Steven Matthew Wolf v. State of Florida

• Court: Supreme Court of Florida
• Decided: July 10, 2025
• Docket: SC2023-1077
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC2023-1077 ____________

STEVEN MATTHEW WOLF, Appellant,

vs.

STATE OF FLORIDA, Appellee.

July 10, 2025

PER CURIAM.

Steven Wolf appeals his convictions for first-degree murder,

two counts of sexual battery with force likely to cause injury, and

tampering with physical evidence, and his sentence of death for the

murder. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For

the reasons explained, we affirm.

I. BACKGROUND

Around 2:00 p.m. on November 21, 2018, the nude body of a

female was found by a fisherman in a woodline near the Vaca Cut

Bridge in Marathon, Florida. The fisherman recognized the victim as someone who lived in the area and called 911. There were deep

ligature marks on the victim’s neck, scratch marks on the back of

her heels, and smeared blood and scratches on her buttocks.

Vegetation near the body appeared to be freshly damaged, and there

were car parts on the ground, which appeared to have come from

an older model conversion van with a wraparound skirt.

During a canvass of the nearby area, a conversion van was

observed driving through a parking lot with vegetation stuck in its

windows and damage to its wraparound skirt, consistent with the

car parts found near the body. Wolf was identified as the driver of

the van and detained. He agreed to speak with law enforcement

and provide a DNA sample.

During the interview, Wolf initially denied knowing anything

about the victim or the murder and claimed that no one had been

in his van. But he did admit to driving down near where the body

was found and damaging and breaking parts off his van in the

process. Wolf eventually changed his story, telling law enforcement

that he had picked up the victim and her boyfriend at the Walmart

in Florida City the morning of November 21. Wolf said he met them

in front of the Walmart, and they were hitchhiking to Key West.

-2- According to Wolf, during the drive back down through the

Keys, the victim and her boyfriend started having sex in the back of

the van and later argued. Wolf said he did not hear any struggling,

just “lovemaking sounds.” Wolf said that near Long Key, the

boyfriend came up to the front of the van and told Wolf that the

victim was dead and that he needed to get rid of the body. Wolf

said he did not notice any blood on the boyfriend. Wolf claimed the

boyfriend remained in the front seat and that they had “neighborly

talk” during the drive to Vaca Cut. Wolf said when he pulled into

the area where the body was found, the boyfriend jumped out of the

van. Wolf said he heard the body being pulled out of the van and

hitting the ground, and then the boyfriend just walked away.

Wolf claimed he then drove to a dollar store and bought a soda

before driving to the Marathon library where he discovered a “lake”

of blood in the back of the van. Wolf said he spent the afternoon

cleaning the van and disposing of evidence in dumpsters and trash

cans in the area. He said he washed his bloody hands at a

McDonald’s and at the library.

Throughout this portion of his statement, Wolf repeatedly

pitied himself for not calling the police as soon as possible and

-3- lamented that he would spend the rest of his life in jail for that

mistake. He repeatedly claimed that he never touched the victim

before eventually saying that he touched her once, “touched her in

[his] bed after she was gone,” “touched her spirit in [his] heart and

[he] touched her blood.”

Dr. Michael Steckbauer, the medical examiner who performed

the autopsy on the victim’s body, observed ligature curl furrows

coursing around her neck, from front to back, with the two lines

coming together at the base of her neck. A distinctly shaped cord

with a slip apparatus recovered from Wolf’s van during the

execution of a search warrant was consistent with the distinctly

shaped ligature furrows on the victim’s neck. A large amount of

hemorrhage in the strap muscles and deep tissues of the victim’s

neck indicated that she was alive when she was strangled.

Petechiae were observed in the victim’s eyes. There was

hemorrhaging and small lacerations on her lips, consistent with

being caused by her teeth upon the application of a blunt force to

her mouth and lips. She had bruising on her ankles, knee, thigh,

and wrists, some abrasions or lacerations at her hairline, and some

-4- abrasion and bruising on her left breast. She had what appeared to

be a bite mark on her chin.

There were extreme injuries to the victim’s genitalia. There

was a large, nearly six-and-a-half-centimeter, full thickness

laceration in the anus that went all the way through to the

abdominal cavity. There was an eleven-centimeter, full thickness

laceration in the vagina that went through and into the fat and soft

tissues of the pelvic region. Dr. Steckbauer said that the

circumference(s) of the object(s) that caused the injuries necessarily

would have been larger than what the elasticity of the vaginal vault

and the anal vault would be able to withstand, because in both

situations, it (or they) surpassed their ability to stay intact. Male

genitalia could not have caused the injuries. The extensive

hemorrhaging confirmed that the victim was alive when the injuries

were inflicted, but either injury would have been fatal within

minutes. In addition to the major injuries, there were also a large

number of smaller, superficial lacerations throughout the surface of

the vaginal vault.

Wolf’s DNA was found on the fingernail clippings from the

victim’s right hand and the apparent bite mark on her chin. Wolf’s

-5- Y-STR DNA profile matched the Y-STR profile obtained from the

sperm cell fraction recovered from anal swabs of the victim. The

victim’s DNA was found in multiple areas of Wolf’s van and on

various items recovered from dumpsters and trashcans in which

Wolf admitted to disposing of evidence. Wolf’s cell phone indicated

visits to “Big Bigger Biggest in the Butt-Pornhub.com” and “Bigger

the Better Extreme Insertions-Pornhub.com” in the days before the

murder.

Wolf was charged with first-degree murder, two counts of

sexual battery with force likely to cause injury, and tampering with

physical evidence. He was tried in January 2023 and found guilty

of all four counts. He presented no evidence at the guilt phase.

At the penalty phase, the State introduced into evidence the

preliminary hearing transcript, guilty plea colloquy, and judgment

and sentence for Wolf’s prior conviction for second-degree murder

in 1978. Wolf published additional portions of the preliminary

hearing and plea hearing transcripts that the State had admitted

and then rested. Wolf told his attorneys that he did not want them

calling anybody from his life into court to testify on his behalf,

which he confirmed on the record.

-6- The jury found all three proposed aggravating factors proven

beyond a reasonable doubt: (1) the capital felony was committed

while the defendant was engaged in the commission of a sexual

battery; (2) the capital felony was especially heinous, atrocious, or

cruel (HAC); and (3) the defendant was previously convicted of a

felony involving the use or threat of violence to the person. The jury

also unanimously found that the aggravating factors were sufficient

to warrant a possible sentence of death; that at least one or more

jurors found that one or more mitigating circumstance was

established by the greater weight of the evidence; that the

aggravating factors outweighed the mitigating circumstances; and

that Wolf should be sentenced to death.

At the Spencer1 hearing, the defense introduced letters from

members of the community and the Interfaith Council in support of

a life sentence. Defense counsel again informed the court that Wolf

did not want counsel to call any witnesses, had forbidden counsel

from speaking to his family, and told his family and friends not to

speak with counsel. Wolf maintained his innocence but told the

1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

-7- trial court that the jury’s death recommendation deserves a lot of

weight. He said, “[S]omebody should pay for this. There’s a bill

due. I can pay it.” He told the court, “I can’t show remorse for

something that I didn’t do[,] but I think that by law I’m just as

guilty as the person who never got caught, this phantom man . . . .

And I understand that, regardless of the sentence, that justice is

being served.”

In sentencing Wolf, the trial court agreed with the jury that all

three aggravating factors were proven beyond a reasonable doubt.

It assigned great weight to the prior violent felony and during the

commission of a sexual battery aggravators and enormous weight to

the HAC aggravator. The trial court found the following other

factors in Wolf’s background that would mitigate against imposition

of the death penalty established: Wolf’s prior prison sentence, which

he began serving at age eighteen and which lasted approximately

thirty years (moderate weight); Wolf is religious (slight weight);

mercy (moderate weight); Wolf was exposed to serious criminal

conduct by his father at some point in his youth (slight weight);

Wolf is a caring father (slight weight); and Wolf had appropriate

courtroom demeanor and behavior (slight weight). After the trial

-8- court “identified, analyzed, and weighed all of the aggravating

factors and mitigating circumstances,” it concluded that “the

aggravating factors outweigh the mitigating circumstances by an

overwhelming margin which means that the scales of justice tip

unquestionably to the side of death,” and that the murder of the

victim was among “the worst of the worst” and “one of those cases

for which the death penalty is reserved.” On June 29, 2023, the

trial court sentenced Wolf to death. This appeal follows.

II. ANALYSIS

A. Venue

Wolf first argues that the trial court erred in denying his

motions for judgment of acquittal based on the State’s failure to

prove venue as to the murder and sexual batteries, because no one

testified that they occurred in Monroe County. Wolf argued that

because the evidence showed that his van was on the road from

11:30 a.m. to 1:15 p.m. on November 21, 2018, and that the victim

was already dead by that time, proper venue would lie in Miami-

Dade County “because that is where it is likely she died based on

-9- the evidence.”2

The timeline offered by Wolf reflects the evidence presented at

trial. Video surveillance showed that Wolf was at the Florida City

Walmart in Miami-Dade County between 11:20 and 11:29 a.m. and

that he pulled off the road at Vaca Cut near Marathon in Monroe

County one hour and forty-six minutes later, at 1:15 p.m. The

State presented testimony that it takes an hour and a half to two

hours to drive from Marathon to the area of the Florida City

Walmart, which was consistent with him leaving the Walmart

parking lot shortly after exiting the Walmart store at 11:29 a.m.

There was no direct evidence of the victim’s time of death, but

the evidence showed that she was likely killed before 6:00 a.m. on

November 21, 2018. But lividity (or livor mortis)—the pooling of

blood in the body due to gravity after death—provided some

indication of when the victim was killed. Dr. Steckbauer testified

2. Wolf claimed in his statement to law enforcement that he left the Keys and arrived at the Florida City Home Depot after dark on November 20, 2018. He said he pulled into Home Depot near the Walmart, ran an errand, and went to sleep. Law enforcement obtained video surveillance from the Florida City Home Depot covering the night of November 20 and overnight into the morning of November 21, but neither Wolf nor his van was seen on the video.

- 10 - that by the time the victim’s body was rolled, lividity had already

set, so he would put her time of death as at least twelve hours

earlier. The evidence showed that the body was rolled sometime

between 5:00 and 6:00 p.m. Because the body was rolled by 6:00

p.m. and the time of death was a minimum of twelve hours earlier,

then the victim was killed no later than 6:00 a.m. on November 21,

2018, which was nearly five and a half hours before Wolf was

captured on video at the Florida City Walmart.

There was no evidence of when Wolf arrived in Miami-Dade

County before appearing on the Walmart surveillance video other

than the claim made in his interview with law enforcement that he

pulled into a Home Depot near the Walmart after dark on November

20 and “did [an] errand there and went to sleep.” Video surveillance

was obtained from the Florida City Home Depot covering the night

of November 20 and overnight into the morning of November 21,

but neither Wolf nor his van was observed on the video.

“This Court reviews the denial of a motion for judgment of

acquittal de novo, upholding the conviction where supported by

competent, substantial evidence.” Johnson v. State, 238 So. 3d

726, 739 (Fla. 2018). “Venue need not be established beyond a

- 11 - reasonable doubt.” Simmons v. State, 934 So. 2d 1100, 1112 (Fla.

2006) (quoting Lowman v. State, 85 So. 166, 167 (Fla. 1920)).

“[V]enue is sufficiently proven if the jury can reasonably infer from

the evidence that the crime occurred in the county where the trial

occurs.” Id.

Based on the evidence at trial, Wolf’s jury could reasonably

infer that the sexual batteries and murder were committed in

Monroe County. Wolf told law enforcement that the victim was

killed in his van near Long Key—which is in Monroe County—and

although the time at which Wolf claimed the murder occurred was

conclusively refuted by other evidence, the location where Wolf

claimed the murder occurred was not. Wolf discarded the victim’s

body near Vaca Cut in the Middle Keys, deep in Monroe County. He

discarded evidence of the murder in various dumpsters and trash

cans deep in Monroe County. He washed the victim’s blood off his

hands deep in Monroe County. The only credible evidence of Wolf

being in Miami-Dade County on November 20 or 21, 2018, was the

Walmart video showing him there between 11:10 and 11:29 a.m. on

November 21, 2018. The victim had been murdered at least five

- 12 - hours earlier,3 according to the evidence presented at trial. A jury

could reasonably have discredited Wolf’s claim that he visited the

Florida City Home Depot on November 20 and his implication that

he spent the night there—which was not substantiated by the Home

Depot surveillance video—and inferred that the victim was killed on

November 20 or 21 in Monroe County, before Wolf entered Miami-

Dade County and was captured on video at the Walmart.

It was reasonable for the jury to infer that the crimes occurred

in Monroe County despite the possibility that they occurred in

another county. See id. at 1113 (“While it is possible that the

murder and sexual battery could have occurred in a different

county, it is reasonable for a jury to infer that the crimes occurred

in Lake County.”); id. (concluding that evidence was sufficient for

jury to infer that crimes occurred in Lake County where victim was

seen in defendant’s car in Lake County on the night of December 1,

2001, and victim’s body was discovered in Lake County on the

3. Wolf is seen on the video entering the Walmart alone at 11:24 a.m., going into the bathroom, and exiting the Walmart alone at 11:29 a.m. The video directly contradicts Wolf’s story that he met the victim and her boyfriend in front of the Walmart near large double doors.

- 13 - morning of December 3, 2001). Thus, the trial court did not err in

denying Wolf’s motions for judgment of acquittal.

B. Challenges to Prospective Jurors

Wolf next asserts that the trial court erred in ruling on cause

challenges to several jurors and in denying him a third additional

peremptory strike.

1. State’s Challenge

Wolf argues that the trial court erred in granting the State’s

cause challenge to Prospective Juror 225 based on her reservations

about the death penalty. We disagree.

This Court considers a prospective juror’s responses to

questions about the death penalty on voir dire in their totality.

Johnson v. State, 969 So. 2d 938, 946 (Fla. 2007). “A juror must be

excused for cause if any reasonable doubt exists as to whether the

juror possesses an impartial state of mind.” Ault v. State, 866 So.

2d 674, 683 (Fla. 2003). A trial court has great discretion when

deciding whether to grant or deny a challenge for cause based on

juror competency. Barnhill v. State, 834 So. 2d 836, 844 (Fla.

2002). But prospective jurors may not be excused for cause simply

because they voice general objections to the death penalty.

- 14 - Witherspoon v. Illinois, 391 U.S. 510, 522 (1968). The critical

question is whether the prospective juror’s views would prevent or

substantially impair the performance of her duty under oath and in

accordance with the judge’s instructions. Wainwright v. Witt, 469

U.S. 412, 424 (1985). A prospective juror’s inability to be impartial

about the death penalty need not be shown with “unmistakable

clarity.” Id. Even where there is a “lack of clarity in the printed

record, . . . there will be situations where the trial judge is left with

the definite impression that a prospective juror would be unable to

faithfully and impartially apply the law.” Sanchez-Velasco v. State,

570 So. 2d 908, 915 (Fla. 1990) (quoting Witt, 469 U.S. at 425-26).

The trial judge’s predominant function in determining juror bias

involves making credibility findings whose basis cannot be easily

discerned from an appellate record. Witt, 469 U.S. at 429. “[T]his

is why deference must be paid to the trial judge who sees and hears

the juror,” Sanchez-Velasco, 570 So. 2d at 915 (quoting Witt, 469

U.S. at 426), and this Court will not overturn a trial court’s ruling

on a cause challenge absent manifest error, which is tantamount to

an abuse of discretion, Loyd v. State, 379 So. 3d 1080, 1088 (Fla.

2023), cert. denied, 145 S. Ct. 188 (2024).

- 15 - Prospective Juror 225 gave equivocal or even evasive answers

when asked whether she could recommend the death penalty if she

felt it was appropriate. She answered affirmatively when asked

whether she would be reluctant to recommend the death penalty

even if she found it to be otherwise appropriate. When asked

whether her exposure to podcasts, opinions, or reports discussing

“botched” executions would cause her to be reluctant to impose the

death penalty if she otherwise felt it was appropriate, she responded

that she was unsure but indicated a hesitation to recommend

death. She specifically expressed concern that Wolf’s “execution

might be botched or might be inappropriate for some reason.”

When asked whether her concerns about “botched” executions and

the financial implications of the death penalty on the taxpayers

would impair her ability to recommend the death penalty if she

otherwise felt it was appropriate, she refused to give a definite

answer and reiterated that it would be better not to have a death

penalty. Incongruently, when asked whether she could “consider

the death penalty as an appropriate penalty,” she answered, “Yes.”

In granting the cause challenge, the trial court found that it

was not “a close call.” The court noted that Prospective Juror 225

- 16 - “was just really in distress” when being questioned about the death

penalty. Although she said she could consider the death penalty,

the court did not believe that she had “a meaningful willingness to

genuinely consider both options” and instead had an “absolute

prejudice against the death penalty.”

In their totality, Prospective Juror 225’s responses established

a reasonable doubt as to whether her views on the death penalty

would substantially impair her ability to perform her duties as a

juror. While the prospective juror ultimately stated that she could

“consider” the death penalty, she consistently expressed

reservations about her ability to recommend it—based on what she

had heard about it from podcasts or other people’s opinions or

reports—even if it were otherwise justified. And we will not disturb

the trial court’s credibility finding regarding her lack of a

meaningful willingness to genuinely consider both a life sentence

and a death sentence. The “distress” observed by the trial court

cannot be gleaned from the record, which demonstrates the

importance of this Court’s deference to the trial court, which is able

to see and hear the way the prospective juror answered the

questions. Under these circumstances, we cannot conclude that

- 17 - the trial court abused its discretion or committed manifest error in

excusing Prospective Juror 225 for cause.

2. Wolf’s Challenges

Wolf argues that his cause challenges to Prospective Jurors

54, 7, and 303 were erroneously denied. He exercised peremptory

strikes on Prospective Jurors 54 and 7, and they did not serve on

the jury. Wolf claims that he was erroneously denied an additional

peremptory strike to use to remove Prospective Juror 303 from the

jury,4 and she did serve on the jury.

a. Prospective Juror 54

Wolf claims that the trial court erred in failing to excuse

Prospective Juror 54 for cause because there was reasonable doubt

about his ability to serve based on him saying, “And you know, if

you did it, that’s it.” Wolf argued that the meaning behind this

statement was that if there was a conviction, Prospective Juror 54

4. Wolf had peremptory challenges available at the time that his cause challenge to Prospective Juror 303 was denied, but he did not exercise one on her at that time. It was not until he had exhausted all ten peremptory strikes and the two additional that were granted and requested even more additional strikes that he mentioned a desire to exercise a peremptory strike on Prospective Juror 303.

- 18 - would automatically recommend a death sentence. The trial court

denied the cause challenge, stating that “once the Court clarified

things,” it was apparent the prospective juror “had a willingness to

be open to either option.” Wolf then exercised a peremptory strike

on Prospective Juror 54.

“In a death penalty case, a juror is only unqualified . . . if he or

she expresses an unyielding conviction and rigidity toward the

death penalty.” Barnhill, 834 So. 2d at 844. Prospective Juror 54

initially agreed when defense counsel asked if he thought a person

guilty of an unprovoked first-degree murder of an innocent person

should forfeit their life. But when he was further questioned by

counsel and the court, his responses clearly demonstrated that he

did not have an unyielding conviction and rigidity toward the death

penalty, even under the scenario posed by the defense regarding the

unprovoked, premeditated, first-degree murder of an innocent

person. We find no abuse of discretion in the denial of the

challenge.

b. Prospective Juror 7

Wolf argues that his cause challenge to Prospective Juror 7

was improperly denied because, according to Wolf, “he was another

- 19 - one who said he would have to hear mitigation if the aggravators

were proved” before he could recommend a life sentence. The

challenge was denied without elaboration, and Wolf exercised a

peremptory strike on Prospective Juror 7.

Contrary to Wolf’s assertion, Prospective Juror 7 did not say

that he could consider a life sentence only in the presence of the

most extreme mitigation or only if the defendant were mentally ill

and had forgotten to take his medication. It was only after being

pressed by defense counsel to offer an example that the prospective

juror offered mental illness and failure to take prescribed

medication as an example of a scenario he might find mitigating.

He did not say that he would require mitigation before considering a

life sentence. When told that he could always exercise mercy and

that a death sentence is never required, Prospective Juror 7

indicated a deep understanding of the concept of mercy and stated

that he had no problem having mercy, though he candidly

questioned how much mercy he could have on a person who is

convicted of the first-degree murder of an innocent victim.

Prospective Juror 7 possessed a greater understanding than most

prospective jurors of the legal concepts he would have been asked

- 20 - to apply, the roles of the parties, judge, and jury, and the awesome

responsibility of the judge and jury in a capital case.

The record does not demonstrate that Prospective Juror 7 had

an unyielding conviction and rigidity toward the death penalty or a

refusal to consider mitigation or mercy. The fact that he questioned

the amount of mercy he might be able to show to a convicted first-

degree murderer of an “innocent victim”—which was the scenario

offered by defense counsel—did not render him unfit to serve on the

jury. The trial court did not abuse its discretion in denying the

cause challenge.

c. Prospective Juror 303

Wolf’s cause challenge to Prospective Juror 303 on the

allegation that she “indicated she would have to hear mitigation in

order to make a decision [to recommend a life sentence], thereby

shifting the burden,” was also denied. Wolf has misconstrued the

prospective juror’s words. What Prospective Juror 303 actually said

was: “[I]f there’s mitigating circumstances, I’m open to a life

sentence.” That statement does not exclude the possibility that she

would exercise mercy in the absence of mitigating circumstances,

and she was not asked if she could do so. Nor does the statement

- 21 - suggest an unwillingness or inability to follow the law as instructed.

Wolf also fails to consider the fact that Prospective Juror 303 said

she was “echoing” other prospective jurors, indicating that her

statement was made in a particular context, which she was not

asked to address, and which Wolf has not addressed. Wolf has not

shown that the trial court abused its discretion or committed

manifest error in denying his cause challenge to Prospective Juror

303.

Because we have not found any error in the denial of these

cause challenges, Wolf is not entitled to relief based on the trial

court’s refusal to grant him an additional peremptory strike to

exercise on Prospective Juror 303. See Busby v. State, 894 So. 2d

88, 96-97 (Fla. 2004) (“In the State of Florida, expenditure of a

peremptory challenge to cure the trial court’s improper denial of a

cause challenge constitutes reversible error if a defendant exhausts

all remaining peremptory challenges and can show that an

objectionable juror has served on the jury.”). Even if we had

concluded that one or two of these three cause challenges were

erroneously denied, Wolf would still not be entitled to relief because

the trial court granted him two additional peremptory challenges.

- 22 - See id. at 97 (“A defendant cannot demonstrate prejudice if the trial

court grants the same number of additional peremptories as cause

challenges that were erroneously denied.”).

C. Hearsay

Wolf’s next claim is that the trial court erroneously admitted

hearsay to prove that his van was on the path at Vaca Cut near

where the victim’s body was found. Lieutenant Charlene Sprinkle

testified at trial about the car parts found on the ground near the

victim’s body. She said that a description and photographs of the

parts were provided to a Florida Highway Patrol trooper and one of

the Monroe County detectives, because they were familiar with body

work and rebuilding cars. Lieutenant Sprinkle continued, “And

they said that--they said what you’re looking for--,” at which point

she was interrupted by an objection to hearsay. The State argued

that what Lieutenant Sprinkle was about to say was not being

offered for the truth of the matter asserted, “but only to determine

what [Lieutenant Sprinkle] was looking for” as she canvassed the

area near where the body was found. The court overruled the

objection. Lieutenant Sprinkle then testified: “So we were told that

- 23 - we were looking for an older-model conversion van with [an]

aftermarket wraparound skirt” that was damaged.

Based on this information, Lieutenant Sprinkle and another

sheriff’s deputy executed a stop on Wolf’s van near Vaca Cut on

November 21, 2018, which led to Wolf’s detention and eventual

arrest. Wolf claims the out-of-court statements of the trooper and

detective were admitted through Lieutenant Sprinkle without a

legitimate purpose and their “real effect” was to inform jurors that

Wolf’s van was a match to the car parts found at Vaca Cut.

Hearsay is defined as “a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” § 90.801(1)(c),

Fla. Stat. (2022). “Except as provided by statute, hearsay evidence

is inadmissible.” § 90.802, Fla. Stat. (2022). A trial court’s decision

to admit evidence is reviewed under the abuse of discretion

standard. Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008). If the

trial court erred in admitting certain evidence, this Court reviews

whether the error was harmful, focusing on the effect that the error

had upon the trier of fact. Gregory v. State, 118 So. 3d 770, 782

(Fla. 2013).

- 24 - Lieutenant Sprinkle’s testimony that information originating

from the nontestifying trooper and detective was relayed to her

indicating their opinion that the car parts found at Vaca Cut

belonged to an older model conversion van with an aftermarket

wraparound skirt was not hearsay. It was not offered to prove that

the parts found at the scene were from Wolf’s van or even from an

older model conversion van with an aftermarket wraparound skirt.

It was offered to show why Lieutenant Sprinkle took an interest in

Wolf’s van and why—combined with the observed damage to the

van—it was stopped, and Wolf was detained. That the parts found

near the body matched Wolf’s van was not proven through

Lieutenant Sprinkle; it was proven by Wolf’s admission that he

drove his van down to where the body was left and that parts broke

off his van in the process, as well as by testifying officers and

photographs.

Wolf’s claim that admission of Lieutenant Sprinkle’s testimony

about information originating from the nontestifying officers

violated the Confrontation Clause is likewise without merit. Even

assuming that the information relayed to Lieutenant Sprinkle was

testimonial, the Confrontation Clause “does not bar the use of

- 25 - testimonial statements for purposes other than establishing the

truth of the matter asserted.” Crawford v. Washington, 541 U.S. 36,

59 n.9 (2004).

Even if the testimony had been admitted to prove that the car

parts found near the body came from Wolf’s van, that testimony

would have been cumulative to other evidence, including Wolf’s own

admission that his van was used to transport the victim’s body to

the location where it was found and that parts broke off his van in

the process. Thus, there is no reasonable possibility that

Lieutenant Sprinkle’s testimony about the information she received

about the parts affected the verdict, and we would conclude that

any error was harmless beyond a reasonable doubt.

D. Penalty Phase Closing

Wolf points to three instances of alleged prosecutorial

misconduct during the closing arguments of the penalty phase,

which he claims deprived him of due process of law: (1) the State

improperly asked the jury to show Wolf the same mercy he showed

the victim; (2) the State argued Wolf’s failure to take responsibility

or confess as nonstatutory aggravation; and (3) the State relied on

facts not in evidence to prove the HAC aggravator. None of these

- 26 - allegations of misconduct were the subject of a contemporaneous

objection at trial, so we review them only for fundamental error.

See Brooks v. State, 762 So. 2d 879, 898-99 (Fla. 2000) (stating that

failure to object to improper comments in closing waives any

appellate claim unless the impropriety rises to the level of

fundamental error, i.e., error that reaches down into the validity of

the trial itself to the extent that a verdict of guilty could not have

been obtained without the assistance of the alleged error).

1. “Same Mercy” Comments

Wolf’s first allegation of prosecutorial misconduct is that the

State impermissibly argued that the jury should show Wolf the

same mercy that he showed the victim. In its penalty phase

opening, the State said to the jurors that when considering whether

to recommend mercy to “think to yourself he asked for mercy when

he was not willing to give any.” In closing, the State again

addressed mercy. Referring to the fact that Wolf had been given a

second chance upon being released from prison for his first murder

conviction, the State said, “He had it and he threw it away and now

he asks you for mercy when he was unwilling to give it.”

- 27 - While the State did not directly say to the jury that it should

show Wolf that same mercy Wolf showed the victim, the clear

implication was that the jury should show Wolf no mercy because

he showed the victim no mercy. This Court has repeatedly

condemned such arguments. E.g., Ritchie v. State, 344 So. 3d 369,

379 (Fla. 2022) (“[T]he State may not, in seeking a recommendation

of death, ask the jury to show the defendant the ‘same mercy’ as

the defendant showed to the victim.”); Merck v. State, 975 So. 2d

1054, 1061-62 (Fla. 2007) (condemning as improper the State’s

description of the defendant’s proposed mitigation as “[t]hings

about [the defendant’s] background they believe should warrant you

affording him some mercy that he never afforded [the victim]” and

the argument that “there should be no mercy for a merciless

crime”); Brooks, 762 So. 2d at 901 (condemning State’s request to

jury that if tempted to show the defendants mercy, it should show

them the same mercy that defendants showed the victim, which

was none); Thomas v. State, 748 So. 2d 970, 985 n.10 (Fla. 1999)

(reiterating, where prosecutor asked jury to show defendant “the

same mercy that he showed to” the victim, “that asking a jury to

show as much mercy to a defendant as he showed the victim is a

- 28 - clear example of improper prosecutorial misconduct, which

constitutes error and will not be tolerated”); Urbin v. State, 714 So.

2d 411, 421 (Fla. 1998) (holding State’s request that jury show

defendant the same amount of mercy that he showed the victim

“blatantly impermissible”). “[W]hether [the defendant] showed the

victim mercy during the killing is irrelevant to the jury’s

determination as to whether to extend mercy to [the defendant].”

Ritchie, 344 So. 3d at 380. Thus, although the State did not use

the words “same mercy,” the comments here nonetheless fall into

the “same mercy” category of comments that this Court has

declared “blatantly impermissible” and “will not be tolerated.” See,

e.g., Miller v. State, 926 So. 2d 1243, 1255 (Fla. 2006) (holding that

prosecutor’s argument that defendant did not care about the victim

but now wants the jury to care about him and recommend a life

sentence was similar to “same mercy” arguments and “dangerously

close” to becoming a nonstatutory aggravator); Richardson v. State,

604 So. 2d 1107, 1109 (Fla. 1992) (concluding that it was error for

the prosecutor to ask the jury to show the defendant as much pity

as he showed the victim).

- 29 - Despite the impermissible nature of the comments, they do

not rise to such a level that a recommendation of death could not

have been obtained without them. Given the strength of the

evidence against Wolf, the gravity and weight of the aggravators,

and the minimal and relatively weak mitigation, it cannot be said

that the jury would not have recommended a death sentence or that

the trial court would not have imposed a death sentence if the

improper “same mercy” comments had not been made. Because the

error was not fundamental, Wolf is not entitled to relief on this

issue.

2. Nonstatutory Aggravation

Wolf next argues that the State impermissibly argued his

failure to confess to and take responsibility for his crimes as

nonstatutory aggravation. In its penalty phase closing, the State,

without objection, pointed out that Wolf repeatedly lied to law

enforcement and got rid of evidence. The State argued several times

that Wolf’s purpose in doing do was to avoid responsibility for the

“[T]he proper exercise of closing argument is to review the

evidence and to explicate those inferences which may reasonably be

- 30 - drawn from the evidence.” Dessaure v. State, 891 So. 2d 455, 468

(Fla. 2004) (quoting Bertolotti v. State, 476 So. 2d 130, 134 (Fla.

1985)). The comments that Wolf lied to law enforcement and got rid

of evidence were not improper nonstatutory aggravation but a

review of evidence and explication of a reasonable inference to be

drawn from it. Even if we found the comments improper, we would

conclude that they do not rise to the level of fundamental error.

3. Reliance on Facts Not in Evidence

Wolf claims that the State relied on facts not in evidence to

establish the HAC aggravator. This claim is based on a

misstatement of Dr. Steckbauer’s testimony. The State argued to

the jury that Dr. Steckbauer testified that the victim “could have

survived and lived and did live for 20 minutes or more

approximately for her to bleed out, so she definitely was alive

during this process,” which was not an accurate reflection of Dr.

Steckbauer’s testimony. Wolf also argues that “[n]otwithstanding

the use of the word ‘live[d],’ ” what the State really meant was that

the victim was conscious for twenty minutes or more after the fatal

injury or injuries were inflicted. He claims that the State

intentionally misstated the evidence in order to persuade the jury

- 31 - that the victim was conscious and aware of her impending death, a

necessary element of the HAC aggravator, and that without the

misstatement, the State would not have been able to prove the HAC

aggravator.

There is nothing in the record to support Wolf’s claims that

what the State really meant was that the victim was conscious for

twenty minutes or more after the fatal injury or injuries were

inflicted or that the State intentionally misstated the evidence in

order to persuade the jury that the victim was conscious and aware

of impending death. What Dr. Steckbauer actually said was that

the victim’s death could have come in as few as four minutes or as

many as twenty minutes after the fatal wound or wounds were

inflicted. But the amount of time that the victim survived after the

infliction of the fatal injury or injuries is not determinative of

whether she was conscious and aware of her impending death.

That awareness could have existed even before the fatal wounds

were inflicted, especially considering Wolf’s use of ligature

strangulation and the absolute brutality of the sexual batteries in

this case. And in concluding that HAC was proven, the trial court

did not rely on the time that the victim was alive or conscious after

- 32 - the fatal injury was inflicted. We therefore reject Wolf’s assertion

that without the misstatement, the State would not have been able

to prove the HAC aggravator.

The misstatement of Dr. Steckbauer’s testimony did not reach

into the validity of the trial such that a recommendation of death

could not have been obtained in its absence. Thus, the State’s

misstatement does not rise to the level of fundamental error.

E. Denial of a Mercy Instruction

Wolf filed a motion for the following special jury instruction to

be read during his penalty phase: “But again, you are never

required to impose a death sentence. You may always consider

mercy in making this determination.” The motion was heard at the

penalty phase charge conference and denied. It was raised again in

Wolf’s motion for a new trial, in which he argued that failing to give

the instruction was an error and that in its closing, “the State

denigrated the defense of ‘[m]ercy’ and shifted the burden in

claiming the ‘Defendant did not show the victim any mercy.’ ”

Wolf acknowledges that we have repeatedly held that the

standard jury instructions, though they omit the word mercy, are

sufficient to instruct the jury on this issue, and a special

- 33 - instruction is not required. But Wolf argues that “this case is

different because the prosecution undermined the effect of the

instruction” by tying the jury’s decision to show mercy to the mercy

Wolf did not show to the victim, which therefore “negated the

standard silent-mercy instruction,” requiring a direct instruction.

The denial of a special jury instruction is reviewed for an

abuse of discretion. Bevel v. State, 376 So. 3d 587, 596-97 (Fla.

2023), cert. denied, 144 S. Ct. 2570 (2024). Failing to give an

instruction based on an argument that was not preserved below is

reviewed only for fundamental error. See Victorino v. State, 23 So.

3d 87, 101 (Fla. 2009).

Wolf is not entitled to relief. This Court has indeed repeatedly

determined that Florida Standard Jury Instruction 7.11 (Criminal)

adequately informs jurors of the applicable legal standard. E.g.,

Loyd, 379 So. 3d at 1095; Bevel, 376 So. 3d at 597; Woodbury v.

State, 320 So. 3d 631, 656 (Fla. 2021); Bush v. State, 295 So. 3d

179, 210 (Fla. 2020). This Court has even referred to the relevant

provision of Standard Instruction 7.11 as the “mercy instruction.”

See Woodbury, 320 So. 3d at 656 (quoting Reynolds v. State, 251

So. 3d 811, 816 n.5 (Fla. 2018)). “Thus, the court did read an

- 34 - instruction on mercy, and although [the defendant] might have

preferred the wording of his proposed instruction, Standard Jury

Instruction 7.11 is not ambiguous when it comes to addressing the

jurors’ options.” Id. (alteration in original).

Further, “the failure to give special jury instructions does not

constitute error where the instructions given adequately address

the applicable legal standards.” Stephens v. State, 787 So. 2d 747,

755 (Fla. 2001). Wolf has not shown that the “same mercy”

comments made by the State somehow negated the standard

instructions and therefore required a direct instruction on mercy.

Wolf’s jury was instructed: “Regardless of the result of each juror’s

individual weighing process—even if you find that the sufficient

aggravators outweigh the mitigators—the law neither compels nor

requires you to determine that the defendant should be sentenced

to death.” There is nothing to support the idea that this instruction

is somehow insufficient to communicate what the law requires of

the jury despite the fact that it does not use the word “mercy.” And

Wolf was permitted to and did argue to the jury that if it did not

find the mitigation sufficient to spare Wolf’s life, it should look to

mercy to do so. Thus, we find no error in the denial of Wolf’s

- 35 - request for a special mercy instruction, even given the State’s “same

mercy” comments.

F. HAC

Wolf argues that because there was no evidence that the

victim was conscious and aware of her impending death, the State

failed to prove that the murder was HAC, and the trial court erred

giving the HAC instruction to the jury and in finding it proven in the

sentencing order.

The trial court made the following findings when analyzing the

HAC aggravator:

5. The Court finds that the State has proven beyond a reasonable doubt the aggravating factor under Section 921.141(6)(h), Florida Statutes, that the capital felony was especially heinous, atrocious or cruel. In the course of murdering [the victim], the Defendant brutally violated the most intimate and private parts of her body. While maintaining control over [the victim] with a ligature wrapped around her neck causing furrows to be dug into the right side of her neck and hemorrhaging in all of the strap muscles going down into the deep tissues of the neck, the Defendant repeatedly inserted into her anus and vagina an object larger than either of those orifices were anatomically capable of accommodating. As a result, [the victim] sustained traumatic injuries to her pelvic region consisting of a large full thickness laceration in both her anal vault and her vaginal vault accompanied by numerous smaller lacerations, damage to the surrounding tissue, and extensive blood loss.

- 36 - 6. According to the testimony of Dr. Michael Steckbauer, the board-certified pathologist who performed the autopsy, the level of injuries inflicted upon [the victim] would have caused excruciating pain. Due to the massive amount of bleeding, Dr. Steckbauer was unable to determine how long [the victim] remained alive during the attack and to what extent she was conscious. However, it was the Doctor’s professional opinion that she was conscious during at least part of the murder and sexual batteries because the intensity of pain would have been enough to rouse even a person who was unconscious. Certainly, the condition of [the victim]’s body indicated that at some point she was alive and conscious and felt excruciating pain and the terror of being raped and murdered and knew that she was about to die. In addition to the injuries caused by the ligature, she had bruises on her ankles and wrists, lacerations and hemorrhages on the inside of her mouth, and petechia[e] in her eyes, all of which Dr. Steckbauer testified were inflicted at or near the time of death. Clearly, at some point [the victim] knew what was happening to her and tried to resist but was overcome by the Defendant’s brutal use of force. Ultimately, [the victim] was the victim of an especially heinous, atrocious, and cruel murder. The Court assigns enormous weight to this aggravating factor.

“The standard of review this Court applies to a claim regarding

the sufficiency of the evidence to support an aggravating

circumstance is that of competent, substantial evidence.”

Guardado v. State, 965 So. 2d 108, 115 (Fla. 2007). “When

reviewing a trial court’s finding of an aggravator, ‘it is not this

Court’s function to reweigh the evidence to determine whether the

- 37 - State proved each aggravating circumstance beyond a reasonable

doubt—that is the trial court’s job.’ ” Aguirre-Jarquin v. State, 9 So.

3d 593, 608 (Fla. 2009) (quoting Willacy v. State, 696 So. 2d 693,

695 (Fla. 1997)). This Court reviews the record to “determine

whether the trial court applied the right rule of law for each

aggravating circumstance and, if so, whether competent[,]

substantial evidence supports its finding.” Id. (quoting Willacy, 696

So. 2d at 695).

We have explained

that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies—the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

Williams v. State, 37 So. 3d 187, 198 (Fla. 2010) (quoting

Hernandez v. State, 4 So. 3d 642, 668-69 (Fla. 2009)). Although

“awareness of impending death is critical in determining whether

[an attack] unnecessarily tortured the victim,” Deviney v. State, 322

So. 3d 563, 575 (Fla. 2021) (alteration in original) (quoting Buzia v.

- 38 - State, 926 So. 2d 1203, 1212 (Fla. 2006)), we have “upheld the HAC

aggravator where the victim was conscious for merely seconds,”

Buzia, 926 So. 2d at 1214 (citing Rolling v. State, 695 So. 2d 278,

296 (Fla. 1997)). “[A]n important factor in determining if the victim

was conscious and aware of impending death has been the

presence of defensive wounds.” Campbell v. State, 159 So. 3d 814,

833 (Fla. 2015).

Here, Dr. Steckbauer testified that the injuries on the victim’s

legs were not inconsistent “with her legs being used as some sort of

defensive measure” and that the bruises on her ankles and wrists,

the lacerations and buccal, and the petechiae in her eyes were

evidence of a struggle. Dr. Steckbauer opined that the victim “was

conscious for some part of the experience.”

The trial court’s conclusion that “at some point [the victim]

knew what was happening to her” is supported by competent,

substantial evidence. And there is no doubt that this murder was

extremely wicked or shockingly evil; outrageously wicked and vile;

and designed to inflict a high degree of pain with utter indifference

to, or even enjoyment of, the suffering of the victim. It certainly

falls outside “the norm of capital felonies.” Thus, the trial court did

- 39 - not err in finding the HAC aggravator. Nor is there any merit to

Wolf’s claim that the trial court erred in instructing the jury on

HAC, because “a trial judge is obligated to instruct the jury on HAC

if the State presents evidence that could establish that aggravating

circumstance.” Kopsho v. State, 84 So. 3d 204, 219 (Fla. 2012)

(citing Stewart v. State, 558 So. 2d 416, 420 (Fla. 1990) (explaining

that where there is evidence of a mitigating or aggravating factor,

trial court is required to give instruction on that factor)).

Wolf also argues that the trial court relied on facts not in

evidence to find that the murder was HAC, namely, Dr.

Steckbauer’s testimony that in his “professional opinion,” the victim

“was conscious during at least part of the murder and sexual

batteries because the intensity of pain would have been enough to

rouse even a person who was unconscious,” which was given during

a voir dire outside the presence of the jury. This claim lacks merit

for two reasons.

First, although Dr. Steckbauer’s “professional opinion”

statement was made outside the presence of the jury, he also

testified to the substance of it before the jury. He testified before

the jury that the victim’s vaginal and anal injuries would have

- 40 - caused “significant and severe pain” and that that the victim “was

conscious for some part of the experience.” Only the specific

testimony that the degree of the pain would have been enough to

rouse even a person who was unconscious was not before the jury.

Second, this Court said in Porter v. State, 400 So. 2d 5, 7 (Fla.

1981), that “[s]hould a sentencing judge intend to use any

information not presented in open court as a factual basis for a

sentence, he must advise the defendant of what it is and afford the

defendant an opportunity to rebut it.” The logical application of the

ruling in Porter to this case is that the sentencing judge was

permitted to use any information presented in open court as a

factual basis for the sentence. Thus, because Dr. Steckbauer’s

“professional opinion” that the victim “was conscious during at least

part of the” attack was presented in open court without objection,

the trial court did not err in relying on it in the sentencing order.

G. Failure to Charge Aggravators in the Indictment

Wolf argues that because the indictment did not allege the

aggravating factors that the State intended to prove, he was denied

his right to have a grand jury decide whether he should face the

death penalty. We have repeatedly rejected claims that a charging

- 41 - instrument must list the aggravators that render eligibility for

death. E.g., Cruz v. State, 320 So. 3d 695, 730 (Fla. 2021);

Sanchez-Torres v. State, 322 So. 3d 15, 23 (Fla. 2020); Hall v. State,

246 So. 3d 210, 217 (Fla. 2018); Pham v. State, 70 So. 3d 485, 496

(Fla. 2011); Miller v. State, 42 So. 3d 204, 215 (Fla. 2010); Rogers v.

State, 957 So. 2d 538, 554 (Fla. 2007). Wolf offers no valid reason

for this Court to recede from its precedent. We therefore conclude

that Wolf is not entitled to relief.

H. Cumulative Error

Wolf argues that the cumulative effect of the errors at his trial

deprived him of a fair trial, due process of law, and a reliable

sentencing process. We have identified two errors in this appeal:

the State’s improper “same mercy” argument and its misstatement

of Dr. Steckbauer’s testimony regarding the length of time the

victim survived after the infliction of the fatal injury or injuries.

Neither of these improper arguments was the subject of a

contemporaneous objection, and neither rose to the level of

fundamental error. Even when considered cumulatively, they did

not deprive Wolf of a fair trial, and he is therefore not entitled to

relief. See Smith v. State, 320 So. 3d 20, 33 (Fla. 2021) (“[R]elief is

- 42 - not warranted if there is ‘no reasonable probability that the

cumulative effect of these errors affected [a defendant’s] right to a

fair trial.’ ” (second alteration in original) (quoting Floyd v. State,

850 So. 2d 383, 408 (Fla. 2002))).

I. Sufficiency of the Evidence

Although Wolf does not challenge the sufficiency of the

evidence to sustain his conviction for first-degree murder, this

Court independently reviews the record in death penalty cases to

determine whether competent, substantial evidence supports the

conviction. Fla. R. App. P. 9.142(a)(5) (“On direct appeal in death

penalty cases, whether or not insufficiency of the evidence is an

issue presented for review, the court must review the issue and, if

necessary, remand for the appropriate relief.”). “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.” Allen v. State, 322 So. 3d 589, 603

(Fla. 2021) (quoting Bradley v. State, 787 So. 2d 732, 738 (Fla.

2001)).

- 43 - The jury was instructed on theories of both premeditated

murder and felony murder and returned a general verdict of guilty

of first-degree murder. A “general guilty verdict rendered by a jury

instructed on both first-degree murder alternatives may be upheld

on appeal where the evidence is sufficient to establish either felony

murder or premeditation.” Crain v. State, 894 So. 2d 59, 73 (Fla.

2004). The evidence in this case is sufficient to sustain the

conviction on both theories.

To establish first-degree premeditated murder, the State was

required to prove the following elements: (1) the victim is dead; (2)

the death was caused by the criminal act of Wolf; and (3) there was

a premeditated killing of the victim. To prove first-degree felony

murder, the State was required to prove the following three

elements: (1) the victim is dead; (2) while engaged in the

commission of a sexual battery, Wolf caused the death of the victim;

and (3) Wolf was the person who actually killed the victim. To prove

the crime of sexual battery for purposes of felony murder, the State

was required to prove: (1) Wolf committed an act upon the victim in

which the anus or vagina of the victim was penetrated by an object;

(2) Wolf’s act was committed without the consent of the victim; (3)

- 44 - at the time of the offense, the victim was eighteen years of age or

older; and (4) at the time of the offense, Wolf was eighteen years of

age or older.

The evidence presented at trial established that Wolf

repeatedly lied and told inconsistent stories regarding how and

where he encountered the victim and how she died, but he admitted

that she died in his van during or immediately after a sexual act.

Wolf admitted he was in the van at the time the victim died and

when her body was discarded, and there was no evidence

suggesting that a third party was present.

The victim died from extreme injuries to her vagina and anus,

causing massive hemorrhaging that was fatal within minutes. The

circumference of the object(s) that caused the injuries surpassed

what the elasticity of the vaginal and anal vaults could withstand.

The pain caused by the injuries would have been excruciating.

Prior to the murder, Wolf’s phone accessed pornographic websites

depicting the insertion of large objects into the human body. The

victim was also strangled while still alive with an object consistent

with a distinctly shaped cord with a slip apparatus recovered from

Wolf’s van. Other injuries to the victim’s body were indicative of a

- 45 - struggle. Wolf confessed to cleaning evidence out of his van and

disposing of evidence in various locations rather than reporting the

murder. DNA matching Wolf’s was found in the victim’s anus and

on her fingernail clippings and the apparent bite mark on her chin.

The record contains competent, substantial evidence from

which a rational trier of fact could have found the existence of the

elements of the crime of first-degree murder under theories of both

premeditation and felony murder beyond a reasonable doubt.

III. CONCLUSION

Having reviewed each of Wolf’s claims individually and his

claim of cumulative error, we affirm the judgments of conviction

and sentences, including the sentence of death.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, and FRANCIS, JJ., concur. GROSSHANS, J., concurs with an opinion. SASSO, J., concurs specially with an opinion. LABARGA, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

GROSSHANS, J., concurring.

I fully concur with the majority’s opinion in that it correctly

applies our precedent with regard to “same mercy” arguments.

- 46 - However, given the concerns raised by Justice Sasso’s

concurrence—including our precedent’s foundational roots and the

well-reasoned analysis in other jurisdictions—I agree that the

impermissibility of “same mercy” arguments should be revisited in a

future case when fully briefed by the parties.

SASSO, J., concurring specially.

I agree that Wolf’s judgment and sentence should be affirmed.

I write separately because we have characterized as “impermissible”

the prosecutor’s comment that jurors should consider Wolf “asked

for mercy when he was not willing to give any.” This is an accurate

characterization based on this Court’s line of precedent condemning

same-mercy arguments. That said, I question whether this Court

should retain that line of precedent.

By prohibiting same-mercy arguments, Florida stands in

contradiction to several other state and federal courts. See Gabrion

v. United States, No. 1:15-cv-447, 2018 WL 4786310, at *83 (W.D.

Mich. Oct. 4, 2018) (noting disagreement between state courts,

some federal courts, and the Florida Supreme Court over whether

same-mercy arguments are permitted), aff’d, 43 F.4th 569 (6th Cir.

2022); see also People v. Gamache, 227 P.3d 342, 381 (Cal. 2010)

- 47 - (permitting same-mercy arguments); Commonwealth v. Paddy, 15

A.3d 431, 461 (Pa. 2011) (same); Melson v. State, 775 So. 2d 857,

893-94 (Ala. Crim. App. 1999) (same); People v. Caffey, 792 N.E.2d

1163, 1212-13 (Ill. 2001) (same). Yet there does not appear to be

any doctrinal justification for this Court’s position on the issue.

Indeed, in Rhodes v. State, 547 So. 2d 1201 (Fla. 1989), one of the

earliest cases expressly condemning a same-mercy argument, this

Court cited to no authority whatsoever for the proposition that

those arguments are “an unnecessary appeal to the sympathies of

the jurors.” Id. at 1206.

Rather than being accurately grounded in a specific

constitutional provision, statute, or rule, it appears Florida’s same-

mercy line of cases was born out of a distorted application of the

principle that counsel should not make arguments outside the

evidence that was introduced at trial. See, e.g., Killins v. State, 9

So. 711, 715 (Fla. 1891) (explaining that counsel must be able to

argue “as full and profound as his learning can make” but that

“privilege of counsel” is breached when counsel makes arguments

on evidence not in the record); Jenkins v. State, 18 So. 182, 194

(Fla. 1895). But this principle does not justify the prohibition of

- 48 - same-mercy arguments made by prosecutors in capital cases. It “is

clearly proper for a prosecutor to argue” a “defendant is not

deserving of the jury’s mercy because of the defendant’s actions” as

part and parcel of the penalty-phase jury’s duty to “evaluate

whether a defendant is deserving of mercy.” State v. Kleypas, 40

P.3d 139, 286 (Kan. 2001), overruled on other grounds by State v.

Carr, 502 P.3d 546 (Kan. 2022); see also Reese v. Sec’y, Fla. Dep’t of

Corr., 675 F.3d 1277, 1293 (11th Cir. 2012) (holding the

prosecutor’s same-mercy argument “legitimately argued that Reese

did not deserve mercy”). The ultimate question of whether

mitigating circumstances outweigh aggravating circumstances is,

after all, mostly a question of mercy. See Kansas v. Carr, 577 U.S.

108, 119 (2016) (the “ultimate question whether mitigating

circumstances outweigh aggravating circumstances is mostly a

question of mercy”). Likewise, same-mercy arguments validly relate

to the death penalty’s retributive function. See Melson, 775 So. 2d

at 893-94.

Given the shaky foundation on which this Court’s same-mercy

precedents rest, I think we should reevaluate them in a future case.

I agree though that in this case, even if the prosecutor’s comments

- 49 - were improper, the comments do not rise to the level of

fundamental error. For that reason, I concur in this Court’s

opinion.

An Appeal from the Circuit Court in and for Monroe County, Mark H. Jones, Judge Case No. 442018CF000375000AMR

Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, Eleventh Judicial Circuit of Florida, Miami, Florida,

for Appellant

James Uthmeier, Attorney General, Tallahassee, Florida, and Michael W. Mervine, Senior Assistant Attorney General, Tampa, Florida,

for Appellee

- 50 -