death is manifested most clearly in its
finality and enormity. Death, in these respects, is in a class by
itself.” Furman v. Georgia, 408 U.S. 238, 289 (1972) (Brennan, J.,
concurring).
Today’s decisions in Hunt v. State, No. SC2024-0096 (Fla.
Dec. 18, 2025), and Jackson v. State, No. SC2023-1298 (Fla.
Dec. 18, 2025), reject challenges to the 2023 statutory amendment
that now requires only eight members of a twelve-person capital
jury to vote to recommend the death penalty, and I concur in the
result to the extent that these decisions are consistent with what
this Court has held since State v. Poole, 297 So. 3d 487 (Fla. 2020).
However, I write to underscore that the 8-4 threshold renders
Florida the absolute outlier among states that impose the death
penalty. Florida now has the lowest standard in the nation,
requiring the fewest number of jurors to recommend the death
penalty.
- 66 - When Hurst v. Florida 7 returned to this Court on remand from
the United States Supreme Court, I eagerly joined the majority in
Hurst v. State, 8 which held in part that the United States and
Florida constitutions required a jury’s recommendation of death to
be unanimous. When a majority of this Court receded from the
unanimity requirement little more than three years later in Poole, I
strenuously dissented to the majority’s conclusion that Hurst v.
State was wrongly decided.
Since Poole, this Court has consistently held that the
constitution does not require a unanimous recommendation of
death. My vote to concur in result is an acknowledgment of this
precedent. However, the concerns I expressed in my dissent in
Poole remain. There, I lamented this Court’s removal of jury
unanimity as a safeguard in Florida’s death penalty jurisprudence,
and I emphasized Poole’s effect of “return[ing] Florida to its status
as an absolute outlier among the jurisdictions in this country that
7. Hurst v. Florida, 577 U.S. 92 (2016).
8. Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020).
- 67 - utilize the death penalty.” Poole, 297 So. 3d at 513 (Labarga, J.,
dissenting). At that time, section 921.141, Florida Statutes, had
been amended in light of Hurst v. State to require a unanimous
recommendation of death—and the statute continued to require
unanimity until it was amended in 2023.
Among the states that continue to impose the death penalty,
only Alabama and Florida permit a nonunanimous jury
recommendation of death. See § 13A-5-46(f), Ala. Code (2025)
(requiring at least 10 members of the jury to recommend a sentence
of death); § 921.141(2)(c), Fla. Stat. (2025) (requiring at least eight
members of the jury to recommend a sentence of death). Thus,
Florida now falls below even the state of Alabama’s requirement
that at least 10 members of the jury recommend that a capital
defendant be sentenced to death. What is more, even the federal
death penalty statute requires a unanimous jury recommendation.
See 18 U.S.C. § 3593(e).
In my view, a jury’s unanimous recommendation of death
provides a narrowing function that is wholly warranted in this state
that, with 30 exonerations, still leads the nation in exonerations
from death row. Death Penalty Information Center,
- 68 - https://deathpenaltyinfo.org/state-and-federal-info/state-by-
state/florida (last visited Nov. 12, 2025). While a majority of this
Court has held that this Court’s interpretation of permissible
safeguards in the death penalty context is limited by the conformity
clause of the Florida Constitution, I continue to fundamentally
disagree that interpretations by the United States Supreme Court
constitute a ceiling and not a floor.
For these reasons, and because I continue to adhere to the
views expressed in my dissent in Lawrence v. State, 308 So. 3d 544
(Fla. 2020) (receding from the decades-long practice of conducting
proportionality review in direct appeals of sentences of death), I can
only concur in the result.
An Appeal from the Circuit Court in and for Duval County, Michael R. Weatherby, Judge Case No. 162005CF010263CXXXMA
Cassandra Stubbs and Brian W. Stull of American Civil Liberties Union, Capital Punishment Project, Durham, North Carolina, Megan D. Byrne and Alexandra C. Valdez of American Civil Liberties Union, Capital Punishment Project, New York, New York, and Daniel Tilley of American Civil Liberties Union Foundation of Florida, Miami, Florida,
for Appellant
- 69 - James Uthmeier, Attorney General, Jeffrey Paul DeSousa, Acting Solicitor General, and Michael Mervine, Senior Assistant Attorney General, Tallahassee, Florida,
for Appellee
Christopher D. Belelieu of Gibson, Dunn & Crutcher LLP, New York, New York,
for Amici Curiae Representatives Yvonne Hinson, Bracy Davis, Michele Rayner, Dianne Hart, Senator Dwight Bullard, NAACP Florida State Conference, and Equal Ground Education Fund
Melanie C. Kalmanson of Quarles & Brady, LLP, Tampa, Florida,
for Amici Curiae Florida Association of Criminal Defense Lawyers, the Florida Public Defender Association, Advancing Real Change, Inc., Conservatives Concerned About the Death Penalty, Craig Trocino, Esq., Death Penalty Focus, Florida Justice Institute, Floridians for Alternatives to the Death Penalty, the National Association of Criminal Defense Lawyers, Ripley Whisenhunt, PLLC, Witness To Innocence, and The 8th Amendment Project
- 70 -
Related
Cite This Page — Counsel Stack
Michael James Jackson v. State of Florida, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-james-jackson-v-state-of-florida-fla-2025.