author: QUINCE, J. POLSTON, J.,

text:
    Heather WORLEY, Petitioner, v. CENTRAL FLORIDA YOUNG MEN’S CHRISTIAN ASS’N, INC., Respondent.
    No. SC15-1086
    Supreme Court of Florida.
    [April 13, 2017]

      Andrew Parker Felix and- W. Clay Mitchell, Jr., of Morgan & Morgan, P.A., Orlando, Florida; and Celene H. Hum-phries, Philip J. Padovano, and Tracy S. Carlin of Brannock & Humphries, Tampa, Florida, for Petitioner
    Joseph R. Flood, Jr., Jessica C. Conner, and Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P.A., Orlando, Florida, for Respondent
    Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, Florida, for Amicus Curiae Florida Justice Association
    Katherine E. Giddings, BCS, and Diane G. DeWolf of Akerman LLP, Tallahassee, Florida; David I. Spector of Akerman LLP, West Palm Beach, Florida; and William W. Large of Florida Justice Reform Institute, Tallahassee, Florida, for Amicus Curiae Florida Justice Reform Institute
    Sharon C. Degnan and Caryn L. Bellus of Kubicki Draper, P.A., Miami, Florida, for Amicus Curiae Florida Defense Lawyers Association
   QUINCE, J.

We have for review the decision of the Fifth District Court of Appeal in Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 163 So.3d 1240 (Fla. 5th DCA 2015), in which the district court certified conflict with Burt v. Government Employees Ins. Co., 603 So.2d 125 (Fla. 2d DCA 1992), regarding whether the attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we conclude that the question implicates a confidential communication between the attorney and the client and is therefore protected. Accordingly, we quash the decision of the Fifth District and approve the decision of the Second District Court of Appeal.

FACTS

In its opinion granting certiorari review of the trial court’s order on discovery, the Fifth District set forth the relevant facts:

After Worley fell in YMCA’s parking lot, she twice went to the emergency room of Florida Hospital East, where she was eventually advised to see a specialist concerning pain in her right knee. However, according to Worley, she did not go to a specialist for a month or two after the accident because she did not have enough money or any health insurance. Instead, she “started seeking out representation.” After Worley retained Morgan & Morgan, various doctors from Sea Spine Orthopedic Institute, Underwood Surgery Center,' and Sanctuary Surgical & Anesthesia treated Worley. Morgan & Morgan subsequently filed a negligence suit against YMCA on behalf of Worley, seeking to recover damages, including the costs of her treatment from those healthcare providers.

Worley, 163 So.3d at 1242. During discovery of this “relatively routine trip-and-fall case,” Central Florida Young Men’s Christian Association, Inc. (YMCA), repeatedly attempted to discover the relationship between Worley’s law firm, Morgan & Morgan, and her treating physicians. Id.

At Worley’s initial deposition, YMCA asked if she was referred to her specialists by her attorneys, to which Worley’s counsel objected on the ground of attorney-client privilege. Id. YMCA then propounded to Worley three sets of Boecher interrogatories, directed to specific doctors employed by Sea Spine, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia, and a supplemental request to produce, directed to Morgan & Morgan, in an effort to establish the existence of a referral relationship between Worley’s attorneys and her treating physicians. 163 So.3d at 1242-43. These efforts were based on YMCA’s suspicions that there was a “cozy agreement” between Morgan & Morgan and the physicians, due to the amounts of Worley’s medical bills. Id. at 1243.

In response to YMCA’s interrogatories and supplemental request to producé, Worley argued that the requests were “overbroad, vague, unduly and financially burdensome, irrelevant and in violation [of] allowable discovery pursuant to Florida Rule of Civil Procedure 1.280(b)(4).” Id. Worley also contended that Morgan & Morgan does not maintain “information for treating physicians as in this matter, or otherwise.” Id. Despite this, at a hearing concerning Worley’s objections, the trial court only sustained Worley’s objection to the question regarding whether she was referred to the doctors by her attorneys and “did not address Worley’s objections to YMCA’s other outstanding discovery requests at that time.” Id. at 1244.

At a second deposition, YMCA again asked Worley how she was referred to her doctor, and again Worley’s attorney objected on the ground of attorney-client privilege. Id. Following the deposition; YMCA filed a “Motion to Compel Better Answers to Boecher Interrogatories and Supplemental Request for Production.” Id This prompted a second hearing before the trial court, where Worley was required to produce, within 30 days, two types of discovery materials for the time period between three years prior to and six months after December 4, 2012:

[1] complete copies of any and all documents reflecting formal or informal agreements, arrangements, and understandings regarding the billing for patients or any direct or indirect referral of a client by any attorney employed by or affiliated with Morgan <& Morgan (whether currently or 'formerly employed by or affiliated with Morgan & Morgan) to any of the following entities or persons: Sea Spine Orthopedic Institute (or its doctors); Underwood Surgery Center (or its doctors); Physicians Surgical Group (or its doctors); and Sanctuary Surgical and Anesthesia (or its doctors), and vice versa [; and]
[2] the names of any and all cases (including plaintiff, defendant, ‘court and case number) where a client was referred directly or indirectly by any attorney employed by or affiliated with Morgan & Morgan (whether currently or formerly employed by or affiliated with Morgan & Morgan) to any of the following entities or persons: Sea Spine Orthopedic Institute (or its doctors); Underwood Surgery Center (or its doctors); Physicians Surgical Group (or its doctors); and Sanctuary Surgical and Anesthesia (or its doctors), and vice ver-sa.

Id. Additionally, the trial court ordered that “[i]f the health care provider doesn’t have it, then the law firm is to produce it,” but did not specify which party had to incur the costs of complying with the order. Id.

In its motion for reconsideration of the trial court’s order, Worley argued that the information was protected by attorney-client privilege and that compliance with the order “would be overly burdensome, if not impossible.” Id. at-1245. In support of the latter argument, Worley provided two affidavits. Id. The first, by Deborah Par-rott, the Chief Financial Officer (CFO) of Morgan & Morgan, stated that there were no documents “kept or maintained by Morgan & Morgan that address the information sought by YMCA.” Id. The second, by Worley’s attorney, stated that production of the requested materials would require over 200 hours of attorney review time “to manually search hard-copy files” at an estimated cost of $94,0Í0. Id. The trial court summarily denied the motion. Id.

Worley then filed a petition for writ of certiorari with the Fifth District. Id. Wor-ley’s main claim-was that the trial court order requires the production of informs tion protected by the attorney-client privilege. Id. In denying Worley’s claim, the district court held “that it was appropriate for YMCA to ask Worley if she was referred to the relevant treating physicians by her counsel or. her . counsel’s firm.” Id. at 1247-48. It also found no error regarding the triab court’s order for Worley to comply with YMCA’s supplemental request to produce. Id. at 1249. Accordingly, the Fifth District denied Worley’s certiora-ri petition and certified conflict with Burt “to the extent that it holds that the disclosure of a referral of a client by an attorney to a healthcare provider is always protected by the attorney-client privilege.” Id. at 1250.

ANALYSIS

The issue before this Court is whether the attorney-client privilege protects a plaintiff from disclosing that an attorney referred him or her to a doctor for treatment, or a law firm from producing documents related to a possible referral relationship between the firm and its client’s treating physicians. However, resolution of this issue will require us to first Consider another issue: whether the financial relationship between a plaintiffs law firm and the plaintiffs treating physician is discoverable. In its-decision approving the order, the Fifth District relied on district court decisions that have held that the financial relationship between a law firm and a plaintiffs treating physician is discoverable, pursuant to our decision in Boecher, if evidence of a referral relationship can be shown. See Worley, 163 So.3d at 1246 (citing Brown v. Mittelman, 152 So.3d 602 (Fla. 4th DCA 2014), and Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200 (Fla. 4th DCA 2012)).

We disagree that Boecher is applicable and, accordingly, disagree with the reasoning of these decisions. In Boecher, we corn sidered whether a party could obtain discovery from the opposing party regarding the extent of that party’s relationship with an expert. Boecher, 733 So.2d at 994. In that case, the insured. sought to discover from the insurance company the extent of its financial relationship with the- expert witness that the insurance company intended to call at trial to dispute causation, Id. In concluding that the discovery was permissible, we recognized our earlier decision in Elkins v. Syken, 672 So.2d 517 (Fla. 1996). There, experts retained to provide compulsory -medical examinations were ordered to produce expansive discovery of their private financial information, including tax returns. Id. at 520. We found such invasive and harassing discovery to be impermissible because it threatened to chill the willingness of experts to become involved in litigation. Id. at 522. In response to this concern, we adopted Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii) in order “to avoid annoyance, embarrassment, and undue expense” to experts. Boecher, 733 So.2d at 998 (quoting Fla. R. Civ. P. 1.280 committee notes (1996)). However, because the discovery sought in Boeeher was “directed to a party about the extent of that party’s relationship with a particular expert,” we found that the balance of interests shifted -in favor of allowing the discovery. Id. at 997.

Since then, district courts have extended Boeeher to allow discovery'of the financial relationship between law firms and treating physicians. See Worley, 163 So.3d at 1246 (“In Florida, it is well established that the financial relationship between the law firm and the treating physician is not privileged and is relevant to show bias.”); Brown, 152 So.3d at 604 (“The financial relationship between the treating doctor -and the plaintiffs attorneys in present and past cases-creates the potential for bias and discovery of such a relationship is permissible.”); Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, 133 So.3d 1178 (Fla. 4th DCA 2014) (“A law firm’s financial relationship with a doctor is discoverable on the issue of bias.”); Steinger, 103 So.3d at 205 (“[T]he defendant is entitled to discover information regarding the extent of the relationship between the law firm and the doctor.”). However, contrary to these decisions, we find that the relationship between a law firm and a plaintiffs treating physician is not analogous to the relationship between a party and its retained expert.

First; and most obviously, the law firm is not a party to the litigation. In Boeeher, the insured sought discovery from the other'party, in that ease Allstate Insurance, regarding the financial relationship Allstate had with its hired expert. Boecher, 733 So.2d at 994. In the instant case, YMCA is seeking discovery of the relationship between Morgan & Morgan, a non-party, and Worley’s treating physicians. Furthermore, Boeeher deált with the discovery of éxperts who had- been hired for the purposes of litigation. Treating physicians, however, “[do] not acqüire [their] expert knowledgé for the purpose of litigation, but rather simply--in the course of attempting to make [their] patientfs] well.” Frantz v. Golebiewski, 407 So.2d 283, 285 (Fla. 3d DCA 1981). Moreover, they “typically testify] ,'.. concerning [their] ... own medical performance on a particular occasion and [do] not opin[e] about the performance of another.” Fittipaldi USA, Inc. v. Castroneves, 905 So.2d 182, 186 (Fla. 3d DCA 2005).

We recognize that the evidence code allows a party to attack a.witness’s credibility based on bias. § 90.608(2), Fla. Stat. (2015). We also agree that “a treating physician,, like any other witness, is subject to impeachment based on bias.” Steinger, 103 So.3d at 203. However, bias on the part of the treating physician can be established by providing evidence of a letter of protection (LOP), which may demonstrate that the physician -has an interest in the outcome of the litigation. In the instant case, Worley was treated by all of her specialists pursuant to letters of protection. Bias may also be established by providing evidence that the physician’s practice was based entirely on patients treated pursuant to LOPs, as was found in the instant case. Specifically, a Sea Spine employee testified during depositions that at the time of Worley’s treatment, its entire practice was based on patients treated pursuant to LOPs. Additionally, medical bills that are higher than normal can be presented to dispute the physician’s testimony regarding the necessity of treatment and the appropriate amount of damages.

Allowing further discovery into a possible relationship between the physician and the plaintiffs law firm would only serve to uncover evidence that, even if relevant, would require the production of communications and materials that are protected by attorney-client privilege. As mentioned previously, courts that have allowed this type of discovery have first required evidence of a referral relationship between the law firm and the treating physician. See Brown, 152 So.3d at 605 (“In cases where there is evidence of a referral relationship, more extensive financial discovery may be appropriate from both the law firm and the doctor.”); see also Steinger, 103 So.3d at 206 (“Once there is evidence that a referral relationship exists, discovery from the law firm may be appropriate .... ”). In the instant case, the Fifth District stated that in order to establish that a referral has occurred, discovery should first be sought from the party, the treating physician, or other witnesses. Worley, 163 So.3d at 1247. Finding that YMCA had “exhausted all other avenues without success,” the court held that it was appropriate to ask Worley if she had been referred to her doctor for treatment. Id. at 1248.

Which brings us to the conflict issue before this Court: whether the attorney-client privilege precludes defense counsel from asking a plaintiff whether his or her attorney referred the plaintiff to a physician for treatment. In the conflict case, the Second District held that the question, “[D]id counsel refer [the plaintiff] to a particular physician[?]” sought “discovery of confidential communications constituting her attorney’s advice regarding this lawsuit.” Burt, 603 So.2d at 125. In support of its conclusion, the district court reasoned, “The question does not elicit the underlying fact of whether she saw a particular physician, but rather elicits whether she saw the physician at her attorney’s request.” Id. at 125-26. In the instant case, the Fifth District held that the Second District’s decision had been “called into doubt by the subsequent case law approving discovery pertaining to the financial relationship between a plaintiffs treating physician and his or her lawyer(s).” Worley, 163 So.3d at 1247. It appears that the district court supported its conclusion by reasoning that because YMCA could not obtain the information any other way, it could ask Worley directly.

We do not agree with the Fifth District’s attempt to circumvent the attorney-client privilege out of perceived necessity. The attorney-client privilege is the oldest confidential communication privilege known in the common law. See Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). It is governed by the Florida Evidence Code, codified at section 90.502, Florida Statutes (2015). Under the Florida Evidence Code,

A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.

§ 90.502(2), Fla. Stat. The Code further provides:

A communication between lawyer and client is “confidential” if it is not intended to be disclosed to third persons other than:
1. Those to whom disclosure is in furtherance of the rendition of legal services to the client.
2. Those reasonably necessary for the transmission of the communication.

§ 90.502(1)(c), Fla. Stat. While section 90.502(4) provides several exceptions to the attorney-client privilege, none of them apply to the instant case. The purpose of the attorney-client privilege is to “encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Am. Tobacco Co. v. State, 697 So.2d 1249, 1252 (Fla. 4th DCA 1997) (quoting Haines v. Liggett Group, Inc., 975 F.2d 81, 90 (3d Cir. 1992)). It is an interest traditionally deemed worthy of maximum legal protection. Id. Furthermore, it is not concerned with the litigation needs of the other party. See Quarles & Brady, LLP v. Birdsall, 802 So.2d 1205, 1206 (Fla. 2d DCA 2002) (“[UJndue hardship is not an exception, nor is disclosure permitted because the opposing party claims that the privileged information is necessary to prove their case”) (citation omitted)). Therefore, we find that the question of whether a plaintiffs attorney referred him or her to a doctor for treatment is protected by the attorney-client privilege.

Respondent argues that the lawyer’s act of referring a client to a treating physician is an underlying fact, not a communication. We disagree. That the plaintiff was treated by a particular doctor is an underlying fact. That the plaintiff received a referral to see a particular doctor is also an underlying fact. However, whether the plaintiffs attorney requested that the client see a certain doctor requires the plaintiff to disclose a part of a communication that was held between the plaintiff and attorney, and we resist any attempts to separate the contents of communications to distinguish “facts” from privileged information. To hold otherwise would severely undermine the purpose of the privilege, which is to encourage the free flow of information between attorneys and their clients. Accordingly, we find that the supplemental request to produce requires the production of privileged materials.

We also find that the supplemental request to produce is unduly burdensome. With its motion for reconsideration, Worley filed two affidavits with the trial court. Worley, 163 So.3d at 1245. The affidavits stated that compliance with the order would require over 200 hours of attorney review at a-cost of $94,010. Id In Boecher, we explained that “certiorari is the appropriate remedy when a discovery order ‘departs from the essential requirements of law and thus causes material injury to the petitioner throughout the remainder, of the proceedings, effectively leaving no adequate remedy on appeal.’ ” Boecher, 733 So.2d at 999 (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 95 (Fla. 1995)). In determining whether the ordered discovery would constitute an undue burden, courts look to the facts of each case. See Schering Corp. v. Thornton, 280 So.2d 493, 494 (Fla. 4th DCA 1973) (“We do not here attempt to delineate the point at which the burden becomes unreasonable, and indeed, it must necessarily be a case by case decision under the applicable circumstances.’’). Here, we find that 200 hours and over $90,000 in costs to discover the collateral issue of bias in a case where the damages sought total $66,000 is unduly burdensome.

Even in cases where a plaintiffs medical bilis appear to be inflated for the purposes of litigation, we do not believe that engaging in costly and time-consuming discovery to uncover a- “cozy agreement” between the law firm and a treating physician is the appropriate response. We are concerned that this type of discovery would have a chilling effect on doctors who may refuse to treat patients who could end up in litigation out of fear of becoming embroiled in the litigation themselves. Moreover, we worry that discovery orders such as the one in this case will inflate the costs of litigation to the point that some plaintiffs will be denied access to the courts, as attorneys will no longer be willing to advance these types of costs. Finally, attempting to discover this information requires the disclosure of' materials that would otherwise be protected under the attorney-client privilege.

CONCLUSION

Therefore, we quash the decision of the Fifth District Court and approve the decision of the Second District.

It is so ordered.

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

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

POLSTON, J.,

dissenting.

The majority holds that Central Florida YMCA is shielded, based on attorney-client privilege, from discovering whether Worley’s lawyers, Morgan & Morgan, referred her to treating medical providers. The discovery is directed to the referral relationship between Morgan & Morgan and the providers, including how much money the providers received from the firm and its clients. The financial relationship between a law firm and medical provider, including number of referrals, frequency, and financial benefit, is admissible evidence regarding the bias of a testifying medical provider. -Accordingly, this information is relevant and subject to discovery.

The trial court ordered Worley to produce billing agreements between Morgan & Morgan and her treating medical providers and information from cases in which her firm referred other clients. On appeal, the Fifth District Court of Appeal in Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 163 So.3d 1240 (Fla. 5th DCA 2015), correctly allowed discovery of this information under the existing rules of discovery, as balanced with other interests.. I would approve its excellent analysis.

A lawyer’s referral, of a client to a treating medical provider is for the purpose of the client’s medical care, not in furtherance of legal services. Therefore, the referral itself is not protected as an attorney-client privileged communication.

I respectfully dissent.

I. Background

Worley was injured in a slip and fall at Central Florida YMCA. Id at 1242. The Fifth District explained that “[djuring the discovery process of this relatively routine trip-and-fall case, Morgan & Morgan has tenaciously opposed all attempts by the Respondent, Central Florida" Young Men’s Christian Association, Inc. (“YMCA”), to learn how Worley became a patient of certain medical care providers.” Id Specifically, YMCA seeks to discover information regarding the referral relationship between Morgan & Morgan and Worley’s treating providers at Sea Spine Orthopedic Institute, Underwood Surgery Center, and Sanctuary Surgical & Anesthesia, including the amounts paid for clients of Morgan & Morgan. Id at 1242-43. These treating providers will be giving expert opinions on matters including permanency of the injury as well as the reasonableness and necessity of her care and treatment.

YMCA contends, and' has throughout the litigation, that these providers’ bills are grossly inflated and do not reflect usual and customary billing practices within the medical community. ‘Worley concedes that YMCA has sufficient evidence to argue, that the medical bills [from the treating physicians in this case] are unreasonable.” Id. at 1243. As the majority states, “a Sea Spine employee testified during depositions that at the time of Worley’s treatment, its entire practice was based on patients treated pursuant to LOPs,” meaning letters of protection from lawyers. Majority op. at 24.

In response to the requested discovery, Worley’s counsel provided an affidavit indicating that 238 Morgan & Morgan “Non-Party legal matters [involve Worley’s] Treating Physicians.” Worley, 163 So.3d at 1245. However, Worley’s counsel indicated that the specific requested information is not. kept by Morgan & Morgan, and YMCA could obtain the information from the providers. Id. Then, “according to YMCA, Worley also filed a motion for protective order to prevent YMCA from obtaining this information from the billing custodians for Worley’s treating physicians.” Id. at 1243-44.

Worley objects to the' discovery of whether Morgan & Morgan referred her to these medical providers based on attorney-client privilege. The Fifth District ruled this was not protected information subject to the attorney-client privilege:

In general, “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action. ...” Fla. R. Civ. P. 1.280(b)(1). In Florida, it is well established that the financial relationship between the law firm and the treating physician is not privileged and is relevant to show potential bias. See Brown v. Mittelman, 152 So.3d 602, 604 (Fla. 4th DCA 2014) (“The financial relationship between the treating doctor arid the plaintiffs attorneys in present and past cases creates the potential for bias and discovery of such a relationship is permissible.”); Lytal, Reiter, Smith, Ivey & Fronrath, L.L.P. v. Malay, 133 So.3d 1178, 1178 (Fla. 4th DCA 2014) ..(“A law firm’s financial relationship with a doctor is discoverable on the issue of bias.” (citing [Morgan, Colling & Gilbert, P.A. v. ]Pope, 798 So. 2d [1, 2 (Fla. 2d DCA 2001) ])); Steinger, Iscoe & Greene, P.A. v. GEICO, Gen. Ins. Co., 103 So.3d 200, 204 (Fla. 4th DCA 2012) (“Thus, under ordinary circumstances, a defendant may discover from a, plaintiffs treating physician the type of general financial bias information set out in Rule 1.280(b)(5)(A)(iii).”); Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060, 1064 (Fla. 4th DCA 2011) (“We agree that Elkins discovery should generally provide sufficient discovery into such financial bias. The discovery here is relevant to a discrete issue, whether the expert has recommended an allegedly unnecessary and costly procedure with greater frequency in litigation cases, and whether the expert, as a treating physician, allegedly overcharged for the medical services at issue in the, lawsuit.”); see also Crawford v. McColister’s Transp. Sys., Inc., 2013 WL 5687861, at *2 (S.D. Fla. Oct. 2, 2013) (stating that “the existence of an attorney client relationship is not usually itself privileged, and whether a Plaintiff was referred to a physician by her attorney is discoverable” (footnote omitted) (citing Norfolk v. Comparato, No. 11-81220-CIV, 2012 WL 3055675 (S.D. Fla. July 12, 2012))).

Id. at 1246 (footnote omitted).

The majority incorrectly rules otherwise and broadly holds that the attorney-client privilege protects the disclosure of whether the attorney referred the client to their physician for treatment.

II.. Evidence and Discovery Rules Require Discovery

Under our evidence and discovery rules, information reasonably calculated to lead to the discovery of the bias of a witness, including a financial incentive for testifying a certain way, should be discoverable. Specifically, this Court has explained that “[o]ur rules of civil procedure broadly allow parties to obtain discovery of ‘any matter, not privileged, that is relevant to the subject matter of the pending action,’ whether the discovery would be admissible at trial, or is merely ‘reasonably calculated to lead to the discovery of admissible evidence.’ ” Allstate Ins. Co. v. Boecher, 733 So.2d 993, 995 (Fla. 1999) (quoting Fla. R. Civ. P. 1.280(b)(1)).

Furthermore, as Professor Ehrhardt explains, “[a]ll witnesses who testify during a trial place their credibility in issue.” Charles W. Ehrhardt, Florida Evidence, § 608.1, at 619 (2016). Therefore, “[r]e-gardless of the subject matter of the witness’s testimony, a party on cross-examination may inquire into matters that affect the truthfulness of the witness’s testimony.” Id. And section 90.608, Florida Statutes, provides that “[a]ny party, including the party calling the witness, may attack the credibility of a witness by ... [showing that the witness is biased.” “Included within the types of matters that demonstrate bias are those that relate to the interest of the witness, favoritism, and corruption.” Ehrhardt, § 608.5, at 655.

The majority acknowledges that the evidence code allows a party to attack a witness’s credibility based on bias and that a treating physician is subject to impeachment based on bias. See majority op. at 23 (citing § 90.608(2), Fla. Stat., and Steinger, 103 So.3d at 203). But the majority then improperly draws the- line of allowing bias to be shown by permitting only evidence of a letter of protection from the lawyer “which may demonstrate that the physician has an interest in the outcome of the litigation.” Id. at 23. This letter of protection involves just the one case. Allowing the jury to consider just this limited financial interest of the one case completely ignores, and improperly limits, the ability to show bias of a provider that may arise from a potentially very significant amount of compensation, and percentage of total business, from other cases brought to the provider by the law firm.

Additionally, the majority reasons that allowing discovery into a broader relationship between the physician and plaintiffs law firm may require production of communications and materials ' that are protected by attorney-client privilege. See id. at 23-24. Indeed,- section 90.502(2) provides that “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications ... because they were made in the rendition of legal services to the client.” However, as Professor Ehrhardt explains, “communications that do not involve legal advice are not protected.” Ehrhardt, § 502.5,. at. 451. Therefore, if a communication is a recommendation of a physician from whom someone should seek medical treatment, the referral does not constitute protected legal advice. See Hoch v. Rissman, Weisberg, Barrett, 742 So.2d 451, 458 (Fla. 5th DCA 1999) (“Mere attendance of an attorney at a meeting, even where the meeting is held at the attorney’s instance, does not render everything said or done at that meeting privileged, For communications at a meeting to be privileged, they must relate to the acquisition or rendition of professional legal services and must have a confidential character.” (citation omitted)); Watkins v. State, 516 So.2d 1043, 1046 (Fla. 1st DCA 1987) (holding that communication regarding trial dates was not privileged because it was not intended to not be disclosed to third parties); see also Ehrhardt, § 502.5, at 449 (“Matters which are not communications, e.g., how cotinsel was retained, are not protected by the attorney-client privilege.”).

Moreover, the possibility of a matter involving attorney-client privileged information of course occurs with all discovery and is not a basis for completely disallowing permissible discovery. Instead, appropriate objections are made and an in camera review- is conducted by the trial judge. See, e.g., Patrowicz v. Wolff, 110 So.3d 973, 974 (Fla. 2d DCA 2013); Zanardi v. Zanardi, 647 So.2d 298, 298 (Fla. 3d DCA 1994).

III. Boecher Requires this Discovery

Importantly, this Court in Boecher, 733 So.2d at 994, required the disclosure of a financial relationship between a party insurance company and its witness. This Court explained that “[o]nly when ah relevant, facts are before the judge'and jury can the ‘search for truth and justice’ be accomplished.” Id. at 995 (quoting Dodson v. Persell, 390 So.2d 704, 707 (Fla. 1980)). Obviously, for all the following reasons, this information establishing a financial relationship between the insurance company and its withess pertains to the bias of the witness and is discoverable:

The information sought here would repeal how often the expert testified on Allstate’s behalf and how much money the expert made from its relationship with -Allstate. The information sought in this case does not just lead to the discovery of admissible information. The information requested is directly relevant to a party’s efforts to demonstrate to the jury the witness’s bias.
The more extensive the financial relationship between a party and a witness, the more it is likely that the witness has a vested interest in that financially beneficial-relationship continuing. A jury is entitled to know the extent of the financial connection between the party and the witness, and the cumulative amount a party has paid an expert during their relationship. A party is entitled to argue to the jury that a witness might be more likely to testify favorably on behalf of the party because of the witness’s financial incentive to continue the financially advantageous relationship.
Any limitation on this inquiry has the potential for thwarting the truth-seeking function of the trial process. As we observed in [Government Employees Insurance Co. v. ]Krawzak, [675 So.2d 115, 118 (Fla. 1996),] we take a “strong stand against charades in trials.” []. To limit this discovery would potentially leave the jury with a false impression concerning the extent of the relationship between the witness and the party by allowing a party to present a witness as an independent witness when, in fact, there has been an extensive financial relationship between the party and the expert.. This limitation thus has. the potential for undermining the truth-seeking function and fairness of the trial. See Dosdourian[ v. Carsten], 624 So. 2d [241, 243 (Fla. 1993) ]. Thus, we conclude that the jury’s right to assess the potential bias of the expert outweighs any of the competing interests expressed in Elkins.

Id. at 997-98.

The majority distinguishes Boecher on the basis that the law firm is not a party to the litigation. Majority op. at 23. However, for all of the reasons described in Boecher, this Court should require the disclosure of a financial relationship between a party’s law firm and its witnesses. It should treat the-. plaintiff s law firm, the same as an insurance company for purposes of discovering and disclosing potential bias. .If a law firm routinely refers clients to the medical provider, and there is an. “extensive [] financial relationship between a party [through its law firm] and.a witness, the more it is likely that the witness has a vested interest in that financially beneficial relationship continuing.” Boecher, 733 So.2d at 997. The insurance company is a repeat player in the judicial system, and the witnesses it uses on a regular basis may have a financial incentive that a jury is entitled to know about and evaluate for potential bias. Substitute the phrase “plaintiffs law firm” in place of “insurance company,” and the same is true here: The “plaintiffs law firm” is a repeat player in the. judicial system, and the witnesses it uses on a regular basis may have a financial incentive that a jury is entitled to know about and evaluate for. potential bias. See Sears v. Rutishauser, 102 Ill.2d 402, 80 Ill.Dec. 758, 466 N.E.2d 210, 214 (1984) (“[A] medical expert may be cross-examined'concerning the number and frequency of referrals from an attorney.”).

Accordingly, this Court should apply Boecher in an even-handed manner to all litigants, no matter whether they are plaintiffs or defendants, and require this discovery.

IV. Kitchen Sink

The majority also finds in favor of Wor-ley for a variety of additional reasons, including that the ordered discovery is unduly burdensome. Majority op. at 25. The trial court denied this burdensome claim. As indicated by the Fifth District, Worley may seek reasonable compensation for her costs at the end of the case. Worley, 163 So.3d at 1249; see Topp Telecom, Inc. v. Atkins, 763 So.2d 1197, 1200 n.5 (Fla. 4th DCA 2000) (“Of course the mere fact that a trial judge has allowed burdensome discovery to proceed does not forestall later reallocation of the costs incurred when the prevailing party seeks to tax costs at the end of the case. In taxing costs, the" trial judge has considerable discretion and it is certainly within such discretion to determine at the end of the case that overly burdensome discovery requests by the losing party should be compensated to some extent by allowing specific requests for costs incurred thereby. It will be at this stage that the parties can have full review of the issues dealing with the allocation of those costs.”). “To hold otherwise would essentially thwart the truth-seeking function highlighted in Boecher because it would allow a party to prevent disclosure of relevant information by arguing that it is too costly to provide, even though the greater the extent of the relationship between the party’s law firm and the treating physicians, the more likely the opposing party could successfully argue bias or the unreasonableness of the medical bills charged by the treating physicians.” Worley, 163 So.3d at 1250.

Additionally, the majority expresses its concern that the ordered discovery will have a chilling effect on doctors willing to testify. Majority op. at 26. However, this concern is without any supporting evidence. To the contrary, as indicated in the majority’s opinion, the physicians, group testified in this case that its whole practice is. dependent on attorney letters of protection. ,

Finally, the majority worries that the costs of litigation will go to the point that some plaintiffs will be denied access to courts because lawyers will not take the cases and advance costs.. Id. But this access to courts worry is completely baseless. Morgan & Morgan has not made any indication that it would not pursue this case or any others if required to comply with the court’s discovery order.

Accordingly, the myriad other reasons the majority employs to prevent the permissible discovery in this case are baseless and without merit.

Y. Conclusion

Because the discovery ordered by the trial court is not attorney-client privileged communication, and because the discovery is required by an evenhanded application of this Court’s decision in Boecher, I would approve the Fifth District’s decision. Therefore, I respectfully dissent.

CANADY and LAWSON, JJ., concur.

      . Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla. 1999).

      . Additionally, Worley argued that the trial court order (1) requires Worley to produce documents that do not exist; (2) requires Morgan & Morgan, a nonparty, to produce the information; (3) requires Worley or Morgan & Morgan to engage in an unduly and financially burdensome production; (4) requires Morgan & Morgan to incur all the costs associated with the production of the ordered discovery; and (5) expands the scope of bias-related discovery that is otherwise permitted. Id, at 1245.

      . Essentially, the rule provides that a party may only obtain discovery of (1) the scope of an expert's employment in the pending case and compensation for such service, (2) the , expert's general litigation experience, (3) other cases, within a reasonable time period, in which the expert has testified, and (4) an approximate percentage of time that the expert serves as an expert witness. Financial and business records may only be requested under "the most unusual or cbmpelling circumstances.” Fla. R. Civ. P. 1.280(b)(5)(A)(iii).

      . “A letter of protection is a document sent by an attorney on a client’s behdlf to a' healthcare provider when the -client needs medical treatment, but does not have insurance. Generally, the letter states that the client is involved in a court case and seeks an agreement from the medical provider to treat the client in exchange for deferred payment of the provider's bill from the procee.ds of [a] settlement or award; and typically, if the client does not obtain-a favorable recovery,-the client is still liable to pay- the provider’s -bills.'” Caroline C. Pace, Tort Recovery for Medicare Beneficiaries; Procedures, Pitfalls and Potential Values, 49 Hous. Law. 24, 27 (2012).

      . This subsection provides:
      (4) There is no lawyer-client privilege under this section when:
      (a) The services of the lawyer were sought or obtained to enable or aid anyone to commit what the client knew was crime or fraud.
      (b) A communication is relevant to an issue between parties who claim through the same deceased client.
      (c) A communication is relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer, arising from the lawyer-client relationship.
      (d) A communication is relevant to an issue concerning the intention or competence of a client executing an attested document to which the lawyer is an attesting witness, or concerning the execution or attestation of the document.
      (e) A communication is relevant to a matter of common interest between two or more clients, or their successors in interest, if the communication was made by any of them to a lawyer retained or consulted in common when offered in a civil action between the clients or their successors in interest.
      § 90.502(4), Fla. Stat. (2015).

      , The majority also distinguishes Boecher on the basis that these are treating physicians ráther than experts. Majority op. at 23, But these treating providers will be giving expert opinions, including expert opinions about permanency of the injury as well as the reasonableness and-necessity of her care and treatment.


source: Caselaw Access Project

author: PER CURIAM. LAWSON, J.,

license: Public Domain

text:
    Elijah BROOKINS, Appellant, v. STATE of Florida, Appellee.
    No. SC14-418
    Supreme Court of Florida.
    [April 20, 2017]

      Baya Harrison, III, Monticello, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Jennifer L. Keegan, Assistant Attorney, General, Tallahassee, Florida, for Appellee
   PER CURIAM.

Elijah Brookins appeals his conviction for first-degree murder and his sentence of death. For the reasons below, we affirm his conviction but vacate his sentence and remand for a new penalty phase.

BACKGROUND

This case involves a brutal stabbing murder on a Florida Department of Corrections (DOC) transport bus. The two DOC officers responsible for transporting the inmates testified that they did not see or hear anything out of the ordinary during the drive from Jefferson Correctional Institution to the Northwest Florida Reception Center (NFRC) in Washington County. Both officers testified that the noise on the bus prevented them from hearing the victim, Eric Sexton, scream and beg for their help as the defendant, Elijah Brookins, stabbed the victim to death with a homemade metal shank that Brookins had concealed in the waistband of his' pants and snuck onto the bus; Not only did these officers not witness the murder itself,' but the officer responsible for security testified that he saw nothing amiss during several security checks he testified that he performed during the more than two-hour drive.

When the bus arrived at NFRC, the DOC officer responsible for processing the inmates testified that the inmates were crowded into the' back of the bus and “rushed” her to exit out of the bus’s rear door “more quickly than they usually do.” She testified that Brookins was the. last inmate to get off the bus, was “all bloody” and wearing only a white T-shirt when he should have been wearing the standard blue uniform ’ shirt provided to inmates, and said “the' dude went psycho.” This officer further testified that there was no blood on any other inmate except Brookins and that when she boarded the bus, its interior was bloody and the floor was littered with debris. She testified that she found the victim, bloody and nonresponsive and “sort of leaning against the seat on the floor half under the seat,” near the front of the bus.

The medical examiner téstified that the victim had been stabbed 26 times and died as the result of blood loss from his wounds, which included stab wounds to his head, face, neck, arms, hands, back, abdomen, and anus, as well as multiple injuries to his hands that were consistent -with defensive wounds. The medical examiner further testified that the victim’s wounds were consistent with a homemade metal weapon that law enforcement had recovered from the side of the interstate along the transport route.

The DNA expert testified that both the murder weapon and its elastic holster, which law enforcement also recovered from the side of the interstate, contained blood that matched the victim’s. In addition, DNA analysis revealed.that Brookins could be included as the minor contributor to DNA recovered from both the elastic holster and murder weapon. DNA from blood recovered from both Brookins’ shirt and pants matched the victim, and the victim was included as a possible contributor to DNA recovered from swabs taken from Brookins’ hand.

While the officers responsible for the victim’s safety .during, the transport were unable to explain what happened to him, three inmates who were also being transported with the defendant and victim testified to what they saw. Though their accounts differ in some respects, all three men described a horrific attack during which the defendant stabbed the victim repeatedly over the course of 10 to 30 minutes while the victim screamed at the top of his lungs and begged the corrections officers for help.

Specifically, inmate Tyrone Jackson testified that a few minutes after the bus got on I—10, Brookins “ran over and jumped on [the victim],” Jackson testified that he thought the two were fighting at first, but then he saw that Brookins had a.knife and the victim was trying to defend himself. Jackson testified that,' for approximately 25 to 30 minutes, Brookins stabbed the victim “nonstop” and that he “[j]ust kept going and going and going.” Jackson further testified that Brookins was “mumbling” to the victim but that he could not understand what Brookins was saying and that the victim was “screaming to the' top of his lungs [and begging the] officers to help.” At a point during the attack, while the victim was still alive, Jackson testified to seeing Brookins pause, use his mouth to straighten out the knife that had bent, and then continue to stab the victim.

Inmate Juan Hernandez also testified to a similar surprise attack, specifically that “[i]t wasn’t an altercation. It was—it was out of nowhere.... It was no discussion, no—no loud talking.” Rather, Hernandez said that he heard a noise like a punch, and he‘turned around and saw Brookins “jump on [the victim] and stab[] him in the face.” Hernandez testified that Broo-kins stabbed the victim multiple times and beat him with the back of the knife for about 10 minutes, and that Brookins told the victim, “You.can’t get away fronrme,” and called the victim a “piece of sh*t” who “needed to die.” Hernandez also testified that Brookins used both his teeth and the side of the bus to straighten out the knife blade that had bent during the attack so he could continue stabbing the victim, while the victim screamed “Officer, Officer, Officer, help me, officer,”

The third inmate, Theodus Hunt, testified that the incident occurred right after the bus merged onto 1-10. Hunt testified that he saw Brookins watching Sexton from the time they boarded the bus until the stabbing. However, unlike Jackson and Hernandez, Hunt testified that the incident began when Brookins confronted the victim about selling another inmate a cigarette in exchange for food. Hunt testified that Brookins pushed the victim, the victim pushed him back, and then Brookins “reached on the side of his pants and ripped his pants open and pulled a knife out of the side part of his pants.” Hunt identified the elastic waistband that had been recovered by law enforcement as the waistband from which Brookins pulled the knife and testified that the victim “was screaming to the top of his voice” during the stabbing.

Testimony from these inmates also established that, following the murder, Broo-kins put on gloves and stuck his hand and the knife up the victim’s anus and said, “Where is it at, boy? Where it at? Where the package?” Brookins also removed some of the victim’s clothes, thoroughly searched the victim’s property, took some of the victim’s property and put it with his own, ripped up the victim’s pictures, sat down and propped his feet up-on the victim’s body, ate the bagged lunch that had been provided to the victim, and urinated on the victim’s body. In addition, Brookins cleaned up and washed his hands with the inmates’ drinking water and threw several items, including the gloves, elastic holster, bloody clothing, and murder weapon out the bus window.

Brookins testified in his defense. He denied killing the victim and testified that the victim’s blood was on his clothing because the victim fell on him during the attack, at which point he helped the victim into a seat. Brookins further testified that he pulled the shank out of the victim because the victim asked for his help. On cross-examination, Brookins testified that fellow inmate, Theodus Hunt, killed the victim.

The jury found Brookins guilty of first-degree premeditated and felony murder.

During the penalty phase, the State introduced, pursuant to a stipulation with the defense, a certified copy of Brookins’ prior conviction, for the first-degree murder he committed when he was a juvenile and for which he was serving a life-sentence at the time of Sexton’s murder. In addition, the State called Sexton’s sister, who read her victim impact statement to the court.

The defense, during the penalty phase, conceded that the State had proven the statutory aggravating circumstances of HAC, prior violent felony, and committed by a person previously convicted of a felony and under sentence of imprisonment, and further conceded that there were no statutory mitigating circumstances. ,The defense presented the testimony of Broo-kins’ older sister, younger sister, and aunt. These witnesses testified about Brookins’ poverty-stricken childhood in a crime-ridden public housing project, his abandonment by his father, learning problems Brookins had that caused him to drop out of school, his imprisonment as a juvenile, and their difficulty visiting him because of finances but their desire for him to be a part of their lives. The defense did not present testimony from a mental health expert, and Brookins did not testify during the penalty phase.

The jury recommended the death penalty by a vote of ten to two. At the subsequent Spencer hearing, the State presented written statements from two of the victim’s family members, and two members of Brookins’ family requested mercy.

Thereafter, the trial court followed the jury’s recommendation and sentenced Brookins to death, concluding that the aggravating circumstances outweighed the mitigating circumstances.

ISSUES ON APPEAL

Brookins raises the following guilt phase issues on appeal: (1) whether the trial court erred in admitting collateral crime evidence for purposes of impeachment; and (2) whether the State improperly commented on his right to silence. We also review whether the evidence is sufficient to support Brookins’ conviction and whether Brookins is entitled to relief pursuant to Hurst v. State, 202 So.3d 40 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

1. Collateral Crime Evidence

Brookins first argues that the trial court erred by admitting, for purposes of impeachment, collateral crime evidence that he signed a sworn statement in which he admitted to concealing a metal shank inside his pants while in jail awaiting trial for the victim’s murder. Before trial, the State filed a notice of intent to introduce this collateral crime evidence under section 90.404(2), Florida Statutes. Brookins filed a motion in limine seeking to exclude it. At the hearing on the motion, the State represented that it did not intend to introduce the evidence during its case-in-chief but that it might be used to impeach Brookins if he testified at trial.

At trial, Brookins testified in his defense, and during his direct examination, he testified about the extensive strip and property searches that corrections officers performed on the day of Sexton’s murder before he and the other inmates boarded the transport bus. Brookins further testified that, after these searches occurred, officers kept the inmates within view until the bus arrived.

On cross-examination, the State inquired about the strip search:

Q So, I want to go back to the strip search a little bit. You said that it was very thorough? ,
A Yes, sir.
Q They went through every square inch of your clothing?
A Yes, sir.
Q No possible way that you could have secreted a shank, such as the one we have here, Exhibit Number 5, in your clothing?
A Yes, sir.
Q Isn’t it true that you do know how to secret[] a shank in your clothing?
A No, sir.
Q Isn’t it true that you’ve had a shank in your clothing before?
A No, sir.

Defense counsel did not object to any of the State’s questions. Based on Brookins’ answers, the State requested a bench conference and informed the trial court that it intended to impeach Brookins with his sworn statement pertaining to the shank. Defense counsel objected at that point, arguing that Brookins’ testimony on direct did not provide a factual basis for admitting the collateral crime evidence and that the State had created the problem on cross-examination. The trial court overruled the objection, finding Brookins opened the door to questions regarding his knowledge and ability to conceal items from corrections officers by volunteering the strip search on direct examination to support the inference that it would have been impossible for him to get the shank on the bus.

The State then questioned Brookins regarding his sworn statement. Brookins acknowledged that he 'signed the statement, in which he admitted to having a shank while in jail. However, Brookins testified that he does not know about shanks and that he was lying about the shank being his when he signed the statement.

As this Court has explained; a testifying defendant may open the door to impeachment with otherwise inadmissible collateral crime evidence by “inaccurately testifying to material facts.” See, e.g., Robertson v. State, 829 So.2d 901, 911 (Fla. 2002) (citing § 90.404(1)(c), Fla. Stat.). To do so, “the defense must first offer misleading testimony or make a specific factual assertion which the state has the right to correct so that the jury will not be misled.” Id. at 913 (quoting Bozeman v. State, 698 So.2d 629, 630 (Fla. 4th DCA 1997)).

In this case, the knowledge and ability to hide.,a shank was- material since,the victim was killed by a shank brought onto the transport bus. As the trial court correctly ruled, Brookins’ direct testimony about the strip search supported the inference that he could not have gotten the shank onto the bus and, therefore, opened the door to cross-examination on that subject and impeachment with, the sworn statement that contradicted his testimony. See Geralds v. State, 674 So.2d 96, 99 (Fla. 1996) (“[C]ross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to . all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief[,]”) (quoting Coco v. State, 62 So.2d 892, 895 (Fla. 1953)).

However, even if the trial court had erred in permitting the State to impeach Brookins with his sworn statement, any error would be harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986).

2. Right to Silence

Brookins next argues that the State improperly commented on his right to silence. As explained above, Brookins testified at trial. On direct examination, his counsel asked him what happened when the. transport bus arrived at NFRC. Brookins replied:

Everybody got off the bus. When .1 got off the bus, the lady was like, what happened to you? I said, dude went crazy in there. She say, who? I said, a dude in there[.]

Defense counsel, also asked Brookins, “Is there a reason why you didn’t say who specifically did it?” Brookins answered, “I didn’t -want to be labeled -as the police.” Counsel then- asked, “That’s not a good thing in prison, right?” to which Brookins responded, “Right.” Defense counsel did not ask Brookins to name, and Brookins did not name, the alleged killer on direct examination.- -

On cross-examination, the State’ asked Brookins if he saw who had the knife, and Brookins identified fellow inmate, Theodus Hunj;, as' the killer. The State then asked. Brookins if he told the officers at the correctional facility that Hunt committed the murder, who he had told that to, and whether he had told anyone that Hunt murdered the victim “until today.” Broo-kins’ counsel objected' on the ground that the State improperly commented on Broo-kins’ right to silence. The prosecutor countered, “[1]⅛ a fair comment on his testimony: He’s up here telling us a story. I didn’t mention anything about custodial interrogation, any reading of his rights, or anything like that. I think I’m entitled to challenge him on this testimony.” The trial court overruled Brookins’ objection. The State again elicited an admission, from Brookins that he had never told anyone his version of events prior to testifying at trial and reiterated Brookins’ admission during its closing argument, stating:

The first time he ever told anybody this story about Theodus Hunt chasing Eric Sexton down the aisle of that bus is here in this courtroom, and he admitted that.

This Court has explained that “courts must prohibit all evidence .or argument that is fairly susceptible of being interpreted by the jury as á comment on the right of silence.” Smith, 573 So.2d at 317. Accordingly, “[t]he prosecution is not permitted to comment upon a defendant’s failure to offer an exculpatory statement prior to trial, since this would amount to a comment upon the defendant’s right to remain silent.” Id. (quoting Hosper v. State, 513 So.2d 234, 235 (Fla. 3d DCA 1987)). However, it is not impermissible for the State to impeach the defendant with his voluntary prearrest statements. See, e.g., White v. State, 757 So.2d 542, 547 (Fla. 4th DCA 2000) (“The prosecutor’s remarks were not directed to [the defendant’s] silence either during or after his arrest, but were used to impeach [the defendant’s] trial testimony concerning his voluntary prearrest statements, which denied ownership [of cocaine] but omitted material, significant facts [(the owner’s identity) ] that would naturally have been asserted.”) (citing State v. Hoggins, 718 So.2d 761, 770 (Fla. 1998), for the proposition that prearrest silence can be used to impeach a defendant, as long as silence was inconsistent with defendant’s testimony at-trial)).

In this case, it was not impermissible for the State to suggest that Brookins naturally would have disclosed Hunt’s identity as the alleged killer in his voluntary prearrest statement that a “dude Went crazy in there.” However, defense counsel opened the door even further by having Brookins testify to his motive for not identifying the alleged killer, namely that he did not want to be “labeled as police.” While Brookins suggests that the State’s inquiry should have been limited to the timing of Broo-kins’ statement, namely when Brookins gpt off the bus, defense counsel did not limit his questioning to this time period. Rather, defense counsel elicited more general testimony from Brookins th'at it is “not a good thing in prison” to'be “labeléd as police,” leaving the jury with the impression that Brookins’ fear of being classified as a snitch prevented him from identifying the alleged killer prior to trial. Moreover, by not asking Brookins to identify the alleged killer on direct, defense counsel further impressed upon the jury that being “labeled as the police” is such a bad thing in prison that Brookins would not voluntarily disclose the actual killer’s identity even when testifying in his own defense.

A defendant cannot testify to a motive for keeping the alleged actual killer’s identity a secret and then use his right to silence to shield that motive from attack on cross-examination. See Hudson v. State, 992 So.2d 96, 110 (Fla. 2008) (“[T]he concept of ‘opening the door’ allows the admission of otherwise inadmissible testimony to ‘qualify, explain, or-limit’ testimony or evidence previously admitted.” (quoting Lawrence v. State, 846 So.2d 440, 452 (Fla. 2003))); Chandler v. State, 702 So.2d 186, 195-96 (Fla. 1997) (“The credibility of a criminal defendant who takes the stand and testifies may be attacked in the same manner as any other witness.”) (quoting Charles W. Ehrhardt, Florida Evidence, § 608.1 at 385 (1997 ed.)); see also United States v. Gant, 17 F.3d 935, 941 (7th Cir. 1994) (recognizing that, while “the reason for an arrestee’s post-Miranda silence is [usually] insolubly ambiguous,” a defendant may open the door to impeachment with silence “by his own remarks about his post-arrest behavior or by defense counsel’s questioning”) (quotation omitted); cf. Waid v. State, 58 So.2d 146, 146 (Fla. 1952) (“When [a defendant] brings to the attention of the jury the want of testimony by him and the reason for the course he chose, he invites a rebuttal from his adversary, and of that he' cannot complain.”). Accordingly, because Brookins opened the door by providing a motive for not identifying the alleged actual killer, the State did not improperly comment on his right to silence by attacking that motive.

However, even if the State had moved beyond the opening defense counsel created on direct, any error would be harmless beyond a reasonable doubt. See DiGuilio, 491 So.2d at 1135.

3.Sufficiency

“[T]his Court has a mandatory obligation to independently review the sufficiency of the evidence in every case in which a sentence of death has been imposed.” Miller v. State, 42 So.3d 204, 227 (Fla. 2010). To conduct this review, this Court “view[s] the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the existence of the elements of the crime beyond a. reasonable doubt.” Rodgers v. State, 948 So.2d 655, 674 (Fla. 2006); see also Davis v. State, 2 So.3d 952, 966-67 (Fla. 2008) (“In appeals where the death penalty has been imposed, this Court independently reviews the' record to confirm that the jury’s verdict is supported by competent, substantial evidence.”).

As explained above, three eyewitnesses identified Brookins as the killer and further testified that Brookins took some of the victim’s property following the murder. Moreover, other evidence, including DNA evidence, also implicated Brookins in the crime.' This evidence' is sufficient' to support Brookins’ conviction.

4. Hurst

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), Brookins filed an amended brief in this Court. And because the jury recommended the death penalty by a vote of ten to two, we conclude that Brookins’ 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 DiGuilio, 491 So.2d at 1138).

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 Brookins’ 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 foregoing reasons, we affirm Brookins’ conviction for first-degree murder but remand for a new penalty phase.

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

LAWSON, J., concurs as to the conviction but dissents as to the sentence with an opinion, in which CANADY and POLSTON, JJ., concur.

LAWSON, 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. In light of the defendant’s prior violent felony conviction, there is no Hurst v. Florida error. See Hurst v. State, 202 So.3d 40, 81-82 (Fla. 2016) (Canady, J., dissenting), petition for cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

CANADY and POLSTON, JJ., concur.

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

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

      . The trial court found the following aggravating circumstances: (1) committed by a person previously convicted of a felony and under sentence of imprisonment (great weight); (2) prior violent felony (great weight); (3) in the course of a robbery (substantial weight); (4) especially heinous, atrocious, or cruel (very great weight); and (5) cold, calculated, and premeditated (substantial weight). The trial court further found that, even standing alone, the prior violent felony and HAC aggravated would outweigh the mitigation presented.

      . The trial court found no statutory mitigating circumstances and the following eight non-statutory-mitigating circumstances: (1) Broo-kins’ prior criminal history consisted of a single offense committed when he was 15 years old (moderate weight as against the prior violent felony aggravating circumstance; not mitigating as to other aggravated); (2) Brookins was imprisoned for his entire adult life and most of his adolescence (very little weight); (3) Brookins was abandoned by his father and raised by his mentally disabled mother (little weight); (4) Brookins’ family was impoverished (little weight); (5) Broo-kins’ childhood was. spent in a crime-ridden public housing project (little weight); (6) Brookins is loved by his family (very little weight); (7) Brookins was a loving, supportive son and brother (very little weight); and (8) Brookins was a slow learner and dropped out of school very young (little weight).

      . Because we are remanding for a new penalty phase, we do not address the penalty phase issues that Brookins raised on appéal. Broo-kins also argues that the cumulative effect of the guilt phase errors entitles him to a new guilt phase. However, because there are no guilt phase errors to cumulate, Brookins is not entitled to relief. See Dufour v. State, 905 So.2d 42, 65 (Fla. 2005).

      . "A trial court’s decision regarding the admission of collateral crime evidence is subject to an abuse-of-discretion review.” Hodges v. State, 55 So.3d 515, 538 (Fla. 2010).

      . This Court reviews de novo a claim that the prosecutor's comment violated the defendant's right to silence. See State v. Smith, 573 So.2d 306, 317-18 (Fla. 1990).

      . Brookins also argues that the prosecutor's statement during closing argument that a defendant’s "words do not become the truth just because he has the right to remain silent and decides to talk” was an improper comment on Brookins' right not to testify. However, it is clear from the record that the prosecutor was discussing the jury instruction regarding the defendant testifying rather than improperly commenting on the defendant’s right not to testify, as the prosecutor went on to say that a defendant who testifies "becomes like every other witness in the case, and the judge has already told you that.”


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

text:
    Michael Duane ZACK, III, Appellant, v. STATE of Florida, Appellee. Michael Duane Zack, III, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC15-1756
    No. SC16-1090
    Supreme Court of Florida.
    [June 15, 2017]

      Robert S. Friedman, Capital Collateral Regional Counsel, and Dawn B. Macready and Stacy Biggart, Assistant Capital Collateral Regional Counsel, Northern Region, Tallahassee, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, Florida, for Ap-pellee/Respondent
   PER CURIAM.

Michael Duane Zack, III, appeals an order of the circuit court denying his motion to vacate his ’conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habe-as corpus. We-have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the denial of post-conviction relief and deny the habeas petition.

FACTS

On June 25, 1996, Michael Zack was indicted for the sexual assault, robbery, and first-degree murder of Ravonne Smith. We described the facts of the case on direct appeal as follows:

Although the murder of Smith took place on June 13, 1996, the chain of events which culminated in this murder began on June 4,1996, when Edith Pope (Pope), a bartender in Tallahassee, lent her car to Zack. In the weeks prior, Zack had come to Pope’s bar on a regular' basis. He generally nursed one or two beers and talked with Pope; she never saw him intoxicated. He told her that he had witnessed his sister murder his mother with an axe. As a result, Pope felt sorry for Zack, and she began to give him odd jobs around the bar. When Zack’s girlfriend called the bar on June 4 to advise him that he was being evicted from her apartment, Pope lent Zack her red Honda automobile to pick up his belongings. Zack never returned.
From Tallahassee, Zack drove to Panama City where he met Bobby Chandler (Chandler) at a local pub. Over the next several days, Zack frequented the pub daily and befriended Chandler. Chandler, who owned a construction subcontracting business, hired Zack to work in his construction business. When Chandler discovered that Zack was living out of a car (the red Honda), he invited Zack to live with him temporarily. On the second night at Chandler’s, Zack woke up screaming following a nightmare. Chandler heard Zack groan words which sounded like “stop” or “don’t.” Although Chandler questioned him, Zack would not discuss the nightmare. Two nights later, on June 11, 1996, Zack left Chandler’s during the night, stealing a rifle, a handgun, and forty-two dollars from Chandler’s wallet. Zack drove to Nice-ville,: and on the morning of June 12, 1996, pawned the guns for $225.
From Niceville, Zack traveled to Oka-loosa County and stopped at yet another bar. At this bar, Zack was sitting alone drinking a beer when he was approached by Laura Rosillo (Rosillo). The two left the bar in the red Honda and drove to the beach, reportedly to use drugs Zack said he possessed. Once on the beach, Zack attacked Rosillo and beat her. while they were still in the Honda. He then pulled Rosillo from the car and beat her head against one of the tires. Rosillo’s tube top was torn and hanging off her hips. Her spandex pants were pulled down around her right ankle. The evidence suggests she was sexually assaulted; however,' the sperm found in Rosillo’s body could not be matched to Zack. He then strangled her, dragged her body behind a sand dune, kicked dirt over her face, and departed.
Zack’s next stop on this crime-riddled journey was Dirty Joe’s bar located near the beach in Pensacola. He arrived there on the afternoon of June 13, 1996, and met the decedent, Ravonne Smith. Throughout the afternoon, Smith, a bar employee, and Zack sat together in the bar talking and' playing pool or darts. The bar was not very busy, so Smith spent most of her time with Zack. Both bar employees and patrons testified that Zack did not ingest any significant amount of alcohol and that he did not appear to be intoxicated. In the late afternoon, Smith contactéd her friend Russell Williams (Williams) and invited him to the bar because she was lonely. Williams arrived at the bar around 5:30 p.m. Prior to leaving the bar around 7 p.m,, Smith called her live-in boyfriend, Danny Schaffer, and told him she was working late. Smith, Williams, and Zack then left the bar and drove to the beach where they shared a marijuana cigarette supplied by Zack. Afterwards, they returned to the bar and Williams departed. Zack- and Smith left the bar together sometime around 8 p.m. and. eventually arrived at the house Smith shared with her boyfriend.
Forensic evidence indicates that immediately upon entering the house Zack hit Smith with a beer bottle causing shards of glass and blood to spray onto the living room love seat and two drops of blood to spray onto the interior door-frame. Zack pursued Smith down the hall to the master bedroom leaving a trail of blood. Once in the bedroom Zack sexually assaulted Smith as she lay bleeding on the bed. Following the attack Smith managed to escape to the empty guest bedroom across the hall. Zack pursued her and beat her head against the bedroom’s wooden floor. Once he incapacitated Smith, Zack went to the kitchen where he got an oyster knife. He returned to the guest bedroom where Smith lay and stabbed her in the chest four times with the knife. The four wounds were close together in the center of Smith’s chest. Zack went back to the kitchen, cleaned the knife, put it away, and washed the blood from his hands. He then went back to the master bedroom, placed Smith’s bloody shirt and shorts in her dresser drawer, stole a television, a VCR, and Smith’s purse, and placed the stolen items in Smith’s car.
During the night, Zack drove Smith’s car to the area where the red Honda was parked. He removed the license plate and several personal items from the Honda then moved it to a nearby lot. Zack returned to Panama City in Smith’s car and attempted to pawn the television and VCR. Suspecting the merchandise was stolen, the shop owners asked for identification and told Zack they had to check on the merchandise. Zack fled the store and abandoned Smith’s car behind a local restaurant. Zack was apprehended after he had spent several days hiding in an empty house.
After he was arrested, Zack confessed to the Smith murder and to the Pope and Chandler thefts. Zack claimed he and Smith had consensual sex and that she thereafter made a comment regarding his mother’s murder. The comment enraged him, and he attacked her. Zack contended the fight began in the hallway, not immediately upon entering the house. He said he grabbed a knife in self-defense, believing Smith left the master bedroom to get a gun from the guest bedroom.

Zack v. State (Zack I), 753 So.2d 9, 13-14 (Fla. 2000) (footnotes omitted). A jury found Zack guilty on all counts on September 15, 1997. Id. at 12.

After the penalty phase hearing, .the jury recommended a sentence of death by a vote of eleven to one. Id. Following the jury’s recommendation, the trial court sentenced Zack to death on November 14, 1997. On direct appeal, Zack raised twelve issues. Id. at 16 n.5. We affirmed the convictions and death sentence. Id. at 26. On October 2, 2000, the Supreme Court denied certiorari review. Zack v. Florida, 531 U.S. 858, 121 S.Ct. 143, 148 L.Ed.2d 94 (2000).

On October 18, 2002, Zack filed his first amended 3.851 motion in the trial court, raising six claims. While Zack’s motion was pending, the Supreme Court decided Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that the execution of an intellectually disabled person is cruel and unusual punishment in violation of the Eighth Amendment. The trial court denied Zack’s rule 3.851 motion on July 14, 2003. Zack raised six issues before this Court on appeal. Zack v. State (Zack II), 911 So.2d 1190 (Fla. 2005). This Court affirmed the trial court’s order and noted that the “evidence in this case shows Zack’s lowest I.Q. score to be 79.” Id. at 1201. The Court also denied relief on Zack’s petition for writ of habeas corpus, filed on February 12, 2004. Id. at 1203.

Zack filed a successive postconviction motion on December 1, 2004, raising an Atkins claim. The trial court denied the claim without an Atkins hearing, finding that after a review of the expert trial testimony none had found Zack’s I.Q. to be near the required statutory figure of 70 in order to establish intellectual disability. This Court affirmed the trial court’s denial. In its order, this Court relied on Cherry v. State, 781 So.2d 1040 (Fla. 2000), and held that “Zack has not provided any new evidence of [intellectual disability] and previous evidence demonstrates that his I.Q. was well above the statutory figure of 70 or below.”

On March 4, 2005, Zack filed a second petition for a writ of habeas corpus based upon the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). This Court denied the petition on October 6, 2005. Zack v. Crosby, 918 So.2d 240 (Fla. 2005).

Zack also filed a federal habeas petition that included an Atkins claim. Zack v. Crosby, 607 F.Supp.2d 1291 (N.D. Fla. 2008). All claims not based on Atkins were dismissed with prejudice as untimely. Id. at 1295. Zack’s Atkins, claim was denied with prejudice on the merits on March 26, 2009. In its order; the court found that the record refuted Zack’s allegation .that he is intellectually disabled and held that the record uniformly concluded that Zack’s I.Q. was significantly above the minimum threshold for intellectual disability. The Eleventh Circuit, in an en banc opinion, affirmed the dismissal of many of the claims in the habeas petition as untimely. Zack v. Tucker, 704 F.3d 917 (11th Cir. 2013). The Supreme Court denied certiorari review on October 7, 2013. Zack v. Crews, — U.S. —, 134 S.Ct. 156, 187 L.Ed.2d 109 (2013).

On May 26, 2015, Zack filed a secohd successive postconviction motion raising a claim of intellectual disability based on Hall v. Florida, — U.S. —, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014). The trial court summarily denied the motion on July 8, 2015. Zack now appeals from the circuit court’s denial of relief, arguing that the court erred in (1) summarily denying Zack an evidentiary hearing on his intellectual disability claim and (2) dismissing Zack’s motion on the basis that his I.Q. was too high for an Atkins hearing without considering other evidence as required by Hall,

ANALYSIS

Zack’s first claim is based on the trial court’s summary denial of his motion pursuant to a rule of law that has now been found unconstitutional under Hall. During the pendency of this case, we determined that Hall applies retroactively as a development of fundamental significance. Walls v. State, 213 So.3d 340, 346 (Fla. 2016).

A postconviction cpurt’s decision on whether to grant an evidentiary hearing on a claim is a pure question of law, reviewed de novo, Mann v. State, 112 So.3d 1158, 1162 (Fla. 2013). A claim may be-summarily denied if it is legally insufficient or positively refuted by the record. Id at 1161. To prevail on a claim of intellectual disability, a defendant must establish three elements: (1) significantly subaverage general intellectual functioning, (2) existing concurrently with deficits in adaptive behavior, and (3) manifesting prior to age 18. § 921.137, Fla. Stat. (2016); Fla. R. Crim. P. 3.203.

Hall recognizes that intellectual disability “is a condition, not a number.” Hall, 134 S.Ct. at 2001. In a recent opinion, we found that Hall requires courts to consider all three prongs of intellectual disability in tandem and that no single factor should be dispositive of the outcome. See Oats v. State, 181 So.3d 457, 459 (Fla. 2015). However, Hall also states that a “defendant must be. able to present additional’evidence of intellectual disability” where “a defendant’s I.Q. test score falls within the test’s acknowledged and inherent margin of error.” Hall, 134 S.Ct. at 2001. Generally, the standard error of measurement is approximately five points. Id. at 1998 (citing to Diagnostic and Statistical Manual of Mental Disorders 28 (rev. 3d ed. 1987)). Thus, an “I.Q. score of 70 is considered to represent a band or zone of 65 to 75,” Id.

The trial Court correctly found the significantly subaverage intellectual functioning prong dispositive of Zack’s intellectual disability claim based on Zack’s scores prior to age 18, which were all over 75. At the Huff hearing, Zack presented his full range of scores, as well as evidence of adaptive deficits before age 18. The record demonstrates five I.Q/ scores for Zack: a score of 92 in 1980 when Zack was 11 years old, and four scores after Zack turned 18—84 and 86 in. 1997 at 27 years of age, 79 in 2002, and 80 in 2015. While a holistic hearing is required, defendants must still be able to meet the first prong of Hall. Because Zack’s current score is well above 75, and there are no scores in his history below 76, it is unlikely that he would ever- be able to satisfy the significantly subaverage intellectual functioning prong. Accordingly, we affirm the trial court’s summary denial of Zack’s intellectual disability claim.

Zack’s second claim is that the trial court erred in dismissing his motion on the basis that his I.Q. was too high for an Atkins hearing without considering other evidence as required by Hall. In reviewing the trial court’s determination that Zack is not intellectually disabled, “this Court examines the record for whether competent, substantial evidence supports the determination of the trial court.” State v. Herring, 76 So.3d 891, 895 (Fla. 2011). We do not “reweigh the evidence or second-guess the circuit court’s findings as to the credibility of witnesses.” Brown v. State, 959 So.2d 146, 149 (Fla. 2007). However, questions of law are reviewed de novo. Herring, 76 So.3d at 895.

We find that the trial court’s determination that Zack did not satisfy the significantly subaverage intellectual functioning prong is supported by competent, substantial evidence. As previously mentioned, Zack provided several I.Q. scores that were all well outside the standard error of measurement. While Zack argues that Hall requires the trial court to consider other evidence, a defendant’s scores must first fall within the test’s acknowledged and inherent margin of error. Hall, 134 S.Ct. at 2001. Here, all of.the scores presented—92, 84, 86, 79, and 80—are outside of the test’s margin of error and the presentation of evidence regarding the other two prongs do not cure Zack’s inability to satisfy the first. Consequently, we affirm the trial court’s determination.

PETITION FOR WRIT OF HABEAS CORPUS

In his petition for habeas corpus relief, Zack asserts that his death sentence is unconstitutional under Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). In Hurst v. Florida, the Supreme Court found that a jury must make a specific factual finding with regard to the existence of mitigating or aggravating circumstances supporting á death sentence in order to preserve the Sixth Amendment right to a jury trial. Id at 622. We have interpreted Hurst v. Florida, an extension of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to require a jury to unanimously find each aggravating factor, that the aggravating factors are sufficient to warrant death, and that the aggravating factors outweigh the mitigation. See Hurst v. State (Hurst), 202 So.3d 40, 57, 66 (Fla. 2016), cert. denied, No. 16-998, 2017 WL 635999 (U.S. May 22, 2017). However, Zack’s first-degree murder conviction and sentence of death were final in 2000, before the Supreme Court decided Ring. Therefore, Zack is not entitled to Hurst relief because Hurst does not apply retroactively to cases that were-final before Ring was decided. See Asay v. State, 210 So.3d 1, 22 (Fla. 2016). Accordingly, we deny relief on this claim.

CONCLUSION

In light of the foregoing, we affirm the trial court’s denial of relief on Zack’s post-conviction motion to vacate his conviction of first-degree murder and sentence of death, and we deny habeas relief.

It is so ordered.

LABARGA, C.J., and QUINCE, J., concur.

CANADY, J., concurs specially with an opinion, in which POLSTON, J., concurs.

PARIENTE, J., concurs in result with an opinion.

LAWSON, J., concurs in result with an opinion.

LEWIS, J., concurs in part and dissents in part.

CANADY, J.,

specially concurring.

I concur in the conclusion that Zack’s IQ scores justify the denial of his intellectual disability claim. I also agree that Zack is not entitled to Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), postconviction relief and that the habeas petition should therefore be denied. But I would not rely on Asay v. State, 210 So.3d 1 (Fla. 2016). Instead, I would deny the Hurst claim on two grounds. First, no Hurst error occurred in this case—given the contemporaneous convictions establishing aggravation. See Hurst v. State, 202 So.3d 40, 77-83 (Fla. 2016) (Canady, J., dissenting). Second, in any event Hurst should not be given retroactive application. See Mosley v. State, 209 So.3d 1248, 1285-91 (Fla. 2016) (Canady, J., concurring in part and dissenting in part).

POLSTON, J., concurs.

PARIENTE, J.,

concurring in result.

I would not deny retroactive application of Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016), cert. denied, No. 16-998, 2017 WL 635999 (U.S. May 22, 2017), to Zack, but because I am bound by this Court’s precedent from Asay v. State, 210 So.3d 1 (Fla. 2016), I concur in result with the majority’s rejection of Zack’s Hurst claim. I do concur, however, in the majority’s rejection of Zack’s intellectual disability claim and write separately to emphasize that Zaek’s range of IQ scores do not approach “the test’s acknowledged and inherent margin of error.” Hall v. Florida, — U.S. -, 134 S.Ct. 1986, 2001, 188 L.Ed.2d 1007 (2014). As the majority explained, “[t]he record demonstrates five I.Q. scores for Zack: a score of 92 in 1980 when Zack was 11 years old, and four scores after Zack turned 18—84 and 86 in 1997 at 27 years of age, 79 in 2002, and 80 in 2015.” Majority op. at 47. Thus, because Zack’s lowest I.Q. scores do not fall within the test’s margin of error, it is unnecessary to conduct a “conjunctive and interrelated” assessment of Zack’s evidence of intellectual disability as required by Hall. Cf. Walls v. State, 213 So.3d 340, 346 (Fla. 2016); Oats v. State, 181 So.3d 457, 467 (Fla. 2015).

LAWSON, J.,

concurring in result.

See Okafor v. State, No. SC15-2136, 225 So.3d 768, 775-76, 2017 WL 2481266 (Fla. June 8, 2017) (Lawson, J., concurring specially).

      . The trial judge found the following six ag-gravators to support the death sentence:
      (1) the defendant was convicted of a capital felony while under a sentence of felony probation; (2) the crime was committed in conjunction with a robbery, sexual battery, or burglary; (3) the defendant committed the crime to avoid lawful arrest; (4) the defendant committed the crime for financial gain; (5) the crime was especially heinous, atrocious, [or] cruel; and (6) the crime was committed in a cold, calculated, and premeditated manner.
      Zack I, 753 So.2d at 12-13. The trial court assigned little weight to the following four mitigators:

        (1) the defendant committed the crime while under an extreme mental or emotional disturbance; (2) the defendant was acting under extreme duress; (3) the defendant lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law; and (4) nonstatutoiy mitigating factors of remorse, voluntary confession, and good conduct while incarcerated. Zack's age was not considered a mitigating factor.
      Id. at 13.

      . Zack raised the following claims on direct appeal:
      (1) the court erred in admitting Williams [v. State, 110 So.2d 654 (Fla. 1959),] rule evidence; (2) the court erred in denying a motion for judgment of acquittal on the sexual battery charge; (3) the trial court erred in denying the motion for judgment of acquittal on the robbery charge; (4) the trial court erred in instructing the jury on felony murder based upon a burglary; (5) the sentencing order failed to consider all of the mitigating evidence presented; (6) the trial court erred in finding that the murder was committed to avoid or prevent a lawful arrest; (7) the trial court erred in finding that the murder was committed in a cold, calculated and premeditated manner; (8) the trial court erred in using victim impact evidence; (9) the trial court erred in admitting the rebuttal evidence from Candice Fletcher; (10) the trial court erred by failing to give Zack’s proposed instruction on the role of sympathy; (11) the trial court erred in retroactively applying the aggravating factor of a murder committed while on felony probation; and (12) the trial court erred in refusing to admit a family photo during the penalty phase.
      Zack I, 753 So.2d at 16 n.5.

      . On postconviction appeal, Zack raised the following issues: (1) trial counsel was ineffective for failing to challenge the DNA evidence presented by the State; (2) counsel was ineffective because he failed to prepare Zack to testify at trial; (3) counsel was ineffective because he made prejudicial remarks to the jury in the opening statement and closing argument; (4) the trial court erred in summarily denying claims raised in his motion for postconviction relief involving Zack's right to a Frye [v. United States, 293 F. 1013 (D.C. Cir. 1923),] hearing and the constitutionality of the death sentence under Atkins; (5) that Florida’s capital sentencing scheme is unconstitutional under Ring [v. Arizona, 536 U.S 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ]; and (6) collateral counsel was ineffective. Zack II, 911 So.2d at 1197.

      . Huff v. State, 622 So.2d 982 (Fla. 1993).