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    Victor GUZMAN, Appellant, v. STATE of Florida, Appellee.
    No. SC13-1002
    Supreme Court of Florida.
    [April 6, 2017]

      Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, Eleventh Judicial Circuit, Miami, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps and Berdene B. Beckles, Assistant Attorneys General, Tallahassee, Florida, for Appellee
   PER CURIAM.

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

I. BACKGROUND

On December 9, 2000, Severina Fernandez was found stabbed to death in her Miami apartment. The case went cold until 2004, when DNA from blood left at the crime scene was determined to match Victor Guzman’s DNA. As a result, Guzman was indicted for first-degree murder, stood trial, and was convicted. The jury recommended a sentence of death by a vote of seven to five, and the trial court followed the jury’s recommendation. This appeal follows.

A. Guilt Phase

Severina “Lola” Fernandez was an eighty-year-old widow who lived alone in her Miami apartment. She was last seen alive around 3:30 p.m. on December 9, 2000, when she went out to retrieve her newspaper. At approximately 6:15 p.m., a neighbor discovered Fernandez’s door was half open and, when Fernandez did not answer, the neighbor entered the apartment where she found Fernandez stabbed to death on her bed. Fernandez’s body was nude. Her dress was underneath her, covered in blood with stab holes and a torn zipper. Her panties, which had been pulled down and were dangling off of her right leg, also had stab holes in them. The evidence suggested that Fernandez was killed shortly after she returned from getting the newspaper.

There was blood throughout the apartment, which was swabbed for DNA analysis. A plastic cup, which appeared to be out of place on the recliner in the living room, was also swabbed for DNA analysis.

Initial DNA analysis conducted in 2000 revealed that a single male DNA profile was present on swabs of blood obtained from inside the kitchen sink, the floor of the bedroom to the west of the bed, and the bedroom dresser. That same male DNA profile could not be excluded as a contributor to a mixture of DNA profiles obtained from the cup found on the recliner. Specimens from a sexual battery kit done on Fernandez tested negative for the presence of sperm.

In 2003, the case was assigned to Detective Andres Arostegui, a member of the cold case homicide division. Detective Ar-ostegui testified that he learned of information in 2004 that led him to suspect that Guzman was responsible for Fernandez’s murder. Based on this information, Detective Arostegui interviewed Guzman several days later.

After being advised of his constitutional rights, Guzman agreed to speak with Detective Arostegui. Detective Arostegui told Guzman that he was investigating a homicide. When shown pictures of Fernandez and her apartment building, Guzman denied knowing her or ever having been to her building. According to Detective Aros-tegui, Guzman’s demeanor was nervous and fidgety at times during the three-hour interview but he repeatedly denied any involvement in the homicide. During the last forty-five minutes of the interview, Guzman stated that he was sorry two or three times, but he would not explain what he was sorry for. Detective Arostegui kept talking to Guzman and saying to him, “I know you did it.” Guzman then started asking for bathroom breaks, which struck Detective Arostegui as “awkward.” Guzman eventually invoked his right to counsel, and questioning ceased.

After a DNA standard was obtained from Guzman, the crime lab confirmed that the male DNA profile obtained from the sink and the cup found in Fernandez’s apartment matched Guzman’s DNA profile. Further analysis in 2005 revealed that two other bloodstains in Fernandez’s apartment also matched Guzman’s DNA profile. At trial, evidence was presented that the chance of finding the same DNA profile as the profile obtained from the male blood in Fernandez’s apartment in an individual at random in the population at large is 1 in 153 trillion. The likelihood of a random match between Guzman and the DNA mixture on the cup in Fernandez’s apartment was 1 in 5,099,000.

The medical examiner, Dr. Lew, testified regarding the results of the autopsy performed on Fernandez. According to Dr. Lew, Fernandez was an eighty-year-old woman with an enlarged heart, an artificial heart valve, and flat feet. The autopsy revealed that “the cause of death was multiple stab wounds and trauma to the neck or strangulation.” Fernandez suffered a total of fifty-eight stab and incised wounds covering multiple areas of her body. .Two of the wounds to her chest penetrated the aorta and were individually fatal. There were also incised wounds to both sides of Fernandez’s neck, which would have bled profusely. Many of the wounds to Fernandez’s torso were deep enough to penetrate the abdominal wall but not deep enough to penetrate the bowel or other internal organs. Two of the torso wounds nicked the liver. There were at least five wounds to the fingers, which were likely defensive wounds. Fernandez also suffered blunt trauma to her head while she was still alive, consistent with being struck. Her hyoid bone was fractured, indicating that a great deal of pressure was applied to both sides of her neck. According to Dr. Lew, at least several minutes passed from the time the attack began until Fernandez died.

It appeared to Dr. Lew that Fernandez was either sexually assaulted or an attempt to sexually assault her had been made because her clothing was torn off, her panties were hanging off her right ankle, and bloodstain patterns on her body indicated that her “left leg was raised up enough so that her thigh was contacting her abdomen in order to pull her panties off her left leg.” There were also blood smears on the insides of her thighs, which likely indicated that bloodied hands tried to push her thighs apart. Although there was no trauma to the vaginal area, Dr. Lew testified that the absence of trauma was not conclusive evidence that no sexual assault occurred.

Guzman did not testify at trial, and the defense rested without calling any witnesses. The jury found Guzman guilty of first-degree murder.

B. Penalty Phase

At the penalty phase, the State introduced a certified copy of the judgment evincing Guzman’s prior convictions for attempted felony murder, lewd or lascivious battery on a child twelve years of age or older but less than sixteen years of age, and aggravated battery causing great bodily harm. The State also elicited victim impact evidence and recalled Dr. Lew to testify further .about the injuries Fernandez received during the attack.

Guzman presented testimony from a number of his family members. The sum of their testimony established the following. Guzman was born into poverty in Peru. Guzman’s father disciplined Guzman and his brother with whippings. Guzman’s parents had a troubled relationship until his father left the family to marry another woman when Guzman was around six or seven years old. After the separation, Guzman’s mother started drinking, and the boys were sometimes sent to live with their grandmother.

When he was in his teens, Guzman started drinking and cutting himself. His drinking eventually led to many negative consequences, including eviction, deportation, termination of employment, and convictions for driving under the influence. In the late 1990s, Guzman moved to California, where some of his family members had relocated. He attempted to reunite with his father in California, but his father rejected him.

Shortly before Fernandez’s murder, Guzman lived with his brother, Juan Carlos, for a few months in Miami before Juan Carlos was deported. During that time, Guzman began to drink heavily, appeared depressed, was cutting himself, and was angry at his father. After his arrest in this case, Guzman “came to an understanding of peace” about his relationship with his father, who died before the trial.

Guzman presented testimony from three expert witnesses. Two of the experts opined that Guzman was under extreme emotional distress at the time of the murder and discussed numerous points of non-statutory mitigation, focused mainly on Guzman’s upbringing, substance abuse, and cognitive functioning. The third expert testified that he saw nothing in Guzman’s incarceration records to indicate that Guzman would be dangerous during future incarceration.

Three volunteer prison chaplains testified that Guzman is a man of faith who conducts religious services in the jail. An inmate from Guzman’s pod at the jail testified about the Bible study Guzman conducts in the pod and his belief that Guzman is remorseful and rehabilitated.

Guzman did not testify at the penalty phase. The jury recommended a. sentence of death by a vote of seven to five.

C. Sentencing

The trial court concluded that four aggravating circumstances were proven beyond a reasonable doubt: (1) the capital felony was especially heinous, atrocious, or cruel (HAC) (extremely great weight); (2) Guzman was previously convicted of another capital felony or of a felony involving the use or.threat of violence (great weight); (3) the capital felony was copi-xnitted while Guzman was engaged in,or attempting to commit a sexual battery (some weight); and (4) the victim of the capital felony was particularly vulnerable due to advanced age or disability (considerable weight). And after having considered and rejected the extreme mental or emotional disturbance mitigating circumstance and four nonstatutory mitigating circumstances, the trial court found that no statutory mitigating circumstances and twenty-five nonstatutory mitigating circumstances were established. In following the jury’s recommendation and imposing a sentence of death, the trial court concluded that the HAC and prior violent felony aggravators each substantially outweighed all of the mitigation presented.

II. ANALYSIS

Guzman raises two guilt phase issues and six penalty phase issues on appeal. We address both of Guzman’s guilt phase issues as well as the sufficiency of the evidence, but as to the penalty phase, we address only the dispositive issue.

A. References to Jail and Possible DNA Match

Guzman first argues that the trial court erred in denying his motions for mistrial during the guilt phase after the State elicited testimony suggesting that Guzman was in jail on other charges during the investigation of Fernandez’s murder and that his DNA was in a database of offenders.

At trial, Carolyn Grayer, a crime scene investigator, testified that on April 20, 2004, she collected buccal swabs from Guzman in order to obtain a DNA standard for comparison to DNA left at the scene of Fernandez’s murder. During her testimony, Grayer stated that she “went with Detective Arostegui to [Mjetro West jail.” Guzman objected, moved to strike the statement, and moved for a mistrial, arguing that the jury had heard the statement and it would not be possible to “uming the bell.” The trial court granted the motion to strike, denied the motion for mistrial, and instructed the jury: “[Pjlease disregard that last question and answer. Where this incident occurred with regard to the DNA swab is of no concern to you, and it shouldn’t be considered further by you.”

After CSI Grayer’s testimony, Detective Arostegui was called to discuss the steps he took in his investigation. At one point during his testimony, Detective Arostegui stated, “the next thing that occurred is on March 9, 2004,1 was told that there was a possible DNA match.” Guzman objected to hearsay and again moved to strike the statement and for a mistrial. The trial court again granted the motion to strike but denied the motion for mistrial. The court instructed the jury to “disregard the last statement by Detective Arostegui.” The court also instructed the State to proceed by asking Detective Arostegui, “Did you develop through your investigation any other leads of individuals that you might want to speak to?” The State complied.

The denial of a motion for mistrial is reviewed for abuse of discretion. Gosciminski v. State, 132 So.3d 678, 695 (Fla. 2013). “The granting of a motion for mistrial is not based on whether the error is ‘prejudicial,’” Scott v. State, 66 So.3d 923, 931 (Fla. 2011). “Rather, the standard requires that a mistrial be granted only ‘when an error is so prejudicial as to vitiate the entire trial,’ such that a mistrial is ‘necessary to ensure that the defendant receives a fair trial.’” Gosciminski, 132 So.3d at 695-96 (citations omitted). “Under the abuse of discretion standard of review, a ruling will be upheld unless the ruling is ‘arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.’” Banks v. State, 46 So.3d 989, 997 (Fla. 2010) (quoting Lugo v. State, 2 So.3d 1, 19 (Fla. 2008)).

Guzman asserts that CSI Grayer’s reference to the jail gave the jury the impression that Guzman was incarcerated for a different crime at the time that the buccal swabs were obtained. While Grayer’s statement did indicate that Guzman was in jail at the time the buccal swabs were obtained, and he was indeed in jail, the only charge for which he was in custody at that time was Fernandez’s murder. There is no reason to believe that the jury speculated that Guzman was in jail on another charge rather than Fernandez’s murder. There was no testimony during the guilt phase that Guzman was charged with or convicted of any other crimes, and “a reasonable juror would know that [the defendant] had been- in jail for at least some period of time prior to trial because he was charged with first-degree murder.” Snipes v. State, 733 So.2d 1000, 1005 (Fla. 1999). Even if the jurors might have inferred that Guzman was jailed for a different crime, the reference to the jail was brief, isolated, inadvertent, and not so prejudicial as to vitiate the entire trial. See Fletcher v. State, 168 So.3d 186, 207 (Fla. 2015) (“A comment [regarding a defendant’s prior imprisonment] that is brief, isolated, and inadvertent may not warrant a mistrial.”), cert. denied, — U.S. —, 136 S.Ct. 980, 194 L.Ed.2d 7 (2016). Thus, the trial court did not abuse its discretion in denying the motion for mistrial.

Guzman argues that the reference made by Detective Arostegui to “a possible DNA match” “had the unmistakable effect of telling the jury that Mr. Guzman’s DNA was already in a database of criminal offenders.” We disagree. As previously stated, there was no evidence introduced at the guilt phase that Guzman was charged with or convicted of any prior crimes, nor was there any evidence that his DNA was in a database of criminal offenders. Further, the comment was brief, isolated, inadvertent, and the jury was instructed to disregard it.

In Braddy v. State, 111 So.3d 810, 837 (Fla. 2012), the defendant moved for a mistrial based on a detective’s testimony regarding the events leading up to Brad-dy’s arrest:

[W]hen I noticed Mr. Braddy’s demean- or, how it changed, and for our safety, due to the circumstances, I placed handcuffs on him. I advised him I was going to handcuff him, he wasn’t under arrest at the moment, but it was for his safety and my safety dealing with the history that I had of him.

(Alteration in original.) Braddy argued that the statement improperly informed the jury of his violent criminal past. We disagreed, explaining:

Prior to the challenged testimony, Detective Milito had testified that he was dispatched to Braddy’s home after learning that Braddy had been implicated in a violent kidnapping, attempted murder, and possible murder of a child. Given this information and the change in Braddy’s demeanor upon being confronted, Detective Milito’s reference to Brad-dy’s history could most reasonably be interpreted in context as referring to the facts of the crime that was being investigated. The trial court therefore did not abuse its discretion in denying Braddy’s motion.

Braddy, 111 So.3d at 837.

At the point in Guzman’s- trial-when Detective Arostegui mentioned “a possible DNA match,” the jury had already learned from earlier witnesses that Guzman’s DNA matched the male DNA found in blood and on the cup at the crime scene, and that DNA analysis was conducted more than once in this case. As in Braddy, Detective' Arostegui’s testimony did not implicate Guzman in prior criminal activity but would “most reasonably be interpreted in context as referring to the facts of the crime that was being investigated.” Thus, the trial court did not abuse its discretion in denying the motion for mistrial.

B. Improper Comments During the State’s Closing Arguments

In his second guilt phase claim, Guzman asserts that he is entitled to relief based on improper arguments made by the State during closing arguments. Guzman alleges that the State improperly inflamed the jury, shifted the burden of proof, and commented on Guzman’s right to remain silent. Because Guzman concedes that he failed to object to any of these statements, we review each only for fundamental error. See Brooks v. State, 762 So.2d 879, 898-99 (Fla. 2000) (“As a general rule, this Court has determined that failing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review. The sole exception to the general rule is where the unobjected-to comments rise to the level of fundamental error, which has been defined as error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.”) (citations omitted)).

1, Inflaming the Jury

Guzman asserts that the State improperly inflamed the jury in order to gain an emotional response by the manner in which it began and ended its guilt phase closing argument. The State began its initial closing argument by stating: “Members of the jury, horrific, an atrocity, gruesome, ghastly, grizzly. What word would you use to describe this indescribable and unthinkable murder?” At the end of the argument, the prosecutor stated: “And Lola unwittingly opened that door to death, destruction, torture, and pain, and his name is Victor Guzman, and he knows it.”

Assuming that these arguments were improper, we conclude that they do not rise to the level of fundamental error and therefore Guzman is not entitled to relief.

2. Burden Shifting

Guzman next argues that the State improperly shifted the burden to the defense by stating that defense counsel should answer some questions, including: “What evidence is there ... that mistakes are made in this case?”; “What evidence in this case is there of contamination?”; and “Why did Defendant Guzman apologize to Detective Arostegui?”

“It is well settled, that due process requires the [S]tate to prove every element of a crime beyond a reasonable doubt,” “For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that, the State has proved its case beyond a reasonable doubt.”

Warmington v. State, 149 So.3d 648, 652 (Fla. 2014) (citations omitted).

a. DNA Evidence

In opening statement and during cross-examination throughout the trial, Guzman-put forth a theory that the match between his DNA and the male DNA left at the crime scene might have been the result of a mistake or contamination, rather than a valid match. Guzman asked the jury in his opening statement to keep in mind that the processing of evidence for DNA analysis is done by “imperfect human beings.” He told the jurors that it will be up to them to decide whether the State proved that it was truly his DNA in Fernandez’s apartment.

The evidence presented at trial was that Guzman’s DNA profile matched the male DNA found in blood in Fernandez’s apartment and that the probability of a random match of that DNA profile in the population at large is 1 in 153 trillion. The crime scene investigators and DNA analysts testified extensively about the processes used in collecting and processing DNA and the care that is taken and procedures that are in place in order to avoid contamination or mistake in the collection and analysis of DNA. The head of the crime lab, Commander Stoiloff, testified that any mistake or violation of standard operating procedures would have been brought to her attention, but no mistake or violation that had any relation to this case was brought to her attention.

In its closing argument, the State addressed the theory that the DNA match was the result of a mistake, arguing:

I’ll call it the imperfect human being theory. Human beings are imperfect. They make mistakes. DNA analysts are human. And, therefore, it’s possible that the DNA analysts made a mistake in this case according to this theory, but you’ve got to look at the evidence. Where in the evidence is it that Commander Stoiloff even possibly made a mistake? Where is it in the evidence that Supervisor Wolson even possibly made a mistake in this case. And it’s not in the body of evidence that you follow this ease. It’s imaginary, it’s speculative, and it’s forced. It doesn’t give you a reasonable doubt whether Defendant Guzman left his blood behind by the bed, on the floor in front of the kitchen sink, and at the kitchen sink.

The State then discussed the theory that the DNA match was the result of contamination of the evidence. The State recounted the manner in which the DNA evidence was collected and analyzed and then referenced testimony elicited from one of the DNA analysts at trial, stating:

And then [defense counsel] asked Commander Stoiloff about this molecular biology science trying to assess the validity of it before you, and he said something to the effect of Commander Stoiloff, well these molecules [of DNA] aren’t they just floating all around and they can get contaminated with all the other stuff? Commander Stoiloff was very clear about that. These molecules aren’t just floating around. This DNA analysis is done in a controlled environment], special care is taken, the evidence is not touched with other evidence in this case, they wear these white lab coats, they make sure everything is sterile in there, they use controls, negative controls, positive controls. No. These molecules aren’t just flying around. There is no contamination in this case. There’s no evidence in the body of evidence for your consideration of contamination.
... State’s exhibit 61 .... This was the DNA swabs from the recliner[,] ... the west side of the bedroom, the armrest, and the backrest. This evidence is taken in the year 2000. Sealed. And Defendant Guzman’s DNA, his standard was taken four years later by Detective Arostegui with Crime Scene Investigator Grayer. It’s in a separate sealed envelope. When did these worlds collide? When was there any co-mingling with this stuff? There was not contamination of this evidence. Defendant Guzman[’s] standard didn’t slip into this other evidence. It’s not the evidence in this case.

Guzman argues that the State shifted the burden of proof to the defense by posing the question to defense counsel “[W]hat evidence in this case is there of contamination?” and pointing out that the defense counsel “didn’t take out any of this evidence and show you, ah, this is what happened, this is where the contamination took place, because there’s no evidence of contamination in this case.”

Here, the State did not invite the jury to convict Guzman for some reason other than that the State proved its case beyond a reasonable doubt by arguing that there was no evidence of contamination introduced during the trial. The State’s case included evidence regarding the methods used in collecting and analyzing the evidence in this case and the care taken by those who processed the crime scene and analyzed the evidence to ensure that no mistakes were made and the evidence was not contaminated. And even if we were to assume that the State improperly directed a question to defense counsel and commented on the defense’s failure to produce evidence of contamination, any such impropriety would not constitute fundamental error rising to the level that the conviction could not have been obtained without the assistance of the alleged error. Thus, Guzman is not entitled to relief.

b. Apology

During the trial, Detective Aroste-gui testified that when he interviewed Guzman in 2004, Guzman denied any involvement in Fernandez’s murder but stated that he was “sorry” two or three times and would not explain why he said he was sorry. On cross-examination, Guzman asked Detective Arostegui if he knew why Guzman said he was sorry during the interrogation. Detective Arostegui admitted that he did not. During closing arguments, the State posed “another question for [defense counsel]: Why did Defendant Guzman apologize to Detective Arostegui?” Even assuming that this question improperly shifted the burden because it was posed directly to defense counsel, any impropriety did not rise to the level of fundamental error such that the conviction could not have been obtained without the error.

To the extent that Guzman argues that the prosecutor’s question was an improper comment on Guzman’s right to remain silent, we disagree. Prior to his interview with Detective Arostegui, Guzman was advised of his constitutional rights and expressly waived his right to remain silent. He thereafter freely conversed with Detective Arostegui, refusing only to tell him why he said he was sorry. We therefore conclude that the prosecutor’s argument was not an improper comment on Guzman’s right to remain silent. See Downs v. Moore, 801 So.2d 906, 911-12 (Fla. 2001) (holding that the State is not precluded from admitting evidence of defendant’s refusal to answer one question of many where defendant has not invoked his Fifth Amendment rights); Ragland v. State, 358 So.2d 100, 100 (Fla. 3d DCA 1978) (holding that where defendant waived his Fifth Amendment rights and freely and voluntarily conversed with police, comment on the failure to answer one question of many is not a violation of defendant’s right to remain silent).

3. Use of Jury Hypothetical as a Comment on Silence

Guzman asserts that the State twice commented on his right to remain silent during closing argument by referencing a hypothetical used by Guzman during voir dire. During voir dire, Guzman asked one of the veniremen, a retired teacher, if he would want to hear from “both sides” regarding a disruption in his classroom. The juror stated that he would. Guzman took that opportunity to explain to the venire that the way the retired teacher felt is a natural way to feel, but in the context of a criminal trial, “we have to train ourselves” away from wanting to hear both sides of a story. Guzman then gave the venire a hypothetical situation in which one student said another student hit him, and the second student denied it. Guzman asked the retired teacher: if the accused student refused to talk, would he automatically believe the first student’s claim that he was hit or would he “have to look at the student who was talking and ... weigh their credibility?” Guzman’s point in asking the question was that even if the State presents “some evidence, but if you weigh the evidence and it doesn’t meet the burden [of proof beyond a reasonable doubt], then the verdict is not guilty.”

During its closing argument, the State referenced this portion of Guzman’s voir dire, saying:

During the voir dire when you jurors were beginning to get selected in this case, there[ was] a discussion by opposing counsel about credibility. Defense counsel used the example of two kids in a classroom. One kid hits the other, the teacher asks the students, all right, did you hit him, and the student says no. And then he changes that example a little bit and he says, then what do you do with the student who doesn’t say anything? In this case, what you have are the DNA analysts, and they’re not saying one thing. I mean, the[ir] testimony doesn’t conflict, it complements each other. It corroborates each other. There’s no conflict in the testimony. This is not a case about credibility.

Guzman then raised a general objection stating, “Objection, Your Honor: [r]eserve a motion.” After the State’s initial closing and Guzman’s closing but prior to the State’s rebuttal closing, Guzman explained to the court the basis for the objection he made when the State referenced the student hypothetical. Guzman argued that because the State “was commenting on the credibility of the other side,” and Guzman did not testify or present any evidence in his case, the State was actually commenting on Guzman’s failure to testify and present evidence. Guzman also moved for a mistrial at that time. In overruling the objection and denying the motion for mistrial, the trial court concluded that the State’s comment was not a comment on Guzman’s credibility but a response to “a perceived argument from [Guzman] of contrasting the credibility of the two DNA experts that testified.” Guzman concedes that he failed to properly preserve this argument for review. We therefore review it only for fundamental error.

It is clear from the entire context of the trial that the student hypothetical was not used by the State to comment on Guzman’s failure to testify at trial. During voir dire, the example was used not only to discuss a defendant’s right to remain silent but also to explain to the jury that even if the defense presents no evidence, the jury must still weigh the credibility of the State’s evidence. In closing, the State used the example to argue that the jury should find the testimony of the State’s DNA analysts credible because their testimony was consistent. Even if the State’s use of the student hypothetical in closing could be construed as a comment on silence, it would not rise to the level of fundamental error. Moreover, even if Guzman’s objection were preserved through his subsequent motion for mistrial and explanation for the basis of the objection, we would conclude that the triai court did not abuse its discretion in denying the motion for mistrial in the context of this case.

C. Sufficiency of the Evidence

Although Guzman does not challenge the sufficiency of the evidence to sustain his conviction for first-degree murder, this Court independently reviews the record in death penalty cases to determine whether competent, substantial evidence supports the conviction. Fla. R. App. P. 9.142(a)(5) (“On direct appeal in death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief”). Our duty on appeal is “to review the record in the light most favorable to the prevailing theory and to sustain that theory if it is supported by .competent[,] substantial evidence.” Orme v. State, 677 So.2d 258, 262 (Fla. 1996). However, if the State’s evidence of guilt is wholly circumstantial, “not only must the evidence be sufficient to establish each element of the offense” but it must also be “inconsistent with any reasonable hypothesis of innocence proposed by the defendant.” Twilegar v. State, 42 So.3d 177, 188 (Fla. 2010). “The [S]tate is not required to rebut conclusively every possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the Defendant’s theory of events.” Kocaker v. State, 119 So.3d 1214, 1225 (Fla. 2013) (quoting Durousseau v. State, 55 So.3d 543, 557 (Fla. 2010)).

Guzman’s conviction is based on the fact that the DNA profile obtained from the male blood discovered in multiple areas around Fernandez’s apartment matched Guzman’s DNA profile, with the chances of a random match in the population at large being 1 in 153 trillion, and the fact that Guzman denied knowing Fernandez or having even been to her apartment building. There was no connection established between Guzman and the victim other than the fact that they both lived in Miami at the time of the murder. There were no eyewitnesses, no confession, and no fingerprints or other forensic evidence. The murder weapon was never identified. Although the evidence was wholly circumstantial, Guzman offered no reasonable hypothesis of innocence at trial other than to argue the possibility that a mistake was made or contamination occurred during the collection and processing of the DNA evidence, which led to an error in the analysis and a false “match.” But the detailed testimony about the steps taken to avoid any mistake or contamination from those who collected the evidence from the crime scene and processed the evidence at the crime lab— which was unimpeached and unrebutted— provided competent, substantial evidence of a valid DNA match, which was inconsistent with Guzman’s theory of events.

Further, although the State presented no direct evidence or testimony regarding how Guzman’s blood came to be in Fernandez’s apartment or the age of the bloodstains matching Guzman’s DNA profile, the effect of the blood evidence in this case went beyond merely placing Guzman at the scene at some unknown time and, for the following reasons, actually implicated him in the murder. First, Guzman’s blood was located in several areas throughout the apartment, in large enough amounts to be clearly visible to the naked eye. Fernandez was stabbed or cut fifty-eight times, and the wounds had clean edges, consistent with the blade of a knife. Blood was found on the hose in the kitchen sink and blood matching Guzman’s DNA profile was visible inside the kitchen sink. From these facts it can be inferred that Guzman cut himself while- stabbing Fernandez and cleaned up in the kitchen sink after the murder. It can be inferred that Guzman’s blood was not deposited inside the kitchen sink at some time remote to the murder since it had not washed down the drain. It could also be inferred based on testimony that Fernandez’s apartment was otherwise “neat and tidy” that the other blood matching Guzman’s DNA profile was deposited at the time of the murder.

The jury was instructed on theories of both premeditated murder and felony murder, with the underlying felony being attempted sexual battery. The jury returned a general verdict of guilty of first-degree murder without specifying whether the State proved first-degree murder, felony murder, or both.

To establish first-degree premeditated murder, the State was required to prove the following elements: (1) Sever-ina Fernandez is dead; (2) the death was caused by the criminal act of Guzman; and (3) there was a premeditated killing of Severina Fernandez. Fla. Std. Jury Instr. (Crim.) 7.2. “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 deliberate use of a knife to stab a victim multiple times in vital organs is evidence that can support a finding of premeditation. Jackson v. State, 180 So.3d 938, 956 (Fla. 2015), cert. denied, — U.S. —, 136 S.Ct. 2015, 195 L.Ed.2d 223 (2016). The evidence established that Fernandez was an eighty-year-old woman who suffered fifty-eight stab and incised wounds to her neck, abdomen, hands, arms, and chest—two of which were individually fatal—as well as blunt-force trauma to her head, and that the attack started in another room before ending in the bedroom. 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 the following three elements: (1) Severina Fernandez is dead; (2) the death occurred as a consequence of and while Guzman was attempting to commit sexual battery on Severina Fernandez; and (3) Guzman was the person who actually killed Severina Fernandez. Fla. Std. Jury Instr. (Crim.) 7.3. The evidence presented established that Fernandez's dress was forcibly removed during the attack, and her panties were pulled down and left hanging off of one ankle. Bloodstain pattern evidence on Fernandez’s body indicated that her left leg was raised up during the attack high enough to contact ’ her abdomen. There were also blood smears on the insides of her thighs, which indicated that bloodied hands were used to push her legs apart. The absence of trauma to the genital area and of sperm on the vaginal swabs did not conclusively establish that no sexual battery occurred. The totality of this evidence provides competent, substantial evidence to support a finding that Fernandez’s death occurred as a consequence of and while Guzman was attempting a sexual battery and therefore to sustain a felony-murder conviction.

D. Hurst

During the pendency of Guzman’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), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 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 death 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, we 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.”). We therefore reverse Guzman’s death sentence and remand for a new penalty phase.

III. CONCLUSION

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

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur. CANADY and POLSTON, JJ., concur as to the conviction but dissent as to the sentence.

LAWSON, J., did not participate.

      . This "information”—which was not introduced at trial—was a "hit” from the FBI’s Combined DNA Index System (CODIS), indi-eating that Guzman’s DNA matched the male DNA found at the scene of Fernandez’s murder.

      . The four proffered and rejected nonstatu-tory mitigating circumstances were: (1) Guzman has a brain that did not fully develop due to nutritional deficiencies, hazardous environmental conditions and the extreme poverty he experienced growing up; (2) Guzman has suffered malnutrition; (3) Guzman began a change in his life before he dedicated his life to God and before he became aware of the homicide charge; and (4) Guzman has a son and daughter who need his parental guidance.

      . The nonstatutory mitigating circumstances found by the trial court were: (1) Guzman suffers from mild/moderate and severe cognitive deficits and impairments (little weight); (2) Guzman has borderline intellectual functioning, slightly higher than that of a fully intellectually disabled person (minimal weight); (3) Guzman has mental impairments that prevent him from functioning consistently in a job or maintaining appropriate social relationships (miniscule weight); (4) Guzman witnessed the traumatic domestic abuse of his mother and brother (slight weight); (5) Guzman was repeatedly brutally and physically abused by his father (little weight); (6) Guzman has a mother who became an alcoholic, and drank during her pregnancy (slight weight); (7) Guzman was neglected by his parents, abandoned by his father, and experienced a transient home life separated by periods of homelessness (little weight); (8) Guzman was not allowed in his father's house when he moved to California, rejected a second time (minor weight); (9) Guzman was angry and resentful towards his father, and that bitterness affected his judgment (little weight); (10) Guzman has a serious and severe alcohol and drug problem (slight weight); (11) Guzman has a personality character disorder that prevents him from developing healthy attachments to others (little weight); (12) Guzman suffers from depression, paranoia, cognitive impairment, anger management issues, personality disintegration, mild to moderate psychological distress, and exhibits symptoms, of psychosis or inappropriate emotions (minor weight); (13) Guzman lacks education, having dropped out of school in the sixth grade (slight weight); (14) Guzman has a loving daughter who wants to maintain a long-distance relationship with him (little weight); (15) Guzman has a young son whose mother wants to maintain a long-distance relationship with him (minimal weight); (16) Guzman has had excellent jail behavior for ten years (little weight); (17) Guzman will not be a future danger to inmates and correctional officers in the prison system (slight weight); (18) Guzman is stable in a structured environment without alcohol (minor weight); (19) Guzman has dedicated his life to ministering the word of God as a mentor and rehabilitator for other inmates (slight weight); (20) Guzman has dedicated his life to God’s service and has repented (slight weight); (21) Guzman has expressed remorse (little weight); (22) Guzman grew up very poor and without running water and electricity (miniscule weight); (23) Guzman has a mother who wants to maintain a long-distance relationship with him (little weight); (24) Guzman has family from California and Peru who want to maintain a long-distance relationship with him (little weight); and (25) Guzman has emotional scars that will last a lifetime (slight weight).


source: Caselaw Access Project

author: PER CURIAM. POLSTON, J.,

license: Public Domain

text:
    Justin Curtis HEYNE, Appellant, v. STATE of Florida, Appellee.
    No. SC14-1800
    Supreme Court of Florida.
    [April 6, 2017]
    See also 88 So.3d 113.

      James V. Viggiano, ■ Capital Collateral Regional Counsel, and Chelsea Rae Shirley, Maria E, DeLiberato, and Julissa Fon-tán, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stacey E. Kireher, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

Justin Curtis Heyne filed an initial motion for postconviction relief under Florida Rule of Criminal Procedure 3.851, which the trial court denied after holding an evidentiary hearing. For the reasons expressed below, we affirm the denial of the guilt phase claims but remand for a new penalty phase pursuant to Hurst v. State, 202 So.3d 40 (Fla. 2016) petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

BACKGROUND

Heyne was convicted for the 2006 murders of Sarah Buckoski, Benjamin Hamilton, and five-year-old Ivory Hamilton. Heyne v. State, 88 So.3d 113, 117 (Fla. 2012). He was sentenced to death for Ivory’s murder. Id, When affirming the convictions and death sentence on direct appeal, this Court described the background as follows:

On March 30, 2006, Sarah Buckoski returned to her home with her five-year-old daughter, Ivory Hamilton, to find Heyne and Ivory’s father, Benjamin Hamilton, engaged in a verbal dispute. The dispute centered on money Heyne owed to Benjamin and took place in the master bedroom, a 12-by 13-foot room in which law enforcement later discovered drug paraphernalia and several pounds of marijuana. Heyne worked with Benjamin and was temporarily residing with Benjamin, Sarah, and Ivory in Titusville, Florida. Heyne was 24 years old. Benjamin and Sarah were 26 and 24, respectively.
As the argument escalated, Heyne began to feel disrespected. He started to walk away when he heard Benjamin cock a 9-mm gun. Heyne left, retrieved a .38 Special from his room, and then returned to the master bedroom to continue the argument with Benjamin. The two argued while holding their respective guns but did not point them at one another while arguing. Heyne pushed Benjamin onto the bed. At some point during the dispute, Ivory entered the room, prompting Benjamin to drop the 9-mm. Heyne picked up Benjamin’s 9-mm. Benjamin told Ivory to leave the room, and she turned to walk out.

In its sentencing order, the trial court detailed the shootings as follows:

Benjamin Hamilton was shot at a distance of no more than four or five feet. At that point, Sarah Buckoski dove to the floor on the far side of the bed near the wall and started screaming. The defendant shot her next. She was shot one time, but the bullet passed through her arm before it entered the center of the back of the head. At that point, Ivory began to pull on the defendant’s shorts and the defendant shot her one time in the head at point blank range.
When law enforcement arrived on the scene, Benjamin was struggling for air on the bed, Sarah was on the floor next to the bed in a fetal position screaming, and Ivory was lying on the floor without a pulse. An autopsy revealed that just prior her death, Ivory was slapped in the face in a manner violent enough to cause a rupture of the blood vessel beneath the skin. A bullet fired from Heyne’s .38 Special was found in her skull.
After the shooting, Heyne ran out of the back door with his gun in a pillowcase and with marijuana and cocaine he took from the master bedroom. Heyne called a friend, Roxanne Larabie, and asked her to pick him up. Larabie testified that Heyne admitted to shooting Benjamin and Sarah and that when she asked about Ivory, Heyne “just looked at me and said she was gone.” Larabie helped Heyne obtain new clothes identical to the ones he was wearing. When they arrived at Larabie’s house, Heyne washed the new clothes in an effort to make them appear worn. He removed his' old shoes and clothes, wrapped up his gun in the pillowcase,- and put all of the items in a box in Larabie’s attic. Law enforcement retrieved the items and discovered bloodstains mátching Benjamin’s DNA profile On Heyne’s pants and the pillowcase.
Heyne was apprehended and questioned regarding the murder, and a videotape of the interrogation was played for the jury at trial. Initially, Heyne denied that he was at the house at the time of the murder. But when an investigating officer interrupted the interrogation with news that Heyne’s gun, bloodied clothing, and pillowcase were discovered in a box in Larabie’s attic, Heyne confessed to shooting Benjamin and Sarah and acknowledged seeing Ivory “go down.” At the time, Heyne could not remember shooting Ivory and repeatedly denied that he would have shot her on purpose. However, he acknowledged shooting both the 9-mm and the .38 Special and directed the interrogating officer as the officer drew a diagram of the room depicting the placement of Heyne and all three victims during the shootings. Heyne said that his argument with Benjamin began as a non-violent confrontation in which Benjamin never threatened him or pointed his gun in Heyne’s direction.
At trial, Heyne advanced the theory that he shot Benjamin and Sarah in self-defense, specifically suggesting in closing arguments that Sarah may have been trying to access a shotgun under the bed. As for Ivory, Heyne argued that the evidence supported an accidental shooting. The prosecution attempted to foreclose the possibility of self-defense and accident, relying heavily on the diagram drawn during Heyne’s interrogation to show that the relative positioning of Heyne and the victims precluded either scenario. Ultimately, the jury found Heyne guilty of first-degree premeditated murder of all three victims.
At the penalty phase, Heyne presented mitigation testimony from former educators, family members, and evaluating psychologists. His former educators attested to Heyne’s status as a special education student, and his family members testified that he was a caring but difficult child. Dr. Joseph Wu testified that imaging from a PET scan showed damage to Heyne’s temporal and parietal lobes, evidencing learning difficulties, causing problems regulating aggression and impulse, and making addiction to alcohol and drugs more likely. Dr. Wu also testified that imaging was consistent with a history of toaumatic brain injuries and specifically noted two concussions Heyne suffered as a child, another head injury when Heyne was incarcerated in 2004, and a slow processing speed relative to his IQ score of 88. Dr. William Riebsame diagnosed Heyne with ADHD and possible bipolar disorder—one or both of which caused Heyne to have impulse control disorder—as well as cocaine and alcohol use and dependence at the time of the offense. Dr. Riebsame also discussed Heyne’s history of impulsivity, including two documented suicide attempts. Dr. Riebsame revealed that Heyne had confessed to shooting Ivory, whom Heyne said was crying and pulling on his ■ shorts after he shot Benjamin.
The jury recommended life imprisonment for the murder of Benjamin, the death penalty for the murder of Sarah by a vote of eight to four, and the death penalty for the murder of Ivory by a vote of ten to two.
The trial court followed the jury’s recommendation of death for the murder of Ivory but sentenced Heyne to life imprisonment for the murders of Benjamin and Sarah. For the murder of Ivory, the trial court found three aggravators: (1) Heyne was previously convicted of a felony involving the use or threat of violence (great weight); (2) the murder was especially heinous, atrocious, or cruel (HAC) (great weight); and (3) the victim was less than twelve years of age (great weight). The trial court found the following mitigators: (1) Heyne suffers from a mental illness (great weight); (2) Heyne has brain damage and brain deficits (great weight); (3) Heyne had a problem with substance abuse and dependence (moderate weight); (4) Heyne had an impaired capacity to appreciate the criminality of his conduct or conform it to the requirements of law (moderate weight); (5) Heyne was under the influence of a mental or emotional disturbance (little weight); (6) Heyne was a good, caring father to a handicapped son (very little weight); (7) Heyne cared for and helped elderly neighbors when he was a child (very little weight); (8) Heyne gave his flannel jacket to a homeless person (very little weight); (9) Heyne protected younger, weaker children when he was a child (very little weight); (10) Heyne played football and other sports as a child and was devastated when he could no longer play (very little weight); (11) Heyne was recommended to receive in-patient psychiatric treatment at age five but did not receive treatment (moderate weight); (12) Heyne has a history of suicide attempts and self-destructive behavior (moderate weight); and (13) Heyne exhibited good behavior during trial (some weight).

Id. at 117-19.

On direct appeal, this Court rejected a Ring claim as well as four other claims: “(A) the trial court erred in denying his motion for judgment of acquittal; (B) the trial court erred in finding the HAC aggra-vator for the murder of Ivory; (C) the trial court erred in assessing the mental health mitigating evidence; and (D) the death sentence is not proportionate.” Id. at 119-20.

In October 2013, Heyne filed an initial motion for postconviction relief, which the trial court denied after holding an eviden-tiary hearing.

ANALYSIS

I.

First, Heyne claims that trial counsel was ineffective for failing to file a motion to suppress his confession based upon a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, Heyne claims that trial counsel should have alleged that Heyne invoked his rights to counsel and silence after initially waiving his Miranda rights. However, this Court affirms the trial court’s denial of relief.

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has explained that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Bolin v. State, 41 So.3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986)).

Regarding the deficiency prong of Strickland, there is a strong presumption that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 690, 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.” Id. at 689, 104 S.Ct. 2052. Further, counsel cannot be deemed ineffective for failing to make a meritléss argument. Melendez v. State, 612 So.2d 1366, 1369 (Fla. 1992), abrogated on other grounds by Deren v. State, 985 So.2d 1087 (Fla. 2008). “Regarding the prejudice prong of Strickland, the defendant must show that there is a reasonable probability that, ‘absent the [deficient performance], the factfinder would have [had] a reasonable doubt respecting guilt.’ ” Dennis v. State, 109 So.3d 680, 690 (Fla. 2012) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). “A reasonable probability is a ‘probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

“Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo.” Id.

“[T]he United States Supreme Court announced in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), that neither Miranda nor its progeny require police officers to stop interrogation when a suspect in custody, who has made a knowing and voluntary waiver of his or her Miranda rights, thereafter makes an equivocal or ambiguous request for counsel.” State v. Owen, 696 So.2d 715, 717 (Fla. 1997). In fact, “under Davis police are under no obligation to clarify a suspect’s equivocal or ambiguous request and may continue the interrogation until the suspect makes a clear assertion of the right to counsel.” Id. And this Court has explained that “the reasoning of Davis applies when a defendant makes an equivocal assertion of any right under Miranda.” Id. at 717-18. Accordingly, this Court has held that “police in Florida need not ask clarifying questions if a defendant who has received proper Miranda warnings makes only an equivocal or ambiguous request to terminate an interrogation after having validly waived his or her Miranda rights.” Id. at 719.

Here, after Heyne waived his rights, the interrogating officer discussed possible scenarios or mental health issues that might mitigate Heyne’s involvement in the murders. However, Heyne initially denied any involvement. Thereafter, the following questioning took place between the officer and Heyne:

Q: So how are we going to handle this now—
A: I don’t know. Put me in a jail cell.
Q: —after you being accused?
A: I’ll get a lawyer and we’ll go through the court. And spend thousands and thousands of dollars on an innocent man. So that’s how we’re going to handle it. And if I’m convicted, and they convict me, then I do time and sit and let them fry me.

Heyne’s statements were not “sufficiently clear[ ] that a reasonable police officer in the circumstances would understand the statements to be a request for an attorney” or an assertion of the right to remain silent. Davis, 512 U.S. at 459, 114 S.Ct. 2350. Instead, a reasonable officer could have concluded, as the trial court found, that Heyne “was merely predicting what would happen, in the future if he were arrested for the murders.” Therefore, because Heyne’s statements were not unambiguous and unequivocal assertions of his rights to counsel and silence, the officer was under no obligation to terminate questioning. See Walker v. State, 957 So.2d 560, 574 (Fla. 2007) (holding that “I think I might want to talk to an attorney” as well a‘s additional questions about an attorney were not an unequivocal request for counsel and did not require termination of questioning); Spivey v. State, 45 So.3d 51, 54-55 (Fla. 1st DCA 2010) (holding that “I mean if I am being held and I’m being charged with something I need to be on the phone calling my lawyer” was at most a conditional request for counsel and not an unequivocal request requiring termination of interrogation). •

Accordingly, because this Miranda claim is without merit, trial counsel cannot be deemed ineffective for failing to raise it.

II.

Second, Heyne alleges that trial counsel was ineffective for failing to move to suppress the admission of the shoebox retrieved from Roxanne Larabie’s attic as well as the box’s contents. However, we affirm the denial of relief.

In Twilegar v. State, 42 So.3d 177, 193 (Fla. 2010) (quoting State v. Milligan, 411 So.2d 946, 947 (Fla. 4th DCA 1982)), this Court explained that, under Fourth Amendment law, “[n]o search occurs when police retrieve property voluntarily abandoned by a suspect in an area where the latter has no reasonable expectation of privacy.” “The test for abandonment is whether a defendant voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” Id. (emphasis omitted) (quoting 14A Fla. Jur. 2d Abandoned Property § 633 (2001)).

Here, Heyne was not an occupant of, or even an invited guest in, Ms. Larabie’s residence. Heyne had informed Ms. Lara-bie that he shot Ben and Sarah, that Ivory was gone, and that he had a gun with him in her residence. In response, Ms. Larabie told Heyne that he and his gun were unwelcome in her house. Knowing this, Heyne placed the gun in a shoebox (along with clothing that he wore during the crime) and voluntarily left the box behind in Ms- Larabie’s attic. After Heyne departed, Ms. Larabie called the police and told them what had transpired. The officer obtained Ms. Larabie’s consent to search her attic.

Under these circumstances, there was no illegal search and seizure of the box. Heyne relinquished his interest in the box by abandoning it in an area where he had no reasonable expectation of privacy. Heyne did not maintain a reasonable expectation of privacy with regard to the property left in the attic since Ms. Larabie specifically told him that she did not want the gun to remain at her residence. As the postconviction court explained, Heyne “would have known that there was a good chance that [Ms.] Larabie would try to get the box, or at.least the gun which was inside the box, out of her house.”

Accordingly, had trial counsel moved to suppress the box and its contents by alleging that the search was illegal, the request would have been denied as meritless. See Fotopoulos v. State, 838 So.2d 1122, 1131-32 (Fla. 2002) (affirming denial of claim that trial counsel was ineffective for failing to move to suppress two bags that were discovered during a search of the house of the defendant’s mother-in-law that was conducted with the mother-in-law’s consent even though the defendant was living in the home); see also State v. Kennon, 652 So.2d 396, 399 (Fla. 2d DCA 1995) (holding that defendant abandoned any interest in pouch when she voluntarily chose to hide it under the tire of a vehicle in a vacant lot and walk away); State v. Daniels, 576 So.2d 819, 824 (Fla. 4th DCA 1991) (holding that defendant abandoned her interest in the luggage when she voluntarily left “the suitcase in an area where she had no Fourth Amendment protection, the train station”). Counsel cannot be deemed ineffective for failing to raise a meritless argument.

III.

Third, we consider whether Heyne is entitled to relief after the United States Supreme Court issued its decision in Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Because the jury recommended the death penalty by a vote of ten to two, we conclude that Heyne’s death sentence violates Hurst. See Kopsho v. State, 209 So.3d 568, 570 (Fla. 2017). We must then consider whether the Hurst error was harmless beyond a reasonable doubt:

The harmless error test, as set forth in Chapman[v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),] and progeny, places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.

Hurst, 202 So.3d at 68 (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986)).

Because the jury in this case recommended death by a vote of ten to two, “we cannot determine that the jury unanimously found that the aggravators outweighed the mitigation.” Kopsho, 209 So.3d at 570. “We can only determine that the jury did not unanimously recommend a sentence of death.” Id. Therefore, because we cannot say that there is no possibility that the error did not contribute to the sentence, the error in Heyne’s sentencing was not harmless beyond a reasonable doubt.

Accordingly, we vacate the death sentence and remand for a new penalty phase. See Hurst, 202 So.3d at 69.

CONCLUSION

For the reasons stated above, this Court affirms the denial of the guilt phase claims raised in the initial postconviction motion filed pursuant to rule 3.851, but we remand for a new penalty phase pursuant to Hurst.

It is so ordered.

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

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

POLSTON, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death sentence pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

      . This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const. Because we are remanding for a new penalty phase, we do not address the penalty phase claim that Heyne raised in the appeal of the denial of his post-conviction motion.


author: PER CURIAM.

text:
    Brandon Lee BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. SC14-1412
    Supreme Court of Florida.
    March 30, 2017

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Seventh. Judicial Circuit, Daytona Beach, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stacey E. Kircher, Assistant Attorney General, Daytona Beach, Florida, for Appellee
   PER CURIAM.

Brandon Lee Bradley appeals his conviction of first-degree murder and his sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm Bradley’s convictions for first-degree murder, robbery, fleeing and eluding, and resisting arrest with violence. We vacate his sentence of death and remand for a new sentencing proceeding.

FACTS

Brandon Lee Bradley and Andria Ker-chner were seen by another Econo Lodge guest and motel employees loading Econo Lodge property, including pillows, sheets, and an air conditioning unit, into Bradley’s white Ford Explorer on the morning of March 6, 2012, between 10:30 and 10:45 a.m. Employees of the Melbourne, Florida, Econo Lodge confronted Bradley and Ker-chner in the parking lot. As the codefen-dants attempted to drive away, Andrew Jordan, a motel maintenance man, yelled that he would call 911 if Bradley did not get out of the car and return the property. Mr. Jordan stood in front of the car to stop its movement. As he drove out of the parking lot, Bradley hit Mr. Jordan with the car. Mr. Jordan was not injured. Econo Lodge owner Mohammad Malik called police to report the events he witnessed in the parking lot as they unfolded. Mr. Ma-lik gave police the tag number of Bradley’s white Ford Explorer, the direction of the vehicle on U.S. 192 as it left the Econo Lodge parking lot, and a description of Bradley ás á black male driver accompanied by a white female passenger.

Deputy Barbara Pill was driving southbound on John Rhodes Boulevard within two miles of the Econo Lodge when she learned of the motel theft via police dispatch and spotted the white Ford Explorer. Bradley passed Deputy Pill driving northbound. Deputy Pill confirmed that the license plate matched the police dispatch description, turned to chase the vehicle, and activated her lights.

The dash camera in Deputy Pill’s police cruiser began recording at 11:07:18 a.m. as she followed Bradley’s white Ford Explorer. The video recording was introduced at trial. The recording shows Bradley’s vehicle turn onto a residential street, Elena Way, where Deputy Pill initiated a traffic stop. Deputy Pill instructed Bradley to exit his vehicle over twenty times, but Bradley did not comply. Deputy Pill’s weapon was not drawn during the traffic stop. On the video, Bradley can be heard refusing to exit the vehicle through the partially open front driver’s side door.

Eventually, Bradley began to slowly move the ear forward, and Deputy Pill approached his partially open door. Deputy Pill reached into the vehicle to retrieve the keys and prevent Bradley from driving away. At about 11:11 a.m., Bradley pulled out a semiautomatic firearm and pointed it at Deputy Pill. Bradley fired eight shots at Deputy Pill from a distance of about two feet through the partially open door. The gunshots were recorded not only on the dash camera, but also on the police radio system and simultaneously broadcast to other law enforcement officers. Bradley continued pulling forward as he shot Deputy Pill. Bradley made a U-turn on the street and drove away.

' A resident of Elena Way witnessed the shooting, called 911, and rushed to the street to help Deputy Pill. The resident reported a black male driver and white female passenger. Deputy James Troup arrived on the scene seconds after the shooting to find Deputy Pill lying in the street. Deputy Pill’s firearm was strapped in its holster. Deputy Victor Velez arrived next. He described Deputy Pill as gasping and lying on her back. The gunshot wound to her head was so severe he did not believe she would live. Dr. Sajid Qaiser’s autopsy confirmed that Deputy Pill had been shot at a distance of under two feet, producing five gunshot wounds. Dr. Qaiser testified that the wound to Deputy Pill’s head was fatal and another wound on her upper left arm was lethal.

Bradley attempted to elude law enforcement by driving down side streets and through residential yards in the neighborhood. Kerchner testified that they stopped at a house with an open'garage door, hoping to find gasoline inside. Bradley parked in Gerard Joseph Weber’s driveway on Janewood Lane. Weber heard the police helicopter overhead, went to his garage, and found Kerchner hiding while smoking a cigarette. Mr. Weber told her’to take what she needed. Inside his home, Weber called police and notified them to follow the Explorer. Law enforcement later found Kerchner’s cell phone inside Mr. Weber’s garage.

A police chase ensued after Bradley and Kerchner left Janewood Lane, with the police helicopter overhead, recording the chase on video. Police on the ground employed stop sticks to halt the Explorer, and Bradley drove around them. Police cruisers activated lights and sirens throughout the chase. Bradley did not stop until he ran over stop sticks deployed by Officer Chad Cooper on Turtlemound Road. The stop sticks caused the vehicle to hit a stop sign and a guard rail, rolling to land passenger side down in a ditch filled with water. Bradley and Kerchner did not exit the vehicle until police threw a brick through' the rear window to shatter the glass about twenty minutes ■ later. Both Bradley and Kerchner were arrested on Turtlemound Road.

Tests conducted by the Florida Department of Law Enforcement confirmed that the handgun retrieved from Bradley’s ve-hide matched the bullets retrieved from Deputy Pill’s body, the ground at Elena Way, and the inside of Bradley’s vehicle. Bradley did not testify at trial, but his March 6, 2012, interview was played for the jury. In the video, Bradley told police that he shot Deputy Pill because she was trying to get her gun and he feared she would kill him. The trial judge noted that the murder was clearly recorded on the dash camera inside Deputy Pill’s police cruiser. The trial judge also found the evidence of Bradley’s guilt was “overwhelming, and beyond a shadow of any doubt ... [e]ven without [Bradley’s] confession.” .

Bradley was indicted for the following: (1) first-degree premeditated murder with a firearm of law enforcement officer Deputy Barbara Pill; (2) robbery; (3) aggravated fleeing or attempting to elude a law enforcement officer (siren and lights activated with high speed or reckless driving); and (4) resisting arrest with violence. Bradley’s codefendant Andria Kerchner was indicted for felony murder, robbery, and burglary. The indictment alleged that the offenses took place March 6, 2012. The codefendants were tried separately.

Bradley’s jury trial was held from February 24, 2014, through April 1, 2014. The jury convicted Bradley of all four charges. The penalty phase was conducted from April 3, 2014, through. April 8, 2014, and the jury recommended death by a vote of ten to two. Bradley waived a Presentence Investigation Report on April 8, 2014. A hearing pursuant to Spencer v. State, 615 So.2d 688 (Fla. 1993), was conducted on June 5, 2014, at which the victim’s father, brother, and husband made statements. The defense presented no evidence or testimony. Both the State and defense submitted sentencing memoranda on June 18, 2014.

The trial court found five aggravators proven beyond a reasonable doubt and gave all five great weight: (1) the capital felony was committed by a person under sentence of imprisonment or placed on community control or felony probation; (2) prior violent felony; (3) the capital felony was committed in the course of a robbery; (4) the capital felony was committed for the purpose of avoiding lawful arrest or escape from custody and the victim was a law enforcement officer in performance of her official duties; and (5) the capital felony was committed in a cold, calculated, and premeditated manner (CCP).

The trial court found one statutory miti-gator, the age of the defendant at the time of the crime, and assigned it no weight. The trial court also found the following nonstatutory mitigating factors: (1) Bradley was severely physically abused as a child (some weight); (2) Bradley was verbally and emotionally abused as a child (some weight); (3) Bradley’s mother chose his stepfather over him and failed to protect Bradley from the stepfather’s abuse (some weight); (4) Bradley witnessed the abuse of his mother by his stepfather (some weight); (5) Bradley witnessed the abuse of his siblings by his stepfather (some weight); (6) Bradley had no loving father figure or male role model (some weight); (7) Bradley has a close, loving relationship with his brother (little weight); (8) Bradley is known by family and friends to be generous and supports his mother and friends financially (little weight); (9) Bradley was addicted to and abused drugs from an early age (little weight); (10) Bradley suffers from brain damage and functional deficits (no weight); (11) Bradley suffered devastating emotional and psychological impact from the death of his cousin in October 2011 (little weight); (12) Bradley’s girlfriend miscarried days after the death of his cousin and he began significantly greater drug abuse (little weight); (13) Bradley became paranoid after the death of his cousin and his girlfriend’s miscarriage, believed someone was out to kill him, and obtained a gun for protection (little weight); (14) several other family members and friends were murdered or died, contributing to Bradley’s emotional state (little weight); (15) Bradley has been diagnosed with mental disorders and is being treated with psychotropic medication (little weight); (16) Bradley has been diagnosed with polysubstance dependence, which is currently in remission in a controlled environment, and passive/dependent personality traits (little weight); (17) Bradley has a full-scale IQ score of 70 from a 2013 WAISC IV test (no weight); (18) Bradley cooperated with law enforcement and confessed to all offenses (little weight); (19) Bradley exhibited appropriate courtroom behavior (minimal weight); and (20) the defense’s June 18, 2014, sentencing memo proposed that society is protected and Bradley is punished by a life sentence, and suggested the trial court’s consideration of the nonunanimous jury recommendation (the trial court ascribed no weight, but “considered each of these factors in making [its] recommendation”). The trial court found that Bradley had not established that he suffered head injury and possible traumatic brain injury prior to the day of the crime.

The trial court found the great weight of the five aggravators was not outweighed by the numerous mitigators and “that each aggravator standing alone outweighs all of the mitigating circumstances combined.” Bradley’s death sentence was ordered on June 27, 2014. This appeal follows.

ANALYSIS

Bradley raises the following eight claims in his appeal: (1) the trial court abused its discretion in limiting voir dire concerning Bradley’s prior violent felony conviction and fleeing a robbery while on probation; (2) the trial court erred in allowing the impeachment of Amanda Oz-burn; (3) the trial court erred in denying a mistrial based on the testimony of Bradley’s probation officer; (4) Bradley is entitled to a new penalty phase under Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016); (5) the trial court erred in failing to provide an example of merged aggravating factors in its instruction to the jury; (6) the trial court erred in finding aggravating factors and the absence of mitigating factors; (7) the trial court erred in denying a mistrial based on the State’s penalty phase closing; and (8) the trial court erred in instructing the jury that its role in sentencing is advisory. This Court also reviews every first-degree murder conviction for which a sentence of death has been imposed for sufficiency of the evidence.

For the following reasons, we affirm Bradley’s convictions and remand for a new penalty phase based on Hurst. Because we find that Bradley’s Hurst claim requires a new penalty phase, we do not address the other claims related to the penalty phase of Bradley’s trial or the proportionality of the sentence. Before considering Bradley’s Hurst claim, we address his claims related to the guilt phase of his trial. .

I. Limited Questioning during Voir Dire

Whether a trial judge should allow interrogation of jurors on specific subjects during voir dire is reviewed under an abuse of discretion standard. See Evans v. State, 808 So.2d 92, 105 (Fla. 2001); Davis v. State, 698 So.2d 1182, 1190 (Fla. 1997) (citing Farina v. State, 679 So.2d 1151, 1154 (Fla. 1996)). Trial courts have broad discretion in determining what questions may be asked for that purpose. See Pietri v. State, 644 So.2d 1347, 1351 (Fla. 1994); Johnson v. State, 608 So.2d 4, 9 (Fla. 1992).

Bradley argues that the trial judge abused her discretion in not permitting the defense to ask individual jurors whether they could be open to mitigation knowing that the State could prove the six specific aggravating factors, including prior violent felony and that the victim was a police officer. Bradley argues that the trial judge prevented the defense from eliciting juror bias against felons and probationers. Bradley further contends that any prejudice resulting from allowing the question would not have prejudiced the State and that it was his right to waive any resulting legal claim based on prejudice against him resulting from the aggravating factors being brought before the venire. Assuming that the trial judge abused her discretion, any error in this case is harmless because Bradley was allowed to ask other questions that were probative of juror bias. See Gore v. State, 476 So.2d 1205, 1207 (Fla. 1985) (although trial court should have allowed defendant “to propound questions to the jury as to their bias or prejudice in recommending a life sentence ... the voir dire of the jurors read in its entirety evidences that this error does not amount to reversible error, but rather was harmless error beyond a reasonable doubt”).

General questioning prior to the individual voir dire regarding the jurors’ familiarity with the criminal justice system was already probative of bias against defendants with a prior criminal history. The jurors also heard all the charges and potential aggravators as read aloud by the judge. The defense questioned jurors about their views on various aspects of mitigation like mental health and the field of psychology. The judge allowed the defense to ask whether potential jurors believed that the killing of a police officer warranted the death penalty. The trial judge also allowed the defense to ask whether jurors could still weigh mitigation in the penalty phase after Bradley had been convicted of murdering a police officer and the State had proven six nonspecific aggravators. She only stopped the defense from asking individual jurors whether they could still consider mitigation and recommend life knowing that the State could prove all six specific aggravating factors, including prior violent felony and that the victim was a police officer.

Any error in limiting defense questioning in this case was harmless beyond a reasonable doubt given the wide range of questioning the judge allowed on the very juror biases which Bradley claims the judge stopped him from uncovei'ing, Bradley “has not shown that his jury was made up of one or more persons unalterably in favor of the death penalty or that any of the juror[s’] views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Gore, 475 So.2d at 1207-08; see also Fitzpatrick v. State, 437 So.2d 1072, 1075-76 (Fla. 1983). Therefore, we deny relief on this claim.

II. Testimony of “High Risk Specialist” Probation Officer

Bradley argues that Charles Colon’s description of his employment as a “high risk specialist officer” was improper comment which warranted a mistrial because the jury could have made the inference that Bradley was a “high risk” probationer. Although the State contends that this claim was not properly preserved by a contemporaneous objection, trial counsel objected shortly after the comment and before the witness was relieved. The objection was properly preserved. See generally Jackson v. State, 451 So.2d 458, 461 (Fla. 1984) (“An objection need not always be made at the moment an examination enters impermissible areas of inquiry”). The trial court overruled the objection and denied the motion for mistrial.

While the denial of a motion for mistrial is reviewed for abuse of discretion, we review an overruled objection based on improper comment for harmless error. See Bright v. State, 90 So.3d 249, 259 (Fla. 2012) (citing Poole v. State, 997 So.2d 382, 391 n.3 (Fla. 2008)). “[Vjague and unverified information regarding ... prior felonies clearly has the effect of unfairly prejudicing the defendant in the eyes of the jury .... ” Geralds v. State, 601 So.2d 1157, 1163 (Fla. 1992); see also Rodriguez v. State, 842 So.2d 1053 (Fla. 3d DCA 2003) (aggravated assault conviction reversed where the jury heard the alleged victim successfully obtained a restraining order, which unfairly bolstered the victim’s version of events); State v. Emmund, 698 So.2d 1318, 1320 (Fla. 3d DCA 1997) (State precluded from referring to defendant’s violent criminal career in jury’s presence). Bradley argues Colon’s job title constituted vague information on his prior felony which caused him unfair prejudice warranting a mistrial under Geralds, 601 So.2d at 1163.

This one-time reference to the officer’s job specialty was not “so prejudicial as to vitiate the entire trial.” Poole, 997 So.2d at 391 (quoting Dessaure v. State, 891 So.2d 455, 464-65 (Fla. 2004)). The jury would still have seen the murder in the patrol ear video and heard Bradley’s confession. Thus, the trial court did not abuse its discretion in denying the motion for mistrial. Therefore, we deny relief on this claim.

III. Impeachment of Amanda Ozburn

Bradley contends that the trial court erred in allowing the State to impeach its own witness, Amanda Ozburn, introducing an otherwise inadmissible statement in violation of the rules of'evidence. A trial court’s ruling on admissibility of evidence will not be disturbed absent an abuse of discretion. See Bearden v. State, 161 So.3d 1257, 1263 (Fla. 2015). Where a trial court errs in interpreting the rules of evidence, the error is subject to de novo review. Id. (quoting Pantoja v. State, 59 So.3d 1092, 1095 (Fla. 2011)).

We held in Morton v. State, 689 So.2d 259, 264 (Fla. 1997), receded from on other grounds in Rodriguez v. State, 753 So.2d 29 (Fla. 2000), that a party may not call a witness primarily for the purpose of getting an inadmissible statement before the jury as impeachment:

[I]f a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible,' impeachment should ordinarily be excluded. On the other hand, a party may always impeach its witness if the witness gives affirmatively harmful testimony. In a case where a witness gives both favorable and unfavorable testimony,' the party calling the witness, should usually be permitted to impeach the witness with a prior inconsistent statement. ... In addressing these issues, trial judges must have broad discretion in determining whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or confusion.

Id. To determine whether a party has called a witness for the primary purpose of introducing impeachment, Florida courts consider the following: (1) whether the witness’s testimony affirmatively harmed the calling party, and (2) whether the impeachment of the witness was of de minim-is substantive value. See Felton v. State, 120 So.3d 126, 129 (Fla. 4th DCA 2013); Bleich v. State, 108 So.3d 1132, 1133 (Fla. 5th DCA 2013). Where a witness gives relevant testimony probative of facts in dispute in addition to the impeachment, we have found no error. See Wade v. State, 156 So.3d 1004, 1021-22 (Fla. 2014); Dennis v. State, 817 So.2d 741, 761 (Fla. 2002).

This rule prevents the abuse of the rules of evidence, as illustrated by a hypothetical situation which arguably tracks the facts in this case:

A prosecutor calls a witness who has made a previous statement implicating the defendant in a crime; that statement would be excluded as hearsay if offered for its truth; the prosecutor knows that the witness has repudiated the statement and if called, will testify in favor of the defendant; nonetheless, the prosecutor calls the witness for the ostensible purpose of “impeaching” him with the prior inconsistent statement. The reason that this practice appears abusive is that there is no legitimate forensic purpose in calling a witness solely to impeach him. If impeachment were the real purpose, the witness would never be called, since the most that could be accomplished is a net result of zero. As one Court put it: “The maximum legitimate effect of the impeaching testimony can never be more than the cancellation of the adverse answer.”

Morton, 689 So.2d at 263 (quoting 2 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual 800 (6th ed. 1994)). Ms. Ozbum gave testimony that was favorable and unsurprising to the State. Thus, the State had no proper reason to call her reliability into question. We assume the introduction of Ms. Ozburn’s impeachment was improper. However, any error is harmless beyond a reasonable doubt.

We held in Morton that “[t]he cumulative effect of continual impeachment made it all the more difficult for the jury to separate substantive evidence from the evidence it had been instructed to consider solely for impeachment.” Id. at 264. Although we found the error harmless as to the guilt phase given the overwhelming evidence against the defendant, the error was not harmless in the penalty phase. Id. We receded from Morton in Rodriguez v. State, 753 So.2d 29, 47 (Fla. 2000), holding that a similar error was also harmless as to the penalty phase because hearsay impeachment evidence is admissible as substantive evidence in the penalty phase so long as the defendant has an opportunity to rebut the evidence under section 921.141(1), Florida Statutes.

In this case, we find that any error was harmless as to the guilt phase because there is no reasonable probability that the error contributed to the verdict. Regardless of whether it heard Ms. Ozburn’s impeachment or other testimony during the guilt phase, the jury would have seen the murder in the patrol car video, heard Bradley’s confession, and heard testimony from other witnesses regarding his fear of police. There is no reasonable possibility that, but for Ms. Ozburn’s impeachment testimony, the outcome at tidal would have been different. Any error is harmless beyond a reasonable doubt. Therefore, we deny relief on this claim as to the guilt phase. Because Bradley is receiving a new penalty phase under Hurst, we do not address whether reference to Ms. Ozburn’s testimony in the penalty phase was harmless. We caution prosecutors to adhere to the strict requirements of the evidence code and thus avoid costly possible retrials.

IY. Sufficiency of the Evidence

We review the sufficiency of the evidence in every case in which a sentence of death has been imposed, even where the issue is not raised on appeal. See Davis v. State, 148 So.3d 1261, 1270 (Fla. 2014); Delhall v. State, 95 So.3d 134, 149 (Fla. 2012). Bradley raised no challenge to the sufficiency of the evidence to support his convictions. Nevertheless, we have independently reviewed the evidence and find it sufficient to support Bradley’s convictions.

Y. Bradley is Entitled to a New Penalty Phase under Hurst

During the pendency of Bradley’s appeal, the United States Supreme Court issued its decision in Hurst v. Florida, which is a new rule of law applicable to cases on direct appeal. See Franklin v. State, 209 So.3d 1241 (Fla. 2016) (finding that Hurst applies to cases not yet final on direct appeal). Bradley argues that Florida’s death penalty scheme is unconstitutional in light of Hurst v. Florida because a jury did not find all facts necessary to sentence him to death. We agree. See Hurst v. State, 202 So.3d 40, 57-58 (Fla. 2016), petition for cert filed, No. 16-998 (U.S. Feb. 13, 2017). In Hurst v. State, we explained that “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.” 202 So.3d at 57. Because the nonunanimous jury in this case did not make such findings, we cannot find the error harmless beyond a reasonable doubt. See id. at 57-59, 66-69. However, we reject Bradley’s contention that section 775.082(2), Florida Statutes (2011), requires us to remand his case for the imposition of a life sentence. See id. at 63-66. See also Franklin, op. at 6, 209 So.3d at 652.

CONCLUSION

Based on the foregoing, we affirm the trial court’s denial of Bradley’s guilt phase claims. We reverse and remand for a new penalty phase for a jury to make' findings under Hurst.

It is so ordered.

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

CANADY, POLSTON, and LAWSON, JJ., concur in result as to the conviction and dissent as to the sentence.

      . The trial court incorrectly labeled some of these mitigators falling under section 921. 141(6)(h), Florida Statutes (2011), as "statutory mitigators.”