Timothy W. Fletcher v. State of Florida
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Opinion
Supreme Court of Florida ____________
No. SC2023-0058 ____________
TIMOTHY W. FLETCHER, Appellant,
vs.
STATE OF FLORIDA, Appellee.
July 17, 2025
FRANCIS, J.
Appellant, Timothy W. Fletcher, appeals his sentence of death 1
imposed after his Hurst 2 resentencing. We affirm.
I. Background
Fletcher was convicted and sentenced to death in 2012 for the
first-degree murder of Helen Googe in 2009. Fletcher v. State, 168
1. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
2. See Hurst v. State, 202 So. 3d 40 (Fla. 2016) (interpreting Hurst v. Florida, 577 U.S. 92 (2016), as requiring a unanimous jury recommendation for death), receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020). So. 3d 186 (Fla. 2015). As we detailed in Fletcher, Fletcher
confessed that he and his cellmate, Doni Ray Brown, escaped from
the Putnam County Jail with a plan to acquire money from Googe,
Fletcher’s grandfather’s ex-wife, whom Fletcher believed kept a large
sum in a safe at her home. When interviewed by detectives,
Fletcher changed his story several times, claiming he played only a
passive role in the murder and that Brown killed Googe. When
detectives confronted Fletcher with the fact that he had visible
scratches and injuries on his arms and Brown had none, and with
the fact that they could test for DNA under Googe’s fingernails,
Fletcher changed his story, admitting he had a much more active
role but maintaining that Brown killed Googe.
Fletcher’s story was that after escaping jail and stealing a
vehicle, he and Brown made their way to Googe’s home, entered at
night while she slept, and retrieved one of his grandfather’s
revolvers. They then entered Googe’s bedroom, startled her awake,
and tied her hands with a phone cord. Googe screamed but was
reassured she would be okay if she followed their instructions.
Brown and Fletcher then questioned Googe about her money.
Googe was uncooperative, denied having a safe, denied having a
-2- credit card, and said she only had $37 in her purse. When Googe
attempted to escape, Fletcher said that Brown physically pinned her
down on the bed, and Fletcher threatened her with a gun, telling
her to stop kicking her legs.
Googe finally went with Fletcher and Brown to the safe
but attempted to escape again to the bathroom and hit Brown
with a hairdryer. According to Fletcher, Brown retaliated by
pinning her down on her bed and putting a pillow over her
face. Googe continued fighting back.
Fletcher intervened and took them back to the safe. He
recounted that Googe’s hands were “visibly shaking” as she
tried to open it. Because there was no money, and Googe
continued to deny she had any, Fletcher said Brown made two
attempts to kill Googe while she was in the fetal position on
the floor—one by strangulation and one by breaking her neck.
After those attempts failed, Fletcher and Brown
physically carried Googe by her head and feet to her den. She
fought back, kicking out at Brown, who had one of her legs,
and scratching Fletcher, who had her head. Fletcher called
her a bitch and dropped her. When she tried to get up,
-3- Fletcher admitted to becoming violent, striking her “in the
head three times—once on the cheek and twice high on the
side of her head—with an open hand.” Id. at 196. During his
post-arrest statement, Fletcher explained he struck her
because “she was being ignorant” and “wanted to fight.” Id.
“All she had to do was just be quiet and give up the $37
and . . . say what the PIN number is to her credit card and she
would have just got tied up and left.” Id.
After striking Googe, Fletcher claimed Brown got on top
of her again and choked her with both hands while Fletcher
held her legs down. Though she stopped moving, she made
“snoring noises.” Id. According to Fletcher, Brown placed a
plastic bag over Googe’s head and tied a phone cord around it,
at her neck. Fletcher said “[t]he bag became foggy.” Id. He
claimed he left the room and when he returned a few minutes
later, Brown told him that Googe was dead.
Afterward, Brown and Fletcher took Googe’s car and fled
to the home of Brown’s aunt. Brown’s aunt later testified that
Brown had no scratches or physical injuries to his arms.
-4- The physical evidence presented at Fletcher’s 2012 trial
generally corroborated his version of events leading up to the
cause of death. However, the medical examiner determined
Googe’s death was caused by manual forced strangulation,
noting she had bruising under her chin consistent with
someone’s thumbs squeezing down on her neck and that her
larynx was fractured. Also, the DNA under Googe’s fingernails
belonged to Fletcher, who had scratches on his arms.
The jury unanimously found Fletcher guilty and
recommended death by a vote of eight to four. We affirmed on
direct appeal in Fletcher.
New Penalty Phase
Because the jury’s penalty phase recommendation was not
unanimous, Fletcher successfully moved for postconviction relief in
2016 under Hurst, and the trial court granted a new penalty phase
and resentencing. Before the new penalty phase, Fletcher filed
several relevant motions in limine, the first two of which were
granted: (1) a motion to limit victim impact evidence, which was
partly granted and limited the State to three statements; and (2) a
motion to preclude improper closing argument that denigrates or
-5- converts mitigation into aggravation based on the same prosecutor’s
prior statements during Fletcher’s guilt and first penalty phases.
See Fletcher, 168 So. 3d at 209-16. Fletcher’s other motions, to (3)
declare each of the four aggravating factors in his case
unconstitutional both facially and as applied, and (4) give a special
jury instruction on mercy, were denied.
At his new penalty phase, the State sought to prove four
statutory aggravators: (1) the murder was committed while the
defendant was under sentence for a prior felony conviction; (2) the
murder was committed while the defendant engaged in the
commission or attempted commission of a robbery; (3) the murder
was committed for pecuniary gain; and (4) the murder was
especially heinous, atrocious, or cruel (HAC). See § 921.141(6)(a),
(d), (f), (h), Fla. Stat. (2022). In support of these aggravators, the
State presented much of the same evidence presented at Fletcher’s
2012 trial through eight witnesses, as recounted in Fletcher. The
evidence included publication of Fletcher’s lengthy partial
confession; testimony about the DNA evidence linking him to
Googe’s body; the judgment and sentence for Fletcher’s previous
burglary convictions; and, over Fletcher’s renewed objection, three
-6- victim impact statements from the original trial, given by: (1) Debra
Black, the victim’s daughter; (2) Kristofer Key, the victim’s nephew;
and (3) Randall Key, the victim’s brother. The State then rested.
Fletcher sought to establish forty-nine mitigating
circumstances, including four statutory mitigators, through four
witnesses: (1) Dr. Daniel Buffington, a pharmacologist and
toxicologist; (2) Dr. Jennifer Rohrer, a forensic psychologist; (3)
Jeffrey Fletcher, Fletcher’s younger brother; and (4) Roy Lee Walker
Jr., Fletcher’s best friend.
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Supreme Court of Florida ____________
No. SC2023-0058 ____________
TIMOTHY W. FLETCHER, Appellant,
vs.
STATE OF FLORIDA, Appellee.
July 17, 2025
FRANCIS, J.
Appellant, Timothy W. Fletcher, appeals his sentence of death 1
imposed after his Hurst 2 resentencing. We affirm.
I. Background
Fletcher was convicted and sentenced to death in 2012 for the
first-degree murder of Helen Googe in 2009. Fletcher v. State, 168
1. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
2. See Hurst v. State, 202 So. 3d 40 (Fla. 2016) (interpreting Hurst v. Florida, 577 U.S. 92 (2016), as requiring a unanimous jury recommendation for death), receded from in part by State v. Poole, 297 So. 3d 487 (Fla. 2020). So. 3d 186 (Fla. 2015). As we detailed in Fletcher, Fletcher
confessed that he and his cellmate, Doni Ray Brown, escaped from
the Putnam County Jail with a plan to acquire money from Googe,
Fletcher’s grandfather’s ex-wife, whom Fletcher believed kept a large
sum in a safe at her home. When interviewed by detectives,
Fletcher changed his story several times, claiming he played only a
passive role in the murder and that Brown killed Googe. When
detectives confronted Fletcher with the fact that he had visible
scratches and injuries on his arms and Brown had none, and with
the fact that they could test for DNA under Googe’s fingernails,
Fletcher changed his story, admitting he had a much more active
role but maintaining that Brown killed Googe.
Fletcher’s story was that after escaping jail and stealing a
vehicle, he and Brown made their way to Googe’s home, entered at
night while she slept, and retrieved one of his grandfather’s
revolvers. They then entered Googe’s bedroom, startled her awake,
and tied her hands with a phone cord. Googe screamed but was
reassured she would be okay if she followed their instructions.
Brown and Fletcher then questioned Googe about her money.
Googe was uncooperative, denied having a safe, denied having a
-2- credit card, and said she only had $37 in her purse. When Googe
attempted to escape, Fletcher said that Brown physically pinned her
down on the bed, and Fletcher threatened her with a gun, telling
her to stop kicking her legs.
Googe finally went with Fletcher and Brown to the safe
but attempted to escape again to the bathroom and hit Brown
with a hairdryer. According to Fletcher, Brown retaliated by
pinning her down on her bed and putting a pillow over her
face. Googe continued fighting back.
Fletcher intervened and took them back to the safe. He
recounted that Googe’s hands were “visibly shaking” as she
tried to open it. Because there was no money, and Googe
continued to deny she had any, Fletcher said Brown made two
attempts to kill Googe while she was in the fetal position on
the floor—one by strangulation and one by breaking her neck.
After those attempts failed, Fletcher and Brown
physically carried Googe by her head and feet to her den. She
fought back, kicking out at Brown, who had one of her legs,
and scratching Fletcher, who had her head. Fletcher called
her a bitch and dropped her. When she tried to get up,
-3- Fletcher admitted to becoming violent, striking her “in the
head three times—once on the cheek and twice high on the
side of her head—with an open hand.” Id. at 196. During his
post-arrest statement, Fletcher explained he struck her
because “she was being ignorant” and “wanted to fight.” Id.
“All she had to do was just be quiet and give up the $37
and . . . say what the PIN number is to her credit card and she
would have just got tied up and left.” Id.
After striking Googe, Fletcher claimed Brown got on top
of her again and choked her with both hands while Fletcher
held her legs down. Though she stopped moving, she made
“snoring noises.” Id. According to Fletcher, Brown placed a
plastic bag over Googe’s head and tied a phone cord around it,
at her neck. Fletcher said “[t]he bag became foggy.” Id. He
claimed he left the room and when he returned a few minutes
later, Brown told him that Googe was dead.
Afterward, Brown and Fletcher took Googe’s car and fled
to the home of Brown’s aunt. Brown’s aunt later testified that
Brown had no scratches or physical injuries to his arms.
-4- The physical evidence presented at Fletcher’s 2012 trial
generally corroborated his version of events leading up to the
cause of death. However, the medical examiner determined
Googe’s death was caused by manual forced strangulation,
noting she had bruising under her chin consistent with
someone’s thumbs squeezing down on her neck and that her
larynx was fractured. Also, the DNA under Googe’s fingernails
belonged to Fletcher, who had scratches on his arms.
The jury unanimously found Fletcher guilty and
recommended death by a vote of eight to four. We affirmed on
direct appeal in Fletcher.
New Penalty Phase
Because the jury’s penalty phase recommendation was not
unanimous, Fletcher successfully moved for postconviction relief in
2016 under Hurst, and the trial court granted a new penalty phase
and resentencing. Before the new penalty phase, Fletcher filed
several relevant motions in limine, the first two of which were
granted: (1) a motion to limit victim impact evidence, which was
partly granted and limited the State to three statements; and (2) a
motion to preclude improper closing argument that denigrates or
-5- converts mitigation into aggravation based on the same prosecutor’s
prior statements during Fletcher’s guilt and first penalty phases.
See Fletcher, 168 So. 3d at 209-16. Fletcher’s other motions, to (3)
declare each of the four aggravating factors in his case
unconstitutional both facially and as applied, and (4) give a special
jury instruction on mercy, were denied.
At his new penalty phase, the State sought to prove four
statutory aggravators: (1) the murder was committed while the
defendant was under sentence for a prior felony conviction; (2) the
murder was committed while the defendant engaged in the
commission or attempted commission of a robbery; (3) the murder
was committed for pecuniary gain; and (4) the murder was
especially heinous, atrocious, or cruel (HAC). See § 921.141(6)(a),
(d), (f), (h), Fla. Stat. (2022). In support of these aggravators, the
State presented much of the same evidence presented at Fletcher’s
2012 trial through eight witnesses, as recounted in Fletcher. The
evidence included publication of Fletcher’s lengthy partial
confession; testimony about the DNA evidence linking him to
Googe’s body; the judgment and sentence for Fletcher’s previous
burglary convictions; and, over Fletcher’s renewed objection, three
-6- victim impact statements from the original trial, given by: (1) Debra
Black, the victim’s daughter; (2) Kristofer Key, the victim’s nephew;
and (3) Randall Key, the victim’s brother. The State then rested.
Fletcher sought to establish forty-nine mitigating
circumstances, including four statutory mitigators, through four
witnesses: (1) Dr. Daniel Buffington, a pharmacologist and
toxicologist; (2) Dr. Jennifer Rohrer, a forensic psychologist; (3)
Jeffrey Fletcher, Fletcher’s younger brother; and (4) Roy Lee Walker
Jr., Fletcher’s best friend. 3 All four witnesses testified to Fletcher’s
3. These mitigators were that Fletcher: (1) entered a plea to first-degree murder, along with codefendant Brown (uncontested, great weight); (2) was under the influence of extreme mental or emotional disturbance at the time of the murder, see § 921.141(7)(b) (not proven); (3) had substantially impaired capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law, see § 921.141(7)(f) (not proven); (4) had a young age at the time of the murder, see § 921.141(7)(g) (undisputed, was 25 at time of murder, slight weight); (5) & (6) suffered extreme emotional and physical abandonment (respectively) (proven on both, slight weight); (7) was unable to form lasting, safe relationships (uncontested, slight weight); (8) was terrified of his abusive father (same); (9) had no role models during his early childhood development (proven, slight weight); (10) was not protected by his mother (same); (11) & (12) had alcoholic parents (mother and father, respectively) (same); (13-15) was diagnosed with mental health disorder (ADHD), alcohol dependence, and substance use disorder involving cocaine, methamphetamines, and opiates (respectively) (uncontested, slight weight on each); (16) has post-traumatic stress disorder (PTSD) (not proven); (17) & (18),
-7- (20) & (21) experienced extreme environmental trauma— homelessness, domestic instability, witnessed his father physically abuse his mother, and witnessed his parents use alcohol in excess (respectively) (uncontested or proven, slight weight on each); (19) experienced extreme domestic violence as a child (uncontested, slight weight); (22) was encouraged by maternal grandfather to steal for him (same); (23) received no medical attention for years of abuse (same); (24) never received emotional support for years of trauma (same); (25) never received mental health counseling for years of abandonment (same); (26) attempted to self-medicate and cure himself with alcohol (proven, slight weight); (27) made several suicide attempts (proven as to one attempt, no weight); (28) was always treated as an outsider (reasonably inferred from other evidence but no weight); (29) & (30) has low self-esteem and no self- confidence (respectively) (proven, slight weight); (31) experienced long-term emotional trauma from his childhood (proven but no independent evidentiary value, no weight); (32) suffered from depression for many years before being diagnosed (proven, slight weight); (33) was never treated for PTSD (unproven); (34) has a biological father who may suffer from mental illness (no direct evidence but given slight weight); (35) has no well-defined social skills (proven, slight weight); (36)-(38) is a product of his environment and has always been at risk for failure to achieve, was failed by his parents at a young age, and failed by a system that should have protected him from his abusive and impoverished environmental conditions (considered together, uncontested, slight weight); (39) suffers from anxiety and inability to control stressors (proven, slight weight); (40) was conceived out of wedlock (same); (41) was bullied unmercifully by his father (proven but no weight); (42) has impaired problem-solving skills (not proven); (43) has adaptive deficits (proven, no weight); (44) is diagnosed with bi-polar disorder (proven, no weight because already accounted for impulsivity); (45) was the victim of sexual abuse (proven, no weight); (46) has learning disabilities (uncontroverted, no weight in light of escape plan); (47) & (48) had been consuming methamphetamine up to the time of his escape and the homicide and was consequently sleep-deprived (respectively) (not proven); and (49) any other circumstances in his character, background, and life that
-8- difficult, abusive, and impoverished childhood during which he
witnessed domestic violence and alcoholism; experienced parental
abandonment, neglect, and mistreatment; and was encouraged by
his grandfather to steal for him. Fletcher tried alcohol when he was
six, marijuana when he was eleven, and cocaine in his teens. He
was ultimately diagnosed with attention deficit hyperactivity
disorder (ADHD), alcohol dependence, and substance use disorder
involving cocaine, methamphetamine (“meth”), and opiates.
Dr. Buffington and Dr. Rohrer also opined that Fletcher was
under the influence of extreme mental or emotional disturbance at
the time of the murder, a statutory mitigator under section
921.141(7)(b), due to his reported use of meth during the four days
leading up to his escape. Dr. Buffington explained that meth
makes people feel strong and powerful but impairs judgment;
causes confusion, impulsivity, and hyperexcitability; and keeps
them awake.
However, on cross, both experts agreed Fletcher’s meth use
was based on self-reporting. Brown also told police they had not
mitigate against imposing the death penalty, see § 921.141(7)(h) (moderate weight overall).
-9- been using drugs prior to the escape, and no drug paraphernalia
was found in their shared cell. Further, the State’s forensic
toxicologist, Dr. Bruce Goldberger, testified that meth is very
impairing, and, had Fletcher been using it, it would have affected
his ability to do complex tasks, like escape from jail, conceal the
escape, steal a car, and find Googe’s house. The State’s other
expert, Dr. Gregory Prichard, a forensic psychologist who
interviewed Fletcher before his first trial in 2012, and before his
new penalty phase in 2022, agreed that Fletcher’s planning and
procuring the tools needed for the escape were inconsistent with
meth impairment.
As to Fletcher’s mental health history, both his experts
testified that, based off Fletcher’s records, he had a history of
suicidal ideations. Dr. Rohrer noted he made two suicide attempts
in his teens. However, the State’s witness, Dr. Prichard, testified
that this did not match what they knew of Fletcher, who previously
reported that he never tried to kill himself.
Fletcher’s experts also testified that Fletcher had been
diagnosed with several mental health conditions, including bipolar
disorder, depressive disorder, and ADHD. While in jail, Fletcher
- 10 - was additionally diagnosed with anxiety, insomnia, and antisocial
personality disorder.
Given Fletcher’s bipolar diagnosis in particular, Dr. Rohrer
opined that Fletcher had a substantially impaired capacity to
appreciate the criminality of his conduct or conform his conduct to
the requirements of the law, a statutory mitigator under section
921.141(7)(f). She also evaluated Fletcher for PTSD and found his
results were consistent with PTSD in childhood.
However, on cross, Dr. Rohrer agreed that some of Fletcher’s
bipolar symptoms could be explained by other disorders and agreed
that the mania associated with the disorder was not present in any
of Fletcher’s records. She also agreed that Fletcher did not avoid
triggering traumas, a symptom required for a PTSD diagnosis.
The State’s witness, Dr. Prichard, also opined that Fletcher’s
crimes contradicted the avoidance symptom for PTSD, and the
indication of childhood PTSD in Fletcher’s records was based on his
own self-reporting in 2008. He agreed there was no evidence of
- 11 - mania in Fletcher’s records but there was depression and
polysubstance abuse.4
Additionally, defense counsel asked Dr. Rohrer about
Fletcher’s antisocial personality disorder diagnosis, which the
State’s expert, Dr. Prichard, agreed with and opined was probably
his primary diagnosis. She explained that it is a “characterological”
personality disorder, not a mental illness, that is marked by poor
impulse control and a “persistent disregard for the rights of others”
that is largely based on criminal behavior and “disregarding the
law, evidenced by repeated arrests.” On cross, she agreed that
another marker of antisocial personality disorder is deceitfulness.
The State’s witness, Dr. Prichard, similarly testified that
antisocial personality disorder is something different from an
“organic mental illness” like bipolar disorder. He agreed it is
“characterological” and explained that the “benchmark issue with
antisocial personality people is that they don’t conform their
4. As for Fletcher’s other diagnoses in his record, Dr. Prichard explained to the jury that in a correctional setting, when a doctor prescribes a drug to treat a symptom that is being reported, the doctor must notate any mental health diagnoses reported by the patient/inmate, whether the patient meets the criteria or not.
- 12 - behavior to requirements of the law, so they get arrested a lot. . . .
[I]t’s also known as the criminal personality.” He also agreed that
persons with this condition are usually deceitful.
During closing, the prosecutor commented on the evidence
that Fletcher had antisocial personality disorder, asking rhetorically
what was mitigating about having that disorder. 5 This drew an
objection from the defense, which the trial court anticipated given
its pretrial order. Later, out of the jury’s hearing, the trial court
denied Fletcher’s motion for mistrial but offered to give a curative
instruction. Defense counsel did not object.
Ultimately, the jury unanimously found the existence of all
four aggravating factors beyond a reasonable doubt, found the
5. In context, the following exchange occurred:
PROSECUTOR: What antisocial personality is, it’s a character trait. It’s characterological. And what that means is, is that there’s a history with Timothy Fletcher of breaking the law, of violating the rights of others. Another characteristic is deceitfulness. So in what way is that mitigating? It’s not. It’s not mitigating. It just tells us about his character. There’s nothing organic in terms of his -- DEFENSE: Judge, may we approach? THE COURT: No. Sustained. The jury will disregard the last argument, that is, it being argued as a mitigating circumstance.
- 13 - aggravators were not outweighed by the mitigators, and
unanimously recommended death. However, based on the wording
of the question concerning whether any mitigators had been proven
by the greater weight of the evidence, the jury marked “no”:
The jury was polled and agreed that this was its verdict.
After the jury was dismissed, the trial court expressed concern
over the answer to the mitigation interrogatory given the amount of
uncontested mitigation evidence presented and requested briefing
before the Spencer 6 hearing.
New Spencer Hearing
At the Spencer hearing held on November 22, 2022, Fletcher
presented evidence of two other mitigating circumstances. First,
Aubrey Land, a retired law enforcement correctional professional
6. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
- 14 - and now consultant, testified that if given a life sentence, Fletcher
could adjust well and be well-suited to teaching and tutoring other
inmates who want to earn a GED or similar degrees. Second,
Fletcher made an unsworn statement expressing remorse to the
victim’s family. Additionally, the trial court sua sponte considered
the evidence of Fletcher’s antisocial personality disorder as
mitigation. The trial court afforded each of these mitigators slight
weight in the sentencing order.
New Sentencing Hearing
Fletcher’s sentencing hearing was held on January 3, 2023,
and the judge issued his order that same day. The court found the
existence of all four aggravating factors but merged two, for a final
finding of three aggravating factors that were each assigned great
weight: (1) prior felony conviction and under sentence of
imprisonment; (2) murder committed for pecuniary gain (committed
during the commission of a robbery); and (3) HAC.
The court considered fifty-two mitigating factors and found
seven were not supported by the evidence, including the two
contested statutory mitigators. The court gave great weight to one
statutory mitigator—that codefendant Brown was sentenced to
- 15 - life—and slight or no weight to other individual mitigators.
Cumulatively, Fletcher’s mitigation was given moderate weight.
The trial court was concerned over the jury’s recommendation
due to its finding of “no” mitigation and “seriously considered” what
weight to assign it. Ultimately, he followed the recommendation
and sentenced Fletcher to death.
Claims on Appeal
Fletcher appeals, raising nine issues. Six of Fletcher’s claims
are preserved: (1) whether the prosecutor’s statements during the
penalty phase closing argument improperly denigrated and
converted Fletcher’s antisocial personality disorder diagnosis into
aggravation; (2) whether the jury engaged in “reverse jury
nullification” by finding on the verdict form that “no” mitigation was
found to exist; (3) whether the lower court abused its discretion by
denying Fletcher’s request for a special mercy instruction; (4)
whether victim impact evidence should be permitted during the
penalty phase; (5) whether this Court should recede from Lawrence 7
and reinstate proportionality review; and (6) whether Florida’s
7. Lawrence v. State, 308 So. 3d 544 (Fla. 2020).
- 16 - capital sentencing scheme and the aggravators applied in Fletcher’s
case are unconstitutional both facially and as applied.8 Fletcher
also raises two unpreserved claims as fundamental error: (7)
whether placing the burden of proof on the defendant to establish
mitigators at the penalty phase violates the Eighth Amendment;
and (8) whether the sentencing court’s failure to give the
Enmund/Tison 9 instruction to the jury and make a specifically
labeled Enmund/Tison finding in the sentencing order requires
reversal. Finally, (9) Fletcher claims that the cumulative effect of
these alleged individual errors requires reversal for a new penalty
phase. 10 As explained below, we conclude that Fletcher is not
entitled to relief and affirm.
8. Fletcher also raises a subclaim that the cold, calculated, premeditated aggravator (CCP) is unconstitutional. To the extent it is part of his facial challenge overall, it is properly raised. But any as-applied challenge to the CCP aggravator is improper because it was not an aggravator in Fletcher’s case.
9. Enmund v. Florida, 458 U.S. 782 (1982); Tison v. Arizona, 481 U.S. 137 (1987).
10. Fletcher was appointed substitute appellate counsel after all briefing concluded, and substitute counsel moved to file an amended initial brief and restart all briefing. The State objected, and that objection was sustained.
- 17 - II. Discussion
At the outset, because we conclude that Fletcher is entitled to
no relief on any of his individual claims, we deny claim (9), his
cumulative error claim, without further discussion. Additionally,
because this Court has repeatedly rejected claims (3) (special mercy
instruction)11 and (5) (reinstatement of proportionality review), 12 we
deny these claims without further discussion.
A. Fletcher’s Preserved Claims
Denigration of Antisocial Personality Disorder (claim 1)
First, Fletcher generally challenges the prosecutor’s comment
during closing argument asking the jury a rhetorical question as to
how Fletcher’s antisocial personality disorder could be mitigating.
11. Fletcher’s jury was given Standard Jury Instruction 7.11, which “[w]e have repeatedly determined . . . adequately informs jurors of the applicable legal standard.” Bevel v. State, 376 So. 3d 587, 597 (Fla. 2023), cert. denied, 144 S. Ct. 2570 (2024); see also Woodbury v. State, 320 So. 3d 631, 656 (Fla. 2021) (rejecting special instruction on mercy because “Standard Jury Instruction 7.11 is not ambiguous when it comes to addressing the jurors’ options” to show mercy and impose a life sentence instead of a death sentence).
12. We have repeatedly declined the invitation to recede from Lawrence and reinstate automatic appellate proportionality review. See, e.g., Cruz v. State, 320 So. 3d 695, 723 (Fla. 2021).
- 18 - He argues that this comment was an improper attempt to convert
mitigating evidence into aggravating evidence in violation of the trial
court’s order on Fletcher’s pretrial motion in limine.13 However, the
trial court sustained Fletcher’s objection to this comment during
the penalty phase and gave a curative instruction. Thus, on appeal,
instead of raising a claim of trial court error, Fletcher focuses on
censuring the prosecutor for failing to abide by the pretrial order
prohibiting such arguments to the jury after allegedly doing so in
Fletcher. 14
13. Even though Fletcher’s antisocial personality disorder was not introduced as a mitigator, aspects of that diagnosis—such as Fletcher’s lack of impulse control—were meant as mitigation.
14. In Fletcher, however, Fletcher’s claim that the prosecutor’s penalty phase comments denigrated his mitigation evidence was not aimed at any comment about his antisocial personality disorder. Instead, Fletcher claimed the comments were aimed at Fletcher’s proposed mitigators, such as his addiction to drugs, history of depression, witnessing his mother being physically abused, and artistic ability, all upon which the prosecutor commented that a lot of people have these things but “do not murder other people.” 168 So. 3d at 214-16. This Court rejected Fletcher’s claims, finding the prosecutor “did not contend that the mitigating circumstances presented were invalid or excuses,” nor did the prosecutor “characterize the mitigation evidence in a negative way.” Id. at 215. The issues with Fletcher’s antisocial personality disorder diagnosis came out, instead, during the testimonies of the experts—Dr. Prichard for the State and Dr. Krop for the defense. Both discussed the “psychopathy” checklist in testifying how they diagnosed
- 19 - Because Fletcher’s argument was sustained and the trial court
gave a curative instruction, Fletcher must demonstrate the trial
court abused its discretion in denying his motion for mistrial. But
Fletcher’s brief on this point does not even reference the decision on
the motion for mistrial, let alone explain how the trial court’s
decision constituted an abuse of discretion. As a result, this claim
is inadequately briefed and cannot form the basis for relief. See
Cole v. State, 392 So. 3d 1054, 1063 n.14 (Fla. 2024).
To the extent Fletcher challenges the ruling on his motion for
a mistrial, a decision on a motion for mistrial “is within the sound
discretion of the trial court and should be granted only when
Fletcher with antisocial personality disorder, and, given that context, this Court rejected Fletcher’s claim that the State elicited testimony of “future dangerousness” based on Dr. Prichard’s description of antisocial personality disorder as a “chronic disorder.” Id. at 210. This Court also held that Fletcher opened the door to Dr. Prichard’s testimony about his prior criminal record. Id. at 210-11. However, though ultimately finding it to be harmless, this Court found the trial court erred by permitting the State, over Fletcher’s objection, to elicit testimony from Dr. Prichard that Fletcher lacked remorse, which is one of the features of antisocial personality disorder. Id. at 211-13. In any event, based on the prosecutor’s remarks at the original penalty phase, Fletcher filed a “Motion in Limine to Preclude Improper Closing Argument.” The motion was granted in an order stating in relevant part: “There should be no denigration of the Defendant’s case.”
- 20 - necessary to ensure that the defendant receives a fair trial.” See
Chamberlain v. State, 881 So. 2d 1087, 1098 (Fla. 2004) (citing
Rivera v. State, 859 So. 2d 495, 512 (Fla. 2003)). “[W]hen an
improper comment is made, objected to by counsel, and sustained
by the trial court and corrected by the issuance of a curative
instruction, this Court has held that the proper standard of review
governing the denial of a motion for a mistrial is abuse of
discretion.” Andres v. State, 254 So. 3d 283, 299 (Fla. 2018) (citing
Chamberlain, 881 So. 2d at 1098).
Here, though, it appears the prosecutor’s comment was not
improper. While “a prosecutor may not improperly denigrate or
attempt to invalidate mitigation evidence” by describing it in
negative terms, a prosecutor has wide latitude in closing and may
properly attempt to “persuade the jury that the proffered mitigation
was not mitigating in nature, or should be given only little weight.”
See Fletcher, 168 So. 3d at 214-15 (citing and distinguishing Delhall
v. State, 95 So. 3d 134, 167-68 (Fla. 2012), and Brooks v. State, 762
So. 2d 879, 903 (Fla. 2000)). Here, it appears the prosecutor’s
comment was aimed at persuading the jury that antisocial
personality disorder is not mitigating in nature. Thus, based on
- 21 - this record, we conclude the prosecutor’s comment did not
denigrate his antisocial personality disorder and turn it into
aggravation.
In addition, Fletcher’s counsel immediately objected, and the
trial judge sustained the objection and instructed the jury to
disregard the comment. A short time later, the judge offered a
curative instruction, to which Fletcher’s counsel made no objection.
The lower court also reminded the jury before deliberations that
what the attorneys say is not evidence. Further, the lower court
ultimately found that Fletcher’s antisocial personality disorder was
mitigating and even gave it slight weight in the sentencing order.
Thus, even if the comment was improper, the trial court did
not abuse its discretion in denying Fletcher’s motion for mistrial.
We therefore deny relief on this claim.
Jury’s Verdict on Mitigation (claim 2)
Fletcher asserts a new penalty phase is required because the
jury’s verdict form shows it ignored uncontroverted mitigation
- 22 - evidence, thereby engaging in “reverse jury nullification” 15 in
violation of the Eighth Amendment. We disagree.
First, the jury’s verdict on mitigation does not violate the
Eighth Amendment because—as construed by the U.S. Supreme
Court—the Eighth Amendment does not require any jury
recommendation as to whether to impose life or death. See Poole,
297 So. 3d at 505; Spaziano v. Florida, 468 U.S. 447, 464-65
(1984). 16 Instead, Fletcher has a statutory right under section
921.141(2)(b) to have a jury find the existence of mitigating
15. Because jury nullification generally means the jury ignored the evidence of guilt and showed mercy instead by acquitting a defendant, reverse jury nullification means the jury ignored mitigating circumstances when recommending imposition of the death penalty. A similar claim was raised in Mosley v. State, 397 So. 3d 1001, 1005 (Fla. 2024), but was found to be procedurally barred.
16. “The text of our constitution requires us to construe the state cruel and unusual punishment provision in conformity with decisions of the Supreme Court interpreting the Eighth Amendment.” Poole, 297 So. 3d at 505. “Binding Supreme Court precedent in Spaziano holds that the Eighth Amendment does not require a jury’s favorable recommendation before a death penalty can be imposed.” Id. (citing Spaziano, 468 U.S. at 464-65). “Therefore, the same is true of article I, section 17 [of the Florida Constitution].” Id.
- 23 - circumstances, weigh them against any aggravating factors, and
make a recommendation as to life or death.
Second, Fletcher has not shown the jury failed to follow the
law or instructions on the statutory weighing process and
recommendation. In Florida, litigants and the public are prohibited
from “invading the privacy of the jury room.” Baptist Hosp. of Mia.,
Inc. v. Maler, 579 So. 2d 97, 99 (Fla. 1991) (quoting Velsor v.
Allstate Ins. Co., 329 So. 2d 391, 393 (Fla. 2d DCA 1976)). Thus,
“in the absence of evidence to the contrary, we presume that jurors
follow the trial court’s instructions.” Lowe v. State, 259 So. 3d 23,
52 (Fla. 2018) (citing Hurst, 202 So. 3d at 63).
In an attempt to establish his claim of reverse jury
nullification, Fletcher cites an unpublished opinion of the Tenth
Circuit Court of Appeals, United States v. James, that sets out the
role of a juror in the Sixth Amendment context. 203 F.3d 836 (10th
Cir. 2000) (table), 2000 WL 136816, at *2-4 (Feb. 7, 2000). The
issue in James was whether it was plain error for the trial court to
sua sponte dismiss a juror who stated during voir dire that he
might not follow the law or instructions. The Tenth Circuit found
no error, reasoning that “[a] person who is either unwilling or
- 24 - unable to follow the court’s instructions is not qualified to be a
juror.” Id. at *4. The Tenth Circuit further reasoned that “[a]
defendant’s right to an impartial jury does not include a right to a
jury composed of persons who will disregard the district court’s
instructions. ‘[T]here is no right to jury nullification.’ ” Id. at *3-4
(second alteration in original) (quoting Crease v. McKune, 189 F.3d
1188, 1194 (10th Cir. 1999)).
While James is generally instructive on the role of individual
jurors and jury nullification, Fletcher’s case is distinguishable.
Unlike the juror in James who expressly stated during voir dire that
he might not follow the law and instructions, the jurors at
Fletcher’s new penalty phase agreed to follow the law and
instructions and made no indication to the contrary on the face of
the record. Though Fletcher points to the verdict form as evidence
of nullification, the jury form is not conclusive proof that any of the
jurors failed to follow instructions.
Of course, based on this verdict form, the lower court found
the jury’s answer as to whether any mitigation evidence was proven
was against the weight of the evidence. See Coday v. State, 946 So.
2d 988, 1001 (Fla. 2006) (“[T]he trial court must find as a mitigating
- 25 - circumstance any proposed factor that is both reasonably
established by the greater weight of the evidence and mitigating in
nature.”). But the lower court’s finding does not automatically
mean the jury failed to follow the law or instructions, especially
because the jury here was not instructed during the penalty phase
that it must deem any unrebutted mitigation evidence proven and,
if so, check “yes” on the verdict form. Thus, notwithstanding the
“no” verdict, Fletcher cannot rebut the presumption that the jury
followed the law as it was instructed here. 17
17. Given the amount of unrebutted mitigation, the lower court was concerned with the verdict form and thoughtfully considered whether the interrogatory was mere surplusage under section 921.141(2)(b), Florida Statutes (2022), which requires the jury to make a recommendation based upon its weighing of any unanimously found aggravating factors (making the defendant death eligible) and whether those aggravators “outweigh the mitigating circumstances found to exist.” § 921.141(2)(b)2.a.-c., Fla. Stat. (2022). Though the verdict form conforms to the statute’s language concerning the mitigators “found to exist” by the jury and is not mere surplusage in that sense, the lower court is correct that the statute does not expressly require a written finding by the jury as to the mitigators found to exist. This interrogatory was amended in 2023, and the standard verdict form now asks jurors to attest that they “considered whether one or more mitigating circumstances exist.” See Fla. Std. Jury Instr. (Crim.) 3.12(e) (2025).
- 26 - Additionally, the verdict is not contrary to the other jury
instructions given in a capital penalty phase. The jurors were told
to individually consider and weigh mitigation evidence, and that
they do not have to render a unanimous verdict on mitigation.
Given these instructions, it is far more likely the jury was unsure
how to follow these instructions and answer the verdict form
interrogatory collectively at the same time. Thus, the verdict form
alone does not overcome the presumption that the jury followed, or
attempted to follow, instructions as given in this case.
Ultimately, the lower court properly overrode the jury’s “no”
interrogatory, finding the existence of the vast majority of Fletcher’s
forty-nine mitigators—most of which were unrebutted or
affirmatively proven. The court then weighed the mitigators found
to exist, affording great weight to one “statutory” mitigator (the
codefendant’s life sentence) and moderate weight to mitigation
overall in the sentencing order. 18 Further, the lower court found
18. The sentencing court mistakenly described this as a statutory mitigator in the sentencing order. It may be treated as a mitigating factor, however, under the catchall provision of section 921.141(7)(h).
- 27 - three additional mitigators after the Spencer hearing that it afforded
slight weight. The lower court agreed with the jury’s unanimous
finding of four aggravators—two of which it merged for a total of
three aggravators, including the weighty HAC aggravator—and
afforded them great weight. And despite the verdict form
interrogatory on mitigation, the lower court agreed with the jury’s
recommendation for death because the aggravation unanimously
found by the jury outweighed the established mitigators.
In sum, Fletcher has failed to establish “reverse jury
nullification” by rebutting the presumption that the jury followed or
attempted to follow the instructions as given to it. Further, the
lower court cured any irregularity in the verdict form, independently
finding and weighing Fletcher’s proven and unrebutted mitigators.
Thus, Fletcher is entitled to no relief on this claim.
Victim Impact Evidence (claim 4)
Fletcher asserts that victim impact statements should be
wholly inadmissible during the penalty phase of a capital murder
proceeding because the only relevant evidence to the defendant and
his sentence is the State’s evidence of statutory aggravating factors
under section 921.141(6). Fletcher asserts that because victim
- 28 - impact statements can be inflammatory and take the jury’s focus off
the defendant and sentence, they should be deemed per se
inadmissible and unconstitutional under the Eighth and
Fourteenth Amendments. To that end, he urges this Court to
recede from following Payne v. Tennessee, 501 U.S. 808, 827 (1991)
(holding that “if the State chooses to permit the admission of victim
impact evidence and prosecutorial argument on that subject, the
Eighth Amendment erects no per se bar”), and Windom v. State, 656
So. 2d 432 (Fla. 1995) (following Payne), and return to following
Booth v. Maryland, 482 U.S. 496, 503 (1987) (holding that victim
impact evidence is “irrelevant to a capital sentencing decision, and
that its admission creates a constitutionally unacceptable risk that
the jury may impose the death penalty in an arbitrary and
capricious manner”), which was overruled by Payne. 19
19. 501 U.S. at 825 (“We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. . . . By turning the victim into a ‘faceless stranger at the penalty phase of a capital trial,’ Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder.” (citation omitted)).
- 29 - We decline Fletcher’s invitation. This Court rejected a similar
claim in Fletcher and has repeatedly recognized that victim impact
evidence is admissible at the penalty phase. See Fletcher, 168
So. 3d at 220 (rejecting a constitutional challenge to victim impact
statements raised as a “subclaim” under challenge to Florida’s
capital sentencing scheme); see also Kalisz v. State, 124 So. 3d 185,
211 (Fla. 2013) (explaining that victim impact evidence is
admissible during the penalty phase under section 921.141, Florida
Statutes, and article I, section 16 of the Florida Constitution).
Further, this Court has no authority to categorically ban the
admission of victim impact evidence from capital penalty phase
proceedings. First, in Eighth Amendment cases, “[t]he text of
[Florida’s] constitution requires us to construe the state cruel and
unusual punishment provision in conformity with decisions of the
Supreme Court interpreting the Eighth Amendment.” Poole, 297
So. 3d at 505. Thus, this Court has no authority to recede from
following the Supreme Court’s construction of the Eighth
Amendment in Payne, which holds that the Eighth Amendment
“erects no per se bar” to victim impact evidence. 501 U.S. at 827.
Second, “the Florida Constitution in Article I, Section 16, and
- 30 - the Florida Legislature in section 921.141(7), Florida Statutes
(1993), instruct that in our state, victim impact evidence is to be
heard in considering capital felony sentences.” Windom, 656 So. 2d
at 438. In other words, “[t]he admission of victim impact evidence
is protected by article I, section 16 . . . and is . . . specifically
governed by section 921.141(7).” Kalisz, 124 So. 3d at 211. 20
Thus, we are constitutionally prohibited from granting Fletcher’s
requested relief, to categorically ban victim impact evidence in
capital penalty phase proceedings.
Further, as to the specific statements admitted in this case,
Fletcher makes only a conclusory assertion that reading the victim
impact statements at his penalty phase tainted the jury, but he
points to nothing specific within these three statements that would
demonstrate any taint. Thus, he has not carried his burden of
20. See art. I, § 16(b)(6)d., Fla. Const. (2018) (“A victim shall have the following specific rights upon request: The right to provide information regarding the impact of the offender’s conduct on the victim and the victim’s family to the individual responsible for conducting any presentence investigation or compiling any presentence investigation report, and to have any such information considered in any sentencing recommendations submitted to the court.”).
- 31 - demonstrating error on this claim. See, e.g., Deparvine v. State, 995
So. 2d 351, 378 (Fla. 2008) (“Initially, we reject this claim because
Deparvine does not specify what part of the testimony was repetitive
and therefore fails to sufficiently identify the error.”). And in any
event, the three victim impact statements are well within the
confines of what is permitted by section 921.141(8). 21 None of the
statements characterize or opine upon “the crime, the defendant,
[or] the appropriate sentence.” Id. Thus, Fletcher is not entitled to
any relief on this claim.
Constitutionality of Florida’s Capital Sentencing Scheme (claim 6)
As he did in his original appeal in 2015, Fletcher generally
challenges Florida’s death sentencing scheme under section
921.141 as unconstitutional, raising both facial and as-applied
challenges. Apart from his arguments on “aggravator drift” (i.e., the
21. § 921.141(8), Fla. Stat. (providing that once aggravators are presented, the prosecution may present victim impact evidence demonstrating “the victim’s uniqueness as an individual human being and the resultant loss to the community’s members by the victim’s death” and that “[c]haracterizations and opinions about the crime, the defendant, and the appropriate sentence shall not be permitted as a part of victim impact evidence”).
- 32 - overprovision of statutory aggravators), however, Fletcher never
specifically raised below two of the arguments now raised here—
that the abandonment of both proportionality review and the
circumstantial evidence rule has rendered the entire statute
unconstitutional. Additionally, Fletcher did not directly challenge
the constitutionality of the cold, calculated, premeditated (CCP)
aggravator below.
To the extent these are facial challenges, Fletcher may raise
them for the first time on appeal. 22 But, we find no merit in them.
First, we recognized in Lawrence that proportionality review is
not required by the Eighth Amendment. 308 So. 3d at 548.
Further, the remedy to the historic concern about arbitrariness is
individualized sentencing. 23 Thus, there is no merit to the
22. Though these facial challenges were not raised below, this Court has stated that “[t]he facial validity of a statute, including an assertion that the statute is infirm because of overbreadth, can be raised for the first time on appeal even though prudence dictates that it be presented at the trial court level to assure that it will not be considered waived.” Trushin v. State, 425 So. 2d 1126, 1129 (Fla. 1982). “The constitutional application of a statute to a particular set of facts is another matter and must be raised at the trial level.” Id. at 1129-30.
23. See generally Enmund, 458 U.S. at 798 (“The question before us is not the disproportionality of death as a penalty for
- 33 - suggestion that the lack of proportionality review renders the entire
capital sentencing scheme in Florida facially unconstitutional for
failing to narrow the class of death-eligible defendants. See Wells v.
State, 364 So. 3d 1005, 1015 (Fla. 2023) (“We have repeatedly
rejected the argument that the death-penalty statute violates the
Eighth Amendment because it fails to sufficiently narrow the class
of murderers eligible for the death penalty.”).
Second, the now-abrogated circumstantial evidence rule 24 was
applied at the guilt phase in determining the sufficiency of the
State’s evidence in circumstantial evidence cases, not to the penalty
and sentencing phases.25 Further, the rule was previously applied
murder, but rather the validity of capital punishment for Enmund’s own conduct. The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on ‘individualized consideration as a constitutional requirement in imposing the death sentence,’ which means that we must focus on ‘relevant facets of the character and record of the individual offender.’ ” (citations omitted)).
24. See Bush v. State, 295 So. 3d 179, 200 (Fla. 2016) (eliminating the circumstantial evidence rule).
25. Knight v. State, 186 So. 3d 1005, 1010 (Fla. 2016) (“Courts should ask whether the evidence of that particular defendant’s guilt is entirely circumstantial, not whether all of the State’s evidence of the crime is circumstantial.” (emphasis omitted)).
- 34 - to all criminal circumstantial evidence cases, not just capital
cases. 26 Thus, the circumstantial evidence rule was not designed to
help narrow the class of death-eligible defendants, and its
abrogation is of no value in a facial challenge to Florida’s capital
sentencing scheme. See Loyd v. State, 379 So. 3d 1080, 1098 (Fla.
2023) (rejecting argument that “the elimination of the special
standard of review previously used in cases involving wholly
circumstantial evidence” contributes to rendering the death penalty
statute unconstitutional and explaining that the circumstantial
evidence rule was abrogated, in part, because it is confusing (citing
Bush, 295 So. 3d at 200)).
Third, Fletcher’s facial challenge to the CCP aggravator (which
is not an aggravator in Fletcher’s case) has previously been rejected
by this Court. 27
26. See, e.g., Knight v. State, 107 So. 3d 449 (Fla. 5th DCA 2013) (explaining that this Court (previously) mandated that “Florida’s appellate courts use a ‘special standard of review of the sufficiency of the evidence . . . where a conviction is wholly based on circumstantial evidence’ ” (citation omitted)), approved, 186 So. 3d 1005.
27. See Lynch v. State, 841 So. 2d 362, 374 (Fla. 2003) (“Finally, defendant’s claim that Florida’s death penalty scheme is unconstitutional because the CCP aggravating factor is applied in
- 35 - Next, we consider Fletcher’s facial and as-applied challenges to
the constitutionality of each of the four aggravators proven in his
case, challenges he raised in motions in limine below, and to the
statute’s so-called “aggravator drift.” We conclude the lower court
committed no error in rejecting these challenges.
First, Fletcher asserts that the “committed while under
sentence for a prior felony conviction” aggravator is
unconstitutional on its face and as applied because it is vague and
overbroad and, thus, has been applied in an arbitrary manner.
This claim is meritless because this aggravator clearly applies here,
where Fletcher escaped jail just before committing this murder.
And when a provision may be applied constitutionally in some
circumstances, it is not facially unconstitutional. See Gainesville
Woman Care, LLC v. State, 210 So. 3d 1243, 1271 (Fla. 2017)
(Canady, J., dissenting) (describing the “no-set-of-circumstances”
test applicable to facial constitutional challenges), receded from by
Planned Parenthood of Sw. & Cent. Fla. v. State, 384 So. 3d 67 (Fla.
an arbitrary and capricious manner is without merit. This Court has upheld the CCP aggravating factor as constitutional.” (citing Fotopoulos v. State, 608 So. 2d 784, 794 (Fla. 1992))).
- 36 - 2024).
Second, Fletcher’s facial and as-applied constitutional
challenges to the “pecuniary gain” aggravator are meritless.
Fletcher asserts this aggravator is unconstitutional because of the
risk of doubling and repeating the same aspects of the underlying
felony, a robbery, for purposes of the felony murder aggravator.
But no doubling with the underlying robbery occurred here because
the lower court merged it with the pecuniary gain aggravator. See
Francis v. State, 808 So. 2d 110, 136 (Fla. 2001) (finding no
improper doubling where the sentencing court merged the
pecuniary gain aggravator with during the course of a felony
aggravator based on a robbery).
Third, Fletcher’s facial and as-applied challenges to the so-
called felony murder aggravator on the basis that it is overbroad
and, essentially, automatic, are meritless. This Court has rejected
similar if not identical arguments.28 Further, Fletcher’s as-applied
28. See Miller v. State, 926 So. 2d 1243, 1260 (Fla. 2006) (rejecting the argument that “Florida’s capital felony sentencing statute is unconstitutional because every person who is convicted of first-degree felony murder automatically qualifies for the aggravating circumstance of commission during the course of an enumerated felony”); Ault v. State, 866 So. 2d 674, 686 (Fla. 2003)
- 37 - challenge is moot given that this aggravator was merged with the
pecuniary gain aggravator by the lower court.
Fourth, this Court has consistently rejected Fletcher’s
argument that the HAC aggravating circumstance is
unconstitutionally vague and overbroad. 29 Further, HAC was
constitutional as applied here given the evidence of the torture and
prolonged strangulation of a scared, elderly, conscious victim in her
own home. See Barnhill v. State, 834 So. 2d 836, 850 (Fla. 2002)
(“Because strangulation of a conscious victim involves
foreknowledge and the extreme anxiety of impending death, death
by strangulation constitutes prima facie evidence of HAC.”).
(rejecting the argument that the murder in the course of a felony aggravator is unconstitutional because it constitutes an automatic aggravator and does not narrow class of death-eligible persons).
29. See Dillbeck v. State, 357 So. 3d 94, 104-05 (Fla. 2023) (explaining that “the Court has consistently rejected as ‘without merit’ challenges that the HAC aggravator is ‘overbroad, vague, and fail[s] to narrow the class of persons eligible for the death penalty’ ” (quoting Card v. State, 803 So. 2d 613, 628 (Fla. 2001)); Cruz, 320 So. 3d at 731 (“declin[ing] to revisit” precedent “rejecting as meritless the argument that the jury instruction on HAC is unconstitutionally vague” (citing Gilliam v. State, 582 So. 2d 610, 612 (Fla. 1991))).
- 38 - Finally, we have consistently rejected Fletcher’s challenge to
the death penalty statute’s so-called “overprovision” of aggravators
(which Fletcher labels “aggravator drift”). See Bevel, 376 So. 3d at
597 (rejecting claim that Florida’s capital sentencing scheme is
unconstitutional because the number of aggravating factors does
not sufficiently narrow the class of individuals who are eligible to
receive the death penalty (citing Colley v. State, 310 So. 3d 2, 15-16
(Fla. 2020))); see also Wells, 364 So. 3d at 1015 (finding no
constitutional defect with Florida’s death penalty statute based on
the number of aggravating factors).
Accordingly, we deny relief on Fletcher’s facial and as-applied
constitutional challenges to Florida’s death penalty scheme.
B. Fletcher’s Claims of Fundamental Error
Conceding he launched no contemporaneous objection below,
Fletcher’s next two claims assert that the sentencing court
fundamentally erred by instructing the penalty phase jury that the
defendant had to prove mitigation by a preponderance of the
evidence (claim 7), and by omitting the Enmund/Tison jury
instruction and specifically labeled finding in the sentencing order
(claim 8).
- 39 - To establish fundamental error concerning unobjected-to and
thus unpreserved penalty phase jury instructions on appeal, the
“alleged error must reach down into the validity of the sentencing
proceeding itself such that the sentence could not have been
obtained without the assistance of the alleged error.” Smiley v.
State, 295 So. 3d 156, 174 (Fla. 2020) (citing Archer v. State, 673
So. 2d 17, 20 (Fla. 1996)). This Court has also defined it as “error
which goes to the foundation of the case.” Farina v. State, 937 So.
2d 612, 629 (Fla. 2006) (quoting Ray v. State, 403 So. 2d 956, 960
(Fla. 1981)).
Instruction on Burden of Proving Mitigation (claim 7)
Fletcher asserts that the sentencing court fundamentally erred
by instructing the jury that the defendant must establish mitigators
by a preponderance of the evidence at the penalty phase because
placing any burden of proof on the defendant is neither authorized
by section 921.141 nor the Eighth Amendment. To that end,
Fletcher urges this Court to recede from its decision in Campbell v.
State, 571 So. 2d 415, 419 (Fla. 1990), receded from on other
grounds in Trease v. State, 768 So. 2d 1050 (Fla. 2000), where this
Court held that “[t]he [sentencing] court must find as a mitigating
- 40 - circumstance each proposed factor that is mitigating in nature and
has been reasonably established by the greater weight of the
evidence.” Fletcher argues that Campbell read additional
requirements into the law of mitigation without statutory authority
from section 921.141 and was referring to standards that applied to
a judge’s findings, not a jury’s findings.
Fletcher’s claim is patently meritless. Generally, a “burden of
proof” is procedural, not substantive, meaning it falls within the
province of the judiciary and its rule-making authority. While the
Legislature has the authority to adopt procedural provisions in
statutes that are “intertwined with substantive rights,” see Caple v.
Tuttle’s Design–Build, Inc., 753 So. 2d 49, 54 (Fla. 2000), this Court
always has the authority to adopt rules of practice and procedure
under article V, section 2(a) of the Florida Constitution, cf. Love v.
State, 247 So. 3d 609, 610-12 (Fla. 3d DCA 2018) (concluding that
statute setting burden of proof did not violate the separation of
powers doctrine by invading the province of the judiciary because it
was substantive enough, and noting in a parenthetical that this
Court has “consistently rejected constitutional challenges [to
statutes] where the procedural provisions were intertwined with
- 41 - substantive rights” (citing Caple, 753 So. 2d at 54)), decision
quashed on other grounds, 286 So. 3d 177 (Fla. 2019).
Further, this Court recently rejected a similar but preserved
claim in Loyd, 379 So. 3d 1080. In Loyd, this Court addressed
“whether the trial court erred in reading the standard jury
instruction because in Loyd’s view it does not comport with section
921.141(2)(b), Florida Statutes (2021).” Id. at 1092. This Court
rejected Loyd’s argument, explaining that it is a firmly established
principle in Florida law that a mitigating circumstance that must be
“found to exist” under section 921.141(2)(b)2.b. is one “established
by the greater weight of the evidence.” Id. (quoting Bright v. State,
299 So. 3d 985, 1000 (Fla. 2020)).
And setting a burden of proof to establish mitigation in a
capital case does not run afoul of the Eighth Amendment. See
Walton v. Arizona, 497 U.S. 639, 649-50 (1990) (rejecting the
contention that Arizona’s capital sentencing statute violated the
Eighth and Fourteenth Amendments because it imposed on
defendants the burden of showing by a preponderance of the
evidence that there were mitigating circumstances sufficiently
- 42 - substantial to call for leniency), overruled on other grounds by Ring
v. Arizona, 536 U.S. 584 (2002).
To the extent Fletcher claims that the standard instruction on
mitigation is fundamental error because it shifts the burden to the
defendant, this claim is also meritless. See Bush, 295 So. 3d at 210
(explaining that the “standard penalty phase jury instructions do
not ‘impermissibly shift the burden to the defense to prove that
death is not the appropriate sentence’ ” (quoting Rogers v. State,
957 So. 2d 538, 555 (Fla. 2007))).
In sum, because Fletcher’s arguments are meritless, he cannot
establish any error, much less fundamental error. Thus, the Court
denies relief on this claim.
Lack of Enmund/Tison Instruction (claim 8)
Fletcher claims the trial court fundamentally erred by failing
to give an Enmund/Tison 30 instruction to the jury and by failing to
make an Enmund/Tison finding in the sentencing order. He
concedes that he did not object to the omission of the instruction to
the jury.
30. Enmund, 458 U.S. 782; Tison, 481 U.S. 137.
- 43 - Enmund and Tison require that, under the Eighth
Amendment’s prohibition against cruel and unusual punishment,
each codefendant in a felony murder case must be sentenced
proportionally to their individual culpability. As this Court
explained in Smiley, Enmund and Tison stand “for the proposition
that ‘the death penalty may be proportional punishment if the
evidence shows both that the defendant was a major participant in
the crime, and that the defendant’s state of mind amounted to
reckless indifference to human life.’ ” 295 So. 3d at 175 (quoting
Jackson v. State, 575 So. 2d 181, 191 (Fla. 1991)).
We recently rejected a fundamental error claim based on the
omission of the Enmund/Tison instruction in Cruz, 320 So. 3d 695.
In Cruz, this Court held that the omission of the Enmund/Tison
instruction was not fundamental error because the record showed
Cruz was a “major” participant in the felony committed and had a
“reckless indifference to human life.” Id. at 723 (first quoting Tison,
481 U.S. at 158; and then citing Jackson v. State, 502 So. 2d 409,
412 (Fla. 1986)); see also Jackson, 502 So. 2d at 412 (“[B]y being a
major participant in the armed robbery, [the defendant], at the very
least, contemplated that life would be taken.”). Here, although not
- 44 - specifically labeled an Enmund/Tison finding, the lower court
expressly found that the evidence pointed to Fletcher as the person
who actually strangled Googe, that he was a major participant, and
that his participation was more significant than Brown’s because he
was the mastermind.
Fletcher seeks to distinguish Cruz because, during the guilt
phase in that case, the jury answered special interrogatories on the
verdict form and found that Cruz actually possessed a firearm. 320
So. 3d at 708. 31 However, special interrogatory verdict forms are
not required for the Enmund/Tison instruction during the penalty
phase. Jackson, 502 So. 2d at 413 (“No special interrogatory jury
forms are required.”). 32 Further, Fletcher’s penalty phase jury was
instructed to consider Brown’s life sentence as a “statutory”
31. We ultimately concluded that the jury’s special finding that Cruz actually possessed a firearm was not supported by competent, substantial evidence. Id. at 716-17.
32. Fletcher suggests such findings are necessary to increase the penalty under Ring, 536 U.S. 584. But Ring imposes requirements to protect a defendant’s right to have the jury find any factor that exposes him to greater sentencing liability under the Sixth Amendment, whereas the Enmund/Tison requirements protect the defendant’s Eighth Amendment right to individualized sentencing based on the defendant’s individual culpability. Thus, there is no Ring issue here.
- 45 - mitigator and was even given his negotiated plea agreement to
review. Thus, the jury was given the opportunity to recommend
that the lower court sentence Fletcher to life as well. The lower
court also gave Brown’s life sentence great weight as a “statutory”
mitigator but ultimately found that the evidence pointed to Fletcher
as the person who actually murdered Googe. This conclusion is
supported by the evidence presented by the State.
Based on this record, Fletcher has failed to demonstrate that
his death sentence could not have been obtained without the
assistance of the omission of an Enmund/Tison instruction. Thus,
he is entitled to no relief.
III. Conclusion
Because we find no reversible error in Fletcher’s second
penalty phase and resentencing proceedings, we affirm his death
sentence.
It is so ordered.
MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS, and SASSO, JJ., concur. LABARGA, J., concurs in result with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
- 46 - LABARGA, J., concurring in result.
While I agree with the decision to affirm Fletcher’s conviction
for first-degree murder, I concur in result as to the Court’s opinion.
Although the majority has rejected this Court’s decades-long
practice of conducting comparative proportionality review in cases
involving the direct appeal of a sentence of death, I continue to
adhere to the views expressed in my dissenting opinion in Lawrence
v. State, 308 So. 3d 544 (Fla. 2020).
Moreover, in this appeal of Fletcher’s death sentence, I agree
that the sweeping elimination of the circumstantial evidence rule in
criminal cases does not support his challenge to the
constitutionality of Florida’s death penalty. See Bush v. State, 295
So. 3d 179 (Fla. 2020) (eliminating heightened standard of review of
convictions based solely on circumstantial evidence). Nonetheless, I
reaffirm my dissent in Bush, wherein I lamented the “abandon[ment
of] the reasonable safeguard provided by the heightened sufficiency
of the evidence standard.” Id. at 217 (Labarga, J., concurring in
part and dissenting in part).
An Appeal from the Circuit Court in and for Putnam County, Howard O. McGillin, Jr., Judge Case No. 542009CF000648CFAXMX
- 47 - Matthew J. Metz, Public Defender, and Nancy Ryan, Assistant Public Defender, Seventh Judicial Circuit of Florida, Daytona Beach, Florida,
for Appellant
James Uthmeier, Attorney General, Tallahassee, Florida, and Naomi Nichols, Assistant Attorney General, Daytona Beach, Florida,
for Appellee
- 48 -
Related
Cite This Page — Counsel Stack
Timothy W. Fletcher v. State of Florida, Counsel Stack Legal Research, https://law.counselstack.com/opinion/timothy-w-fletcher-v-state-of-florida-fla-2025.