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Date: 04-16-2018

Case Style:


Case Number: SC17-1355


Court: Supreme Court of Florida

Plaintiff's Attorney: Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General

Defendant's Attorney: James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Ann Marie Mirialakis and Ali A. Shakoor

Description: This Court has previously detailed the underlying facts of this case. Hall v.
State (Hall I), 107 So. 3d 262, 267-71 (Fla. 2012). Relevant to the instant
proceeding, Hall, an inmate at Tomoka Correctional Institution (TCI), was
convicted and sentenced to death for the first-degree murder of Correctional
Officer (CO) Donna Fitzgerald. Hall v. State (Hall II), 212 So. 3d 1001, 1009 (Fla.
2017). After a penalty phase, the jury returned a unanimous death sentence. Id. at
1012.1 Hall appealed, and this Court ultimately affirmed his conviction and
sentence. See generally Hall I, 107 So. 3d 262.2 On October 7, 2013, the United
States Supreme Court denied certiorari, Hall v. Florida, 134 S. Ct. 203 (2013);
thus Hall’s case became final on that date.
This Court affirmed the denial of Hall’s initial motion for postconviction
relief and denied his petition for writ of habeas corpus. Hall II, 212 So. 3d at 1036.
During the pendency of his initial postconviction motion, Hall filed a Successive
Motion to Vacate Death Sentence pursuant to Hurst, which was denied by the
postconviction court. This appeal from the first successive motion for
postconviction relief follows.
Hall’s Claims for Relief under Hurst v. State
We affirm the postconviction court’s denial of relief on this claim for the
reasons discussed below. Most importantly, our opinion in Hall II, and our
corresponding Hurst harmless error analysis denying relief within that opinion,
already addressed the issues that Hall now attempts to present.

2. We did, however, find that the trial court’s finding of the CCP aggravator was not supported by competent, substantial evidence, and thus it was stricken. Hall I, 107 So. 3d at 278-79.

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CCP Aggravator Stricken
We conclude that this subclaim of Hall’s successive postconviction motion
fails on the merits. Notably, aside from Wood v. State, 209 So. 3d 1217, 1234 (Fla.
2017), which is distinguished below, Hall presents no binding precedent that
supports his assertion that the stricken CCP aggravator in his case is sufficient to
receive Hurst relief. Moreover, as discussed below, our recent decisions in
Middleton v. State, 220 So. 3d 1152 (Fla. 2017), cert. denied, 138 S. Ct. 829
(2018), and Cozzie v. State, 225 So. 3d 717, 729 (Fla. 2017), cert. denied, No. 17
7545 (U.S. Apr. 2, 2018), support the contrary conclusion.
In Wood, we struck both the CCP and avoid arrest aggravating factors,
which were two of the three aggravators found by the trial court and to which it
assigned “great weight.” Id. at 1233. In ultimately determining that the error in
Wood was not harmless, we emphasized:
In this case the jury was instructed on both aggravating factors that we have determined were not supported by competent, substantial evidence. This alone would require a finding that the error was not harmless beyond a reasonable doubt. We note that our conclusion in this regard is also consistent with our pre-Hurst precedent in Kaczmar v. State, 104 So. 3d 990, 1008 (Fla. 2012), where we held that, upon striking the CCP and felony-murder aggravating factors so that only one valid aggravating factor remained, such error was not harmless beyond a reasonable doubt. Post-Hurst, this conclusion is even more compelling.

. . . [T]he jury would have had to make these factual determinations that the sole valid aggravating factor—that the capital felony was committed while Wood was engaged, or was an

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accomplice in the commission of a burglary and or robbery— outweighed the mitigating circumstances established. “[W]e are not so sanguine as to conclude that [Wood’s] jury . . . would have found [this sole aggravating factor] sufficient to impose death and that [this sole aggravating factor] outweighed the mitigation.”
Id. at 1234 (alterations in original) (emphasis added) (quoting Hurst, 202 So. 3d at
68). In determining that the error was harmful, we repeatedly emphasized that our
conclusion was influenced by the fact that two of the three aggravators presented
were stricken, leaving only one valid aggravating factor for the jury to properly
consider. Thus the harmless error analysis in Wood was based on the Court’s
determination that the remaining sole valid aggravating factor was not sufficient to
support the sentence of death.3
Wood is distinguishable from Hall’s case for numerous reasons. Firstly,
even after striking the CCP aggravator, Hall had four valid remaining aggravators,
all of which were afforded either “great weight” or “very great weight,”4 as

3. Ultimately, in Wood, we did not order a new penalty phase because we determined that Wood’s death sentence was a disproportionate punishment when the aggravators were stricken. 209 So. 3d at 1234.
4. “(1) [P]reviously convicted of a felony and under sentence of imprisonment—great weight; (2) previously convicted of another capital felony or of a felony involving the use or threat of violence to the person—great weight; (3) committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws—great weight; (4) especially heinous, atrocious or cruel— very great weight; [and] (5) . . . the victim of the capital felony was a law enforcement officer engaged in the performance of his or her official duties—no weight—merged with aggravator number 3 as listed above.” Hall I, 107 So. 3d at 270-71.

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opposed to the one remaining aggravator found in Wood. Secondly, three of the
remaining aggravators found in Hall’s case (i.e., under sentence of imprisonment,
previously convicted of another violent felony, and the victim was a law
enforcement officer) were without dispute. Thus as we stated in our harmless error
analysis in Hall II,
Presuming that the jury did its job as instructed by the trial court, we are convinced that it would have still found the aggravators greatly outweighed the mitigators in this case. Indeed, it is inconceivable that a jury would not have found the aggravation in Hall’s case unanimously, especially given the fact that three of the aggravators found were automatic . . . .
212 So. 3d at 1035. It is also worth noting that this Court, in conducting its
harmless error analysis in Hall II, did not include the invalidated CCP aggravator
in its analysis. Id. Instead, we found that the Hurst error, as it related to Hall’s
case, was harmless, even without the stricken CCP aggravator. Id. Thus we
conclude that Wood is distinguishable from Hall’s case.
Two other cases recently decided by our Court, Middleton and Cozzie, also
lend support to the postconviction court’s denial of this subclaim of Hall’s
successive postconviction motion.
Middleton involved a unanimous jury recommendation of death, where this
Court ultimately struck the avoid arrest and CCP aggravators. 220 So. 3d at 1172.
There, we explained:

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“When this Court strikes an aggravating factor on appeal, ‘the harmless error test is applied to determine whether there is no reasonable possibility that the error affected the sentence.’ ” Williams v. State, 967 So. 2d 735, 765 (Fla. 2007) (quoting Jennings v. State, 782 So. 2d 853, 863 n.9 (Fla. 2001)); see also Diaz v. State, 860 So. 2d 960, 968 (Fla. 2003) (“We find this error harmless, however, after consideration of the two remaining aggravating circumstances and the five mitigating circumstances in this case.”). Despite striking the avoid arrest and CCP aggravators, two valid aggravators remain in this unanimous death-recommendation case. The two aggravators which remain are that the murder was especially heinous, atrocious, or cruel (HAC) and that is was committed during the commission of a burglary and for pecuniary gain, which were each given “great weight” by the trial court.
Id. In finding that the error in Middleton was harmless, we noted that there was no
statutory mitigation and that “the trial court expressly stated that any of the
considered aggravating circumstances found in this case, standing alone, would be
sufficient to outweigh the mitigation in total presented.” Id.5 Thus because there
was no reasonable possibility that the erroneous aggravators contributed to
Middleton’s sentence, we ultimately concluded that any errors there were
harmless. Id.
Hall’s case is similar to Middleton because significant aggravation remained,
even without the stricken CCP aggravator, that “far outweighed the mitigation.”
Hall I, 107 So. 3d at 271. Furthermore, three of the remaining aggravators present

5. The trial court in Middleton found eleven nonstatutory mitigators, all of which were afforded “some weight” or “little weight.” 220 So. 3d at 1173.

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in Hall are without and beyond dispute. The fourth aggravator that remains, HAC,
is one of the weightiest in Florida, see Jackson v. State, 18 So. 3d 1016, 1035 (Fla.
2009), and was afforded “very great weight” by the trial court. Thus we conclude,
as we have previously in Hall’s initial postconviction case, that any error in Hall’s
case, like the errors in Middleton, was harmless. See Hall II, 212 So. 3d at 1035
36 (finding any Hurst error harmless).
Similarly, in Cozzie, we determined that “[e]ven if the avoid arrest
aggravator were stricken . . . the unanimous death recommendation would still
remain, along with the aggravators of CCP, HAC, and in the course of a felony,
which are among the weightiest aggravators in our capital sentencing scheme.”
225 So. 3d at 729. Furthermore, the remaining aggravators in Cozzie were
afforded “great weight” by the trial court. Id.6 Thus we ultimately determined that
“any possible error was harmless because there was not a reasonable possibility
that [Cozzie] would have received a life sentence without the trial court finding of
the [avoid arrest] aggravator.” Id. (alterations in original) (quoting Aguirre
Jarquin v. State, 9 So. 3d 593, 608 (Fla. 2009)).

6. The trial court found one statutory mitigator and twenty-five nonstatutory mitigators in Cozzie. Ultimately, the trial court, in weighing the aggravation and mitigation in Cozzie, concluded that the aggravators “far outweighed” the mitigators in sentencing Cozzie to death. 225 So. 3d at 726.

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Hall has significant and weighty aggravation beyond the invalidated CCP
aggravator. Further, the trial court in both Cozzie and here concluded that the
aggravating circumstances “far outweigh[ed]” the mitigating circumstances. Id. at
725; see Hall I, 107 So. 3d at 271. Thus we conclude that Cozzie is factually
similar to Hall’s case.
Both Hall and the dissent attempt to conflate nonbinding, dissenting
opinions with our binding post-Hurst death penalty precedent. However, as
discussed above, our binding precedent dictates our conclusion that Hall’s stricken
CCP aggravator is harmless beyond a reasonable doubt.
We deny this subclaim of Hall’s successive postconviction motion.
Mental Health Mitigation Presentation
We deny this subclaim in the successive postconviction motion because this
Court has already heard and addressed the mental health mitigation in Hall’s initial
postconviction motion. Thus this claim is procedurally barred. In addition, even
when considered on the merits, we conclude that this subclaim fails.
In his initial postconviction motion, Hall extensively asserted the claim that
trial counsel was ineffective for not presenting mental health mitigation to the jury.
Similarly, in our opinion on Hall’s initial postconviction motion, we addressed the
issue and determined that the trial court’s ruling on counsel’s strategy was
supported by competent, substantial evidence. Hall II, 212 So. 3d at 1027-29.

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Thus we conclude that this subclaim is procedurally barred, as it was raised and
denied on Hall’s previous postconviction motion. See Hunter v. State, 29 So. 3d
256, 267 (Fla. 2008).
Nevertheless, we also conclude that the subclaim should be denied on the
merits. Primarily, under Hurst harmless error, this Court must look to the potential
effect on the trier-of-fact, not on the potential effect on trial counsel’s trial strategy.
Hurst, 202 So. 3d at 68-69. Additionally, we have previously held that trial
counsel is not required to anticipate changes in the law to provide effective legal
representation. See Lebron v. State, 135 So. 3d 1040, 1054 (Fla. 2014) (“This
Court has ‘consistently held that trial counsel cannot be held ineffective for failing
to anticipate changes in the law.’ ” (quoting Cherry v. State, 781 So. 2d 1040, 1053
(Fla. 2000))). Furthermore, under Strickland v. Washington, 466 U.S. 668 (1984),
claims of ineffective assistance of counsel are assessed under the law in effect at
the time of the trial. Id. at 689. Thus we conclude that Hall’s subclaim also fails
on the merits.
Caldwell v. Mississippi, 472 U.S. 320 (1985).
We deny this subclaim of Hall’s successive postconviction motion because it
fails on the merits. We have repeatedly rejected Caldwell challenges to the
advisory standard jury instructions in the past. See, e.g., Rigterink v. State, 66 So.
3d 866, 897 (Fla. 2011); Globe v. State, 877 So. 2d 663, 673-74 (Fla. 2004); Card

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v. State, 803 So. 2d 613, 628 (Fla. 2001); Sireci v. State, 773 So. 2d 34, 40 nn.9 &
11 (Fla. 2000); Teffeteller v. Dugger, 734 So. 2d 1009, 1026 (Fla. 1999); Brown v.
State, 721 So. 2d 274, 283 (Fla. 1998); Burns v. State, 699 So. 2d 646, 655 (Fla.
1997); Johnson v. State, 660 So. 2d 637, 647 (Fla. 1995). Additionally, as
discussed in detail in our recent opinion in Reynolds v. State, No. SC17-793 (Fla.
Apr. 5, 2018) (plurality opinion), we have now expressly rejected these post-Hurst
Caldwell claims. See also Franklin v. State, 43 Fla. L. Weekly S86 (Feb. 15,
2018). Thus we deny relief on this subclaim of Hall’s successive postconviction
Hall’s Sentence Violates Due Process
We deny this subclaim of Hall’s successive postconviction motion because
we have already addressed a Hurst harmless error analysis as it pertains to Hall’s
case in Hall II. 212 So. 3d at 1033-36. Thus this subclaim is duplicative.
Furthermore, the authority upon which Hall relies in support of his
argument, In re Winship, 397 U.S. 358 (1970), is not determinative. The United
States Supreme Court, in In re Winship, held that the State must prove all elements
of a crime in a juvenile delinquency proceeding beyond a reasonable doubt, just as
it would in an adult criminal proceeding, and that the failure to do so would result
in a due process violation. 397 U.S. at 367-68. We conclude that In re Winship is
distinguishable from Hall’s case, however, because Hall’s case does not concern a

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juvenile delinquency proceeding. Moreover, although Hurst did result in the
requirement that all aggravators and mitigators be proven beyond a reasonable
doubt, as we previously stated in Hall II, the error in Hall’s case was harmless. See
212 So. 3d at 1033-36 (discussing how the error was harmless due to Hall’s
unanimous death sentence). Thus we conclude that Hall’s death sentence does not
violate due process and thus hold that this subclaim is meritless.
Hall’s Death Sentence Violates the Eighth Amendment
We deny this claim of Hall’s successive postconviction motion because
there was no harmful error in this case. Hall II, 212 So. 3d at 1036. In Hurst, we
held that unanimity is required under the Eighth Amendment. Similarly, we have
determined that defendants whose sentences became final post-Ring and who
received unanimous jury recommendations are not entitled to Hurst relief if the
error is deemed to be harmless pursuant to Davis v. State, 207 So. 3d 142, 173-75
(Fla. 2016). Hall’s jury returned a unanimous recommendation, Hall I, 107 So. 3d
at 270, his sentence became final after Ring, see Hall v. Florida, 134 S. Ct. 203,
and the Hurst error was harmless. Therefore, we deny this claim of Hall’s
successive postconviction motion.
Hall’s Indictment
Finally, Hall’s argument with regard to his indictment also fails. Hall argues
that he was denied his right to a proper indictment because the grand jury

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indictment in his case did not list the aggravators. However, “this Court has
repeatedly rejected the argument that aggravating circumstances must be alleged in
the indictment.” Pham v. State, 70 So. 3d 485, 496 (Fla. 2011) (citing Rogers v.
State, 957 So. 2d 538, 554 (Fla. 2007); Coday v. State, 946 So. 2d 988, 1006 (Fla.
2006); Ibar v. State, 938 So. 2d 451, 473 (Fla. 2006); Blackwelder v. State, 851 So.
2d 650, 654 (Fla. 2003); Kormondy v. State, 845 So. 2d 41, 54 (Fla. 2003)).
Nothing in Hurst indicates that our holding impacted this settled point of law; and
we have also held prior to Hurst that “neither Apprendi nor Ring requires that
aggravating circumstances be charged in the indictment.” Rogers, 957 So. 2d at
554. Therefore, Hall’s indictment claim fails.

Outcome: For the reasons set forth above, we affirm the postconviction court’s order
denying Hall relief on his successive motion for postconviction relief.

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