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Date: 04-03-2020
Case Style:
Raymond Bright v. State of Florida
Case Number: SC17-2244
Judge: PER CURIAM.
Court: Supreme Court of Florida
Plaintiff's Attorney: Ashley Moody, Attorney General, and Lisa A. Hopkins, Assistant Attorney
General
Defendant's Attorney:
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This Court previously set forth the relevant facts in Bright I:
On February 18, 2008, Michael Majors went to the home of
fifty-four-year-old defendant Raymond Bright in Jacksonville,
Florida. Twenty-year-old Derrick King, sixteen-year-old Randall
Brown, and Bright were in the house. At approximately 8 p.m.,
Majors and Brown both left the home.
Brown returned to his mother’s home and, after receiving a
phone call, borrowed his mother’s rental vehicle and left her house
between 9 and 9:30 p.m. At approximately 11 p.m., Brown spoke
with his mother by phone and advised that he would be home shortly;
however, he never returned. At around 8 a.m. the next morning,
Majors attempted to call Brown on his cellular phone, but there was
no answer. Majors called Brown’s mother and was advised that
Brown had not returned. Majors then went to Bright’s house and,
having no response to his knock at the door, Majors climbed into the
house through an open window. Upon entering the family room,
Majors discovered the bodies of King and Brown.
Derrick King was lying face down on the carpet next to a sofa,
partially wrapped in a sleeping bag or comforter. The sofa was
saturated with blood on one end, which was adjacent to where King’s
head rested on the floor. The wall behind the sofa and the ceiling
above the sofa evidenced blood. An evidence technician testified
during trial that the blood on the ceiling was cast-off blood, [n.1] and
the pattern was consistent with someone being on the couch and
swinging his arm back.
[N.1] Cast-off blood is defined as droplets of blood
that are flung from a weapon so as to make a trail of
blood where it lands.
- 3 -
Randall Brown was found seated sideways in a recliner with his
head leaning up against a wall and a blanket covering his head. The
wall against which Brown’s body rested presented a pattern of blood
that radiated from his head, and there was also blood on the ceiling.
When crime scene technicians moved the recliner away from the wall,
a pool of blood was discovered on the floor. Above Brown’s head
was a framed picture with one side of the frame broken away. That
one side was indented, consistent with having been struck by
something round, such as a hammer.
Outside the house, the crime scene technicians located a loaded
nine-millimeter Smith & Wesson pistol, a loaded assault rifle, and a
pair of mechanic’s gloves. During a subsequent search of Bright’s
yard, technicians recovered a hammer that had been buried. DNA
testing on the hammer revealed two separate DNA profiles, one of
which was a major contributor and the other of which was a minor
contributor. During trial, the parties stipulated that the DNA of the
major contributor matched the known profile of Derrick King.
Randall Brown could not be excluded as the minor contributor. The
gloves did not test positive for blood. Further, no latent fingerprints
of value were found on the hammer, the nine-millimeter handgun, the
assault rifle, or their magazines or ammunition. No foreign DNA was
detected on the fingernail clippings of either victim.
At 7:30 a.m. on the morning of February 19 (the day that the
victims were discovered), Bright’s ex-wife picked him up at a church
near his home. The ex-wife testified that she and Bright had made
plans to secure the admission of Bright to a United States Department
of Veterans Affairs clinic for treatment of his cocaine addiction. She
testified that they had agreed to meet at the church because she “was
in fear of what was going on” at Bright’s house. During the Spencer
hearing, see Spencer v. State, 615 So. 2d 688 (Fla. 1993), the ex-wife
testified that she and Bright had previously made multiple calls to law
enforcement—including the narcotics division of the Jacksonville
Sheriff’s Department and Crime Stoppers—to report that Bright
wanted certain individuals removed from his house because they had
essentially taken over the house for the purpose of selling drugs.
While one officer suggested that Bright accompany the police to the
house and identify the persons who were allegedly dealing drugs,
- 4 -
Bright and his ex-wife refused to agree to this proposal because they
feared retaliation. [n.2]
[N.2] Bright’s sister, Janice Jones, also testified
during the Spencer hearing as to her efforts to remove
individuals who were staying in Bright’s house. When
asked what their names were, she replied Lavelle and
Derrick. During the guilt phase, Michael Majors testified
that Bright rented a room to an individual named Lavelle
Copeland, who was friends with Majors and King. Jones
managed to convince Copeland to call her and, when he
called, she informed him that she was coming to
Jacksonville and would bring the police with her.
Copeland responded that he would not leave until Bright
paid the money owed to him. When Jones offered to pay
the money so that Copeland would leave the house, he
responded, “You need to stay out of this. You don’t
know what you’re getting into. It’s between me and your
brother.” Copeland was not at Bright’s house on the
night of the murders because he was in jail.
After the ex-wife met Bright at the church on the morning of
February 19, she called a lawyer and arranged for Bright to speak with
homicide detectives the next day. However, at 1:45 a.m. on February
20, law enforcement arrived at the home of the ex-wife and Bright
was placed in custody. Subsequent to the arrest, the ex-wife disposed
of Bright’s bloody clothes because she did not want them in her
house.
Bright made statements to separate individuals with regard to
what allegedly occurred on the night of the murders. Prior to his
arrest, Bright informed friend and former coworker Benjamin Lundy
that he had “screwed up” and may have killed two people. Bright told
Lundy that the murders occurred after a confrontation erupted when
one of the victims accused Bright of stealing drugs. After his arrest,
Bright also described the events to Mickey Graham, who was in jail at
the same time with Bright on unrelated charges. According to
Graham, Lavelle Copeland had moved in with Bright, and he and
others were running a crack cocaine operation out of the house. [n.3]
Bright was afraid of them and felt threatened because they possessed
- 5 -
guns. Bright did not want them there and had called the police in an
attempt to remove them from the premises.
[N.3] On a table in the home, an evidence
technician found scales, money, and a “push rod,” which
is used to pack drugs into a pipe or a bong. However, no
drugs were found in the house other than 4.6 grams of
marijuana, which was discovered inside Derrick King’s
sneaker.
Bright told Graham that he went into the kitchen at 2 a.m. on
February 19. King was on the sofa and Brown was in the recliner.
Brown had a nine-millimeter handgun in his hand and started waving
it around. King rose from the sofa and removed the gun from
Brown’s hand. Bright saw an opportunity and attempted to take the
gun away from King. The men struggled and the gun discharged.
[n.4] The gunshot startled King and caused him to release the
handgun. Bright then pointed the gun at King and attempted to shoot
him, but the gun misfired. Bright dropped the weapon and attempted
to run out of the house, but he tripped and fell. He grabbed a hammer
that was within reach, turned around, and commenced striking King,
knocking him back toward the sofa where King had previously been
lying down. When Bright turned around, he saw that Brown was
about to pick up the handgun. Bright then began to strike Brown with
the hammer. The next time Bright turned toward the sofa, he saw
King reaching for an assault rifle. At that time, Bright again struck
King with the hammer. When Bright stopped, he could still hear King
and Brown breathing and gurgling, but then the room became silent.
Bright described his actions to Graham as having “lost it.”
[N.4] In the vicinity of King’s body was a section
of carpet that appeared to be stained with gunshot
residue. Testing on the carpet was positive for gunshot
residue, and a firearms expert testified that, based upon
the location of the residue, a weapon had been fired
within six inches of the carpet. From that stain, the
evidence technicians traced a bullet trajectory and
ultimately discovered a bullet lodged in the wall near the
front door of the house. However, neither of the victims’
hands tested positive for gunshot residue. A firearms
- 6 -
expert confirmed that the bullet lodged in the wall had
been fired from the nine-millimeter handgun that had
been discovered in the yard.
90 So. 3d at 252-54. The jury found Bright guilty of two counts of first-degree
murder and ultimately recommended a sentence of death for the murders of King
and Brown by a vote of eight to four. Id. at 256. After conducting a Spencer1
hearing, the trial court found the same aggravating and mitigating circumstances
for each victim and concluded that the established aggravating2 factors
substantially outweighed the mitigating3 circumstances. 90 So. 3d at 256-57. The
1. See Spencer v. State, 615 So. 2d 688 (Fla. 1993).
2. The trial court determined that the State had proven beyond a reasonable
doubt the following statutory aggravators: (1) previous conviction of a felony
involving the use or threat of violence to the person (a 1990 conviction for
robbery) (great weight); (2) previous conviction of a felony involving the use or
threat of violence to the person (the contemporaneous murder of the other victim)
(great weight); and (3) the murder was especially heinous, atrocious, or cruel
(HAC) (great weight). 90 So. 3d at 256-57.
3. The trial court found one statutory mitigating circumstance—that the
murders were committed while Bright was under the influence of an extreme
mental or emotional disturbance (some weight). The trial court also found
nineteen nonstatutory mitigators:
(1) a long and well-documented history of drug abuse (some weight);
(2) Bright repeatedly sought help for his problems (some weight); (3)
remorse (little weight); (4) Bright was afraid of the victims and took
steps to remove them from his house (little weight); (5) ten years of
service in the USMC with two honorable discharges and a third
discharge under honorable circumstances (considerable weight); (6)
Bright has skills as a mechanic and served as an aviation mechanic in
the USMC (some weight); (7) Bright’s actions as a USMC aviation
- 7 -
trial court sentenced Bright to death. Id. at 257. On direct appeal, this Court
affirmed the convictions and sentence. Id. at 265. The United States Supreme
Court denied Bright’s petition for writ of certiorari. Bright v. Florida, 568 U.S.
897 (2012).
Postconviction Proceeding
On November 6, 2013, Bright filed an amended motion to vacate his
judgment and sentences pursuant to Florida Rule of Criminal Procedure 3.851. In
his motion, Bright claimed that his trial counsel were ineffective during the guilt
and penalty phases of his trial and that he was deprived of a fair trial by the
cumulative effect of any errors. Bright II, 200 So. 3d at 722. After conducting an
evidentiary hearing, the postconviction court held that Bright’s penalty phase
mechanic likely saved lives (some weight); (8) Bright mentored
young mechanics (some weight); (9) Bright was a good employee
(some weight); (10) Bright was a loving and giving boyfriend (slight
weight); (11) Bright is a good brother (some weight); (12) Bright was
a good father, and imposition of the death penalty would have a
serious, negative impact on others (slight weight); (13) Bright shares
love and support with his family (slight weight); (14) Bright was a
good friend (slight weight); (15) Bright has been an exceptional
inmate (some weight); (16) Bright exhibited good behavior
throughout the court proceedings (slight weight); (17) Bright
maintained gainful employment (considerable weight); (18) Bright is
amenable to rehabilitation and a productive life in prison (slight
weight); and (19) Bright has bonded with another inmate and taught
him how to read (slight weight).
90 So. 3d at 257.
- 8 -
counsel were ineffective but denied Bright’s remaining claims. Id. at 723. The
postconviction court entered an order granting Bright a new penalty phase. Id.
The parties cross-appealed the order.
This Court affirmed the postconviction court’s order granting a new penalty
phase,
4 holding that there was competent, substantial evidence to support the trial
court’s findings that penalty phase counsel were deficient in investigating
mitigation evidence concerning Bright’s mental health and that Bright was
prejudiced by that deficient performance. Id. at 732-36. This Court remanded for
a new penalty phase proceeding. Id. at 742.
Second Penalty Phase Proceeding
The second penalty phase proceeding began on September 5, 2017. The
State presented much of the same guilt-phase evidence through live witness
testimony, including Brown’s mother, Carrie Mae Brown Gray; Brown’s friend,
Michael Majors; and police officers and crime scene investigators from the
Jacksonville Sheriff’s Office. Victim impact statements were read by King’s
grandmother, Eartha Jaudon; Brown’s mother, Gray; Brown’s sister, Shannon
Brown; and King’s mother, Carolyn Jaudon. Retired Pensacola Police Department
Sergeant Robert Bell testified that on September 6, 1989, he witnessed Bright
4. This Court also affirmed the denial of Bright’s claims that guilt-phase
counsel were ineffective. 200 So. 3d at 737, 742.
- 9 -
holding a knife while robbing a convenience store clerk. Specifically, Bell
testified that he saw Bright “standing on the side of the counter, holding the knife,
leaning over the counter like he was attempting to get money out of the register.”
Bright ran from the store but was eventually caught and arrested. The State
introduced a copy of the conviction, judgment, and sentence from 1990.
The State’s final witness was Dr. Valerie Rao, the Chief Medical Examiner
for Clay, Nassau, and Duval Counties. With regard to Brown, Dr. Rao testified
that his cause of death was blunt head trauma. He had more than fourteen injuries
to the outside of his head, which included lacerations, bruises, contusions, and
fractures. The fourteen injuries did not include the skull fractures or brain injuries.
Dr. Rao testified that the lacerations on Brown’s head and skull fractures were
consistent with a hammer being used to inflict the injuries. Brown had many
defensive injuries, including a fracture of his left ulna, punctate-type lacerations to
his left arm, and injuries to his wrists, hands, and thigh. Brown also suffered
multiple skull fractures. Dr. Rao also testified that Brown was alive when the
injuries were inflicted, as evidenced by the bruising and swollen face.
With regard to King, Dr. Rao testified that King also died from blunt impact
to the head. He had thirty-eight blunt impact injuries to his head and about twenty
injuries to his extremities. King suffered a laceration through the upper eyelid
above the right eyebrow, through the left eye. His eye was sunken because of the
- 10 -
trauma. One injury on his head went through his scalp to reveal his underlying
skull; the injuries on his head showed a parallel pattern received from a claw
impacting and dragging. King also had circular fractures that caused multiple
injuries to his brain and bleeding on the surface of his brain. These injuries were
consistent with being caused by a hammer. Dr. Rao also testified that King was
alive when these injuries were inflicted and that he suffered. King was covered
with numerous defensive wounds: bruising on his left arm; a fracture of his left
ulna; abrasions and bruising of the entire back of his left hand; bruising and
abrasions on his right forearm and back of his right hand; and an abrasion and
laceration on his left knee. On redirect, Dr. Rao also testified that King and Brown
were not unconscious after one blow because each individual had defensive
wounds.
The defense then presented its case for mitigation. The first witness for the
defense was Janice Jones, Bright’s sister. Jones testified regarding her and
Bright’s impoverished childhood. She also testified that Bright was abused by
their father during his childhood. Their father would hit Bright two or three times
a week with items from the junkyard where they lived. Additionally, at least twice
a month, their father would administer hours-long planned beatings, which were
for previously unpunished wrongs that the father would add-up. Bright’s father
would beat him to the point of drawing blood, and sometimes losing
- 11 -
consciousness. During the beatings, the father would lecture them from the Bible.
Bright was also beaten for stuttering and wetting his bed. Bright’s father ran a
junkyard that surrounded their house. As children, both Jones and Bright were
forced to work in the junkyard from the time the sun rose until dark. Jones also
testified that she and Bright witnessed their father abuse their mother and that their
father would frequently binge drink alcohol.
Jones also testified about Bright joining the United States Marine Corps and
training to be an aircraft mechanic. When Bright returned from the military, Jones
noticed him struggling with alcohol. She also noticed him having problems with
other substances in 1989. She helped Bright participate in a thirty-day treatment
program with the Veterans Administration, but he struggled after the program was
over.
In November of 2007, three months before the murders, Jones saw Bright
and believed he was depressed. Jones testified that shortly before the murders she
tried unsuccessfully to get individuals who were residing in Bright’s house to
leave. After failing to get the individuals out of Bright’s house, Bright seemed to
be in distress and in fear. Finally, Jones testified that Bright has taken care of her
and her children and that they have a positive relationship. Bright also has a
positive relationship with his grandchildren and Jones’s grandchildren.
- 12 -
Bright’s childhood friend and neighbor, Isidore Knight, also testified.
Knight grew up across the street from Bright and remembers that Bright had to
work in the junkyard from the age of six or seven, from sunup to sundown, six
days a week. Bright worked even when injured. Knight saw Bright get “whipped”
with an extension cord as punishment and characterized Bright’s childhood as
“torture.”
Psychologist Dr. Harry Krop testified regarding an assessment and testing
done for Bright’s original penalty phase. Dr. Krop saw Bright in August of 2008
to assess Bright’s competency to proceed to trial and again in July of 2009.
Dr. Krop found Bright competent. His testing revealed no signs of psychopathy or
malingering. Bright appeared highly anxious, situationally depressed and reported
having panic attacks. Dr. Krop did not diagnose Bright with Post Traumatic Stress
Disorder (PTSD).
The defense also presented the testimony of Dr. Steven Gold, a psychologist
and expert in trauma psychology who interviewed Bright in 2013. Dr. Gold
evaluated Bright using risk factors set forth in the Adverse Childhood Experience
Study (ACES). ACES identifies ten adverse childhood experiences, or factors.
The greater the number of factors a person has in his or her background the higher
the rate of psychological and medical problems. Bright experienced all ten ACES
factors. Dr. Gold diagnosed Bright with PTSD as a result of his childhood abuse.
- 13 -
Dr. Gold testified that PTSD played a role in this case. Specifically, Gold testified
that Bright felt threatened and in constant danger in his home as a child and that
Bright’s childhood related to the murders because two men had entered Bright’s
home, destroyed it, and refused to leave. Dr. Gold stated that Bright felt in danger
over a period of days or weeks before the murders and opined that Bright killed
King and Brown while he was under the influence of extreme mental or emotional
disturbance. He also opined that Bright’s capacity to appreciate the criminality of
his conduct or to conform his conduct to the requirements of the law was
substantially impaired.
Finally, the defense presented the testimony of Dr. Robert Ouaou, a
neuropsychologist. Dr. Ouaou evaluated Bright in 2014. Dr. Ouaou stated Bright
suffered from severe emotional distress as a result of his abusive parents.
Dr. Ouaou did not diagnose Bright with PTSD and did not find Bright to have a
cognitive disability. Dr. Ouaou acknowledged that Bright’s military discharge was
related to his alcohol problem and that after his discharge, he developed a drug
addiction.
5
5. Concerning Bright’s military career, the defense presented the testimony
of James Hernandez, an attorney and retired Marine. Hernandez testified, as he did
in Bright’s first penalty phase proceeding, regarding Bright’s personnel records for
the time Bright served in the Marine Corps. Hernandez testified that during his
career in the Marines, Bright received two awards for good conduct. Bright also
received an award called a Meritorious Mast when, while working as a fighter jet
mechanic, he observed a mechanical difficulty with an aircraft upon take-off and
- 14 -
After closing arguments and deliberations, the jury returned a verdict for
each victim—King (Count I) and Brown (Count II)—unanimously recommending
that Bright be sentenced to death. As to King, the jury unanimously found that two
aggravators were proven beyond a reasonable doubt: (1) Bright was previously
convicted of a capital felony or a felony involving the use or threat of violence to a
person; and (2) the murder was especially heinous, atrocious, or cruel. With regard
to mitigators, by a vote of eleven to one, the jury rejected the statutory mitigator
that the murder was committed while Bright was under the influence of extreme
mental or emotional disturbance. The jury also unanimously rejected the statutory
mitigator that the capacity of Bright to appreciate the criminality of his conduct or
to conform his conduct to the requirements of law was substantially impaired. By
a vote of eleven to one, the jury rejected the mitigator that there existed any other
factors in Bright’s character, background, or life or the circumstances of the
offense mitigating against the imposition of the death penalty.6 The jury
relayed to the pilot to come down. Bright’s actions prevented a “tragic mishap.”
On his last period of active service, Bright received a “general under honorable
conditions” discharge “by reason of alcohol rehab failure.” The defense also
presented the testimony of attorney Michael Bossen, who testified that Bright’s
ex-wife, Bridgett Bright, contacted him early in the morning of February 19, 2008.
He spoke with both Bridgett and Bright on the phone, and Bright was despondent
and cried. When Bossen met Bright the next day at his first appearance, Bright
was very despondent and could not communicate at all.
- 15 -
unanimously found that the aggravating factors were sufficient to warrant a
sentence of death and that those factors outweighed the mitigating circumstances.
Ultimately, the jury unanimously found that Bright should be sentenced to death
for the murder of King.
As to Brown, the jury unanimously found the aggravator that Bright was
previously convicted of a capital felony or a felony involving the use or threat of
violence to a person was proven beyond a reasonable doubt. However, unlike
King, the jury did not find that the murder was especially heinous, atrocious, or
cruel. By a vote of eleven to one, the jury rejected each of the following statutory
mitigators: (1) that the murder was committed while Bright was under the
influence of extreme mental or emotional disturbance; (2) that the capacity of
Bright to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired; and (3) that there existed any other
factors in Bright’s character, background, or life or the circumstances of the
offense mitigating against the imposition of the death penalty. The jury
unanimously found that the aggravating factors were sufficient to warrant a
sentence of death and that those factors outweighed the mitigating circumstances.
6. Bright requested one finding as to this catch-all provision and therefore
the jury voted on this mitigator as a whole, rather than as to each nonstatutory
mitigating circumstance.
- 16 -
The jury unanimously found that Bright should be sentenced to death for the
murder of Brown.
The trial court conducted a Spencer hearing on November 1, 2017. Bright’s
daughter, Tenneka Bright, testified as to the close relationship she has with her
father and the fact that he has always been there for her. She also testified that in
the days before the murders she was not able to reach her father by phone and that
when she called his number someone else answered. A classification officer from
the correctional institution where Bright is incarcerated testified that Bright had no
disciplinary reports.
On December 8, 2017, the trial court entered its sentencing order, imposing
a sentence of death on Bright for each murder. As to King, the trial court found
that the State had proven beyond a reasonable doubt the statutory aggravators that
Bright was previously convicted of another capital felony or of a felony involving
the use or threat of violence to the person, § 921.141(6)(b), Fla. Stat. (2017) (the
1990 conviction for armed robbery and the contemporaneous murder) (great
weight), and that the murder was especially heinous, atrocious, or cruel (HAC),
§ 921.141(6)(h), Fla. Stat. (2017) (great weight). As to Brown, the trial court
found that the State had proven beyond a reasonable doubt the statutory aggravator
that Bright was previously convicted of another capital felony or of a felony
- 17 -
involving the use or threat of violence to the person (the 1990 conviction for armed
robbery and the contemporaneous murder) (great weight).
The trial court rejected the two statutory mitigating circumstances presented
by Bright with respect to each murder—that the murder was committed while
Bright was under the influence of extreme mental or emotional disturbance,
§ 921.141(7)(b), Fla. Stat. (2017), and that Bright’s capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law
was substantially impaired, § 921.141(7)(f), Fla. Stat. (2017). The trial court
considered thirty-eight nonstatutory mitigating circumstances under the catch-all
provision for the existence of any other factors in the defendant’s background that
would mitigate against imposition of the death penalty, § 921.141(7)(h), Fla. Stat.
(2017). The trial court grouped the nonstatutory mitigators into six categories,
found each established, and assigned no or little weight to each category.
Specifically, the trial court found: (1) Bright was the victim of child abuse and
- 18 -
neglect7 (no weight); (2) Bright’s military career8 (little weight); (3) Bright’s
history of drug and alcohol abuse9 (little weight); (4) Bright’s positive
7. This category included the following nonstatutory mitigating
circumstances: (1) Bright was forced to work long hours as a child in his father’s
junkyard; (2) Bright was not allowed to play with other children while growing up;
(3) Bright’s father made him work in the junkyard through injury; (4) Bright
suffered an eye injury while working in the junkyard that still affects him; (5)
Bright was a victim of violence and abuse; (6) Bright’s father would beat him for
hours at a time, drawing blood, leaving welts, and rendering him unconscious; (7)
Bright grew up extremely poor with no running water, adequate heating, or trash
collection; (8) Bright would wet the bed and was beaten for it; (9) Bright stuttered
and was beaten for that; (10) Bright was choked by his older brother until he was
unconscious; (11) Bright was sexually abused by his older brother; (12) Bright’s
father fired a gun around the house; (13) Bright’s father beat and raped his mother;
(14) Bright’s father was an alcoholic; (15) Bright’s father would disappear for days
and weeks at a time; (16) Bright was a poor student because of his home life; (17)
Bright’s punctuality at school was poor; and (18) Bright ran away from home after
high school.
8. This category included the following nonstatutory mitigating
circumstances: (1) Bright served in the Marine Corps for nine years as a jet
mechanic; (2) Bright had multiple promotions in the Marine Corps, including a
meritorious promotion; (3) Bright received two separate awards for good conduct;
(4) Bright received a “meritorious mast” for noticing a problem with a jet upon
take-off; (5) Bright served in the Red Sea and went to Africa for a deployment; (6)
Bright attended a noncommissioned officer leadership course where he learned
basic leadership skills and discipline; (7) Bright was presented with a certificate of
appreciation; (8) Bright achieved the rank of sergeant; and (9) Bright received two
honorable discharges and one “general under honorable conditions” discharge from
the Marines.
9. This category included the nonstatutory mitigating circumstances that
Bright struggled with drugs and alcohol use for decades and has sought help for his
substance abuse problems on multiple occasions.
- 19 -
relationships with others10 (little weight); (5) Bright’s good and mannerly behavior
during court proceedings (no weight); and (6) Bright’s behavior while incarcerated
(no weight).
The trial court found that the “aggravating circumstances heavily outweigh
the mitigating circumstances, and that death is the proper penalty the Court should
impose for the murders of Derrick King and Randall Brown.” Bright appeals from
the trial court’s order imposing sentences of death for the murders of King and
Brown.
II. ANALYSIS
On appeal, Bright raises the following five claims: (1) the trial court
committed fundamental error by failing to instruct the jury that it must determine
beyond a reasonable doubt whether the aggravators were sufficient to impose death
and outweighed the mitigators; (2) the prosecutor made multiple improper
comments during closing argument constituting fundamental error; (3) there was
insufficient evidence to support the finding of the especially heinous, atrocious, or
10. This category included the following nonstatutory mitigating
circumstances: (1) Bright took care of his sister when she was young; (2) Bright
repaired a roof on his sister’s house after a hurricane; (3) Bright is a good friend;
(4) Bright is very close to his daughter; (5) Bright is close with his grandchildren;
(6) Bright’s family will continue to foster their relationships with him while he is
incarcerated; (7) Bright encouraged his daughter to go to college; and (8) Bright’s
daughter loves him unconditionally and is grateful for their relationship.
- 20 -
cruel aggravator; (4) the trial court abused its discretion in rejecting statutory
mitigating circumstances and in assigning no weight to the nonstatutory mitigation
of Bright’s childhood abuse; and (5) the sentences of death are not proportionate.
We address each claim in turn.
A. Sufficiency of the Jury Instructions
Bright argues that the trial court erred by failing to instruct the jury that it
must determine beyond a reasonable doubt whether the aggravating factors were
sufficient to impose a sentence of death and whether those factors outweighed the
mitigating circumstances. Bright’s argument has no merit.
“[S]ubsequent to our decision in Hurst v. State, we already have receded
from the holding that the additional Hurst v. State findings are elements.” State v.
Poole, 45 Fla. L. Weekly S41 (Fla. Jan. 23, 2020). In Rogers v. State, 285 So. 3d
872, 885-86 (Fla. 2019), we clarified:
To the extent that in Perry v. State, 210 So. 3d 630, 633 (Fla.
2016), we suggested that Hurst v. State held that the sufficiency and
weight of the aggravating factors and the final recommendation of
death are elements that must be determined by the jury beyond a
reasonable doubt, we mischaracterized Hurst v. State, which did not
require that these determinations be made beyond a reasonable doubt.
Since Perry, in In re Standard Criminal Jury Instructions in Capital
Cases [244 So. 3d 172 (Fla. 2018)] and Foster [v. State, 258 So. 3d
1248 (Fla. 2018)], we have implicitly receded from its
mischaracterization of Hurst v. State. We now do so explicitly. Thus,
these determinations are not subject to the beyond a reasonable doubt
standard of proof, and the trial court did not err in instructing the jury.
- 21 -
Thus, because the trial court did not err in failing to instruct the jury to
determine beyond a reasonable doubt whether the aggravating factors were
sufficient and outweighed mitigating circumstances, no fundamental error
occurred,
11 and Bright is not entitled to relief on this claim.
B. Improper Prosecutorial Comments in Closing Argument
Bright next asserts that the State’s prosecutor made multiple improper
comments during closing argument. As an initial matter, Bright’s counsel did not
contemporaneously object to the comments Bright now raises as error on appeal.
Generally, the failure to contemporaneously object to allegedly improper closing
argument comments waives the issue for review. Card v. State, 803 So. 2d 613,
622 (Fla. 2001) (“As a general rule, the failure to raise a contemporaneous
objection when improper closing argument comments are made waives any claim
concerning such comments for appellate review.”); Urbin v. State, 714 So. 2d 411,
418 n.8 (Fla. 1998) (“We have long held that allegedly improperly [sic]
prosecutorial comments are not cognizable on appeal absent a contemporaneous
objection.”). “�e sole exception to the general rule is where the unobjected-to
comments rise to the level of fundamental error.” Walls v. State, 926 So. 2d 1156,
1176 (Fla. 2006); accord Card, 803 So. 2d at 622. “�is is a high burden which
11. Because the trial court did not err, we do not reach the State’s argument
that Bright waived fundamental error review by agreeing to the jury instructions.
- 22 -
requires an error that ‘goes to the foundation of the case or the merits of the cause
of action and is equivalent to a denial of due process.’ ” Bailey v. State, 998 So. 2d
545, 554 (Fla. 2008) (quoting Johnson v. State, 969 So. 2d 938, 955 (Fla. 2007)).
Fundamental error “has also been described as error that is so significant that the
sentence of death ‘could not have been obtained without the assistance of the
alleged error.’ ” Poole v. State, 151 So. 3d 402, 415 (Fla. 2014) (quoting
Snelgrove v. State, 107 So. 3d 242, 257 (Fla. 2012)).
First, Bright argues that the prosecutor erroneously told the jury to ignore
evidence of mitigation (i.e., that Bright suffered childhood abuse) in contravention
of the United States Supreme Court’s mandate in Eddings v. Oklahoma, 455 U.S.
104 (1982), that the sentencer in a capital case consider mitigation evidence. See
id. at 113-14 (“Just as the State may not by statute preclude the sentencer from
considering any mitigating factor, neither may the sentencer refuse to consider, as
a matter of law, any relevant mitigating evidence.”). �e allegedly improper
comment, to which defense counsel did not object, is as follows:
Your decision should not be influenced by feelings of prejudice or by
racial or ethnic bias or sympathy. �at’s not a basis for your decision,
that he was abused, et cetera. No. You cannot have sympathy for that
in terms of - - it’s mitigation and aggravation. You can’t have
sympathy for the victim or the defendant - - for the victims, I should
say.
Here, the prosecutor did not instruct the jurors to disregard evidence of
Bright’s abuse in reaching their decisions, but rather, explained that the evidence
- 23 -
of abuse is properly considered as mitigation, and that their decisions may not be
based upon sympathy. See Zack v. State, 753 So. 2d 9, 24 (Fla. 2000) (“[T]he
State’s argument concerning sympathy was a proper admonition for the jurors to
consider the mitigation evidence without resort to their emotions.” (footnote
omitted)); see also Saffle v. Parks, 494 U.S. 484, 493 (1990) (“[N]othing in . . .
Eddings prevents the State from attempting to ensure reliability and
nonarbitrariness by requiring that the jury consider and give effect to the
defendant’s mitigating evidence in the form of a ‘reasoned moral response,’ rather
than an emotional one.” (citation omitted) (quoting California v. Brown, 479 U.S.
538, 545 (1987))). Furthermore, the prosecutor’s argument concerning sympathy
was consistent with the final jury instructions read by the trial court to the jury,12
which in turn mirrored interim amended jury instruction 7.11(a) Final Instructions
in Penalty Proceedings—Capital Cases.13 As such, the prosecutor’s comments
were not error, much less fundamental error.
12. The trial court instructed the jury as follows:
Your decision must not be based upon the fact that you feel sorry
for anyone or are angry at anyone.
. . . .
Your decisions should not be influenced by feelings of prejudice,
racial or ethnic bias or sympathy. Your decisions must be based upon
the evidence and the law contained in these instructions.
13. See In re Std. Crim. Jury Instrs. in Capital Cases, 214 So. 3d 1236,
1266 (Fla. 2017) (appendix) (“Rules for deliberation. . . . 3. Your decisions must
- 24 -
Second, Bright argues that the prosecutor improperly instructed the jury that
the only way to follow the law was to vote for death. Bright points to the
following statement by the prosecutor, to which Bright’s counsel did not object:
And by the way, as we stressed about in jury selection, you’re never
compelled to actually vote for death. But I would submit to you that
this is the case that you should in terms of following the law.
�is Court has held that it is improper for a prosecutor to assert in closing
argument that it is a juror’s duty under the law to vote for a sentence of death
rather than life. For example, in Urbin, the prosecutor argued to the jury that “my
concern is that some of you may be tempted to take the easy way out, to not weigh
the aggravating circumstances and the mitigating circumstances and not want to
fully carry out your responsibility and just vote for life,” and “I’m going to ask you
not be swayed by pity or sympathy. . . . I’m going to ask you to follow the law.
I’m going to ask you to do your duty.” 714 So. 2d at 421. �is Court found the
comments improper because they “implied that the jury was required by law to
return a recommendation of death.” Braddy v. State, 111 So. 3d 810, 851 (Fla.
2012) (emphasis in original) (quoting Wade v. State, 41 So. 3d 857, 871 (Fla.
2010) (addressing the holding in Urbin)); see also Davis v. State, 136 So. 3d 1169,
not be based upon the fact that you feel sorry for anyone or are angry at
anyone. . . . 6. Your decisions should not be influenced by feelings of prejudice,
racial or ethnic bias, or sympathy. Your decisions must be based on the evidence
and the law contained in these instructions.”).
- 25 -
1207 (Fla. 2014) (“[T]his Court has concluded that it is improper for the State to
tell jurors that ‘the only proper recommendation to this court is a recommendation
of death’ or that the jurors have a legal duty to recommend the ‘appropriate
punishment’ of death.”). Here, however, the prosecutor’s comment that the jurors
“should” vote for a sentence of death did not imply that they were required by law
to do so. Indeed, immediately before the comment, the prosecutor correctly told
the jurors that they are never compelled to vote for death. �us, the allegedly
improper comment was not error, much less fundamental error.
Next, Bright argues that the prosecutor misstated the burden of proof for
mitigating circumstances. Again, Bright’s counsel did not object to the following
comment:
�en you go, okay, what - - what mitigation has been proven? And
remember, we talked about that mitigation doesn’t have to be proven
beyond a reasonable doubt. It’s just a reasonable certainty.
�is Court has held that a mitigating circumstance exists where it is
established by the greater weight of the evidence. See Diaz v. State, 132 So. 3d 93,
117 (Fla. 2013) (stating that established law recognizes “that mitigating factors
[must] be ‘established by the greater weight of the evidence’ ” (quoting Mansfield
v. State, 758 So. 2d 636, 646 (Fla. 2000))); Bolin v. State, 117 So. 3d 728, 740 (Fla.
2013) (“�e trial court must find a mitigating circumstance if it ‘has been
established by the greater weight of the evidence.’ ” (quoting Coday v. State, 946
- 26 -
So. 2d 988, 1003 (Fla. 2006))). �us, as the State properly acknowledges, the
prosecutor’s comment that the mitigation must be proven to a reasonable certainty
was erroneous.
In determining whether a comment found to be improper constitutes
fundamental error, this Court’s consideration “include[s] whether the statement
was repeated and whether the jury was provided with an accurate statement of the
law after the improper comment was made.” Poole, 151 So. 3d at 415. Here, the
prosecutor did not repeat the improper burden of proof in closing argument.
Additionally, the final jury instructions read by the trial court to the jury included
an accurate statement of the law on the burden of proof regarding mitigating
circumstances.14 We therefore find that the prosecutor’s single misstatement of the
law was not so harmful that the sentence of death could not have been obtained
without the assistance of the error. Accordingly, the prosecutor’s comment does
14. The trial court instructed the jury as follows:
As explained before these proceedings, the defendant need only
establish a mitigating circumstance by the greater weight of the
evidence, which means the evidence that more than likely - - more
likely than not tends to establish the existence of a mitigating
circumstance. If you determine by the greater weight of the evidence
that a mitigating circumstance exists, you must consider it established
and give that evidence such weight as you determine it should receive
in reaching your verdict about the appropriate sentence to be imposed.
- 27 -
not rise to the level of fundamental error. See Kaczmar v. State, 228 So. 3d 1, 12
(Fla. 2017) (finding that prosecutor’s improper characterization of mitigating
evidence did not rise to the level of fundamental error where comment was made
only once, and the trial court read the standard jury instructions, which included an
accurate statement of the law).
Finally, Bright argues that the prosecutor mischaracterized mitigation as a
“credit” for Bright. �e comments, to which defense counsel did not object, are as
follows:
Defendant’s character? I guess they’re going to say - - and he did. He
served nine years. We’ve got to give him credit for that. He served
nine years in the Marines. . . . Defense is going to go, well, hold on.
At one point, he saved some aircraft that potentially could have
crashed and potentially saved the life of an airman that was going to
fly. He should get credit for that.
Bright appears to be arguing that the prosecutor improperly told the jury that
the process of weighing aggravating factors and mitigating circumstances is a
quantitative analysis. See, e.g., Taylor v. State, 937 So. 2d 590, 601 (Fla. 2006)
(holding that the process of weighing aggravating and mitigating circumstances
during capital sentencing proceedings is not a quantitative comparison). �e
prosecutor’s comments, however, are more properly read as the State’s
acknowledgment that Bright’s service in the Marines, including his action of
discovering a potentially fatal mechanical problem with an aircraft, constitutes a
mitigating circumstance. A review of the prosecutor’s entire closing argument
- 28 -
shows that no other proposed mitigation was characterized as a “credit” for Bright.
Accordingly, the prosecutor did not impermissibly argue to the jury that its
weighing process should be conducted by comparing the number of aggravating
factors with the number of mitigating circumstances.
Bright also contends that the cumulative effect of the prosecutor’s improper
remarks constituted fundamental error. See Card, 803 So. 2d at 622 (“We do not
examine allegedly improper comments in isolation. Rather, the Court examines
the totality of the errors in the closing argument and determines whether the
cumulative effect of the numerous improprieties deprived the defendant of a fair
penalty phase hearing.”). A review of the unobjected-to comments made by the
prosecutor, however, shows that only one comment was improper—the
misstatement of law as to burden of proof for mitigators—and that this single error
did not rise to the level of fundamental error. A single improper comment in
closing argument does not support a cumulative error analysis. See, e.g., Diaz,
132 So. 3d at 118 (“[A] cumulative error claim fails when there are not multiple
errors.”); Johnson v. State, 104 So. 3d 1010, 1029 (Fla. 2012) (“[�e defendant],
however, has failed to identify multiple instances of error. And because multiple
errors did not occur in this case, [the defendant]’s claim of cumulative error must
fail.”). Accordingly, Bright’s claim of cumulative error fails as well.
- 29 -
Because none of the allegedly improper comments—either individually or
cumulatively—rise to the level of fundamental error, Bright is not entitled to relief
with regard to this claim. See Braddy, 111 So. 3d at 846 (“Likewise if any
unpreserved improper comments do not individually or cumulatively constitute
fundamental error, we will not reverse [the defendant’s] sentence.”).
C. Especially Heinous, Atrocious, or Cruel Aggravating Factor
Bright argues that there was insufficient evidence to support the trial court’s
finding of the “especially heinous, atrocious, or cruel” (HAC) aggravator.
§ 921.141(6)(h), Fla. Stat. (2017). Specifically, Bright contends that the evidence
was insufficient to support the finding of the HAC aggravator because there is no
evidence that King was conscious and aware of his impending death. Because we
find that there was competent, substantial evidence that King was conscious and
aware of impending death, Bright’s claim is without merit.
“When reviewing claims alleging error in the application of aggravating
factors, this Court does not reweigh the evidence.” McGirth v. State, 48 So. 3d
777, 792 (Fla. 2010); accord Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997)
(“[I]t is not this Court’s function to reweigh the evidence to determine whether the
State proved each aggravating circumstance beyond a reasonable doubt—that is
the trial court’s job.”). Instead, “[i]n reviewing an aggravating factor challenged
on appeal, this Court’s task ‘is to review the record to determine whether the trial
- 30 -
court applied the right rule of law for each aggravating circumstance and, if so,
whether competent substantial evidence supports its finding.’ ” Douglas v. State,
878 So. 2d 1246, 1260-61 (Fla. 2004) (quoting Willacy, 696 So. 2d at 695).
This Court has previously defined the HAC aggravator as follows:
It is our interpretation that heinous means extremely wicked or
shockingly evil; that atrocious means outrageously wicked and vile;
and, that cruel means designed to inflict a high degree of pain with
utter indifference to, or even enjoyment of, the suffering of others.
What is intended to be included are those capital crimes where the
actual commission of the capital felony was accompanied by such
additional acts as to set the crime apart from the norm of capital
felonies—the conscienceless or pitiless crime which is unnecessarily
torturous to the victim.
Hernandez v. State, 4 So. 3d 642, 668-69 (Fla. 2009) (quoting State v. Dixon, 283
So. 2d 1, 9 (Fla. 1973)). The HAC aggravator focuses on the means and manner of
the victim’s death and the immediate circumstances surrounding the death. See
Pham v. State, 70 So. 3d 485, 497 (Fla. 2011); McGirth, 48 So. 3d at 794. “[I]n
order to support a finding of this aggravator, ‘the evidence must show that the
victim was conscious and aware of impending death.’ ” King v. State, 130 So. 3d
676, 684 (Fla. 2013) (quoting Douglas, 878 So. 2d at 1261). However, “the
victim’s perception of imminent death need only last seconds for this aggravator to
apply.” Gonzalez, 136 So. 3d at 1157; see also Buzia v. State, 926 So. 2d 1203,
1214 (Fla. 2006) (finding that victim was aware of impending death “[w]hether
this state of consciousness lasted minutes or seconds” and upholding HAC
- 31 -
aggravator). Relevant here, “[t]his Court has ‘consistently upheld HAC in beating
deaths.’ ” Douglas, 878 So. 2d at 1261 (quoting Lawrence v. State, 698 So. 2d
1219, 1222 (Fla. 1997)); accord King, 130 So. 3d at 684; see also, e.g., Buzia, 926
So. 2d at 1214 (upholding the HAC aggravator where victim was struck with a fist
and an ax and was awake and aware for at least part of the ordeal); Dennis v. State,
817 So. 2d 741, 766 (Fla. 2002) (upholding finding of HAC aggravator where
victims suffered skull fractures as a result of beating and were conscious for at
least part of the attack); Beasley v. State, 774 So. 2d 649, 671 (Fla. 2000) (holding
that competent, substantial evidence supported the trial court’s finding of the HAC
aggravator where victim suffered blunt trauma to the head by a hammer and was
not rendered immediately unconscious as evidenced by defensive injuries).
Bright contends that the evidence was insufficient to support the trial court’s
finding of HAC because there is no evidence that King was conscious and aware of
his impending death. Specifically, Bright relies upon Dr. Rao’s testimony during
cross-examination that each blow to the head that caused a skull fracture could
have caused death by itself. Bright’s argument, however, ignores case law from
this Court explaining that “[t]he existence of defensive wounds is relevant to the
HAC analysis.” King, 130 So. 3d at 684. Where, like here, the sequence of
injuries cannot be established, this Court has found that evidence of defensive
wounds indicates that the victim was conscious and aware of impending death.
- 32 -
For example, in King, this Court concluded that the trial court’s finding of the
HAC aggravator was supported by competent, substantial evidence where the
medical examiner testified that the victim was struck seventeen times with a
hammer. Id. at 686. “Three of the blows were to the head, which would have been
fatal and rendered the victim unconscious.” Id. at 680. Although the medical
examiner could not testify to the sequence of the blows inflicted on the victim, this
Court found that “[t]he defensive wounds to the victim’s hand and arm clearly
demonstrate that the victim was conscious and aware of her impending death and
attempting to fend off the attack.” Id. at 685.
Similarly, in Douglas, the medical examiner could not determine the
sequence of injuries to the victim, who died of blunt head trauma, and testified that
“if the first injury inflicted was one of the more severe [the victim] could have
been rendered unconscious.” 878 So. 2d at 1251, 1262. On appeal, the defendant
argued that the evidence left open the possibility that the victim lost consciousness
after the first blow. Id. at 1262. This Court upheld the trial court’s finding of the
HAC aggravator, relying upon the medical examiner’s testimony that it was “not
likely” that the victim was rendered unconscious by the first blow given that she
turned her head during the beating and suffered defensive wounds to her hands and
forearms. Id.; see also Boyd v. State, 910 So. 2d 167, 191 (Fla. 2005) (finding that
“[w]hile the exact order of wounds could not be established, there was competent,
- 33 -
substantial evidence to support the trial court’s finding that [the victim] was alive
and conscious for some of the attack, and was struggling with her attacker” where
victim sustained defensive wounds); Beasley, 774 So. 2d at 670 (rejecting
defendant’s argument that the murder was not HAC because the victim might have
been rendered immediately unconscious by blows from a hammer where evidence
of defensive wounds existed).
Here, there was competent, substantial evidence in the record to support the
finding of the HAC aggravator. Dr. Rao testified that King received thirty-eight
blunt impact injuries to his head and about twenty injuries to his extremities and
that the injuries were consistent with being caused by a hammer. Dr. Rao also
testified that King was alive when these injuries were inflicted and that he suffered.
Significantly, King had numerous defensive wounds: bruising on his left arm; a
fracture of his left ulna; abrasions and bruising of the entire back of his left hand;
bruising and abrasions on his right forearm and back of his right hand; and an
abrasion and laceration on his left knee. Although Dr. Rao testified on crossexamination that each blow to the head that caused a skull fracture and brain injury
could have caused death by itself, Dr. Rao also opined that King’s defensive
wounds evidenced that he was not rendered unconscious after one blow. Thus,
competent, substantial evidence supports the finding of the HAC aggravator.
- 34 -
Bright relies on Williams v. State, 37 So. 3d 187 (Fla. 2010), in support of
his argument that there is insufficient evidence to support the trial court’s finding
of the HAC aggravator. In Williams, this Court struck the HAC aggravator,
concluding that given the lack of any defensive wounds and the speculative nature
of other evidence relied upon by the trial court, there was no evidence to support
the trial court’s finding that the victim was conscious and aware of impending
death. Id. at 200-01. As Dr. Rao’s testimony established that King suffered
defensive wounds, Williams is not analogous. Bright’s reliance on Elam v. State,
636 So. 2d 1312 (Fla. 1994), is also misplaced. In Elam, this Court held that the
trial court erred in finding the HAC aggravator where, although the victim suffered
“defensive wounds, the medical examiner testified that the attack took place in a
very short period of time (‘could have been less than a minute, maybe even half a
minute’), the defendant was unconscious at the end of this period, and never
regained consciousness.” Id. at 1314. This Court subsequently declined to apply
Elam in Rolling v. State, 695 So. 2d 278 (Fla. 1997), where the evidence
demonstrated that the victim, who was stabbed while asleep in her bed, “sustained
several defensive wounds to her arms and leg, and did not die instantaneously.” Id.
at 296. We find the instant case more akin to Rolling, where King’s defensive
wounds negate the possibility that he was rendered immediately unconscious after
in initial blow to the head. Cf. Perez v. State, 919 So. 2d 347, 378-79 (Fla. 2005)
- 35 -
(finding Elam “clearly distinguishable” where victim suffered defensive wounds
and blunt force trauma to the head, was stabbed ninety-four times, and the medical
examiner testified that the victim “would have lost consciousness within a matter
of a few seconds to as much as two minutes” after receiving the fatal stab wound).
Because competent, substantial evidence supports the finding of the HAC
aggravator as to the murder of King, Bright is not entitled to relief on this claim.
D. Mitigating Circumstances
Bright also argues that the trial court erred in rejecting the two statutory
mitigating circumstances presented with respect to both murders: (1) that Bright
committed the murders while he was “under the influence of extreme mental or
emotional disturbance,” § 921.141(7)(b), Fla. Stat. (2107), and (2) that Bright’s
“capacity . . . to appreciate the criminality of his . . . conduct or to conform his . . .
conduct to the requirements of law was substantially impaired,” § 921.141(7)(f),
Fla. Stat. (2017). Bright further argues that the trial court abused its discretion in
assigning no weight to the nonstatutory mitigating circumstance of his abusive
childhood. As explained below, we find the trial court did not abuse its discretion
by not finding that either statutory mitigating circumstance was established or by
assigning no weight to the nonstatutory circumstance of Bright’s abusive
childhood.
- 36 -
“Where it is clear that the trial court has considered all evidence presented in
support of a mitigating factor, the court’s decision as to whether that circumstance
is established will be reviewed only for abuse of discretion.” Ault v. State, 53 So.
3d 175, 186-87 (Fla. 2010). A trial court’s determinations on the issue will be
upheld when supported by competent, substantial evidence. Hoskins v. State, 965
So. 2d 1, 17 (Fla. 2007). “A trial court must find a proposed mitigating
circumstance when the defendant has established that mitigator through competent,
substantial evidence.” Oyola v. State, 99 So. 3d 431, 444 (Fla. 2012). “A trial
court may reject a defendant’s claim that a mitigating circumstance has been
proved, however, provided that the record contains ‘competent substantial
evidence to support the trial court’s rejection of these mitigating circumstances.’ ”
Nibert v. State, 574 So. 2d 1059, 1062 (Fla. 1990) (quoting Kight v. State, 512 So.
2d 922, 933 (Fla. 1987)). “A mitigator may . . . be rejected if the testimony
supporting it is not substantiated by the actions of the defendant, or if the testimony
supporting it conflicts with other evidence.” Oyola, 99 So. 3d at 445. With regard
to expert opinion testimony, “[e]ven uncontroverted opinion testimony can be
rejected, especially when it is hard to reconcile with the other evidence presented
in the case.” Philmore v. State, 820 So. 2d 919, 936 (Fla. 2002). With these
principles in mind, we address each of Bright’s arguments in turn.
1. Extreme Mental or Emotional Disturbance Mitigator
- 37 -
Bright argues that the trial court erred in failing to find the statutory
mitigating circumstance that he committed the murders while under the influence
of extreme mental or emotional disturbance.
15 Because there is competent,
substantial evidence in the record to support the trial court’s finding, we disagree.
In support of his argument, Bright relies upon Dr. Gold’s testimony that he
diagnosed Bright with PTSD. Dr. Gold testified that Bright’s PTSD played a role
in this case because Bright perceived that he was in danger in his home, which was
impacted by the trauma of his childhood abuse. Dr. Gold further opined that as a
result of Bright’s mounting sense of fear in his home, Bright killed King and
Brown while he was under the influence of extreme mental or emotional
disturbance. Unlike Dr. Gold, however, Dr. Krop, who evaluated Bright shortly
after the murders in 2008 and 2009, did not diagnose Bright with PTSD. Dr. Krop
testified that there were several reasons he did not diagnose Bright with PTSD at
the time of his evaluation. First, records Dr. Krop reviewed from the time Bright
received treatment from the Veteran’s Administration contained no indication of
PTSD. Second, as reflected in a report authored by Dr. Krop in August 2008,
Bright stated that he had a normal childhood, free from abuse and trauma.
15. The statutory mitigator of extreme emotional disturbance “has been
defined as ‘less than insanity, but more emotions than the average man, however
inflamed.’ ” Foster v. State, 679 So. 2d 747, 756 (Fla. 1996) (quoting Duncan v.
State, 619 So. 2d 279, 283 (Fla. 1993)).
- 38 -
Furthermore, the psychological testing Dr. Krop conducted on Bright, including
the Beck Anxiety Inventory, Beck Depression Inventory, and the MMPI-2, did not
suggest a basis for a PTSD diagnosis. Thus, the trial court’s finding that the
extreme mental or emotional disturbance mitigator was not established was
supported by competent, substantial evidence in the record that Bright was not
suffering from PTSD at the time of the murders.
We therefore conclude that the trial court did not abuse its discretion in
rejecting this proposed mitigating circumstance. See Foster v. State, 679 So. 2d
747, 755 (Fla. 1996) (“As long as the court considered all of the evidence, a trial
judge’s determination of lack of mitigation will stand absent a palpable abuse of
discretion.”).
2. Capacity to Appreciate the Criminality of Conduct or
Conform Conduct to the Requirements of Law
Bright next argues that he presented unrebutted expert testimony through
Dr. Gold that his capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was substantially impaired, and
that the trial court abused its discretion in rejecting this mitigator. Bright’s claim is
without merit.
“A mitigator may . . . be rejected if the testimony supporting it is not
substantiated by the actions of the defendant, or if the testimony supporting it
conflicts with other evidence.” Oyola, 99 So. 3d at 445. Indeed, even “[w]hen
- 39 -
expert opinion evidence is presented, it ‘may be rejected if that evidence cannot be
reconciled with the other evidence in the case.’ ” Williams, 37 So. 3d at 204
(quoting Coday, 946 So. 2d at 1003).
In finding that this mitigator had not been proven by a greater weight of the
evidence, the trial court stated as follows in its sentencing order:
Defendant took actions immediately after committing the crimes that
suggest he was attempting to conceal his identity. Defendant used and
then disposed of gloves in order to conceal his fingerprints, he hid the
murder weapon, and he fled his home. All of these actions are
consistent with someone who understands their actions are wrong and
is attempting to avoid the repercussions of what they have done.
As this Court explained in Ault, 53 So. 3d 175, a defendant’s purposeful actions
after the crime indicating that the defendant was aware of the criminality of his
conduct may be sufficient to reject a defendant’s claim that this mitigator applies.
In Ault, the defendant admitted that he murdered the victims out of fear of going to
jail, placed the victims’ bodies in his attic, and lied to the victims’ mother and the
police regarding his knowledge of the victims’ disappearance. Id. at 189. This
Court found that the record demonstrated that the defendant was not substantially
impaired in his ability to appreciate the criminality of his conduct or to conform his
conduct to the requirements of the law, explaining:
We have upheld a trial court’s rejection of this mitigating
circumstance when a defendant’s actions during and after the crime
has indicated that he was aware of the criminality of his conduct. In
Nelson v. State, 850 So. 2d 514, 531 (Fla. 2003), for example, we
upheld the trial court’s ruling where the defendant removed the victim
- 40 -
from her home after sexually assaulting her, drove to two separate
orange groves before killing her, and lied to police about the crime.
We found that the defendant’s “purposeful actions [were] indicative
of someone who knew those acts were wrong and who could conform
his conduct to the law if he so desired.” Id. Similarly, in Hoskins v.
State, 965 So. 2d 1, 18 (Fla. 2007), we found that the trial court
properly rejected the defendant’s inability “to appreciate the
criminality of his conduct” as mitigation where, after raping the
victim, “Hoskins’s purposeful actions in binding and gagging [the
victim] before placing her in the trunk, driving to his parents’ home
six hours away, borrowing a shovel, driving to a remote area where he
killed [the victim], and then telling his brother he hit a possum when
blood was noticed dripping from the rear wheel well [were] indicative
of someone who knows his conduct is wrong.”
53 So. 3d at 188-89 (alterations in original).
Here, Bright’s purposeful actions after the murders are indicative of
someone who knew that his actions were criminal and could conform his conduct
to the law. Specifically, there was testimony that Bright fled his home after the
murders. Additionally, there was testimony from a crime scene investigator and
police officers from the Jacksonville Sheriff’s Office that Bright concealed the
murder weapon by burying it deeply in his backyard. Thus, Bright’s purposeful
actions after the murders constitute competent, substantial evidence to support the
trial court’s rejection of this mitigating circumstance. Accordingly, we reject
Bright’s claim on this issue.
- 41 -
3. The Existence of Any Other Factors in the Defendant’s Background That
Would Mitigate Against Imposition of the Death Penalty
Bright also argues that the trial court abused its discretion in assigning no
weight to the nonstatutory mitigating circumstance that Bright was the victim of
childhood abuse and neglect. This argument is without merit.
“A trial court’s decision with regard to the weight to be assigned to a
mitigating circumstance that it determines has been established is ‘within the trial
court’s discretion, and its decision is subject to the abuse-of-discretion standard.’ ”
Perez, 919 So. 2d at 372 (quoting Kearse v. State, 770 So. 2d 1119, 1133 (Fla.
2000)); accord Allen v. State, 137 So. 3d 946, 967 (Fla. 2013). This includes the
discretion to assign an established mitigating circumstance no weight. Trease v.
State, 768 So. 2d 1050, 1055 (Fla. 2000) (“We hereby recede from our opinion in
Campbell [v. State, 571 So. 2d 415, 420 (Fla. 1990] to the extent it disallows trial
courts from according no weight to a mitigating factor and recognize that there are
circumstances where a mitigating circumstance may be found to be supported by
the record, but given no weight.”); accord Mullens v. State, 197 So. 3d 16, 30 (Fla.
2016) (stating that a trial court “may conclude that a particular mitigating
circumstance exists, but assign it no weight”). Under the abuse of discretion
standard, a trial court’s determination as to the weight assigned to a mitigating
circumstance will be upheld unless “no reasonable [person] would take the view
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adopted by the trial court.” Perez, 919 So. 2d at 372 (alteration in original)
(quoting Trease, 768 So. 2d at 1053 n.2.).
This Court addressed a trial court’s refusal to grant nonstatutory mitigating
circumstances any weight in Cox v. State, 819 So. 2d 705 (Fla. 2002). In Cox, the
trial court assigned slight or no weight to the “mitigating nature of [the
defendant’s] childhood.” Id. at 722. In finding that the trial court did not abuse its
discretion in assigning no weight to certain mitigating circumstances, this Court
reasoned that the trial court “simply attempted to place the appellant’s mitigation
evidence in context. The trial court’s holdings regarding certain of the appellant’s
proffered mitigators resulted from an absolute dearth of evidence contained in the
record supporting the notion that the cited mitigators are relevant to the defendant
in the instant case.” Id. at 723 (footnote omitted). The trial court’s “attempt[] to
place the appellant’s mitigation evidence in context” was demonstrated in the trial
court’s statement that:
While the evidence supports the existence of his heightened anxiety in
dealing with other people, the evidence does not support any
conclusions or even speculations as to how it contributed to Mr. Cox’s
decisions and actions that led to [the victim’s] death. . . . Thus, while
established by Dr. McMahon’s opinion, the court declines to afford
any weight to this circumstance.
Id. at 723 n.15.
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Here, the trial court found that the nonstatutory mitigating circumstance of
Bright’s childhood abuse and neglect had been established but assigned it no
weight, concluding:
More notably, there is a disconnect between Defendant’s trauma and
the offenses. Once Defendant left his home and joined the military he
was a productive member of society and there is no evidence that the
trauma in his childhood prevented him from living like a normal
person. Therefore, the Court finds that the non-statutory mitigators
under this heading have been established, however, the Court assigns
no weight to these mitigators.
Thus, as in Cox, the trial court in the present case simply placed the mitigation
evidence in the context of the other evidence presented. Specifically, the trial court
considered the mitigating circumstance of Bright’s childhood in the context of
Bright’s subsequent ability as an adult to serve in the military and function
productively such that the abuse and neglect Bright suffered as a child were shown
to have no real bearing on Bright’s action in committing the murders.
Accordingly, because we cannot conclude that no reasonable person would
have assigned the mitigating circumstance of Bright’s childhood abuse and neglect
no weight, we conclude that the trial court did not abuse its broad discretion in
assigning no weight to this mitigating circumstance.
E. Proportionality
Finally, Bright argues that the sentences of death are disproportionate
because his case is not among the most aggravated and least mitigated of first-
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degree murder cases. We find that the sentence of death is proportionate in both
murders.
This Court has explained proportionality review as follows:
This Court reviews the proportionality of each death sentence
“to determine whether the crime falls within the category of both the
most aggravated and the least mitigated of murders, thereby assuring
uniformity in the application of the [death] sentence.” Anderson v.
State, 841 So. 2d 390, 407-08 (Fla. 2003) (citation omitted). In
conducting its proportionality review, this Court does not compare the
number of aggravating and mitigating circumstances. Pham v. State,
70 So. 3d 485, 500 (Fla. 2011). Rather, “the Court looks at the
totality of the circumstances to determine if death is warranted in
comparison to other cases where the sentence of death has been
upheld.” Id. (quoting England v. State, 940 So. 2d 389, 408 (Fla.
2006)).
Cozzie v. State, 225 So. 3d 717, 734 (Fla. 2017). A proportionality review
therefore entails “a qualitative review by this Court of the underlying basis for
each aggravator and mitigator rather than a quantitative analysis.” Urbin, 714 So.
2d at 416.
Although the same mitigating circumstances apply, the jury found different
aggravating factors for each murder. Because it has fewer aggravating factors, we
first address the murder of Brown.
As to the murder of Brown, a unanimous jury and the trial court found one
aggravating factor—that Bright was previously convicted of a capital felony or a
felony involving the use or threat of violence to a person or both (great weight).
The aggravator was based upon Bright’s contemporaneous murder of King and his
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1990 conviction for armed robbery. With regard to mitigating circumstances, the
jury found the nonstatutory mitigator that there existed other factors in Bright’s
character, background, or life or the circumstances of the offense mitigating
against the imposition of the death penalty to be established by a vote of one to
eleven. Within this catch-all mitigator, the trial court found thirty-eight
nonstatutory mitigating factors were established, grouped them into six categories,
and assigned each category little or no weight. As explained above, we find no
abuse of discretion in the trial court finding that no statutory mitigating
circumstances had been established.
“[T]his Court has indicated that where only a single valid aggravating
circumstance exists, a sentence of death may be inappropriate.” Mullens, 197 So.
3d at 35. However, where the “single aggravator . . . involved a prior murder or
manslaughter,” this Court has upheld a sentence of death. Green v. State, 975 So.
2d 1081, 1088 (Fla. 2008); accord Almeida v. State, 748 So. 2d 922, 933 (Fla.
1999) (“[T]his Court has affirmed the death penalty in single-aggravator cases
where a prior murder was involved.”).
For example, in Bolin, 117 So. 3d at 728, this Court upheld a death sentence
based on a single prior violent felony aggravator where that aggravator involved
another murder, and the mitigation was not substantial. In Bolin, Bolin stabbed
and beat the victim to death. The death sentence was found to be proportionate
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where the trial court found one aggravator—previously convicted of another
capital felony or of a felony involving the use or threat of violence to the person—
and assigned it great weight. The aggravator was based upon Bolin’s conviction
for another first-degree murder, a kidnapping and rape conviction, and a conviction
for felonious assault. Id. at 742. In mitigation, the trial court found:
(1) age of defendant at time of crime (24)—little weight; and (2) the
following statutory catch-all mitigator of any other factors in the
defendant’s background that would mitigate against imposition of the
death penalty: (a) defendant suffered from the effects of his mother’s
alcoholism and his own substance abuse—little weight; (b) defendant
was abused as a child—some weight; (c) defendant had a poor and
unstable childhood—little weight; (d) defendant had sporadic minimal
education—little weight; (e) defendant received his GED while
incarcerated—little weight; (f) defendant developed skills which
included welding, electrical, plumbing, and small machinery skills—
little weight; (g) defendant saved the life of another—little weight; (h)
defendant was gainfully employed at the time—little weight; (i)
defendant behaved appropriately at trial—little weight; (j) defendant
has adapted to institutional living and had not received any
disciplinary reports—little weight; (k) defendant has been married for
eleven years and he seems to maintain that relationship, considering
the obvious limitations—little weight; and (l ) defendant’s physical
and mental medical history indicates several problems—little weight.
Additionally, the trial court gave some weight to a finding of some
mental or emotional disturbance.
Id. at 741. After considering the facts underlying the prior violent felony
aggravator and noting that the aggravator is one of the most weighty, this Court
characterized the mitigation, which included nonstatutory mitigation similar to that
of Bright, as well as “some mental or emotional disturbance,” as being of
“insubstantial effect” and found the death sentence to be proportionate. Id. at 742;
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see also, e.g., Sheppard v. State, 151 So. 3d 1154 (Fla. 2014) (finding death
sentence to be proportionate where trial court found a single aggravator of violent
felony conviction based upon an almost contemporaneous murder and earlier
violent felonies committed as a juvenile, statutory mitigator of age, and fifteen
nonstatutory mitigators); Rodgers v. State, 948 So. 2d 655, 672 (Fla. 2006) (finding
death penalty proportionate where the trial court found a single aggravator of prior
violent felony conviction based on prior convictions for robbery and manslaughter
and “insubstantial mitigation” consisting of statutory mitigation based on
impoverished background and nonstatutory mitigation); Ferrell v. State, 680 So. 2d
390 (Fla. 1996) (finding death sentence proportionate where the trial court found a
single aggravator of prior violent felony conviction based on second-degree
murder and several nonstatutory mitigating circumstances).
This Court has also found the death sentence proportionate where the single
aggravator was based in part upon a contemporaneous murder and mitigation was
insubstantial. In Bevel v. State, 983 So. 2d 505 (Fla. 2008), Bevel shot and killed
two victims, Stringfield and Sims, and attempted to kill a third. As to the murder
of Stringfield, the trial court found only one aggravating factor, that the defendant
was previously convicted of a capital offense or of a felony involving the use or
threat of violence to some person, and assigned it very great weight. Id. at 513.
The prior violent felony aggravator was based upon the contemporaneous murder
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of Sims, the attempted murder of the third victim, and a prior attempted robbery
conviction. The trial court found six nonstatutory mitigating circumstances and
assigned most little or very little weight.16 Even though it was a single aggravator
case, this Court found the death penalty proportionate given the “minimal
nonstatutory mitigation” and the facts upon which the aggravator was based, i.e.,
the contemporaneous murder of Sims, an attempted murder, and a prior robbery.
Id. at 525. Indeed, in reaching its conclusion, this Court stated that in looking at
the totality of the circumstances, it had to consider the facts upon which the prior
violent felony aggravator was based. See id. at 524.
Bright argues that his case is analogous to Nibert, 574 So. 2d at 1059, where
this Court found a death sentence based on a single aggravator and substantial
mitigation to be disproportionate. In Nibert, Nibert stabbed the victim to death
while the two were drinking. Id. at 1059-60. The trial court found one aggravating
factor—that the murder was committed in an especially heinous, atrocious, or cruel
16. The nonstatutory mitigators found were as follows:
(1) the defendant has religious faith and loves his family members
(minimal weight); (2) defendant confessed to the crime (little weight);
(3) defendant has exhibited good behavior in jail (very little weight);
(4) defendant exhibited good behavior in court (little weight); (5)
defendant has an IQ of 65 (little weight); and (6) defendant struggled
with the death of his mother (very little weight).
Bevel, 983 So. 2d at 513 n.4.
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manner. Id. at 1061. The trial court found no statutory mitigating circumstances
and “possible” nonstatutory mitigation that Nibert had been abused as a child. Id.
On appeal, this Court found that the trial court erred in rejecting the nonstatutory
mitigating circumstance of childhood abuse, as Nibert presented uncontroverted
evidence that his mother was an abusive alcoholic who beat him daily. Id. at 1062.
This Court also found that the trial court should have found the statutory mitigating
circumstances that Nibert lacked the capacity to conform his conduct to the
requirements of the law and that Nibert was under the influence of extreme
emotional or mental disturbance. Id. at 1062-63. Concluding that the death
penalty was disproportionate, this Court noted that “[t]his case involves substantial
mitigation, and we have held that substantial mitigation may make the death
penalty inappropriate even when the aggravating circumstance of heinous,
atrocious, or cruel has been proved.” Id. at 1063. We find that Nibert is
distinguishable from the instant case. While, as in this case, the mitigating
circumstances in Nibert included childhood abuse, unlike the instant case, they
included additional mitigating circumstances—that Nibert’s capacity to control his
behavior was substantially impaired and that Nibert was under the influence of
extreme mental or emotional disturbance. Moreover, in Nibert, the record showed
that Nibert was drinking when he committed the murder and that Nibert lacked
control over his behavior when he drank. Id. Here, however, there is no evidence
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Bright was intoxicated or under the influence of drugs when he murdered King and
Brown.
We hold the death sentence for Brown’s murder to be proportionate.
Although Bright’s death sentence for Brown’s murder was based on a single prior
violent felony aggravator, that one aggravator was based on two crimes—the
contemporaneous murder of King and the 1990 conviction for an armed robbery
Bright committed with a knife. The circumstances of the contemporaneous murder
were brutal. Bright beat King to death, causing thirty-eight blunt impact injuries to
his head and about twenty to his extremities. Dr. Rao testified that King was alive
when the injuries were inflicted, and King suffered extensive defensive wounds.
The trial court assigned this aggravator great weight, and this Court has stated that
the prior violent felony aggravator is one of the most weighty aggravating
circumstances in Florida’s statutory sentencing scheme. See Bolin, 117 So. 3d at
742; Armstrong v. State, 73 So. 3d 155, 175 (Fla. 2011). Bright argues that the
circumstances surrounding the prior violent felony aggravator are not compelling,
speculating that Bright’s attack may have been provoked because live rounds were
found on top of the television and in the carpet and gunpowder residue was found
next to the couch. This argument is not persuasive, however, given that a detective
from the Jacksonville Sheriff’s Office testified that neither King nor Brown had
gunshot residue on his hands. With regard to mitigation, the trial court found that
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six categories of nonstatutory mitigation were established, but assigned them little
or no weight: (1) Bright was the victim of child abuse and neglect (no weight); (2)
Bright’s military career (little weight); (3) Bright’s history of drug and alcohol
abuse (little weight); (4) Bright’s positive relationships with others (little weight);
(5) Bright’s good and mannerly behavior during court proceedings (no weight);
and (6) Bright’s behavior while incarcerated (no weight). This Court has
considered similar nonstatutory mitigation to be of “insubstantial effect.” See
Bolin, 117 So. 3d at 742. Given the totality of the circumstances, including the
weighty aggravator of a prior violent felony that was based upon a brutal,
contemporaneous murder and our review of the mitigation, we conclude that the
death sentence for Brown’s murder is proportionate when compared to other single
aggravator cases where the single aggravator was weighty and the mitigation was
not substantial.
The sentence of death for the murder of King is proportionate as well. As
with the murder of Brown, the jury and the trial court found the prior violent
felony aggravator for the murder of King (great weight). This aggravator was
based in part on the contemporaneous brutal beating death of Brown and Bright’s
1990 conviction for armed robbery. However, the jury and trial court additionally
found the HAC aggravator for the murder of King, which the trial court assigned
great weight. As explained above, there is competent, substantial evidence to
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support the finding of the HAC aggravator. “Qualitatively, prior violent felony
and HAC are among the weightiest aggravators set out in the statutory sentencing
scheme.” Hodges v. State, 55 So. 3d 515, 542 (Fla. 2010)); accord Jordan v. State,
176 So. 3d 920, 936 (Fla. 2015); Gonzalez, 136 So. 3d at 1167; see also Fletcher v.
State, 168 So. 3d 186, 220 (Fla. 2015) (“[T]he HAC aggravator is among the
weightiest of the aggravating circumstances.”). Bright argues that the HAC
aggravator must be considered in light of the fact that Bright felt fearful of King
and Brown because they were threatening him in his home. This argument is
unpersuasive as there was no evidence presented at the penalty phase proceeding
that Bright was in fear of Brown or King, which Bright’s counsel conceded
below.17 Regarding the mitigation, as the mitigating circumstances were the same
for both murders, our consideration of the mitigating circumstances for the murder
of Brown applies equally for the murder of King.
Under the totality of the circumstances, Bright’s sentence of death for the
murder of King is proportionate in relation to other death sentences this Court has
17. As defense counsel stated during the conference on jury instructions:
I’ve agreed that there’s been no evidence presented that [Bright] was
in fear at all of the victims in this case. There was testimony from
Miss Jones that she made efforts to get people out of his house, and
Mr. [sic] Gold was also able to corroborate that. But I’m not going to
alleged [sic] in any way that it was the victims.
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upheld with similar aggravation and similar or more substantial mitigation. See,
e.g., Merck v. State, 975 So. 2d 1054 (Fla. 2007) (finding death sentence
proportionate for stabbing murder where trial court found prior violent felony and
HAC aggravators, statutory age mitigator, and several nonstatutory mitigators,
including a difficult family background, alcohol use the night of the murder, and a
capacity to form positive relationships); Smithers v. State, 826 So. 2d 916 (Fla.
2002) (upholding death sentence where victim died from combination of
strangulation, stabbing, and blunt force trauma to the head and trial court found
prior violent felony aggravator, based on contemporaneous murder, and HAC
aggravator, statutory mitigators of under the influence of extreme mental or
emotional disturbance and capacity to appreciate the criminality of conduct or
conform conduct to the requirements of the law substantially impaired, as well as
nonstatutory mitigation); Singleton v. State, 783 So. 2d 970 (Fla. 2001) (finding
death sentence proportionate where defendant stabbed a supine victim and trial
court found prior violent felony and HAC aggravators and mitigating
circumstances including under the influence of extreme mental or emotional
disturbance, capacity to appreciate the criminality of conduct or to conform
conduct to the requirements of law substantially impaired, alcoholism, and
honorable service in the military); Spencer v. State, 691 So. 2d 1062 (Fla. 1996)
(holding death sentence proportionate where trial court found prior violent felony
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aggravator based on contemporaneous convictions for aggravated assault,
aggravated battery, and attempted second-degree murder; the HAC aggravator;
statutory mitigating circumstances of extreme mental or emotional disturbance and
impaired capacity to appreciate criminality of conduct or to conform conduct to
requirements of law; and nonstatutory mitigating circumstances including drug and
alcohol abuse, sexual abuse, and honorable military record).
Thus, considering the totality of the circumstances in this case, and in
comparison with other death cases, we conclude that the sentences of death are
proportionate for the murders of Brown and King.
Outcome: Having considered each of Bright’s claims, we affirm the sentences of death.
Plaintiff's Experts:
Defendant's Experts:
Comments: