author: PER CURIAM. PARIENTE, J., LAWSON, J., CANADY, J.,

text:
    Tiffany Ann COLE, Appellant, v. STATE of Florida, Appellee.
    No. SC13-2245
    Supreme Court of Florida.
    [June 29, 2017]

      Wayne Fetzer Henderson, Saint Augustine, Florida, for Appellant •
    Pamela Jo Bondi, Attorney General, and Caroljm M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

Tiffany Ann Cole, an inmate under sentences of death, appeals an order of the circuit court denying her motion for post-conviction relief filed undér Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the postconviction court’s denial of relief for a new guilt phase but grant Cole a new penalty phase based on the United States Supreme Court’s opinion in Hurst v. Florida (Hurst v. Florida), — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and this Court’s opinion on remand in Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, No. 16-998, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246, 2017 WL 635999 (U.S. May 22, 2017).

I. BACKGROUND

In 2007, “Cole was convicted of two counts of first-degree murder, two counts of kidnapping, and two counts of robbery for the 2005 murders of James and Carol Sumner.” Cole v. State, 36 So.3d 597, 599 (Fla. 2010). On appeal, this Court set out the facts of the crimes:

The evidence presented at trial established that on the night of July 8, 2005, Cole and codefendants Michael James Jackson, Bruce Kent Nixon, Jr., and Alan Lyndell Wade robbed, kidnapped, and murdered the victims. At trial, the evidence primarily consisted of codefen-dant Nixon’s testimony, Cole’s taped interview with Homicide Detective David Meacham of the Jacksonville Sheriffs Office (JSO), and Cole’s in-court testimony.
Cole was the only codefendant who knew the victims. The victims were friends with and previous neighbors of Cole’s father before the victims moved from the Charleston, South Carolina, area to Jacksonville, Florida. The victims also had recently sold Cole a vehi-ele and informed her that she was welcome at their home if she was ever in Jacksonville. The plan to rob and murder the victims evolved from knowledge that Cole already had about the victims and that she obtained from the victims in the weeks prior to the crimes.
Cole and Jackson met and became involved in a personal relationship two months before the crimes. During that two-month period, Cole and Jackson often traveled together. In June 2005, Cole and Jackson went to Jacksonville, Florida, to visit Jackson’s friend Wade. During this visit, Cole contacted the victims, and Cole and Jackson stayed one night at the victims’ home. During the visit, Mrs. Sumner informed Cole that she and Mr. Sumner had recently sold their home near Charleston, South Carolina, and had profited $99,000. Following the initial trip to Jacksonville and additional trips between Charleston and Jacksonville, Cole, Jackson, Wade, and Wade’s friend Nixon developed a plan to rob the victims. At the time of the crimes, Cole and Jackson were twenty-three years old and Wade and Nixon were eighteen years old. The victims were in their early sixties but were both in poor health and especially frail.
In preparation for the robbery, Nixon stole four shovels to dig a hole. From a rental agency in South Carolina, Cole had previously rented a Mazda RX-8, which she used to transport the group. Two days before the murders, Cole, Jackson, and Wade picked Nixon up in the Mazda. The group drove around until they selected a remote location—in Georgia, just across the Florida state line—to dig a large hole. While Cole held a flashlight, Jackson, Wade, and Nixon dug the hole, which was approximately four feet deep and six feet square. The group left the shovels at the hole when they completed the excavation. Nixon testified that in the two days after digging the hole, the foursome drove around discussing “what [they] were going to do” and “how [they] were going to do it.” He stated that the foursome planned the robbery together and that Cole was the one who knew the victims and who “set everything up.” The group initially did not know whether they would enter the Sumners’ home while the victims were home and kidnap the victims or wait until the victims were away from their home. Nixon testified that Cole knew when the victims would be away from their home for a doctor’s appointment. The foursome ultimately decided that they would kill the victims. Nixon testified that Jackson informed the others that he would kill the victims at the grave site by injecting them with a lethal dose of medication.
On the night of the crimes, July 8, 2005, Cole and her codefendants purchased duct tape and plastic wrap. Cole wrote a personal check for these items. Later that night, Cole drove the foursome to the victims’ home. Initially, Cole and Jackson remained outside in the rented Mazda. Wade and Nixon knocked on the door, and when Mrs. Sumner responded, Wade asked to use her telephone. After Mrs. Sumner allowed Wade and Nixon into her home, Wade ripped the telephone cord from the wall. Nixon held the victims at gunpoint with a toy gun, took the victims to a bedroom, and bound them with duct tape. After Wade and Nixon contacted Jackson through Nextel two-way radio phones—which the group used to communicate throughout the course of the crimes—Jackson entered the victims’ home. Jackson and Wade then searched the victims’ home for bank account records. Cole drove down the street and waited in the Mazda. Eventually, the victims were taken to their garage and forced into the trunk of their Lincoln Town Car. Cole drove back to the victims’ home in the Mazda after Jackson called her. Jackson placed a trash bag containing some of the victims’ belongings in the Mazda’s trunk and got into the Mazda. Wade and Nixon then drove the victims’ Lincoln to a gas station to refuel it, and Cole and Jackson followed in the Mazda.
The foursome, with the victims in the Lincoln’s trunk, then drove to the remote Georgia location where they had previously dug the large hole. Upon arrival, Cole remained with the Mazda at the edge of the road, while her codefen-dants drove the Lincoln into the woods to the hole. At some point, Nixon joined Cole at the road. The evidence shows that only Jackson and Wade were present at the hole when the victims were put into the hole and buried alive. When Jackson returned from the woods to the Mazda, Jackson had the personal identification number (PIN) for the victims’ automated teller machine (ATM) card. The foursome drove both cars from the grave site to Sanderson, Florida, where they wiped down the Lincoln and abandoned it. The foursome then left in the Mazda, with Cole driving.
The group next stopped at an ATM in Jacksonville, from which Jackson withdrew money from the victims’ bank account. The group then retired to a motel. Later that night, after purchasing Clorox and gloves, Cole and Wade returned to the victims’ home. The evidence shows that at that time Cole and Wade took the victims’ computer from the home. Subsequently, Cole pawned Mrs. Sumner’s rings and the victims’computer.
On July 10, 2005, Rhonda Alford, Mrs. Sumner’s daughter, reported to the JSO that she had been unable to contact the victims for several days. That same day, Officer Vindell Williams of JSO spotted a Lincoln Town Car in Sanderson that was later determined to be the victims’ Lincoln. On July 12, 2005, Homicide Detective David Meacham of the JSO responded to the victims’ home to investigate. In their home, he saw- a bank statement that showed a large sum of money in the victims’ bank account. After contacting the bank, he learned that during the past few days there had been an unusually large amount of ATM withdrawals—totaling several thousand dollars—from the victims’ account.
Later on July 12, Detective Meacham learned that someone claiming to be Mr, Sumner had contacted the JSO. Detective Meacham returned the call. The person claiming to be Mr. Sumner was later identified as codefendant Jackson. As Mr. Sumner, Jackson asked Detective Meacham to assist him in accessing his bank account; by that time Jackson was apparently having trouble accessing the account. As Mr. Sumner, Jackson explained that he and Mrs. Sumner had left town quickly to attend Mrs. Sumner’s sister’s funeral in Delaware. When Detective Meacham asked to speak to Mrs. Sumner, Cole posed as Mrs. Sumner and pretended to be tired and ailing. Detective Meacham contacted the bank and requested that it continue to allow access to the victims’ account so that Detective Meacham could continue his investigation.
Since Detective Meacham suspected that he was not actually speaking to the Sumners, he contacted United States Marshal David Aired to assist in tracking the cellular telephone number used by the callers. -The cell phone was registered to Jackson and had been used near the victims’ home around the time of the victims’ abduction. The cell phone records also showed- calls to a South Carolina rental car company. Detective Meacham contacted the company, which indicated that it had rented a silver Mazda RX-8 to Cole and that the car was overdue, Using the rental car global positioning system, law enforcement officers determined that the Mazda had been within blocks of the victims’ home on the night of the murders.
As Detective Meacham continued to investigate the victims’ disappearance, Jackson continued to withdraw money from the victims’ bank account. Jackson made multiple,ATM withdrawals from the victims’ bank account between the early hours of July 9 and the night of July 13, 2005. Photo surveillance captured Jackson making several of these withdrawals. Cole drove Jackson to the ATM machines in the rented Mazda; the Mazda could be seen in some of the surveillance photographs.
Detective James Rowan of the North Charleston Police Department testified .that he found the rented Mazda in the parking lot of an abandoned office building near, the rental company. Detective Rowan went to Cole’s residence near Charleston, South Carolina, and David Duncan, Cole’s brother, led Detective Rowan and other officers to.the nearby Best Western Hotel where Cole, Jackson, and Wade were staying. Two rooms were rented to Cole. At the motel, officers found and arrested-Cole, Jackson, and Wade. The police obtained a search warrant for the motel rooms. In the motel room where Cole and Jackson were staying, police found the victims’ South Carolina driver licenses, credit cards, checkbook, mail, and papers indicating the victims’ America Online account and passwords, social security numbers, and birthdates. In the same room, police found what appeared to be a new laptop computer and bags of new merchandise. Additionally, officers found photographs showing Cole, Jackson, Wade, and another female, who was uninvolved in the crimes, “partying” in Myrtle Beach before the crimes. The victims’ ATM card was found in Jackson’s back pocket. In the motel room where Wade was staying, police found a key ring that belonged to the victims. The victims’ coin collection was found in the trunk of Cole’s car.
Detective Meacham testified that he drove to Charleston immediately after learning that Cole, Jackson, and Wade were apprehended. A recording of Detective Meacham’s July 14, 2005, interview of Cole was played for the jury. In it, Cole admitted that before the crimes she had gone to Myrtle Beach with Jackson, Wade, and another female uninvolved in the crimes. Cole stated that the group stayed in a hotel room, “[sjpending money up there, partying up there.” She stated also that on the return trip from Myrtle Beach, the group stopped at a flea market, where Wade and Jackson purchased pocketknives and BB guns that appeared to be real firearms. Cole admitted that she knew that Jackson, Wade, and Nixon were going to the victims’ home to steal things such as credit cards. Cole also admitted that she spent the victims’ money after the murders and impersonated Mrs. Sumner during the telephone call with Detective Meacham.
Codefendant Nixon was also arrested. Nixon revealed to law enforcement officers the location where the victims were buried, and on July 16, 2005, the victims’ bodies were discovered. Nixon testified that he understood that because of his guilty plea that he could receive-a sentence between fifty-two years and life imprisonment without parole. Nixon understood that he would not be sentenced until after testifying against Wade. (Nixon had previously testified against Jackson.)
Dr. Anthony J. Clark, Medical Examiner for the Georgia Bureau' of Investigation, performed autopsies on the bodies and testified that both of the victims died as a result of mechanical obstruction of the airways by dirt. Essentially, the victims were buried alive and asphyxiated from the dirt particles smothering their airway passages.

Id. at 599-602 (alterations in original) (footnote omitted).

Cole testified during the guilt phase of her trial, which we-summarized as follows:

Her in-court testimony largely corroborated both her own previous statement ’to Detective Meacham and Nixon’s version of the events. Cole’s account differed from Nixon’s version, primarily in that Cole claimed that she thought the crime would be a simple theft and that she did not knowingly participate in the robberies, kidnappings, or murders. Cole asserted that she did not know that the victims were in the trunk until she was following the Lincoln to the grave site and heard Jackson talking to Nixon over the Nextel radio phones. Cole stated that the purpose of taking the victims to the hole was to get the PIN numbers and that from her location at, the road she could not see or hear what was happening at the grave site. Cole admitted to writing bad checks and testified that her codefendants “wouldn’t have had nothing if it wasn’t for my checking account.” Cole also admitted. that she purchased Clorox and gloves after the murders.

Id. at 602-03.

At the penalty phase, the State presented victim impact evidence from two of the victims’ relatives. The defense presented testimony from several of Cole’s relatives and friends, three correctional officers, and psychiatrist Dr. Earnest Miller. Id. at 603.

The jury recommended that Cole be sentenced to death for each murder by a vote of nine to three, and after a Spencer v. State, 615 So.2d 688 (Fla. 1993), hearing, the trial court sentenced Cole to death for each murder. Cole, 36 So.3d at 603. The trial court found seven aggravating factors applicable to both murders: (1) Cole was previously convicted of another capital felony, based on the contemporaneous first-degree murders of the victims; (2) the murders were committed in the course of kidnappings; (3) the capital felonies were especially heinous, atrocious, or cruel (HAC); (4) the capital felonies were committed in a cold, calculated, and premeditated manner (CCP); (5) the capital felonies were committed for financial gain; (6) the capital felonies were committed to avoid or prevent a lawful arrest; and (7) the victims were particularly vulnerable due to advanced age or disability. Id. at 606.

The trial court also found four statutory mitigating factors—(1) no significant history of prior criminal activity; (2) age at the time of the crimes; (3) minor participant in the crimes; and (4) under substantial domination of another—and numerous nonstat-utory mitigating factors. Id. “Ultimately, the trial court concluded that ‘the aggravating circumstances far outweigh[ed] the mitigating circumstances.’ ” Id. (alteration in original). The trial court assigned “some weight” to both the age mitigator and the no-significant-history-of-prior-criminal-activity mitigator. Id. But the trial court determined that the minor-participant mit-igator should be “afforded little weight,” and that the substantial domination miti-gator could not be “afford[ed] ... much weight.” Id.

Cole raised six claims on direct appeal: (1) the trial court erred in admonishing defense counsel for a cross-examination question to the State’s witness, codefen-dant Nixon, concerning the parameters of Nixon’s possible sentence under his plea agreement; (2) the trial court erred in admitting photographs showing Cole and codefendants Jackson and Wade partying in Myrtle Beach before the murders; (3) the trial court erred in instructing the jury on and in finding the avoid-arrest aggravating factor; (4) the trial court erred in instructing the jury on and in finding the HAC aggravating factor; (5) the trial court erred in imposing death sentences that are disparate compared to codefen-dant Nixon’s sentence of forty-five years; and (6) Florida’s death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Cole, 36 So.3d at 603, 606-07. On review, this Court concluded that the trial court erred in instructing the jury on and in finding the HAC aggravator. Id. at 609. However, we concluded that this error was harmless beyond a reasonable doubt and affirmed Cole’s convictions and sentences. Id. at 608-611.

In September 2011, Cole timely filed her motion for postconviction relief. In March 2012, Cole filed an amended motion for postconviction relief raising five claims: (1) trial counsel was ineffective during the guilt phase for failing to file a motion to suppress the fruits of Cole’s unlawful arrest and seizure; (2) trial counsel was ineffective during the guilt phase for failing to raise jurisdictional issues or moving to dismiss the indictment; (3) trial counsel was ineffective during the guilt and penalty phases for undue delay and consequential failure to develop a duress and mitigation defense; (4) trial counsel was ineffective for failing to identify, call, or prepare witnesses in the penalty phase; and (5) cumulative error requires a new penalty phase. The postconviction court held an evidentiary hearing regarding claims (3) and (4) on March 18-20, 2013. Numerous witnesses were presented during the three-day evidentiary hearing.

On October 16, 2013, the postconviction court entered an order denying relief on all of Cole’s claims. State v. Cole, No. 16-2005-CF-10263-DXXX-MA (Fla. 4th Jud. Cir. Oct. 16, 2013) (Postconviction Order). On appeal, Cole argues that: (1) trial counsel provided ineffective assistance during the guilt phase in failing to file a motion to suppress the fruits of Cole’s unlawful arrest and seizure; (2) trial counsel provided ineffective assistance during the guilt and penalty phases for undue delay and consequential failure to develop a duress and mitigation defense; (3) trial counsel provided ineffective assistance in failing to identify, call, or prepare witnesses in the penalty phase; and (4) cumulative error requires a new penalty phase. This Court permitted Cole to file supplemental briefing after the United States Supreme Court issued its decision in Hurst v. Florida. Because we determine that Cole is entitled to a new penalty phase under Hurst v. Florida and Hurst, we address only Cole’s guilt phase claims and none of the other penalty phase claims.

II. ANALYSIS

A. Ineffective Assistance of Guilt Phase Counsel Claims

1. Motion to Suppress

Cole claims that trial counsel Till was ineffective in the guilt phase for failing to file a motion to suppress the fruits of an unlawful arrest and seizure. Specifically, Cole argues that trial counsel was ineffective for failing to file a motion to suppress challenging: (1) the sufficiency of the affidavit under which police obtained a warrant to search her motel room and car; (2) her arrest; and (3) incriminating statements that she made following her arrest as being the product of her allegedly unlawful arrest. As explained below, the postconviction court did not err in denying Cole’s ineffective assistance of guilt phase counsel claim.

In order to obtain relief on a claim of ineffective assistance of counsel, “a defendant must establish deficient performance and prejudice.” Gore v. State, 846 So.2d 461, 467 (Fla. 2003). Under the first prong, “the defendant must show that ... counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[T]here is a strong presumption that counsel’s performance was not deficient, and it is the defendant’s burden to overcome this presumption.” Conahan v. State, 118 So.3d 718, 726 (Fla. 2013) (citing Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052). Moreover, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Under the second prong, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result .of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine.confidence in. the outcome,” Id. at 694, 104 S.Ct. 2052. “Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.” Id. at 687, 104 S.Ct. 2052.

On July 14, 2005, law enforcement found and arrested Cole, Jackson, and Wade at a motel in North Charleston, South Carolina. See Cole, 36 So.3d at 602. Cole was arrested following a protective sweep of her room. Law enforcement obtained a search warrant for two motel rooms rented in the name of Cole and the 1997 Chevrolet Lumina parked on the property and registered to Cole. Officer James Rowan swore to an affidavit setting out the probable cause for the search. Officer Rowan began with some information about two missing persons, the Sum-ners, and the discovery of their car “in a wooded area 45 miles from their residence.” He stated in the affidavit that “[ijnvestigators located shovels and duct tape within the vehicle when it was located.” He then stated in the affidavit:

Investigators further identified the victim’s bankcard from Heritage Trust Federal Credit Union had been used since the couple had been missing. Investigators obtained video of the individual using the victim’s card. The video showed a white male subject using the card to access the ATM to obtain money. The suspect was exiting a vehicle, which appeared to be a silver 2005 Mazda RX-8. Tiffany Cole rented a silver RX-8 from Triangle Rental Car in Charleston, S.C. Tiffany Cole failed to return the vehicle per the rental contract. A . tracking device in the vehicle was checked by the rental company and revealed-the .vehicle had been in the vicinity the-victim’s vehicle was located in. Contact was made with Tiffany Cole’s family at her known address in Ladson, S.C.- Cole’s brother took detectives to the location to be searched to locate Cole. Upon locating Cole she was found to be in the company of a white male matching the photographs of the-individual using the victim’s ATM card to make a cash withdrawal from an ATM in Jacksonville, and Charleston. Based on the information obtained by Det. Rowan, from other law enforcement officers, there is reason to believe that Cole and her accomplices may have caused harm to the victim[s] and have been using the victims[’] financial resources without permission, and further that there may be evidence of the aforementioned crimes under the control of Cole and her accomplices within the locations to be searched.

During the execution of the search warrant, law enforcement found numerous items belonging to the victims in Cole’s motel room and car including the victims’ South Carolina driver licenses, credit cards, checkbook, mail, coin collection, and papers indicating the victims’ America Online account and passwords, social security numbers, and birthdates. See id.

We conclude that Cole has failed to show that trial counsel was ineffective for failing to challenge the. sufficiency of the affidavit under which police obtained a warrant to search her motel room and car. “In determining whether probable cause exists to justify a search, the trial court must make a judgment, based on the totality of the circumstances, as to whether from the information contained in the warrant there is a reasonable probability that contraband will be found at a particular place and time.” Wade v. State, 156 So.3d 1004, 1015 (Fla. 2014) (quoting Pagan v. State, 830 So.2d 792, 806 (Fla. 2002)); see United States v. Grubbs, 547 U.S. 90, 95, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). In this ease, the search warrant was supported by information establishing a reasonable probability that contraband would be-found in Cole’s motel room and car. The affidavit plainly contains information linking Cole to the rented Mazda RX-8, the missing victims’ vehicle, a man matching the individual pictured using the victims’ ATM card in Jacksonville and- Charleston, and the locations to be searched. Cole simply has not established how trial counsel could have demonstrated the warrant to be defective under such circumstances.

We further conclude that Cole has failed to show that trial counsel was ineffective for failing to challenge her arrest or any incriminating statements that she made following her arrest. Cole’s argument that the search was tainted because her arrest was illegal is a red herring. Law enforcement seized the evidence from her motel room and car during the search conducted under the search warrant, not during the protective sweep that followed Cole’s arrest. Furthermore, no information derived from Cole after her arrest was included in the affidavit used to obtain the search warrant. In any event, there is no merit in the argument that counsel was ineffective for failing to challenge Cole’s arrest or any incriminating statements that she made following her arrest. As the facts recounted above indicate, the arrest was more than adequately supported by probable cause.

2. Duress Defense

Cole claims that trial counsel Till and Messore were ineffective in the guilt phase for failing to-adequately investigate and develop a duress defense. Specifically, Cole argues that, had trial counsel conducted a reasonable investigation of her background and psychological deficiencies, they would have been able- to show that she was under duréss and effectively under the control of her codefendants during the period surrounding the crimes. As explained below, the postconviction court did not err in denying this claim.

“Under Strickland, ‘counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’” Coleman v. State, 64 So.3d 1210, 1217 (Fla. 2011) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). “[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been'considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000).

We conclude that Cole has failed to show that trial counsel were deficient in their investigation of a duress .defense. Here, the record from the postconviction evidentiary hearing demonstrates that Till performed a reasonable investigation regarding such a defense. Till’s evidentiary hearing testimony indicates that, prior to the guilt phase, Till hired an investigator to go to South Carolina to gather information, speak to Cole’s family, and find possible witnesses for the defense. Till also obtained background information from Cole, scheduled depositions in South Carolina, engaged in discovery with the State, interviewed some of Cole’s family members, observed the evidence introduced at codefendant -Jackson’s trial, and began to formulate possible defenses. Till made a reasonable strategic decision based on his investigation to argue to the jury that Cole did not knowingly participate in the murder or kidnapping of the victims rather than emphasize a duress defense. Till chose not to focus on a duress defense at the guilt phase, in part, as a result of his conversations with Cole. Till also believed that the State’s evidence related to Cole’s conduct would overshadow the theory that Cole was under duress from her codefen-dants during the course of the criminal events and that he would lose credibility with the guilt phase jury if he focused on a duress defense. No further investigation was necessary under such circumstances.

Regardless, Cole could not demonstrate prejudice because there is no reasonable probability that the presentation of a more comprehensive duress defense would have created a different result at the guilt phase. “The evidence presented at trial established that on the night of July 8, 2005, Cole and codefendants Michael James Jackson, Bruce Kent Nixon, Jr., and Alan Lyndell Wade robbed, kidnapped, and murdered the victims.” Cole, 36 So.3d at 599.

Among other evidence, the jury heard codefendant Nixon’s testimony, Cole’s taped interview with Detective Meac-ham, and Cole’s in-court testimony. Nixon testified that Cole knew that the victims were going to be killed before the crimes took place and that Cole was as involved as Jackson, Wade, and Nixon in planning the crimes. Cole admitted that before the murders, she purchased plastic wrap and duct tape, held the flashlight while her codefendants dug the large hole where the victims were subsequently buried, and drove the co-defendants to the victims’ home and grave site. The evidence shows that after the murders, Cole purchased Clorox and gloves; went back to the victims’ home and stole their computer; posed as Mrs. Sumner on the phone with Detective Meacham; drove Jackson to ATM machines for him to withdraw money from the victims’ bank account; pawned the victims’ belongings; and participated in spending the victims’ money.

Id. at 605-06. Cole did not testify at trial that she acted under duress. Instead, “Cole claimed that she thought the crime would be a simple theft and that she did not knowingly participate in the robberies, kidnappings, or murders.” Id. at 602-03. Moreover, the evidence presented at the postconviction evidentiary hearing does not undermine our confidence in the outcome.

B. Hurst v. Florida and Hurst

During the pendency of Cole’s appeal from the denial of her motion for postcon-viction relief, the United States Supreme Court issued its decision in Hurst v. Florida, in which it held that Florida’s former capital sentencing scheme violated the Sixth Amendment because it “required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty” even though “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Hurst v. Florida, 136 S.Ct. at 619. On remand in Hurst we held that

before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death.

Hurst, 202 So.3d at 57.

Hurst v. Florida and Hurst apply retroactively to defendants in Cole’s position who were sentenced under Florida’s former, unconstitutional capital sentencing scheme after the United States Supreme Court decided Ring in 2002. Mosley v. State, 209 So.3d 1248, 1283 (Fla. 2016). And in light of the nonunanimous jury recommendation to impose the death sentences, it cannot be said that the failure to require a unanimous verdict as to each death sentence was harmless. See Franklin v. State, 209 So.3d 1241, 1248 (Fla. 2016) (“In light of the non-unanimous jury recommendation to impose a death sentence, we reject the State’s contention that any Ring- or Hurst v. Florida-related error is harmless.”), petition for cert. filed, No. 16-1170 (U.S. Mar. 23, 2017). We therefore conclude that Cole is entitled to a new penalty phase.

III. CONCLUSION

Based on the foregoing, we affirm the denial of Cole’s postconviction guilt phase claims, vacate her death sentences, and remand for a new penalty phase under Hurst v. Florida and Hurst.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS and QUINCE, JJ., concur.

PARIENTE, J., concurs with an opinion.

LAWSON, J., concurs specially with an opinion.

CANADY, J., concurs in part and dissents in part with an opinion, in which POLSTON, J., concurs.

PARIENTE, J.,

concurring.

I agree with the majority’s holding that Cole is entitled to Hurst relief as a result of the nine to three jury recommendation for death. Majority op. at 545. I write separately to expand on the majority’s Hurst analysis, specifically reviewing the mitigation presented at trial.

On direct appeal, we explained the mitigation evidence that the defense presented at the penalty phase of Cole’s trial. Cole v. State, 36 So.3d 597, 603 (Fla. 2010). Specifically, regarding mental health mitigation, Psychiatrist Dr. Earnest Miller “testified that Cole suffered from poly-substance and alcohol abuse, chronic depression, and a personality disorder not otherwise specified [and] ... that Cole had witnessed abuse to family members and pets, had been sexually abused by her father, and had been in abusive relationships with two boyfriends.” Id.

As the majority states, the jury in Cole’s trial recommended each sentence of death by a vote of nine to three. Majority op. at 539-40. The trial court found multiple aggravating factors, four statutory mitigating circumstances, and several nonstatutory mitigating circumstances, which the trial court grouped into six categories. As this Court detailed on direct appeal:

The trial court assigned “some weight” to both the “no significant history of prior criminal activity” mitigating factor and the age at the time of the crime mitigating factor (Cole was twenty-three years old). With respect to the minor participant mitigating factor, the trial court’s order states, “While this defendant might not have turned the spade onto the Sumners, this Court cannot say that her participation was relatively minor. Accordingly, this matter is afforded little weight.” With respect to the “substantial domination” mitigating factor, after noting that there was “some evidence of this mitigator in the record”— i.e., the defendant’s own testimony—the trial court concluded that “given the totality of the circumstances, the Court cannot afford this matter much weight.” The trial court stated that “the evidence tends to indicate that [Cole] knew exactly what she was doing and participated without hesitation.”
The trial court grouped the numerous nonstatutory mitigating factors into six categories. The six categories include: (1) Cole had minimal involvement in the criminal activity (some weight); (2) Cole had psychological circumstances that included lack of self-confidence, low self-esteem, and feelings of inadequacy (little weight); (3) Cole had been a model prisoner (some weight); (4) Cole’s family history included growing up without a father, being raised by a working mother, caring for her brothers and terminally ill father, being a victim of domestic violence, having the capacity to form loving relationships, and having the love and support of her family (some weight); (6) Cole had substance abuse problems (little weight); and (6) Cole was of good character (some weight).

Cole, 36 So.3d at 606; see majority op. at 640.

Despite the trial court’s findings that there were sufficient aggravators to impose death, which outweighed the miti-gators, this Court has no way of knowing whether the jury unanimously found that the aggravation was sufficient to- impose death, or that the aggravation outweighed the mitigation. Also, this Court struck the HAC aggravating factor on direct appeal, which must-be considered in determining “the. effect of any error on the jury’s findings” after Hurst. Wood v. State, 209 So.3d 1217, 1233 (Fla. 2017); see majority op. at 540. In light of the jury’s vote of nine to three to recommend sentences of death in Cole’s case, this Court cannot speculate why the three jurors, who voted to recommend sentences of life imprisonment, determined that death was not the appropriate. punishment. Thus, I agree with the majority’s conclusion, that the Hurst error in Cole’s case was not harmless beyond a reasonable doubt.

LAWSON, J.,

concurring specially.

See Okafor v. State, 42 Fla. L. Weekly S639, S641, 2017 WL 2481266, at *6, — So.3d —, — (Fla. June 8, 2017) (Lawson, J., concurring specially).

CANADY, J.,

concurring in part and dissenting in part.

I agree with the decision to affirm the denial of relief on Cole’s guilt phase claims. But I disagree with the decision to vacate Cole’s death sentences and to remand for a new penalty phase. As I have previously explained, Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), should not be given retroactive effect. See Mosley v. State, 209 So.3d 1248, 1285-91 (Fla. 2016) (Canady, J., concurring in part and dissenting in part). I would also reject Cole’s other penalty phase claims. The postconviction court’s denial of all relief should be affirmed.

POLSTON, J., concurs.

      . Two of Cole’s codefendants, Michael James Jackson and Alan Lyndell Wade, were also sentenced to death. Wade v. State, 41 So.3d 857 (Fla. 2010), cert. denied, 562 U.S. 1183, 131 S.Ct. 1004, 178 L.Ed.2d 835 (2011); Jackson v. State, 18 So.3d 1016 (Fla. 2009), cert. denied, 558 U.S. 1151, 130 S.Ct. 1144, 175 L.Ed.2d 979 (2010). They have since been granted new penalty phase proceedings. State v. Jackson, No. 16-2005-CF-10263-CXXX-MA (Fla. 4th Jud. Cir. Jun. 9th, 2017) (Post-conviction Order); State v. Wade, No. 16-2005-CF-10263-BXXX-MA (Fla. 4th Jud. Cir. May 1, 2017) (Postconviction Order).

      . Quentin Till and Greg Messore represented Cole at trial. Till primarily handled the guilt phase and Messore primarily handled the penalty phase.

      . Although Cole’s trial counsel filed several motions to suppress and adopted her codefen-dants’ motions to suppress, trial counsel did not make these specific arguments.

      . In this case, "the jury found Cole guilty of two counts of first-degree murder, on- both premeditation and felony-murder theories; two counts of kidnapping; and two counts of robbery.” Cole, 36 So.3d at 603. We note that "duress is not a defense to intentional homicide because ‘duress will never justify the killing of an innocent third party.' ” Henry v. State, 613 So.2d 429, 432 n.6 (Fla. 1992) (quoting Wright v. State, 402 So.2d 493, 498 (Fla. 3d DCA 1981)).

      . Till requested a duress instruction at trial, which the trial court denied, and briefly suggested a possible duress defense to the jury during closing argument.

      . Hurst v. State, 202 So.3d 40 (Fla. 2016), cert. denied, No. 16-998, - U.S. -, 137 S.Ct. 2161, 198 L.Ed.2d 246, 2017 WL 635999 (U.S. May 22, 2017).


source: Caselaw Access Project

license: Public Domain

text:
    John SEXTON, Appellant, v. STATE of Florida, Appellee.
    No. SC14-62
    Supreme Court of Florida.
    [June 29, 2017]

      Howard L. “Rex” Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Candance M. Sabel-la, Chief Assistant Attorney General, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

John Sexton appeals his conviction for the first-degree murder of Ann Parlato and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm Sexton’s conviction but reverse his sentence of death and remand this case to the trial court for a new penalty phase.

I. BACKGROUND

Ann Parlato was a ninety-four-yéar-old woman who lived alone in her Pasco County home. John Sexton began cutting her lawn in the summer of 2010. On September 23, 2010, a friend of Parlato’s found her deceased on her living room floor. Her face had been bludgeoned to the point of being unrecognizable, and her naked body was partially covered with a white sheet. There was blood spatter all around her head. Her right breast had been cut off and a prosthetic breast pad (which Parlato owned due to a prior mastectomy of her left breast) was placed over the area where her right breast had been. The excised 'right breast was on the floor near Parla-to’s head. A vase protruded from her rectum. A purse had been placed between her legs and set on fire, burning her genital and thigh areas. A knife was on the floor near her body.

Despite having been cleaned two days earlier, Parlato’s home was in complete disarray. The front door was left partially open and the foyer was covered in dirt and leaves. Various objects had been pulled out of drawers and were on the floor in the living room. There was blood in the foyer, in the living room, on the curtain above the kitchen sink, on a stool in the shower in the master bathroom, on the floor and shower curtain in the hall bathroom, and on the door and sheets in Parlato’s bedroom, The kitchen was a mess, with food strewn about on the floor. Several kitchen knives were in the basin of the kitchen sink. A large wooden clock in the living room had a knife protruding from the top of it. Bottles of cleaner that appeared to have been opened were on the floor near the washer and dryer, and a bottle of bleach had blood on it. There were bloodstains on the exteriors of the washer and dryer. There was what appeared to be a bloody handprint on the dryer. There were also bloodstains inside the washer, as well as some grass, cigarette butts, and several items of clothing. The contents of the washer were wet, as if they had been through the wash cycle. There were Band-Aid wrappers and a Band-Aid box on the kitchen counter. Although Parlato had asthma and did not allow smoking in her home, there were cigarette ashes in the dining room and on a footstool in the living room and cigarette butts in the kitchen trashcan and the toilet, in "addition to the washing machine.

Dr. .Jonathan Thogmartin, the. medical examiner, observed Parlato’s body as it was found, at the crime scene and subsequently conducted the autopsy. He determined the cause of Parlato’s death to be blunt trauma to the face, head,, and neck and the manner of death to be homicide. The autopsy revealed that Parlato’s cheek bones, eye sockets, and chin were'crushed. Her jaw was broken and dislocated. She suffered multiple lacerations, blunt force impacts, rib fractures, a dislocated spine, and bruising to the brain. There were five vaginal- lacerations or tears, which were consistent- with a forcible sexual battery having occurred. Dr. Thogmartin determined that the removal of the right breast, insertion of the vase, burning, and a stab wound to the abdomen occurred postmortem.

An expert in blood pattern analysis and crime scene reconstruction determined that Parlato was struck by. -at least three impact blows in the foyer area. And an impact bloodstain on a chair in the living room indicated another forceful blow. At least seven other forceful blows were indicated by stains in the area where her body was found. Parlato’s upper, body was in a raised position during one blow and her head was on the floor for the remainder of the blows. Blood in other areas of the home indicated that the perpetrator moved around the home after the attack. Three circles on the living room floor were consistent with the size of the bottom of a two-gallon bucket found in the house and indicated an attempt to clean up. The cleanup attempt was corroborated by the odor of bleach in the house.

Devlynn Saunders, David Carlin, and Patrick Grattan lived together in the house next door to Parlato’s. Around 11:30 p.m. on September 22, Carlin went outside to smoke a cigarette. At that time, he did not notice a truck in Parlato’s driveway or anything unusual about her house. Around midnight, all three of the roommates heard a loud boom or thud coming from the direction of Parlato’s house. When they went outside to investigate the noise, they saw a truck parked in Parlato’s driveway and, through an open kitchen window and open curtains, observed a man standing at her kitchen sink. The man appeared to be doing dishes; the water was .running and items were clanking around in the sink. Saunders and Carlin recognized the man as Sexton because they had seen him cutting Parlato’s grass and he had approached them on several occasions inquiring whether they were interested in his lawn care services. They also recognized the truck in Parlato’s driveway as Sexton’s. They thought it was odd that Sexton was at Parlato’s at such a late hour,- but they were not too concerned because Par-lato was a “night owl.” They assumed that maybe Sexton was helping Parlato with something and decided just to take down the license plate number from the truck and go back to bed. After learning of Parlato’s murder the next day, Carlin provided the plate number from the truck to the police, who confirmed that the truck was registered to Sexton and his wife, Catherine. Although Saunders and Carlin were unable to pick Sexton out 'front sets of six photographs shown to them by police, they both identified him at trial as the man they saw in Parlato’s kitchen after midnight on September 23, 2010.

Several hours after Parlato’s body was discovered, Pasco County Sheriffs Detectives Robert Grady and Jason Hatcher went to speak with Sexton at his home, which was located less than a mile from Parlato’s house.. Sexton was standing outside when the detectives arrived. He was wearing a gray T-shirt and khaki shorts, which appeared to have bloodstains on them. When the detectives approached, Sexton appeared nervous, his hands were shaking, and he kept trying to turn his knuckles inwards. Sexton had a small, half-moon-shaped cut on his right knuckle, which he said was caused by a razor blade he used to trim a tree earlier that week. The conversation was recorded by a device in Detective Hatcher’s pocket.

. The detectives told Sexton that they were there because Parlato had been murdered. Sexton acted surprised by the news. He said he had last seen Parlato the night before when he stopped by her house around 8 p.m. or. 8:30 p.m. to ask if she wanted any more work done in her, yard. He said that he was only there for about ten-minutes and had talked to Parlato in her foyer. Sexton said that after he left Parlato’s, he went to a bar for one beer and then he drove around and had another beer in the car before going home around 10:30 p.m.

During the conversation, Sexton’s wife, Catherine, came outside, and Sexton told her that Parlato had been murdered. Sexton asked Catherine what time he got home the night before. He asked her, “10:30, maybe? Something like that?” and then stated, “She doesn’t remember.” Detective Grady said that Catherine then said to him in a quiet voice, which was not picked up by the recording device, “He’s not telling the truth. He got home at 2:00 a.m.”

When Sexton was told that a neighbor had seen him in Parlato’s kitchen and his truck in Parlato’s driveway much later than 8:30 p.m., Sexton said that was not possible. Before going with the detectives to the Sheriffs Office, Sexton provided a DNA sample, the shirt and shorts he was wearing—which he said were the same clothes he wore to Parlato’s the night before—and the boots he had been wearing the night before.

At trial, Catherine testified that she and Sexton were arguing on the evening of September 22, 2010, because Sexton was drinking beer. She saw him around 7 p.m. at one of his lawn jobs, and he appeared a little bit impaired. She went looking for him later and encountered him again around 9:30 p.m. in the driveway of a vacant house. He appeared to have drunk more beer since she had seen him around 7 p.m., and they continued to argue. She then saw him come out of a convenience store around 9:45 p.m. with more beer. The store’s surveillance tape, which was introduced at trial, showed Sexton leaving the store at 9:47 p.m. There were no blood stains on his clothes at that time. At that point, Catherine was concerned about Sexton’s well-being and she called 911 to report that Sexton was drinking and driving. Catherine went home and tried many times to call Sexton, but he did not answer. She went to bed around 1:45 a.m., and Sexton knocked on the door around 1:55 a.m. Catherine let Sexton in but made him sleep on the couch.

A DNA analyst from the Florida Department of Law Enforcement (FDLE), Lisa Thomas, analyzed the clothes Sexton was wearing when Parlato was murdered, swabbings and clippings taken from Sexton’s hands on September 23, 2010, and some of the knives found in Parlato’s home. The stains on Sexton’s clothing and a swab from his boots tested presumptively positive for the presence of blood. And despite the fact that it appeared that the clothes had been washed after they were stained, Thomas was able to obtain a DNA profile from the stains and the boot swab, both of which matched the known DNA profile of Parlato, with the frequency of that profile occurring in the population at random being approximately 1 in 69 trillion. A swabbing of the cuticles from Sexton’s right hand tested presumptively positive for the presence of blood, and a DNA mixture profile obtained from the swab matched Parlato’s DNA with the likelihood of a random match being 1 in 420,000. A DNA mixture obtained from fingernail clippings from Sexton’s right hand matched Parlato’s DNA with the likelihood of a random match being 1 in 4,200. The foreign DNA on the cuticles of Sexton’s left hand matched Pariato’s DNA with the likelihood of a random match being 1 in 76 million.

Thomas concluded that DNA on the blade of a knife found in Parlato’s kitchen sink matched Parlato’s DNA with the likelihood of a random match being 1 in 69 trillion. Parlato’s DNA was also on the handle of that knife along with DNA from another individual. The DNA on the knife handle that did not match Parlato’s DNA could have originated from Sexton, but Thomas did not have enough information to include him as a possible contributor. DNA on the blade—which tested presumptively positive for the presence of blood— and handle of the knife found in the clock in Parlato’s home matched Parlato with the likelihood of a random match being 1 in 69 trillion. A partial DNA profile (DNA was present at 12 of the 13 loci tested) on the blade of the knife found on the living room floor also matched Parlato’s DNA with the likelihood of a random match being slightly less than 1 in 69 trillion.

Another FDLE DNA analyst, Sean Mi-chaels, obtained a DNA profile from the cigarette butt found in Parlato’s kitchen trashcan and determined that it matched Sexton’s, with the likelihood of a random match being 1 in 160 quadrillion.

A footwear impression analyst from FDLE analyzed the footwear impressions left at Parlato’s house and Sexton’s boots. She concluded that five right footwear impressions left at the scene could have been made by Sexton’s right boot.

Sexton did not testify at trial. The jury was instructed on theories of both first-degree premeditated murder and first-degree felony murder and returned a general verdict finding Sexton guilty of first-degree murder. After the penalty phase, the jury recommended that a sentence of death be imposed by a vote of 10-2. The trial court ultimately followed the jury’s recommendation.

II. ANALYSIS

Sexton raises four guilt phase issues and eight penalty phase issues on appeal. We address Sexton’s guilt phase issues as well as sufficiency of the evidence but as to the penalty phase, we address only the disposi-tive issue.

A. Cross-examination of DNA Analysts

Sexton contends that the trial court erred by denying him the opportunity to cross-examine FDLE DNA analysts Lisa Thomas and Sean Michaels regarding pri- or instances of contamination in analyses they conducted in other cases. We disagree.

Thomas testified during a pretrial deposition that while employed by FDLE from 2006-2011, she had approximately six to ten instances of various errors in other cases, including contamination, carryover, unexplained profiles, and mislabeling of samples, all of which occurred prior to her work on Sexton’s case. Each time an error arose, she completed a form to document the error or contamination event and to explain which cases were affected, what she believed went wrong, and how she would prevent the error from recurring.

Michaels testified during a pretrial deposition that he had approximately three or four instances of contamination in the six years he had worked for FDLE, the most recent of which was in 2010 or 2011, before he worked on Sexton’s case in 2012. He documented the prior instances of contamination in a log, in which he explained what could have caused the contamination in those analyses.

The State filed a motion in limine to preclude the defense from questioning Thomas at trial regarding her prior instances of contamination in other cases, arguing that acts of misconduct are not admissible for impeachment. Sexton responded that evidence of prior contamination tended to show that Thomas “might not be credible in observing what she’s testifying about,” but he admitted that all FDLE protocols were followed in this case and that there was no evidence of any error in the DNA analysis. The trial court granted the motion in limine, ruling that the prior instances of contamination were not relevant to Thomas’s actions in this case and that the defense could not question her about those prior instances unless she were to testify that she never had any issues with contamination.

' At trial, Thomas did not testify that she never had any issues with contaminatioh, but Sexton requested reconsideration of the trial court’s in limine ruling and sought to cross-examine Thomas regarding the prior instances of contamination. The trial court declined to overrule its pretrial ruling. During Michaels’ trial testimony, Sexton proffered Michaels’ deposition testimony regarding his prior instances of contamination “in line [sic] of the State’s motion in limine concerning the prior incidents [sic] of the contamination that was testified to by Ms; Johnson [sic].”

A trial court’s'ruling regarding the scope and limitation of cross-examination rests in the sound discretion of the court and is subject to review for abuse of that discretion. See McCoy v. State, 853 So.2d 396, 406 (Fla. 2003). It is well-established that evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness. Farinas v. State, 569 So.2d 425, 429 (Fla. 1990); see §§ 90.608-610, Fla. Stat. (2012).

In Cruse v. State, 588 So.2d 983, 988 (Fla. 1991), the defendant argued on appeal that the trial court erred by failing to allow cross-examination of a State expert, Dr. Kirkland, as to his examination of a defendant in another capital case, State v. Sireci, 536 So.2d 231 (Fla. 1988), in which we upheld a trial court’s finding that “Dr, Kirkland had rendered an incompetent medical evaluation.” The trial court in Cruse “determined that the competency of Dr. Kirkland’s evaluation of Sireci was a purely collateral matter, the probative value. of which was outweighed by the danger of confusing the issues and misleading the jury.” Cruse, 588 So.2d at 988. We agreed, noting that the “proposed evidence [did] not fall under any of the express ways allowed to attack a witness’s credibility” under section 90.608, Florida Statutes (1987). Id. Moreover, “[i]f such inquiry were permissible, every trial involving expert testimony could quickly turn into a battle over the merits of prior opinions by those experts in previous cases-....” Id.

The reasoning of Cruse applies here. The evidence at trial showed that when Sexton was arrested, he was wearing the same clothes he had on the night before. Thomas testified that despite the clothes having been washed before they were obtained by law enforcement, she was able to develop complete DNA profiles from blood, on Sexton’s shirt, shorts, and shoes, each of which matched Parlato’s complete DNÁ profile." There was no evidence that the DNA samples in this cáse were contaminated and the'prior instances of contamination were irrelevant -to this case. Accordingly, the trial court did not abuse its discretion in disallowing cross-examination of Thomas regarding prior instances of contamination,

Sexton’s claim that the trial court erred in limiting his cross-examination of Michaels is not preserved for review. The State’s motion in limine sought only to preclude cross-examination of Thomas regarding prior instances of contamination in other cases in which she was involved; it made no mention of Michaels. Michaels’ work was not challenged by Sexton at the hearing on the State’s motion in limine, and Sexton did not attempt to cross-examine Michaels regarding his prior instances of contamination at trial nop did he receive a ruling from the trial court as to whether or not the court would permit him to do so. Moreover, even if this claim were preserved and the trial court had limited cross-examination of Michaels regarding his prior instances of contamination, we would conclude that the trial court did not abuse it discretion for the same reasons explained above with regard to Thomas’s prior instances of contamination.

B. Testimony Regarding the Attempted Auto Burglary

Sexton contends that the trial court abused its discretion by treating the proffered testimony of Stephen Tarnowski as reverse Williams rule evidence and. excluding it. .Sexton asserts that Tarnowski’s testimony should have been admitted because it placed other suspects in the vicinity of .Parlato’s house near the time of the murder. We disagree.

Tarnowski, who-lived a few streets away from Parlato, testified in a proffer that on September 23, 2010, he went out on his porch to smoke a cigarette sometime between 1 a.m. and 3 a.m. and observed two shirtless men trying to break into a neighbor’s car. When he. yelled at the men, they ran away. When Tarnowski learned of Par-latp’s murder the next day, he went to Parlato’s house and reported what he had observed in the early morning hours to a uniformed officer on scene.

The trial court ruled that Tarnow-ski’s testimony was inadmissible as reverse Williams rule evidence, noting there was no evidence that Parlato’s home was burglarized. ■

“Reverse Williams rule” evidence is evidence of a crime committed by another person that a defendant offers tó show his or her innocence of the instant crime. The defendant must demonstrate a “close similarity of facts, a unique or ‘fingerprint’ type of information” for the reverse Williams rule evidence to be admissible.

McDuffie v. State, 970 So.2d 312, 323 n.2 (Fla. 2007) (citation omitted). Because there was no factual similarity between Parlato’s murder and the attempted auto burglary several blocks away, we find no error in the trial court’s conclusion that the evidence did not meet the standard for admission as reverse Williams -rule evidence. Even assuming that the trial court should not have analyzed the admissibility of Tarnowski’s testimony under the reverse Williams rule standard, because the testimony was irrelevant, the trial court did not err in excluding it. See, e.g., Robertson v. State, 829 So.2d 901, 906 (Fla. 2002) (recognizing that the “tipsy coachman” doctrine is a longstanding principle of appellate law that allows an appellate court to affirm a trial court that reaches the right result but for the. wrong reason so long as , there is any basis which would support the judgment in the record).

In order for evidence—reverse Williams rule evidence or otherwise—to be admissible, it must be relevant. Evidence is relevant if it tends to prove or disprove a material fact. § 90.401, Fla. Stat, (2012). Sexton contends that Tarnowski’s testimony was relevant because it placed other suspects in the area near the time of the murder. But the fact that two people may have attempted to gain access to a vehicle parked several streets away from Parlato’s house sometime between 1 a.m. and 3 aun, on September 23, 2010, does not make them “suspects” in Parlato’s murder. And the mere fact that an attempted auto burglary occurred several blocks away in the general time frame of the murder does not tend to disprove that Sexton murdered Parlato. Thus, Tarnowski’s testimony was not relevant, Accordingly, the trial court did not err in excluding it.

C. Catherine Sexton’s Statement to Detectives

Detectives Grady and Hatcher went to Sexton’s home during the afternoon of September 23, 2010, to interview him regarding Parlato’s murder. During the interview, Sexton’s wife, Catherine, came out of the house and joined the three men in the front yard. The interview was recorded and the portion pertinent to this claim was heard by the jury as follows:

SEXTON: Do you know that old lady Ann, the one that talks on the phone when she calls me to do her lawn?
CATHERINE: Uh-huh.
SEXTON: They said they think she was murdered last night.
CATHERINE: Oh, my God.
SEXTON: Because I had driven by there just after I seen you, because her lawn wasn’t quite up, but sometimes she wants me to do other things. She’s always got a multitude of things she wants done, and I was trying to pick up an extra job, and talking to her around ten minutes.
SEXTON: What time did I get home last night? 10:30, maybe? Something like that? [Catherine] doesn’t remember.
DETECTIVE HATCHER: All right. So you got home—you’re saying you got home around 10:30 [p.m.]
SEXTON: Around 10:30 [p.m.]

Detective Grady testified that Sexton was addressing his wife when he asked, “What time did I get home last night? 10:30, maybe?” and that immediately after Sexton said he arrived home at 10:30, Catherine said to Detective Grady in a quiet voice that was not picked up on the recording, “He’s not telling the truth. He got home at 2:00 a.m.” Sexton objected, arguing that Detective Grady’s testimony about what Catherine said was hearsay, but the trial court overruled the objection. Sexton now argues that the trial court erred in overruling his hearsay objection and admitting Catherine’s statement through Detective Grady.

Sexton is not entitled to relief on this claim. Even if the trial court erred in admitting Catherine’s statement through Detective Grady, Catherine testified at trial that Sexton arrived home at 1:55 a.m. on the night of the murder. Thus, the jury still would have heard that, according to Catherine, Sexton actually arrived home at 1:55 a.m. on September 23, 2010. Because admission of the same statement through Detective Grady was merely cumulative to Catherine’s trial testimony, we conclude that there is no reasonable possibility that the admission of Catherine’s out-of-court statement affected the verdict. Accordingly, any error in admitting the statement through Detective Grady was harmless beyond a reasonable doubt.

D. Evidence of Postmortem Injuries

Sexton claims that the trial court erred in admitting photographs and testimony relating to injuries that were inflicted on Parlato’s body after her death, specifically, the insertion of the vase into the rectum and a rectal tear, the bums to the genital and thigh areas, a stab wound to the abdomen, and the removal of the right breast. Sexton contends that four photographs depicting the deceased victim were not relevant to the cause of death, the identity of the perpetrator, or the issue of premeditation and that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Sexton further contends that the medical examiner should not have been allowed to testify about the postmortem injuries because they were irrelevant to the cause of death and highly prejudicial.

The admission of photographic evidence is within the trial court’s discretion and a ruling on this issue will not be disturbed on appeal absent a clear showing of abuse of discretion. Douglas v. State, 878 So.2d 1246, 1255 (Fla. 2004); Pangburn v. State, 661 So.2d 1182, 1187 (Fla. 1995). We have consistently held that “[t]he test for admissibility of photographic evidence is relevancy rather than necessity.” Douglas, 878 So.2d at 1255 (quoting Pope v. State, 679 So.2d 710, 713 (Fla. 1996)). “[P]hotographs are admissible if they are relevant and not so shocking in nature as to defeat the value of their relevance.” Jennings v. State, 123 So.3d 1101, 1126 (Fla. 2013) (quoting Hertz v. State, 803 So.2d 629, 641 (Fla. 2001)). “Crime scene photographs are considered relevant when they establish the manner in which the murder was committed, show the position and location of the victim when he or she is found by police, or assist crime scene technicians in explaining the condition of the crime scene when police arrived.” Id.

The four challenged photographs depict Parlato’s body as it was found on her living room floor. Exhibit 38 shows that Parlato’s right breast had been removed and her prosthetic left breast pad was placed over the area from where the right breast had been removed. The photograph was taken from behind Parlato’s head, looking toward her feet. The prosthetic breast covered the area where the cutting occurred on the body except for what defense counsel described to the trial court as some “yellow-orange” tissue around the prosthetic. This photograph was used by an expert in blood pattern analysis and crime scene reconstruction to explain that the blood spatter around Parlato’s head evidenced that she received at least seven blows while she was in the area in which she was found. Exhibits 93 and 94 show Parlato’s body mostly covered by a sheet. Exhibit 93 was taken from a distance, and exhibit 94 shows only Paiiato’s legs, which appear uninjured. Exhibit 95 shows Parlato’s body without the sheet. It was taken from the area of Parlato’s feet, looking toward her head. A forensic crime scene-investigator used exhibits 93, 94, and 95 to explain the position and condition in which Parlato’s body was found. The medical examiner, Dr. Thog-martin, also used the photographs to describe the way Parlato’s body looked when he arrived. He testified that the state in which the body was found supported his opinion that Parlato’s death was a homicide. Dr. Thogmartin also used the photographs to -illustrate how he concluded that Parlato suffered multiple blunt traumas to her face, a circumstance which was relevant to the element of premeditation.

Because the photographs established the manner in which the murder was committed, showed the position and location of the victim when she was found, and assisted the witnesses in explaining the condition of the crime scene when police arrived, they were undoubtedly relevant. And their gruesome nature was not so shocking as to defeat the value of their relevance or unfairly prejudice Sexton. Accordingly, the trial court did not abuse its discretion in admitting the four challenged photographs. See Pope, 679 So.2d at 713-14 (finding no abuse of discretion in admission of gruesome crime scene and autopsy photos where photos were relevant to establish the manner in which the murder was committed, to assist the crime scene technician in explaining the condition of the crime scene when the police arrived, and to illustrate the medical, examiner’s testimony and the injuries he noted on the victim).

In describing his cursory examination of Parlato’s body to the jury, Dr. Thogmartin noted that Parlato’s right breast had been removed and a vase was protruding from her rectum. The testimony about the abdominal stab wound and cutting -of the breast were relevant to explain the knives at the crime scene, which corroborated and provided context to the neighbors’ observations of Sexton washing objects in Parla-to’s kitchen sink. The testimony about the vase was relevant to describe the condition in which the body was found, and there was testimony that the vase could have been the murder weapon and the object used to commit the sexual battery. Because it could be reasonably inferred from the evidence that Sexton set fire to Parla-to’s genital and thigh areas in an attempt to destroy evidence related to the sexual battery, the testimony regarding the burn injuries was relevant to show consciousness of guilt. The trial court did not abuse its discretion in allowing this testimony.

E. Sufficiency of the Evidence

Although Sexton does not challenge the sufficiency of the evidence to sustain his conviction for first-degree murder1, 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(5) (“On direct appeal in death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.”). “There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Johnston v. State, 863 So.2d 271, 283 (Fla. 2003). Where the evidence of guilt is wholly circumstantial, “not only must the evidence be sufficient to establish each element of the offense, but the evidence also must be inconsistent with any reasonable hypothesis of innocence proposed by the defendant.” Twilegar v. State, 42 So.3d 177, 188 (Fla. 2010). Sexton’s jury was instructed on theories of both first-degree premeditated murder and first-degree felony murder, with the underlying felony being sexual battery, and returned a general verdict of guilty of first-degree murder .without specifying whether the State proved first-degree murder, felony murder, or both. Here, we conclude that a rational trier of fact could have found that the elements of both premeditated and felony murder were proven beyond a reasonable doubt and that the evidence was inconsistent with any reasonable hypothesis of innocence.

Sexton’s identity as the killer was proved based on the following: .he admitted to being at Parlato’s. house on the night of September 22, 2010; he was seen at Parlato’s house around the. time of the murder, appeared to be doing dishes, and knives with Parlato’s DNA, on. them were later found in the sink; he had Parlato’s blood on his clothes; cigarette butts with his DNA on them were found in Parlato’s house even though she did not allow smoking in the house; and he lied to law enforcement about his whereabouts at the time of the murder.

“Premeditation is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.” Asay v. State, 580 So.2d 610, 612 (Fla. 1991), “Premeditation is a factual issue to be determined by the. jury and, like other factual matters, may be established by circumstantial evidence.” Twilegar, 42 So.3d at 190. The evidence established that Parlato was a ninety-four-year-old woman who died as a result of multiple blunt traumas to her face, head, and neck. The bones in her face were crushed. There were so many fractures in her face that it was misshapen and felt “crepitant” -.or “crunchy” to the medical examiner. Her orbits were fractured and some of the bone penetrated her skull. Her brain was bleeding and bruised. Her spine was dislocated as a result of the impacts to her head. She had several rib fractures. Although Parlato was ninety-four years old, Dr. Thogmartin testified that the amount of blunt trauma inflicted on her would likely have been fatal to anyone. Bloodstain patterns revealed that she was hit numerous times in multiple areas of the home. The whole of these facts provides competent, substantial evidence to support a .finding of premeditation.

To prove first-degree felony murder, the State was required to prove that Sexton caused Parlato’s death during the commission of a sexual battery. Parlato’s body was found nude. The autopsy revealed the presence of three lacerations inside of the vagina—one of which was six centimeters long—and two at the entry of the vagina, which were “standing very wide open.” The lacerations were traumatic injuries caused by the insertion of an object into the vagina. All of the vaginal lacerations bled, meaning Parlato was alive when they were inflicted. These injuries would have caused horrible pain and were consistent with a forcible sexual battery. Thus, there is competent, substantial evidence to support a finding that Parlato’s death occurred during the commission of a sexual battery and therefore to sustain a felony murder conviction.

F. Hurst

During the pendency of Sexton’s appeal, the United States Supreme Court issued its decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 619, 193 L.Ed.2d 504 (2016), in which it held that Florida’s former capital sentencing scheme violated the Sixth Amendment because it “required the judge to hold a separate hearing and determine whether sufficient aggravating circumstances existed to justify imposing the death penalty” even though “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” On remand in Hurst v. State, 202 So.3d 40, 57 (Fla. 2016), cert. denied, No. 16-998, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246, 2017 WL 635999 (U.S. May 22, 2017), we held that

before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and-expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are' sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death.

In light of the nonunanimous jury recommendation to impose a déath sentence, it cannot be said that the failure to require a unanimous verdict was harmless. See Franklin v. State, 209 So.3d 1241, 1248 (Fla. 2016) (“In light of the non-unanimous jury recommendation to. - impose a death sentence, wé reject the State’s contention that any Ring[ v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ]- or Hurst v. Florida-related error is harmless.”), petition for cert. filed, No. 16-1170 (U.S. Mar. 23, 2017). We therefore reverse Sexton’s death sentence and remand for a new penalty phase.

III. CONCLUSION

For the foregoing reasons, we affirm Sexton’s conviction for first-degree murder, but vacate his death sentence and remand for a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

PARIENTE, J., concurs with an opinion.

LAWSON, J., concurs specially with an opinion.

CANADY, J., concurs in part and dissents in part with an opinion, in which POLSTON, J., concurs.

PARIENTE, J.,

concurring.

I concur in the majority’s holding to affirm Sexton’s conviction and reverse his sentence of death and remand for a new penalty phase in light of Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, No. 16-998, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246, 2017 WL 635999 (U.S. May 22, 2017). I write separately to expand on the Hurst analysis, specifically reviewing the mitigation presented at trial.

Following the penalty phase in Sexton’s trial, the jury recommended a sentence of death by a vote of 10-2. Majority op. at 563. At trial, although the State presented evidence of three aggravating factors, which the trial court found and afforded great weight, this Court has no way of knowing which aggravators the jury unanimously determined were proven beyond a reasonable doubt and whether the jury unanimously found the aggravators sufficient to warrant the imposition of the death penalty. See Hurst, 202 So.3d at 44.

On the other hand, the defense presented evidence as to three statutory mitigating circumstances. First, the defense presented Sexton’s criminal history, which consisted of “several misdemeanors and at least one felony non-violent crime” to establish that defendant has no significant history of prior criminal activity. The trial court assigned this statutory mitigating circumstance moderate weight.

Second, the defense presented evidence to support the mitigating circumstance that the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, which the trial court assigned little weight. This evidence included the fact that Sexton had been diagnosed with anti-social personality traits in 1993. In 2009, he was diagnosed with Major Depressive Disorder. Dr. McClain testified at trial that Sexton suffers from bipolar disorder and alcohol dependency; the trial court found Dr. McClain’s testimony credible. Although the trial court rejected Dr. McClain’s opinion that Sexton was suffering from a “manic” episode at the time of the murder, the trial court agreed that the “defendant suffers from a mental disease or defect.”

Third, the defense presented the testimony of Dr. McClain and Dr. Maher to support the mitigating circumstance that defendant’s capacity to appreciate the criminality of his conduct, or to conform his conduct to the requirements of the law, was substantially impaired. The trial court found that this statutory mitigating circumstance was established but assigned it little weight. The defense also presented evidence as to nonstatutory mitigating circumstances regarding the defendant’s conduct during trial and incarceration and his amenability to rehabilitation, which the trial court assigned little weight.

The bottom line is that this Court has no way of knowing whether the jury unanimously found that the aggravation outweighed the mitigation, especially in light of the statutory mitigation presented that consisted of no significant history of prior criminal activity and mental impairments. As we reiterated in Hurst, the focus of the harmless error test “is on the effect of the error on the trier-of-fact.” 202 So.3d at 68 (quoting State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986)). Thus, in light of the jury’s 10-2 vote to recommend a sentence of death in Sexton’s case, this Court has no way of knowing if the jury unanimously found each aggravating factor, whether the aggravating factors were sufficient to impose death, or whether the aggravating factors outweighed the mitigating circumstances. See id. at 44. Further, this Court cannot speculate why the two jurors who voted to recommend a sentence of life imprisonment determined that a sentence of death was not the appropriate punishment. Thus, I agree with the majority’s conclusion that the Hurst error in Sexton’s case was not harmless beyond a reasonable doubt.

LAWSON, J.,

concurring specially.

See Okafor v. State, 42 Fla. L. Weekly S639, S641, — So.3d —, —, 2017 WL 2481266, at *6 (Fla. June 8, 2017) (Lawson, J., concurring specially).

CANADY, J.,

concurring in part and dissenting in part.

I concur in the decision to affirm Sexton’s conviction, but because I conclude that any error under Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), was harmless, I dissent from the decision to vacate his death sentence.

I adhere to my view that Hurst v. Florida only requires that the jury find the existence of an aggravating circumstance that renders a defendant eligible for a death sentence. See Hurst v. State, 202 So.3d 40, 77 (Fla. 2016) (Canady, J., dissenting) (noting “the Hurst v. Florida Court’s repeated identification of Florida’s failure to require a jury finding of an aggravator as the flaw that renders Florida’s death penalty law unconstitutional”), cert. denied, No. 16-998, — U.S. —, 137 S.Ct. 2161, 198 L.Ed.2d 246, 2017 WL 635999 (U.S. May 22, 2017); see also Hurst v. Florida, 136 S.Ct. at 624 (“Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.”).

Sexton’s jury was instructed on three aggravating circumstances: (1) the victim of the capital felony was particularly vulnerable due to advanced age or disability; (2) the capital felony was committed while Sexton was engaged in the commission of a sexual battery; and (3) the capital felony was especially heinous, atrocious, or cruel (HAC). Although the trial court concluded that all three aggravating circumstances were proven beyond a reasonable doubt, the jury made no specific findings regarding the aggravating circumstances. Where the jury has not been instructed to find an element of the offense, the test for harmless error asks whether it is clear beyond a reasonable doubt that a rational jury would have found the element of the offense. Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

As to the particularly vulnerable due to advanced age or disability aggravator, the evidence established that Parlato was ninety-four years old and used a cane. There was unrebutted testimony from Dr. Thog-martin that she had previously undergone surgery to repair a fractured hip and she was weak. Because of her advanced age, her bones fractured easily.

As to the sexual battery aggravator, Dr. Thogmartin testified that the five vaginal lacerations—one of which was internal and six centimeters long, and two of which were external and “standing very wide open”—were traumatic injuries caused by insertion of an object into the vagina, were consistent with a forcible sexual battery, were inflicted while Parlato was alive, and would have caused horrible pain if she was conscious. Thus, there is no doubt that Parlato was subject to a sexual battery and that the act was nonconsensual either because she was unconscious or in horrible pain.

Finally, as to the HAC aggravator, the evidence established that Parlato was violently beaten about the head and neck. So many bones in heir face were fractured that it felt “crunchy” to Dr. Thogmartin. In addition to the vaginal' tears and facial trauma, Parlato suffered multiple lacerations, rib fractures,' a dislocated spine, and her brain'was bleeding and bruised. "Although Dr. Thogmartin testified that Par-lato would have been rendered unconscious at some point during the attack, the evidence proves that she was not immediately rendered unconscious. The blood evidence established that Parlato was violently struck at least three times near her front door before she moved into the living room and that she was still upright when at least one of the many additional blows was inflicted in the living room. She also had a defensive wound to a finger.

Based on the evidence presented in, this case, it is clear beyond a reasonable doubt that no rational jury would haye failed to find that, the three aggravators were proven beyond a reasonable doubt. Thus, any error in failing to require a unanimous jury finding regarding the existence of an aggravating circumstance as required by Hurst v. Florida was harmless.

POLSTON, J„ concurs,

      . Williams v. State, 110 So.2d 654 (Fla. 1959).

      . Although the majority does not address this claim, Sexton challenges the trial court’s finding of the HAC aggravating factor in this appeal.