Supreme Court of Florida ____________
No. SC19-1313 ____________
SCOTTIE D. ALLEN, Appellant,
vs.
STATE OF FLORIDA, Appellee.
June 3, 2021
PER CURIAM.
Scottie D. Allen appeals his conviction for first-degree murder
and his sentence of death. We have jurisdiction. See art. V, §
3(b)(1), Fla. Const. For the reasons below, we affirm Allen’s
conviction and sentence of death.
BACKGROUND
Allen was indicted for the October 2, 2017, first-degree
premeditated murder of Ryan Mason on June 25, 2018, and soon
thereafter began asserting his right to self-representation. After
finding Allen competent and conducting two inquiries under Faretta v. California, 422 U.S. 806 (1975), the trial court ruled that Allen
could represent himself pro se, without standby counsel. Allen’s
guilt phase occurred on February 19-20, 2018. In his opening
statement, Allen told the jury that he would not be presenting any
evidence or calling any witnesses because it was the State’s burden
to prove his guilt.
The evidence presented at trial established that while serving a
twenty-five-year prison sentence for second-degree murder, Allen
strangled Mason to death in the cell they shared at Wakulla
Correctional Institution. Allen confessed to planning and carrying
out Mason’s murder, including to an investigator from the Florida
Department of Law Enforcement (FDLE) during a recorded
interview, which was played for the jury, without objection from
Allen. As the trial court cogently explained in its sentencing order,
the evidence showed that:
[Allen] planned the murder for weeks after learning Mason had lied to him about the nature of the criminal offense that landed Mason in prison. Upon learning that Mason was convicted of child molestation, [Allen] decided he would kill him. [Allen] raped Mason periodically over the following two weeks to make Mason’s life miserable. During this time, [Allen] was paying careful attention to the timing of the inmate head counts throughout each
-2- day. On October 1, 2017, [Allen] decided the following morning would be the day he killed Mr. Mason. On the morning of October 2, 2017, in-between head counts, [Allen] raised and draped a sheet over the cell bars to keep anyone from being able to see into the cell. [Allen] then committed the murder and immediately made himself a cup of coffee, sat down, ate half of a honey bun and finished the cup of coffee.
Allen then calmly reported to a correctional officer that he had
murdered his cellmate, which resulted in the discovery of Mason’s
body.
During his recorded statement to the FDLE agent, Allen said
that Mason was “kicking like crazy” and that, during the strangling,
when Mason was still conscious, Allen told Mason, “I’m going to
strangle the life out of you. . . . Tell the devil I said hello.”
The medical examiner testified that Mason was choked with
such force as to fracture his C6 vertebrae and that after three to five
minutes of constant pressure, Mason suffered irreversible brain
damage and died. He further testified that the shirt found around
Mason’s neck was wrapped and knotted so tightly it was difficult to
cut through with a surgical scalpel, and that in addition to the
injuries indicating that Mason’s cause of death was ligature
-3- strangulation, Mason had injuries to his wrist, forearm, and ankle,
as well as unusual bruising behind his left knee.
The State presented testimony that the DNA mixture obtained
from the shirt found around Mason’s neck was 130 billion times
more likely to come from Allen and Mason than Mason and an
unrelated individual. In addition, the DNA mixture obtained from
the victim’s left-hand fingernails was 700 billion times more likely
to have come from Allen and Mason than Mason and an unrelated
individual.
After the State rested, Allen elected not to testify and rested
without presenting a defense. He also did not present a closing
argument. The jury found Allen guilty of first-degree murder on
February 20, 2019. 1
The penalty phase occurred later the same day, and Allen, who
continued to represent himself, did not present mitigation or
argument to the penalty-phase jury. Following the State’s
presentation, Allen’s jury unanimously found that the State had
established beyond a reasonable doubt the existence of the
1. Allen’s jury was instructed on first-degree premeditated murder.
-4- following four aggravating factors: (1) Allen was previously convicted
of a felony and under sentence of imprisonment; (2) Allen was
previously convicted of a felony involving the use or threat of
violence to another person; (3) the first-degree murder was
especially heinous, atrocious, or cruel (HAC); and (4) the first-
degree murder was committed in a cold, calculated, and
premeditated manner, without any pretense of moral or legal
justification (CCP). 2 In addition, the jury unanimously found that
the aggravating factors it found the State had established beyond a
reasonable doubt were sufficient to warrant a possible sentence of
death; found that one or more individual jurors had not found that
one or more mitigating circumstances was established by the
greater weight of the evidence; and unanimously found that the
aggravating factors it found the State had established beyond a
reasonable doubt outweighed the mitigating circumstances.
Finally, the jury unanimously found that Allen should be sentenced
to death.
2. The jury unanimously found that the State had not established beyond a reasonable doubt that the victim’s murder was committed for financial gain.
-5- Following the penalty-phase trial, Allen continued to represent
himself and maintained his desire not to present mitigation during
the Spencer3 hearing. The trial court ordered a presentence
investigation report (PSI) pursuant to Florida Rule of Criminal
Procedure 3.710(b). Additionally, the trial court appointed amicus
counsel to develop and present mitigation to the trial court at the
Spencer hearing. Amicus counsel retained Dr. Martin Falb as a
mental health expert, and Allen submitted to and cooperated with
an evaluation by Dr. Falb.
At the Spencer hearing, amicus counsel’s mitigation
presentation included the testimony of a mitigation specialist, who
testified regarding Allen’s background, and the testimony of Dr.
Falb, a forensic psychologist. Dr. Falb testified that he did not
diagnose Allen with antisocial personality disorder because the
psychologist who performed Allen’s competency evaluation had
already done so. However, Dr. Falb opined that as a result of
Allen’s antisocial personality disorder, he is “likely unable” to
conform his conduct to the requirements of the law. Dr. Falb also
3. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
-6- testified that Allen “suffered some extreme measures of trauma in
terms of emotional abuse, physical abuse, and sexual abuse
beginning at a young enough age, along with substance abuse,” and
that Allen received a “very, very high” score of six on the ten-
question Adverse Childhood Experiences (ACE) test. Based on the
testimony of the mitigation specialist during the Spencer hearing,
Dr. Falb testified that Allen’s ACE score could have been as high as
eight out of ten. Dr. Falb further opined that it was likely Allen
suffered from post-traumatic stress disorder (PTSD). In explaining
his PTSD diagnosis, Dr. Falb testified that Allen told him during
their interview, “I can’t say that what I did to him [the victim] wasn’t
related to my being angry about what had happened to me [earlier
in life], but I was mad that he had been lying to me [about why he
was in prison] for nine months.” Regarding Allen’s statement, “I
can’t say that what I did to him wasn’t related,” Dr. Falb testified
that this statement “makes the point” for “a recurrence of the PTSD
of that experience of what happened to [Allen] when he was being
molested back at the age of eight to eleven.” However, Dr. Falb
further testified that Allen’s statement, “I was mad at him for lying
-7- to me for nine months,” was not “inconsistent with somebody rising
to a level of anger if they’re antisocial.”
Following amicus counsel’s mitigation presentation, the State
relied on Florida Rule of Criminal Procedure 3.202 to argue that it
was entitled to have Allen evaluated by its own mental health
expert, Dr. Greg Prichard, for purposes of rebutting the testimony of
Dr. Falb. Allen stated, “I will not submit to an interview by [the]
prosecution’s doctor.” Despite voicing uncertainty about how to
proceed in light of Allen’s decision not to present mitigation—a
circumstance which rule 3.202 does not address—the trial court
ultimately ordered Allen to submit to an evaluation by the State’s
mental health expert. The trial court ruled that the evaluation
would be limited in scope to the mitigation addressed by Dr. Falb
and further told Allen that his “cooperation is appreciated” but that
if, during Dr. Prichard’s interview, Allen got “to a situation . . .
outside what [Allen] want[ed] to answer, then [Allen should] just tell
them that.” Allen cooperated with Dr. Prichard’s evaluation.
At the continued Spencer hearing on June 21, 2019, the
State’s mental health expert, Dr. Prichard, testified that he agreed
with Dr. Falb that Allen has antisocial personality disorder and
-8- further testified that “antisocial personality disorder is very much a
driving factor for [Allen].” However, Dr. Prichard disagreed with Dr.
Falb’s PTSD diagnosis and testified that he did not see any
indication of dissociation associated with PTSD. Dr. Prichard
further testified that Allen told him “he was completely sober and
straight the day the murder occurred,” that Allen “said that he
actually made the decision . . . on Friday that he was going to kill
[the victim on] Sunday,” and that Allen’s statements regarding the
murder indicate that the killing was “very calm and pretty well
planned out.” Consequently, Dr. Prichard opined that he “didn’t
see any indication of . . . mental, emotional disturbance anywhere
around the time of the offense.” Regarding the statutory mitigator
that Allen’s capacity to appreciate the criminality of his conduct
and conform his conduct to the requirements of law were
substantially impaired, Dr. Prichard agreed with Dr. Falb’s
testimony that “antisocial personality disorder intervenes” when
considering the mitigator. However, Dr. Prichard testified that Allen
“could conform and he did understand,” but acted “for his own
selfish reasons.” Dr. Prichard further opined that he did not see
-9- any indication that Allen was under duress at the time of the
murder.
Upon cross-examination by amicus counsel, Dr. Prichard
acknowledged that his disagreement regarding Dr. Falb’s PTSD
diagnosis did not mean that Allen had not suffered trauma as a
result of his background, including childhood sexual abuse.
However, Dr. Prichard reiterated his position that he “definitely”
disagrees with Dr. Falb’s PTSD diagnosis.
Allen, who was still representing himself pro se, also cross-
examined Dr. Prichard. While doing so, Allen referenced his
“agreement to be interviewed by [Dr. Prichard] in our last court
proceeding.” Much of Allen’s cross-examination of Dr. Prichard
focused on why Dr. Prichard disagreed with Dr. Falb’s PTSD
diagnosis.
On redirect, Dr. Prichard reaffirmed that he disagreed with Dr.
Falb’s PTSD diagnosis and testified that “everything with Mr. Allen
is better explained by personality issues than any kind of PTSD
response associated with trauma.” At the conclusion of Dr.
Prichard’s testimony, the prosecutor stated, “[T]he evidence
presented at trial is what we’re going to be relying on for the
- 10 - substantial amount of the aggravating -- or for the aggravating
circumstances. This was just rebuttal to the Amicus case.”
At the conclusion of the Spencer hearing, the trial court
discussed sentencing memoranda with the parties. Allen stated
that he would submit a pro se memorandum, in which he would “be
arguing toward the findings of Dr. Falb as far as the PTSD
diagnosis” and the “extreme mental distress . . . mitigator as well.”
Allen subsequently filed his sentencing memorandum, in which he
stated, “I cannot refute the evidence that was presented which led
to a finding of guilt[,] nor can I argue against the four aggravating
factors . . . which led to a 12-0 jury verdict for a sentence of death.”
Allen further stated, “I believe the amicus curiae you appointed for
mitigation did a great job given the material and restrictions they
had to contend with. So I leave any findings they made or
established unargued and supported. The one concern I have
though is the testimony of the State’s witness Dr. Prichard. I found
it to be made of 3⁄4 truths and spin as he said his ‘job’ was to refute
the findings of Dr. Falb. I don’t think he did that, as I tried to
establish during questioning of him during his testimony.”
- 11 - Thereafter, the trial court followed the jury’s recommendation
and sentenced Allen to death on July 23, 2019. The sentencing
order reflects that the trial court found and assigned great weight to
each of the four aggravating factors that Allen’s jury found to exist
beyond a reasonable doubt.
The trial court rejected the statutory mitigating circumstance
proposed by amicus counsel that the capital felony occurred while
Allen was under the influence of extreme mental or emotional
disturbance. In so doing, the trial court explained, in pertinent
part:
The Court finds competent evidence was presented to establish [Allen] has PTSD and Anti-Social Personality Disorder. The Court, however, does not find [Allen] was under extreme mental or emotional disturbance at the time the murder was committed. The murder was planned for weeks and was deliberate. The evidence clearly established [Allen] was calm and coherent immediately following the murder. There was no testimony or other credible evidence that [Allen] exhibited any signs of being under the influence of drugs, alcohol or from an episodic PTSD event at the time of the murder.
However, the trial court found one statutory mitigating
circumstance to which it assigned moderate weight, namely that
Allen’s ability to conform his conduct to the requirements of the law
- 12 - is substantially impaired “by adverse childhood experiences that
have rendered him less than effective at making good decisions.” In
addition, the trial court found the following five nonstatutory
mitigating circumstances and assigned them the noted weight: (1)
the defendant has been diagnosed with alcohol abuse and drug
dependency (some weight); (2) the defendant was diagnosed with
major depression (moderate weight); (3) the defendant was raised in
a dysfunctional family setting (great weight); (4) the defendant was
courteous, respectful, and considerate to the court during every
court appearance (some weight); and (5) the defendant did not want
his family contacted for mitigation purposes (some weight).
In sentencing Allen to death, the trial court further found as
follows:
The Court has conducted its own independent evaluation weighing the aggravating factors found by the jury in their verdict and weighing the mitigating circumstances presented and reasonably established by the evidence. The Court assigned great weight to each of the four aggravating factors. The Court finds the aggravating factors cumulatively outweigh the mitigating circumstances and a sentence of death is appropriate for the murder of Ryan Mason.
- 13 - ANALYSIS
In this direct appeal, Allen raises four unpreserved challenges
to his sentence of death. Specifically, Allen argues that (1) the trial
court’s failure to renew the offer of counsel before commencing the
penalty phase constitutes fundamental error; (2) a guilt-phase jury
instruction and a penalty-phase argument by the prosecutor violate
Caldwell v. Mississippi, 472 U.S. 320 (1985), and collectively
amount to fundamental error; (3) fundamental error occurred
because the State violated Allen’s Fifth Amendment right against
compelled self-incrimination during the Spencer hearing; and (4) the
trial court fundamentally erred by failing to instruct the penalty-
phase jury that it must determine beyond a reasonable doubt that
the aggravating factors were sufficient to justify the death penalty
and that those factors outweighed the mitigating circumstances.
The State raises the sufficiency of the evidence. See Fla. R. App. P.
9.142(a)(5).
(1) Failure to Renew Offer of Counsel
Allen first argues that the trial court’s failure to renew the offer
of counsel before commencing the penalty phase constitutes
fundamental error. We review this question of law de novo, see
- 14 - State v. Smith, 241 So. 3d 53, 55 (Fla. 2018), and hold that Allen is
not entitled to relief because the trial court cured the error, thereby
eliminating the need to address whether, had the error not been
cured, it would amount to fundamental error.
Contrary to our precedent and Florida Rule of Criminal
Procedure 3.111(d)(5), the trial court failed to renew the offer of
counsel between the guilt and penalty phases. See Traylor v. State,
596 So. 2d 957, 968 (Fla. 1992) (interpreting article I, section 16 of
the Florida Constitution as entitling a criminal defendant to “decide
at each crucial stage of the proceedings whether he or she requires
the assistance of counsel” and concluding that “[w]here the right to
counsel has been properly waived, . . . the waiver applies only to the
present stage and must be renewed at each subsequent crucial
stage where the defendant is unrepresented”); Fla. R. Crim. P.
3.111(d)(5) (“If a waiver is accepted at any stage of the proceedings,
the offer of assistance of counsel shall be renewed by the court at
each subsequent stage of the proceedings at which the defendant
appears without counsel.”); see also Muehleman v. State, 3 So. 3d
1149, 1156-57 (Fla. 2009) (applying Traylor and rule 3.111(d)(5) to
a penalty-phase trial).
- 15 - Although the offer of counsel was not renewed before the
penalty phase began, at the State’s urging, immediately after the
penalty-phase jury returned its recommendation, and again, sua
sponte, at a hearing the next day, the trial court inquired of Allen as
to whether, if the offer of counsel had been renewed between the
guilt and penalty phases, he would have accepted the offer of
penalty-phase counsel. Further, upon the State’s request that an
additional Faretta inquiry accompany the renewed offer of counsel,
the trial court conducted a “nunc pro tunc Faretta inquiry”—the
third Faretta inquiry in the case. In his responses to the trial court,
Allen consistently represented that he would have waived penalty-
phase counsel and that he would have continued to exercise his
right to self-representation had the trial court renewed the offer of
counsel before commencing the penalty phase. The trial court
found that Allen’s decisions, including to waive counsel, were
knowing, voluntary, and intelligent.
Because the record demonstrates that the trial court cured the
error while it still had jurisdiction to do so, by confirming with Allen
that he had not wavered in his decision to represent himself, see
Traylor, 596 So. 2d at 968, we hold that there is no basis for
- 16 - appellate relief. Cf. Sullivan v. State, 170 So. 2d 632, 635 (Fla.
1974) (“It is well-established law that where the trial judge has
extended counsel an opportunity to cure any error, and counsel
fails to take advantage of the opportunity, such error, if any, was
invited and will not warrant reversal.”).
(2) Caldwell
Next, Allen argues that the trial court’s guilt-phase jury
instruction that it was “the judge’s job to determine a proper
sentence” if the jury found Allen guilty of first-degree premeditated
murder, combined with the prosecutor’s statement during the
State’s penalty-phase opening argument that it would ask the jury
to return a “recommendation” of death, violate Caldwell and
collectively constitute fundamental error requiring a new penalty-
phase trial. We review this question of law de novo, see Davis v.
State, 136 So. 3d 1169, 1201 (Fla. 2018), and hold that Allen is not
entitled to relief.
Taking the statements in reverse order, no error, let alone
fundamental error, occurred as a result of the prosecutor’s
statement that he would ask the jury to return a “recommendation”
of death because the statement did not “improperly describe[] the
- 17 - role assigned to the jury by local law.” Romano v. Oklahoma, 512
U.S. 1, 9 (1994) (“[T]o establish a Caldwell violation, a defendant
necessarily must show that the remarks to the jury improperly
described the role assigned to the jury by local law.”) (quoting
Dugger v. Adams, 489 U.S. 401, 407 (1989)). Under the plain text
of Florida’s death penalty statute, a sentencing “recommendation” is
precisely what the penalty-phase jury provides. See § 921.141(2),
Fla. Stat. (2018).
Regarding the guilt-phase instruction, “[w]hen the jury is to be
involved in a penalty phase,” the standard jury instructions direct
trial courts to “omit” from the instructions the following italicized
sentence: “Your duty is to determine if the defendant has been
proven guilty or not, in accord with the law. It is the judge’s job to
determine a proper sentence if the defendant is found guilty.” Fla.
St. Jury Instr. (Crim.) 3.10 (emphasis added). The purpose of the
italicized sentence is to prevent a jury pardon on the issue of guilt.
See generally Broughton v. State, 790 So. 2d 1118, 1119 (Fla. 2d
DCA 2001) (explaining that the italicized sentence reflects “the
evolving policy of removing from a noncapital jury any knowledge of
potential penalties for the crimes with which a defendant is
- 18 - charged” to ensure “ ‘that the jury should decide a case in
accordance with the law and the evidence and disregard the
consequences of its verdict’ ”) (quoting Legette v. State, 718 So. 2d
878, 881 (Fla. 4th DCA 1998)). Precluding an improper jury pardon
on the issue of guilt is just as relevant in a capital case as a
noncapital case. However, because the instruction is an incomplete
statement of Florida law where the jury may go on to participate in
a penalty phase, the trial court should not have included it in the
guilt-phase instructions.
In addressing the instructional error, the State argues that
Allen “waived” any claim that the guilt-phase instruction
constitutes fundamental error because he “agreed” to it. The State
is correct that Allen stated he had “no objection” to the entirety of
the guilt-phase instructions read by the trial court. However, the
State’s attempt to label Allen’s statement as a “waiver” fails because
the statement does not amount to “the voluntary and intentional
relinquishment of a known right” that is necessary to establish a
“waiver.” Major League Baseball v. Morasani, 790 So. 2d 1071,
1077 n.12 (Fla. 2001). The record is devoid of any indication that
- 19 - Allen knew the instruction at issue deviated from the standard jury
instruction, but agreed to its use anyway.
Although the State’s claim is more properly analyzed as one of
“invited error,” that label also does not fit the facts. This Court’s
precedent requires more than “mere acquiescence” to an incorrect
jury instruction to support the conclusion that the defendant
invited the error and thereby is precluded from challenging the
error on appeal, even under a fundamental-error standard. See
Lowe v. State, 259 So. 3d 23 at 50 (Fla. 2018). More specifically, to
support a finding of invited error, defense counsel must either
request the incorrect instruction or be aware an instruction is
incorrect but agree to it anyway:
[This Court has] also recognized, in the context of certain erroneous jury instructions, a fundamental error analysis exception “where defense counsel affirmatively agreed to or requested the incomplete instruction.” State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994), receded from on other grounds by State v. Spencer, 216 So. 3d 481 (Fla. 2017). However, [this Court] also recognized in that context that the exception did not apply “where defense counsel merely acquiesced to [the incomplete] instructions.” Spencer, 216 So. 3d at 486.
- 20 - Id. 4
Applying Lowe to Allen’s case, the conduct necessary to
support a finding of invited error did not occur. However, we agree
4. In Lowe, we also cited approvingly to Black v. State, 695 So. 2d 459, 461 (Fla. 1st DCA 1997), for the proposition that “defense counsel [(1)] must be aware that an incorrect instruction is being read and [(2)] must affirmatively agree to, or request, the incomplete instruction.” 259 So. 3d at 50. However, this language has proven to be problematic, as it has caused some courts to conflate two different factual scenarios—i.e., acquiescing to an incorrect instruction versus requesting or affirmatively agreeing to an incorrect instruction—and improperly label unpreserved error as unreviewable, invited error. See, e.g., Calloway v. State, 37 So. 3d 891, 893, 896-97 (Fla. 1st DCA 2010) (concluding that the defendant “acquiesced” to alleged errors in jury instructions, thereby prohibiting reversal under the invited-error doctrine, where “defendant specifically agreed to the instructions and stated he had no objections to them as proposed [at the charge conference] and as read [to the jury]”). To be clear, acquiescing to an incorrect instruction constitutes a failure of preservation that does not preclude fundamental-error review. See Crain v. State, 894 So. 2d 59, 68 (Fla. 2004) (holding that the defendant failed to preserve his challenge to a jury instruction for appeal where “trial counsel did not object to the instruction when presented with a packet of corrected jury instructions before closing arguments”); Suarez v. Dugger, 527 So. 2d 190, 193 (Fla. 1988) (“Because trial counsel failed to object to the absence of [certain jury] instructions the matter was not properly preserved . . . .”). In contrast, unreviewable, invited error occurs when a party either proposes (i.e., requests) an instruction and therefore cannot argue against its correctness on appeal, or when a party is aware a standard instruction or an instruction proposed by another party is incorrect but agrees to its use anyway and as a result of having affirmatively agreed to the instruction cannot argue against its correctness on appeal. See Lowe, 259 So. 3d at 50.
- 21 - with the State on the merits that the trial court’s erroneous
inclusion of the guilt-phase instruction at issue did not violate
Caldwell or amount to fundamental error.
In Caldwell, a plurality of the Supreme Court ruled that “it is
constitutionally impermissible [under the Eighth Amendment] to
rest a death sentence on a determination made by a sentencer who
has been led to believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere.”
Caldwell, 472 U.S. at 328-29. Applying this rule, the Supreme
Court vacated the defendant’s death sentence after finding that his
jury was “led to believe that responsibility for determining the
appropriateness of a death sentence rest[ed] not with the jury but
with the appellate court which later reviews the case.” Id. at 323.
Since Caldwell, the Supreme Court has explained that, as a result
of precedent governing its plurality decisions, it “read[s] Caldwell as
‘relevant only to certain types of comment--those that mislead the
jury as to its role in the sentencing process in a way that allows the
jury to feel less responsible than it should for the sentencing
decision.’ ” Romano, 512 U.S. at 9 (quoting Darden v. Wainwright,
477 U.S. 168, 184 n.15 (1986)).
- 22 - In addressing Caldwell’s application to Florida’s capital
sentencing scheme, this Court has explained that “[i]n Caldwell, the
United States Supreme Court was considering the application of the
Mississippi death penalty procedure which is dissimilar to that
utilized by Florida” because “[t]he Florida procedure does not
empower the jury with the final sentencing decision; rather, the
trial judge imposes the sentence.” Combs v. State, 525 So. 2d 853,
856 (Fla. 1988). More recently, in Davis v. State, 136 So. 3d 1169,
1201 (Fla. 2014), this Court rejected the argument that the same
guilt-phase jury instruction that Allen challenges here violates
Caldwell. See also id. (rejecting the related claim that the
prosecutor “improperly disparaged the role of the jury” in violation
of Caldwell by referencing the jury’s “recommendation” as
“advisory” and stating that “the final [sentencing] decision rests
with [the trial court]”).
We recognize that, since Combs and Davis, Florida’s capital
sentencing scheme has changed in light of the mandate of Hurst v.
Florida, 577 U.S. 92, 102-03 (2016), that the Sixth Amendment
requires a jury to unanimously find beyond a reasonable doubt the
fact that renders the defendant eligible for imposition of the death
- 23 - sentence—i.e., the existence of a statutory aggravating
circumstance, State v. Poole, 297 So. 3d 487, 501-03 (Fla. 2020);
see § 921.141(2)(a)-(b), Fla. Stat. (2018). Also, Florida’s capital
sentencing scheme has since been amended in additional ways,
including requiring the jury’s recommendation for death to be
unanimous, see § 921.141(2)(c), and precluding the trial court from
imposing a sentence of death if the jury recommends a sentence of
life without the possibility of parole, see § 921.141(3)(a)1. Despite
these changes and the fact that the guilt-phase instruction in
Allen’s case was an incomplete statement of Florida law, Florida’s
statutory scheme remains a hybrid sentencing scheme that does
not place the ultimate responsibility for sentencing the defendant
on the jury. See § 921.141(2)-(4).
Moreover, in analyzing whether the “remarks to the jury
improperly described the role assigned to the jury by local law” so
as to violate Caldwell’s mandate against “mislead[ing] the jury as to
its role in the sentencing process in a way that allows the jury to
feel less responsible than it should for the sentencing decision,”
Romano, 512 U.S. at 9 (quoting Dugger, 489 U.S. at 407, and then
Darden, 477 U.S. at 184 n.15), we cannot myopically focus on a
- 24 - single statement or instruction. Rather, Caldwell claims are
properly evaluated by “look[ing] to the ‘total trial scene,’ including
jury selection, the guilt phase of the trial, and the sentencing
hearing, examining both the court’s instructions and counsel’s
arguments to the jury.” Barrientes v. Johnson, 221 F.3d 741, 777
(5th Cir. 2000) (quoting Montoya v. Scott, 65 F.3d 405, 420 (5th Cir.
1995)).
In Allen’s case, despite the guilt-phase instructional error, the
record establishes that the jury was properly informed as to its role
in Allen’s sentencing, including that if the jury found Allen guilty of
first-degree premeditated murder, a separate penalty-phase trial
would occur in which the jury’s role would be to determine Allen’s
eligibility for the death penalty and recommend the appropriate
sentence. Large portions of jury selection were devoted to
addressing the jury’s role should the case proceed to a penalty
phase, including the death qualification of the jury, and the trial
court properly instructed the jury regarding its role during the
penalty phase. Thus, no Caldwell violation occurred.
Nor did the guilt-phase instructional error amount to
fundamental error in light of the correct penalty-phase jury
- 25 - instructions and accurate descriptions of the jury’s role in
sentencing that otherwise permeated Allen’s trial. See Bush v.
State, 295 So. 3d 179, 212 (Fla. 2020) (explaining that where, as
here, the claim of fundamental error relates to the death sentence,
“fundamental error” is error that “reaches down into the validity of
the trial itself to the extent that a . . . jury recommendation of death
could not have been obtained without the assistance of the alleged
error”) (quoting Card v. State, 803 So. 2d 613, 622 (Fla. 2001)).
Accordingly, we deny relief as to this claim.
(3) Fifth Amendment
Next, Allen argues that the State’s introduction of his
statements through Dr. Prichard’s rebuttal testimony during the
Spencer hearing violated his Fifth Amendment right against
compelled self-incrimination and that the error was fundamental.
We review this legal issue de novo. See Smith, 241 So. 3d at 55.
Compelling the mental health examination of a defendant
during the penalty phase of a capital trial potentially implicates the
Fifth Amendment protection against any person being “compelled in
any criminal case to be a witness against himself.” U.S. Const.
amend. V; see Estelle v. Smith, 451 U.S. 454, 468 (1981) (“A
- 26 - criminal defendant, who neither initiates a psychiatric evaluation
nor attempts to introduce any psychiatric evidence, may not be
compelled to respond to a psychiatrist if his statements can be used
against him at a capital sentencing proceeding.”); see also generally
Burns v. State, 699 So. 2d 646, 651 (Fla. 1997) (“[T]he Fifth
Amendment right against self-incrimination, made applicable to the
States through the Fourteenth Amendment, continues through the
sentencing phase of a capital murder trial.”).
However, permitting the State’s mental health expert to
examine a capital defendant in order to rebut the defense’s penalty
phase mental health expert testimony does not violate the Fifth
Amendment right against self-incrimination. Davis v. State, 698 So.
2d 1182, 1191 (Fla. 1997); see also Philmore v. State, 820 So. 2d
919, 932-33 (Fla. 2002) (rejecting capital defendant’s argument that
“a compelled mental health evaluation under Florida Rule of
Criminal Procedure 3.202 impermissibly requires the defendant to
forego either his constitutional right to present mitigating evidence
or forego his constitutional right not to be a witness against
himself” and “conclud[ing] that there is no error, let alone
fundamental error, in allowing the State to subject the defendant to
- 27 - a mental health examination after the defendant decides to present
mitigation”); Dillbeck v. State, 643 So. 2d 1027, 1030 (Fla. 1994)
(holding trial court did not abuse discretion “in striving to level the
playing field by ordering Dillbeck to submit to a prepenalty phase
interview with the State’s expert” where “Dillbeck planned to, and
ultimately did, present extensive mitigating evidence in the penalty
phase through defense mental health experts who had interviewed
him”).
Allen’s case presents facts that do not neatly fit within this
Court’s precedent or the text of rule 3.202, which establishes the
procedure by which the State’s mental health expert may examine a
defendant who has been convicted of capital murder with respect to
the “mitigating circumstances the defendant expects to establish
through expert testimony” and provides consequences for the
defendant’s refusal to cooperate. Fla. R. Crim. P. 3.202(d)-(e).
Here, Allen declined to present any mitigation to the penalty-phase
jury or to the trial court during the Spencer hearing. However, the
trial court exercised its discretion to appoint amicus counsel to
develop and present mitigation during the Spencer hearing. Thus, it
was the trial court’s decision, not Allen’s, that mitigation should be
- 28 - presented on Allen’s behalf. Consequently, it was the trial court’s
decision, not Allen’s, that resulted in Allen’s evaluation by amicus
counsel’s mental health expert, Dr. Falb, which in turn resulted in
the trial court compelling Allen’s examination by the State’s rebuttal
mental health expert, Dr. Prichard, and the subsequent
introduction of Allen’s compelled statements through both experts.
These facts suggest the making of a Fifth Amendment
quandary. 5 But, there is more. Allen does not challenge his
compelled evaluation by amicus counsel’s expert, Dr. Falb. On the
contrary, in the pro se sentencing memorandum that Allen filed in
the trial court, he adopted amicus counsel’s mitigation
presentation. Moreover, in this appeal, to remedy the alleged Fifth
Amendment violation, Allen seeks to retain the benefit of the mental
5. As the State’s brief suggests, allowing the trial court to force a mitigation presentation upon an unwilling, competent defendant in order to avoid a potential Eighth Amendment problem, see generally Muhammad v. State, 782 So. 2d 343, 363-64 (Fla. 2001), that no United States Supreme Court decision says exists also potentially implicates the conformity clause of the Florida Constitution, see art. I, § 17, and the right to self-representation under both the United States and Florida Constitutions. However, these issues were not raised below, and it is unnecessary to consider them to resolve the Fifth Amendment claim that Allen raises on appeal.
- 29 - health mitigation established through Dr. Falb’s testimony but
strike the rebuttal mental health testimony that the State presented
through Dr. Prichard.
We hold that by making the mental health mitigation
presented by amicus counsel his own, Allen has forfeited his claim.
The Fifth Amendment is a shield, not a sword or a scalpel, cf.
Kansas v. Cheever, 571 U.S. 87, 94 (2013) (“[W]hen a defendant
chooses to testify in a criminal case, the Fifth Amendment does not
allow him to refuse to answer related questions on cross-
examination.”), and it does not provide cover for unrebutted mental
health mitigation, cf. Philmore, 820 So. 2d at 932-33 (“[T]here is no
error, let alone fundamental error, in allowing the State to subject
the defendant to a mental health examination after the defendant
decides to present mitigation.”); see also Estelle, 451 U.S. at 468
(limiting availability of Fifth Amendment claim to “[a] criminal
defendant, who neither initiates a psychiatric evaluation nor
attempts to introduce any psychiatric evidence”).
However, even if we were to accept Allen’s argument that the
Supreme Court’s decision in Estelle requires us to conclude that a
Fifth Amendment violation occurred, he still would not be entitled
- 30 - to relief. Any Fifth Amendment error in admitting Allen’s compelled
statements through Dr. Prichard would not satisfy the applicable
standard of fundamental error that applies to our review of Allen’s
unpreserved Fifth Amendment claim. See Smith, 241 So. 3d at 55.
The first-degree murder at issue was substantially aggravated and
included three of the qualitatively weightiest aggravators in Florida’s
capital sentencing scheme: CCP, HAC, and prior violent felony. See
Damas v. State, 260 So. 3d 200, 216 (Fla. 2018). The mitigation,
which included the trial court’s crediting of Dr. Falb’s PTSD
diagnosis over Dr. Prichard’s rebuttal testimony that Allen does not
have PTSD, was comparatively minimal. Moreover, the record is
clear that Allen’s statements to Dr. Prichard were used for purposes
of rebutting mitigation, not to establish aggravation that would have
rendered Allen eligible for the death penalty. Any error in admitting
Allen’s statements through the rebuttal testimony of Dr. Prichard
during the Spencer hearing did not “reach[] down into the validity of
the trial itself to the extent that [the sentence of death] could not
have been obtained without the assistance of the alleged error.”
Bush, 295 So. 3d at 212. Accordingly, any error was not
fundamental. Id.
- 31 - Therefore, we deny relief as to this claim.
(4) Penalty-Phase Jury Instructions
In the last issue Allen raises on appeal, he argues that the trial
court fundamentally erred by failing to instruct the jury that it must
determine beyond a reasonable doubt whether the aggravating
factors were sufficient to justify the death penalty and whether
those factors outweighed the mitigating circumstances. We have
repeatedly held that “these determinations are not subject to the
beyond a reasonable doubt standard of proof.” Newberry v. State,
288 So. 3d 1040, 1047 (Fla. 2019) (citing Rogers v. State, 285 So.
3d 872, 878-79 (Fla. 2019)); see also Rogers, 285 So. 3d at 886
(holding that “the sufficiency and weight of the aggravating factors
and the final recommendation of death” are not elements and “are
not subject to the beyond a reasonable doubt standard of proof”).
Although Allen urges us to reconsider our precedent, he fails to
demonstrate that it is “clearly erroneous.” Poole, 297 So. 3d at 507.
Accordingly, because the trial court did not err, let alone
fundamentally so, in instructing the penalty-phase jury, we deny
relief as to this claim.
- 32 - (5) Sufficiency
“In appeals where the death penalty has been imposed,”
regardless of whether the defendant raises the sufficiency of the
evidence as an issue on appeal, this Court “independently reviews
the record to confirm that the jury’s verdict is supported by
competent, substantial evidence.” Davis v. State, 2 So. 3d 952,
966-67 (Fla. 2008); see also Fla. R. App. P. 9.142(a)(5). “In
determining the sufficiency of the evidence, the question is whether,
after viewing the evidence in the light most favorable to the State, a
rational trier of fact could have found the existence of the elements
of the crime beyond a reasonable doubt.” Bradley v. State, 787 So.
2d 732, 738 (Fla. 2001).
Sufficient evidence supports Allen’s conviction for first-degree
murder under the theory that the murder was premeditated. See
Glover v. State, 226 So. 3d 795, 804 (Fla. 2017) (explaining that to
prove first-degree premeditated murder, the State must establish
that (1) the victim is dead, (2) the victim’s death was premeditated,
and (3) the victim’s death resulted from the criminal act of the
defendant). Allen confessed multiple times to planning the victim’s
killing and to strangling the victim to death. DNA evidence
- 33 - collected from the shirt around the victim’s neck and from under
the victim’s fingernails and testimony from the medical examiner
corroborate Allen’s confessions. Accordingly, the evidence is
sufficient to support Allen’s conviction.
CONCLUSION
For the foregoing reasons, we affirm Allen’s conviction for first-
degree murder and his sentence of death.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., concurs in result with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
LABARGA, J., concurring in result.
Although the trial court failed to renew the offer of counsel
before Allen’s penalty phase began, the trial court subsequently
conducted multiple inquiries during which Allen maintained his
decision to represent himself. Because Allen’s repeated refusals of
counsel throughout the trial proceedings corroborate his belated
waiver, I agree that he is not entitled to relief.
- 34 - However, I adhere to the view expressed in my dissenting
opinion in Lawrence v. State, 308 So. 3d 544 (Fla. 2020) (receding
from proportionality review requirement in death penalty direct
appeal cases), and consequently, I can only concur in the result.
An Appeal from the Circuit Court in and for Wakulla County, Ronald Wallace Flury, Judge –652018CF000203CFAXMX
Jessica Yeary, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida,
for Appellant
Ashley Moody, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, Florida,
for Appellee
- 35 -