Supreme Court of Florida
                            ____________

                         No. SC2023-0058
                           ____________

                     TIMOTHY W. FLETCHER,
                           Appellant,

                                 vs.

                       STATE OF FLORIDA,
                            Appellee.

                           July 17, 2025

FRANCIS, J.

     Appellant, Timothy W. Fletcher, appeals his sentence of death 1

imposed after his Hurst 2 resentencing. We affirm.

                            I. Background

     Fletcher was convicted and sentenced to death in 2012 for the

first-degree murder of Helen Googe in 2009. Fletcher v. State, 168




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

     2. See Hurst v. State, 

 (Fla. 2016) (interpreting
Hurst v. Florida, 

 (2016), as requiring a unanimous jury
recommendation for death), receded from in part by State v. Poole,

 (Fla. 2020).
So. 3d 186 (Fla. 2015). As we detailed in Fletcher, Fletcher

confessed that he and his cellmate, Doni Ray Brown, escaped from

the Putnam County Jail with a plan to acquire money from Googe,

Fletcher’s grandfather’s ex-wife, whom Fletcher believed kept a large

sum in a safe at her home. When interviewed by detectives,

Fletcher changed his story several times, claiming he played only a

passive role in the murder and that Brown killed Googe. When

detectives confronted Fletcher with the fact that he had visible

scratches and injuries on his arms and Brown had none, and with

the fact that they could test for DNA under Googe’s fingernails,

Fletcher changed his story, admitting he had a much more active

role but maintaining that Brown killed Googe.

     Fletcher’s story was that after escaping jail and stealing a

vehicle, he and Brown made their way to Googe’s home, entered at

night while she slept, and retrieved one of his grandfather’s

revolvers. They then entered Googe’s bedroom, startled her awake,

and tied her hands with a phone cord. Googe screamed but was

reassured she would be okay if she followed their instructions.

     Brown and Fletcher then questioned Googe about her money.

Googe was uncooperative, denied having a safe, denied having a


                                -2-
credit card, and said she only had $37 in her purse. When Googe

attempted to escape, Fletcher said that Brown physically pinned her

down on the bed, and Fletcher threatened her with a gun, telling

her to stop kicking her legs.

     Googe finally went with Fletcher and Brown to the safe

but attempted to escape again to the bathroom and hit Brown

with a hairdryer. According to Fletcher, Brown retaliated by

pinning her down on her bed and putting a pillow over her

face. Googe continued fighting back.

     Fletcher intervened and took them back to the safe. He

recounted that Googe’s hands were “visibly shaking” as she

tried to open it. Because there was no money, and Googe

continued to deny she had any, Fletcher said Brown made two

attempts to kill Googe while she was in the fetal position on

the floor—one by strangulation and one by breaking her neck.

     After those attempts failed, Fletcher and Brown

physically carried Googe by her head and feet to her den. She

fought back, kicking out at Brown, who had one of her legs,

and scratching Fletcher, who had her head. Fletcher called

her a bitch and dropped her. When she tried to get up,


                                -3-
Fletcher admitted to becoming violent, striking her “in the

head three times—once on the cheek and twice high on the

side of her head—with an open hand.” Id. at 196. During his

post-arrest statement, Fletcher explained he struck her

because “she was being ignorant” and “wanted to fight.” Id.

“All she had to do was just be quiet and give up the $37

and . . . say what the PIN number is to her credit card and she

would have just got tied up and left.” Id.

     After striking Googe, Fletcher claimed Brown got on top

of her again and choked her with both hands while Fletcher

held her legs down. Though she stopped moving, she made

“snoring noises.” Id. According to Fletcher, Brown placed a

plastic bag over Googe’s head and tied a phone cord around it,

at her neck. Fletcher said “[t]he bag became foggy.” Id. He

claimed he left the room and when he returned a few minutes

later, Brown told him that Googe was dead.

     Afterward, Brown and Fletcher took Googe’s car and fled

to the home of Brown’s aunt. Brown’s aunt later testified that

Brown had no scratches or physical injuries to his arms.




                                 -4-
     The physical evidence presented at Fletcher’s 2012 trial

generally corroborated his version of events leading up to the

cause of death. However, the medical examiner determined

Googe’s death was caused by manual forced strangulation,

noting she had bruising under her chin consistent with

someone’s thumbs squeezing down on her neck and that her

larynx was fractured. Also, the DNA under Googe’s fingernails

belonged to Fletcher, who had scratches on his arms.

     The jury unanimously found Fletcher guilty and

recommended death by a vote of eight to four. We affirmed on

direct appeal in Fletcher.

                         New Penalty Phase

     Because the jury’s penalty phase recommendation was not

unanimous, Fletcher successfully moved for postconviction relief in

2016 under Hurst, and the trial court granted a new penalty phase

and resentencing. Before the new penalty phase, Fletcher filed

several relevant motions in limine, the first two of which were

granted: (1) a motion to limit victim impact evidence, which was

partly granted and limited the State to three statements; and (2) a

motion to preclude improper closing argument that denigrates or


                                -5-
converts mitigation into aggravation based on the same prosecutor’s

prior statements during Fletcher’s guilt and first penalty phases.

See Fletcher, 168 So. 3d at 209-16. Fletcher’s other motions, to (3)

declare each of the four aggravating factors in his case

unconstitutional both facially and as applied, and (4) give a special

jury instruction on mercy, were denied.

     At his new penalty phase, the State sought to prove four

statutory aggravators: (1) the murder was committed while the

defendant was under sentence for a prior felony conviction; (2) the

murder was committed while the defendant engaged in the

commission or attempted commission of a robbery; (3) the murder

was committed for pecuniary gain; and (4) the murder was

especially heinous, atrocious, or cruel (HAC). See § 921.141(6)(a),

(d), (f), (h), Fla. Stat. (2022). In support of these aggravators, the

State presented much of the same evidence presented at Fletcher’s

2012 trial through eight witnesses, as recounted in Fletcher. The

evidence included publication of Fletcher’s lengthy partial

confession; testimony about the DNA evidence linking him to

Googe’s body; the judgment and sentence for Fletcher’s previous

burglary convictions; and, over Fletcher’s renewed objection, three


                                  -6-
victim impact statements from the original trial, given by: (1) Debra

Black, the victim’s daughter; (2) Kristofer Key, the victim’s nephew;

and (3) Randall Key, the victim’s brother. The State then rested.

     Fletcher sought to establish forty-nine mitigating

circumstances, including four statutory mitigators, through four

witnesses: (1) Dr. Daniel Buffington, a pharmacologist and

toxicologist; (2) Dr. Jennifer Rohrer, a forensic psychologist; (3)

Jeffrey Fletcher, Fletcher’s younger brother; and (4) Roy Lee Walker

Jr., Fletcher’s best friend. 3 All four witnesses testified to Fletcher’s



       3. These mitigators were that Fletcher: (1) entered a plea to
first-degree murder, along with codefendant Brown (uncontested,
great weight); (2) was under the influence of extreme mental or
emotional disturbance at the time of the murder, see §
921.141(7)(b) (not proven); (3) had substantially impaired capacity
to appreciate the criminality of his conduct or conform his conduct
to the requirements of the law, see § 921.141(7)(f) (not proven); (4)
had a young age at the time of the murder, see § 921.141(7)(g)
(undisputed, was 25 at time of murder, slight weight); (5) & (6)
suffered extreme emotional and physical abandonment
(respectively) (proven on both, slight weight); (7) was unable to form
lasting, safe relationships (uncontested, slight weight); (8) was
terrified of his abusive father (same); (9) had no role models during
his early childhood development (proven, slight weight); (10) was
not protected by his mother (same); (11) & (12) had alcoholic
parents (mother and father, respectively) (same); (13-15) was
diagnosed with mental health disorder (ADHD), alcohol dependence,
and substance use disorder involving cocaine, methamphetamines,
and opiates (respectively) (uncontested, slight weight on each); (16)
has post-traumatic stress disorder (PTSD) (not proven); (17) & (18),

                                  -7-
(20) & (21) experienced extreme environmental trauma—
homelessness, domestic instability, witnessed his father physically
abuse his mother, and witnessed his parents use alcohol in excess
(respectively) (uncontested or proven, slight weight on each); (19)
experienced extreme domestic violence as a child (uncontested,
slight weight); (22) was encouraged by maternal grandfather to steal
for him (same); (23) received no medical attention for years of abuse
(same); (24) never received emotional support for years of trauma
(same); (25) never received mental health counseling for years of
abandonment (same); (26) attempted to self-medicate and cure
himself with alcohol (proven, slight weight); (27) made several
suicide attempts (proven as to one attempt, no weight); (28) was
always treated as an outsider (reasonably inferred from other
evidence but no weight); (29) & (30) has low self-esteem and no self-
confidence (respectively) (proven, slight weight); (31) experienced
long-term emotional trauma from his childhood (proven but no
independent evidentiary value, no weight); (32) suffered from
depression for many years before being diagnosed (proven, slight
weight); (33) was never treated for PTSD (unproven); (34) has a
biological father who may suffer from mental illness (no direct
evidence but given slight weight); (35) has no well-defined social
skills (proven, slight weight); (36)-(38) is a product of his
environment and has always been at risk for failure to achieve, was
failed by his parents at a young age, and failed by a system that
should have protected him from his abusive and impoverished
environmental conditions (considered together, uncontested, slight
weight); (39) suffers from anxiety and inability to control stressors
(proven, slight weight); (40) was conceived out of wedlock (same);
(41) was bullied unmercifully by his father (proven but no weight);
(42) has impaired problem-solving skills (not proven); (43) has
adaptive deficits (proven, no weight); (44) is diagnosed with bi-polar
disorder (proven, no weight because already accounted for
impulsivity); (45) was the victim of sexual abuse (proven, no weight);
(46) has learning disabilities (uncontroverted, no weight in light of
escape plan); (47) & (48) had been consuming methamphetamine
up to the time of his escape and the homicide and was
consequently sleep-deprived (respectively) (not proven); and (49) any
other circumstances in his character, background, and life that

                                -8-
difficult, abusive, and impoverished childhood during which he

witnessed domestic violence and alcoholism; experienced parental

abandonment, neglect, and mistreatment; and was encouraged by

his grandfather to steal for him. Fletcher tried alcohol when he was

six, marijuana when he was eleven, and cocaine in his teens. He

was ultimately diagnosed with attention deficit hyperactivity

disorder (ADHD), alcohol dependence, and substance use disorder

involving cocaine, methamphetamine (“meth”), and opiates.

     Dr. Buffington and Dr. Rohrer also opined that Fletcher was

under the influence of extreme mental or emotional disturbance at

the time of the murder, a statutory mitigator under section

921.141(7)(b), due to his reported use of meth during the four days

leading up to his escape. Dr. Buffington explained that meth

makes people feel strong and powerful but impairs judgment;

causes confusion, impulsivity, and hyperexcitability; and keeps

them awake.

     However, on cross, both experts agreed Fletcher’s meth use

was based on self-reporting. Brown also told police they had not



mitigate against imposing the death penalty, see § 921.141(7)(h)
(moderate weight overall).

                                -9-
been using drugs prior to the escape, and no drug paraphernalia

was found in their shared cell. Further, the State’s forensic

toxicologist, Dr. Bruce Goldberger, testified that meth is very

impairing, and, had Fletcher been using it, it would have affected

his ability to do complex tasks, like escape from jail, conceal the

escape, steal a car, and find Googe’s house. The State’s other

expert, Dr. Gregory Prichard, a forensic psychologist who

interviewed Fletcher before his first trial in 2012, and before his

new penalty phase in 2022, agreed that Fletcher’s planning and

procuring the tools needed for the escape were inconsistent with

meth impairment.

     As to Fletcher’s mental health history, both his experts

testified that, based off Fletcher’s records, he had a history of

suicidal ideations. Dr. Rohrer noted he made two suicide attempts

in his teens. However, the State’s witness, Dr. Prichard, testified

that this did not match what they knew of Fletcher, who previously

reported that he never tried to kill himself.

     Fletcher’s experts also testified that Fletcher had been

diagnosed with several mental health conditions, including bipolar

disorder, depressive disorder, and ADHD. While in jail, Fletcher


                                 - 10 -
was additionally diagnosed with anxiety, insomnia, and antisocial

personality disorder.

     Given Fletcher’s bipolar diagnosis in particular, Dr. Rohrer

opined that Fletcher had a substantially impaired capacity to

appreciate the criminality of his conduct or conform his conduct to

the requirements of the law, a statutory mitigator under section

921.141(7)(f). She also evaluated Fletcher for PTSD and found his

results were consistent with PTSD in childhood.

     However, on cross, Dr. Rohrer agreed that some of Fletcher’s

bipolar symptoms could be explained by other disorders and agreed

that the mania associated with the disorder was not present in any

of Fletcher’s records. She also agreed that Fletcher did not avoid

triggering traumas, a symptom required for a PTSD diagnosis.

     The State’s witness, Dr. Prichard, also opined that Fletcher’s

crimes contradicted the avoidance symptom for PTSD, and the

indication of childhood PTSD in Fletcher’s records was based on his

own self-reporting in 2008. He agreed there was no evidence of




                               - 11 -
mania in Fletcher’s records but there was depression and

polysubstance abuse.4

     Additionally, defense counsel asked Dr. Rohrer about

Fletcher’s antisocial personality disorder diagnosis, which the

State’s expert, Dr. Prichard, agreed with and opined was probably

his primary diagnosis. She explained that it is a “characterological”

personality disorder, not a mental illness, that is marked by poor

impulse control and a “persistent disregard for the rights of others”

that is largely based on criminal behavior and “disregarding the

law, evidenced by repeated arrests.” On cross, she agreed that

another marker of antisocial personality disorder is deceitfulness.

     The State’s witness, Dr. Prichard, similarly testified that

antisocial personality disorder is something different from an

“organic mental illness” like bipolar disorder. He agreed it is

“characterological” and explained that the “benchmark issue with

antisocial personality people is that they don’t conform their



     4. As for Fletcher’s other diagnoses in his record, Dr. Prichard
explained to the jury that in a correctional setting, when a doctor
prescribes a drug to treat a symptom that is being reported, the
doctor must notate any mental health diagnoses reported by the
patient/inmate, whether the patient meets the criteria or not.


                                - 12 -
behavior to requirements of the law, so they get arrested a lot. . . .

[I]t’s also known as the criminal personality.” He also agreed that

persons with this condition are usually deceitful.

     During closing, the prosecutor commented on the evidence

that Fletcher had antisocial personality disorder, asking rhetorically

what was mitigating about having that disorder. 5 This drew an

objection from the defense, which the trial court anticipated given

its pretrial order. Later, out of the jury’s hearing, the trial court

denied Fletcher’s motion for mistrial but offered to give a curative

instruction. Defense counsel did not object.

     Ultimately, the jury unanimously found the existence of all

four aggravating factors beyond a reasonable doubt, found the



     5. In context, the following exchange occurred:

           PROSECUTOR: What antisocial personality is, it’s a
     character trait. It’s characterological. And what that
     means is, is that there’s a history with Timothy Fletcher
     of breaking the law, of violating the rights of others.
     Another characteristic is deceitfulness.
           So in what way is that mitigating? It’s not. It’s not
     mitigating. It just tells us about his character. There’s
     nothing organic in terms of his --
           DEFENSE: Judge, may we approach?
           THE COURT: No. Sustained. The jury will
     disregard the last argument, that is, it being argued as a
     mitigating circumstance.

                                 - 13 -
aggravators were not outweighed by the mitigators, and

unanimously recommended death. However, based on the wording

of the question concerning whether any mitigators had been proven

by the greater weight of the evidence, the jury marked “no”:




The jury was polled and agreed that this was its verdict.

     After the jury was dismissed, the trial court expressed concern

over the answer to the mitigation interrogatory given the amount of

uncontested mitigation evidence presented and requested briefing

before the Spencer 6 hearing.

                       New Spencer Hearing

     At the Spencer hearing held on November 22, 2022, Fletcher

presented evidence of two other mitigating circumstances. First,

Aubrey Land, a retired law enforcement correctional professional




     6. Spencer v. State, 

 (Fla. 1993).


                                - 14 -
and now consultant, testified that if given a life sentence, Fletcher

could adjust well and be well-suited to teaching and tutoring other

inmates who want to earn a GED or similar degrees. Second,

Fletcher made an unsworn statement expressing remorse to the

victim’s family. Additionally, the trial court sua sponte considered

the evidence of Fletcher’s antisocial personality disorder as

mitigation. The trial court afforded each of these mitigators slight

weight in the sentencing order.

                      New Sentencing Hearing

     Fletcher’s sentencing hearing was held on January 3, 2023,

and the judge issued his order that same day. The court found the

existence of all four aggravating factors but merged two, for a final

finding of three aggravating factors that were each assigned great

weight: (1) prior felony conviction and under sentence of

imprisonment; (2) murder committed for pecuniary gain (committed

during the commission of a robbery); and (3) HAC.

     The court considered fifty-two mitigating factors and found

seven were not supported by the evidence, including the two

contested statutory mitigators. The court gave great weight to one

statutory mitigator—that codefendant Brown was sentenced to


                                  - 15 -
life—and slight or no weight to other individual mitigators.

Cumulatively, Fletcher’s mitigation was given moderate weight.

     The trial court was concerned over the jury’s recommendation

due to its finding of “no” mitigation and “seriously considered” what

weight to assign it. Ultimately, he followed the recommendation

and sentenced Fletcher to death.

                         Claims on Appeal

     Fletcher appeals, raising nine issues. Six of Fletcher’s claims

are preserved: (1) whether the prosecutor’s statements during the

penalty phase closing argument improperly denigrated and

converted Fletcher’s antisocial personality disorder diagnosis into

aggravation; (2) whether the jury engaged in “reverse jury

nullification” by finding on the verdict form that “no” mitigation was

found to exist; (3) whether the lower court abused its discretion by

denying Fletcher’s request for a special mercy instruction; (4)

whether victim impact evidence should be permitted during the

penalty phase; (5) whether this Court should recede from Lawrence 7

and reinstate proportionality review; and (6) whether Florida’s



     7. Lawrence v. State, 

 (Fla. 2020).


                                - 16 -
capital sentencing scheme and the aggravators applied in Fletcher’s

case are unconstitutional both facially and as applied.8 Fletcher

also raises two unpreserved claims as fundamental error: (7)

whether placing the burden of proof on the defendant to establish

mitigators at the penalty phase violates the Eighth Amendment;

and (8) whether the sentencing court’s failure to give the

Enmund/Tison 9 instruction to the jury and make a specifically

labeled Enmund/Tison finding in the sentencing order requires

reversal. Finally, (9) Fletcher claims that the cumulative effect of

these alleged individual errors requires reversal for a new penalty

phase. 10 As explained below, we conclude that Fletcher is not

entitled to relief and affirm.



      8. Fletcher also raises a subclaim that the cold, calculated,
premeditated aggravator (CCP) is unconstitutional. To the extent it
is part of his facial challenge overall, it is properly raised. But any
as-applied challenge to the CCP aggravator is improper because it
was not an aggravator in Fletcher’s case.

    9. Enmund v. Florida, 

 (1982); Tison v. Arizona,

 (1987).

      10. Fletcher was appointed substitute appellate counsel after
all briefing concluded, and substitute counsel moved to file an
amended initial brief and restart all briefing. The State objected,
and that objection was sustained.


                                 - 17 -
                            II. Discussion

     At the outset, because we conclude that Fletcher is entitled to

no relief on any of his individual claims, we deny claim (9), his

cumulative error claim, without further discussion. Additionally,

because this Court has repeatedly rejected claims (3) (special mercy

instruction)11 and (5) (reinstatement of proportionality review), 12 we

deny these claims without further discussion.

                    A. Fletcher’s Preserved Claims

    Denigration of Antisocial Personality Disorder (claim 1)

     First, Fletcher generally challenges the prosecutor’s comment

during closing argument asking the jury a rhetorical question as to

how Fletcher’s antisocial personality disorder could be mitigating.




     11. Fletcher’s jury was given Standard Jury Instruction 7.11,
which “[w]e have repeatedly determined . . . adequately informs
jurors of the applicable legal standard.” Bevel v. State, 

, 597 (Fla. 2023), cert. denied, 

 (2024); see also
Woodbury v. State, 

, 656 (Fla. 2021) (rejecting
special instruction on mercy because “Standard Jury Instruction
7.11 is not ambiguous when it comes to addressing the jurors’
options” to show mercy and impose a life sentence instead of a
death sentence).

     12. We have repeatedly declined the invitation to recede from
Lawrence and reinstate automatic appellate proportionality review.
See, e.g., Cruz v. State, 

, 723 (Fla. 2021).

                                 - 18 -
He argues that this comment was an improper attempt to convert

mitigating evidence into aggravating evidence in violation of the trial

court’s order on Fletcher’s pretrial motion in limine.13 However, the

trial court sustained Fletcher’s objection to this comment during

the penalty phase and gave a curative instruction. Thus, on appeal,

instead of raising a claim of trial court error, Fletcher focuses on

censuring the prosecutor for failing to abide by the pretrial order

prohibiting such arguments to the jury after allegedly doing so in

Fletcher. 14



      13. Even though Fletcher’s antisocial personality disorder was
not introduced as a mitigator, aspects of that diagnosis—such as
Fletcher’s lack of impulse control—were meant as mitigation.

      14. In Fletcher, however, Fletcher’s claim that the prosecutor’s
penalty phase comments denigrated his mitigation evidence was not
aimed at any comment about his antisocial personality disorder.
Instead, Fletcher claimed the comments were aimed at Fletcher’s
proposed mitigators, such as his addiction to drugs, history of
depression, witnessing his mother being physically abused, and
artistic ability, all upon which the prosecutor commented that a lot
of people have these things but “do not murder other people.” 168
So. 3d at 214-16. This Court rejected Fletcher’s claims, finding the
prosecutor “did not contend that the mitigating circumstances
presented were invalid or excuses,” nor did the prosecutor
“characterize the mitigation evidence in a negative way.” Id. at 215.
The issues with Fletcher’s antisocial personality disorder diagnosis
came out, instead, during the testimonies of the experts—Dr.
Prichard for the State and Dr. Krop for the defense. Both discussed
the “psychopathy” checklist in testifying how they diagnosed

                                 - 19 -
     Because Fletcher’s argument was sustained and the trial court

gave a curative instruction, Fletcher must demonstrate the trial

court abused its discretion in denying his motion for mistrial. But

Fletcher’s brief on this point does not even reference the decision on

the motion for mistrial, let alone explain how the trial court’s

decision constituted an abuse of discretion. As a result, this claim

is inadequately briefed and cannot form the basis for relief. See

Cole v. State, 

, 1063 n.14 (Fla. 2024).

     To the extent Fletcher challenges the ruling on his motion for

a mistrial, a decision on a motion for mistrial “is within the sound

discretion of the trial court and should be granted only when



Fletcher with antisocial personality disorder, and, given that
context, this Court rejected Fletcher’s claim that the State elicited
testimony of “future dangerousness” based on Dr. Prichard’s
description of antisocial personality disorder as a “chronic
disorder.” Id. at 210. This Court also held that Fletcher opened the
door to Dr. Prichard’s testimony about his prior criminal record. Id.
at 210-11. However, though ultimately finding it to be harmless,
this Court found the trial court erred by permitting the State, over
Fletcher’s objection, to elicit testimony from Dr. Prichard that
Fletcher lacked remorse, which is one of the features of antisocial
personality disorder. Id. at 211-13. In any event, based on the
prosecutor’s remarks at the original penalty phase, Fletcher filed a
“Motion in Limine to Preclude Improper Closing Argument.” The
motion was granted in an order stating in relevant part: “There
should be no denigration of the Defendant’s case.”


                                 - 20 -
necessary to ensure that the defendant receives a fair trial.” See

Chamberlain v. State, 

 (Fla. 2004) (citing

Rivera v. State, 

 (Fla. 2003)). “[W]hen an

improper comment is made, objected to by counsel, and sustained

by the trial court and corrected by the issuance of a curative

instruction, this Court has held that the proper standard of review

governing the denial of a motion for a mistrial is abuse of

discretion.” Andres v. State, 

 (Fla. 2018) (citing

Chamberlain, 

).

     Here, though, it appears the prosecutor’s comment was not

improper. While “a prosecutor may not improperly denigrate or

attempt to invalidate mitigation evidence” by describing it in

negative terms, a prosecutor has wide latitude in closing and may

properly attempt to “persuade the jury that the proffered mitigation

was not mitigating in nature, or should be given only little weight.”

See Fletcher, 168 So. 3d at 214-15 (citing and distinguishing Delhall

v. State, 

 (Fla. 2012), and Brooks v. State, 

 (Fla. 2000)). Here, it appears the prosecutor’s

comment was aimed at persuading the jury that antisocial

personality disorder is not mitigating in nature. Thus, based on


                                - 21 -
this record, we conclude the prosecutor’s comment did not

denigrate his antisocial personality disorder and turn it into

aggravation.

     In addition, Fletcher’s counsel immediately objected, and the

trial judge sustained the objection and instructed the jury to

disregard the comment. A short time later, the judge offered a

curative instruction, to which Fletcher’s counsel made no objection.

The lower court also reminded the jury before deliberations that

what the attorneys say is not evidence. Further, the lower court

ultimately found that Fletcher’s antisocial personality disorder was

mitigating and even gave it slight weight in the sentencing order.

     Thus, even if the comment was improper, the trial court did

not abuse its discretion in denying Fletcher’s motion for mistrial.

We therefore deny relief on this claim.

               Jury’s Verdict on Mitigation (claim 2)

     Fletcher asserts a new penalty phase is required because the

jury’s verdict form shows it ignored uncontroverted mitigation




                                - 22 -
evidence, thereby engaging in “reverse jury nullification” 15 in

violation of the Eighth Amendment. We disagree.

     First, the jury’s verdict on mitigation does not violate the

Eighth Amendment because—as construed by the U.S. Supreme

Court—the Eighth Amendment does not require any jury

recommendation as to whether to impose life or death. See Poole,

297 So. 3d at 505; Spaziano v. Florida, 

(1984). 16 Instead, Fletcher has a statutory right under section

921.141(2)(b) to have a jury find the existence of mitigating




      15. Because jury nullification generally means the jury
ignored the evidence of guilt and showed mercy instead by
acquitting a defendant, reverse jury nullification means the jury
ignored mitigating circumstances when recommending imposition
of the death penalty. A similar claim was raised in Mosley v. State,

, 1005 (Fla. 2024), but was found to be
procedurally barred.

      16. “The text of our constitution requires us to construe the
state cruel and unusual punishment provision in conformity with
decisions of the Supreme Court interpreting the Eighth
Amendment.” Poole, 297 So. 3d at 505. “Binding Supreme Court
precedent in Spaziano holds that the Eighth Amendment does not
require a jury’s favorable recommendation before a death penalty
can be imposed.” Id. (citing Spaziano, 

).
“Therefore, the same is true of article I, section 17 [of the Florida
Constitution].” 

                                 - 23 -
circumstances, weigh them against any aggravating factors, and

make a recommendation as to life or death.

     Second, Fletcher has not shown the jury failed to follow the

law or instructions on the statutory weighing process and

recommendation. In Florida, litigants and the public are prohibited

from “invading the privacy of the jury room.” Baptist Hosp. of Mia.,

Inc. v. Maler, 

 (Fla. 1991) (quoting Velsor v.

Allstate Ins. Co., 

 (Fla. 2d DCA 1976)). Thus,

“in the absence of evidence to the contrary, we presume that jurors

follow the trial court’s instructions.” Lowe v. State, 

 (Fla. 2018) (citing Hurst, 

).

     In an attempt to establish his claim of reverse jury

nullification, Fletcher cites an unpublished opinion of the Tenth

Circuit Court of Appeals, United States v. James, that sets out the

role of a juror in the Sixth Amendment context. 

 (10th

Cir. 2000) (table), 

, at *2-4 (Feb. 7, 2000). The

issue in James was whether it was plain error for the trial court to

sua sponte dismiss a juror who stated during voir dire that he

might not follow the law or instructions. The Tenth Circuit found

no error, reasoning that “[a] person who is either unwilling or


                                - 24 -
unable to follow the court’s instructions is not qualified to be a

juror.” Id. at *4. The Tenth Circuit further reasoned that “[a]

defendant’s right to an impartial jury does not include a right to a

jury composed of persons who will disregard the district court’s

instructions. ‘[T]here is no right to jury nullification.’ ” Id. at *3-4

(second alteration in original) (quoting Crease v. McKune, 

 (10th Cir. 1999)).

     While James is generally instructive on the role of individual

jurors and jury nullification, Fletcher’s case is distinguishable.

Unlike the juror in James who expressly stated during voir dire that

he might not follow the law and instructions, the jurors at

Fletcher’s new penalty phase agreed to follow the law and

instructions and made no indication to the contrary on the face of

the record. Though Fletcher points to the verdict form as evidence

of nullification, the jury form is not conclusive proof that any of the

jurors failed to follow instructions.

     Of course, based on this verdict form, the lower court found

the jury’s answer as to whether any mitigation evidence was proven

was against the weight of the evidence. See Coday v. State, 

 (Fla. 2006) (“[T]he trial court must find as a mitigating


                                  - 25 -
circumstance any proposed factor that is both reasonably

established by the greater weight of the evidence and mitigating in

nature.”). But the lower court’s finding does not automatically

mean the jury failed to follow the law or instructions, especially

because the jury here was not instructed during the penalty phase

that it must deem any unrebutted mitigation evidence proven and,

if so, check “yes” on the verdict form. Thus, notwithstanding the

“no” verdict, Fletcher cannot rebut the presumption that the jury

followed the law as it was instructed here. 17




      17. Given the amount of unrebutted mitigation, the lower
court was concerned with the verdict form and thoughtfully
considered whether the interrogatory was mere surplusage under
section 921.141(2)(b), Florida Statutes (2022), which requires the
jury to make a recommendation based upon its weighing of any
unanimously found aggravating factors (making the defendant
death eligible) and whether those aggravators “outweigh the
mitigating circumstances found to exist.” § 921.141(2)(b)2.a.-c.,
Fla. Stat. (2022). Though the verdict form conforms to the statute’s
language concerning the mitigators “found to exist” by the jury and
is not mere surplusage in that sense, the lower court is correct that
the statute does not expressly require a written finding by the jury
as to the mitigators found to exist. This interrogatory was amended
in 2023, and the standard verdict form now asks jurors to attest
that they “considered whether one or more mitigating
circumstances exist.” See Fla. Std. Jury Instr. (Crim.) 3.12(e)
(2025).


                                 - 26 -
     Additionally, the verdict is not contrary to the other jury

instructions given in a capital penalty phase. The jurors were told

to individually consider and weigh mitigation evidence, and that

they do not have to render a unanimous verdict on mitigation.

Given these instructions, it is far more likely the jury was unsure

how to follow these instructions and answer the verdict form

interrogatory collectively at the same time. Thus, the verdict form

alone does not overcome the presumption that the jury followed, or

attempted to follow, instructions as given in this case.

     Ultimately, the lower court properly overrode the jury’s “no”

interrogatory, finding the existence of the vast majority of Fletcher’s

forty-nine mitigators—most of which were unrebutted or

affirmatively proven. The court then weighed the mitigators found

to exist, affording great weight to one “statutory” mitigator (the

codefendant’s life sentence) and moderate weight to mitigation

overall in the sentencing order. 18 Further, the lower court found




     18. The sentencing court mistakenly described this as a
statutory mitigator in the sentencing order. It may be treated as a
mitigating factor, however, under the catchall provision of section
921.141(7)(h).


                                 - 27 -
three additional mitigators after the Spencer hearing that it afforded

slight weight. The lower court agreed with the jury’s unanimous

finding of four aggravators—two of which it merged for a total of

three aggravators, including the weighty HAC aggravator—and

afforded them great weight. And despite the verdict form

interrogatory on mitigation, the lower court agreed with the jury’s

recommendation for death because the aggravation unanimously

found by the jury outweighed the established mitigators.

     In sum, Fletcher has failed to establish “reverse jury

nullification” by rebutting the presumption that the jury followed or

attempted to follow the instructions as given to it. Further, the

lower court cured any irregularity in the verdict form, independently

finding and weighing Fletcher’s proven and unrebutted mitigators.

Thus, Fletcher is entitled to no relief on this claim.

                 Victim Impact Evidence (claim 4)

     Fletcher asserts that victim impact statements should be

wholly inadmissible during the penalty phase of a capital murder

proceeding because the only relevant evidence to the defendant and

his sentence is the State’s evidence of statutory aggravating factors

under section 921.141(6). Fletcher asserts that because victim


                                 - 28 -
impact statements can be inflammatory and take the jury’s focus off

the defendant and sentence, they should be deemed per se

inadmissible and unconstitutional under the Eighth and

Fourteenth Amendments. To that end, he urges this Court to

recede from following Payne v. Tennessee, 

 (1991)

(holding that “if the State chooses to permit the admission of victim

impact evidence and prosecutorial argument on that subject, the

Eighth Amendment erects no per se bar”), and Windom v. State, 

 (Fla. 1995) (following Payne), and return to following

Booth v. Maryland, 

 (1987) (holding that victim

impact evidence is “irrelevant to a capital sentencing decision, and

that its admission creates a constitutionally unacceptable risk that

the jury may impose the death penalty in an arbitrary and

capricious manner”), which was overruled by Payne. 19



     19. 

 (“We are now of the view that a State may
properly conclude that for the jury to assess meaningfully the
defendant’s moral culpability and blameworthiness, it should have
before it at the sentencing phase evidence of the specific harm
caused by the defendant. . . . By turning the victim into a ‘faceless
stranger at the penalty phase of a capital trial,’ Booth deprives the
State of the full moral force of its evidence and may prevent the jury
from having before it all the information necessary to determine the
proper punishment for a first-degree murder.” (citation omitted)).


                                - 29 -
     We decline Fletcher’s invitation. This Court rejected a similar

claim in Fletcher and has repeatedly recognized that victim impact

evidence is admissible at the penalty phase. See Fletcher, 168

So. 3d at 220 (rejecting a constitutional challenge to victim impact

statements raised as a “subclaim” under challenge to Florida’s

capital sentencing scheme); see also Kalisz v. State, 

 (Fla. 2013) (explaining that victim impact evidence is

admissible during the penalty phase under section 921.141, Florida

Statutes, and article I, section 16 of the Florida Constitution).

     Further, this Court has no authority to categorically ban the

admission of victim impact evidence from capital penalty phase

proceedings. First, in Eighth Amendment cases, “[t]he text of

[Florida’s] constitution requires us to construe the state cruel and

unusual punishment provision in conformity with decisions of the

Supreme Court interpreting the Eighth Amendment.” Poole, 297

So. 3d at 505. Thus, this Court has no authority to recede from

following the Supreme Court’s construction of the Eighth

Amendment in Payne, which holds that the Eighth Amendment

“erects no per se bar” to victim impact evidence. 

.

     Second, “the Florida Constitution in Article I, Section 16, and


                                 - 30 -
the Florida Legislature in section 921.141(7), Florida Statutes

(1993), instruct that in our state, victim impact evidence is to be

heard in considering capital felony sentences.” Windom, 

. In other words, “[t]he admission of victim impact evidence

is protected by article I, section 16 . . . and is . . . specifically

governed by section 921.141(7).” Kalisz, 

. 20

Thus, we are constitutionally prohibited from granting Fletcher’s

requested relief, to categorically ban victim impact evidence in

capital penalty phase proceedings.

     Further, as to the specific statements admitted in this case,

Fletcher makes only a conclusory assertion that reading the victim

impact statements at his penalty phase tainted the jury, but he

points to nothing specific within these three statements that would

demonstrate any taint. Thus, he has not carried his burden of




      20. See art. I, § 16(b)(6)d., Fla. Const. (2018) (“A victim shall
have the following specific rights upon request: The right to provide
information regarding the impact of the offender’s conduct on the
victim and the victim’s family to the individual responsible for
conducting any presentence investigation or compiling any
presentence investigation report, and to have any such information
considered in any sentencing recommendations submitted to the
court.”).


                                   - 31 -
demonstrating error on this claim. See, e.g., Deparvine v. State, 

 (Fla. 2008) (“Initially, we reject this claim because

Deparvine does not specify what part of the testimony was repetitive

and therefore fails to sufficiently identify the error.”). And in any

event, the three victim impact statements are well within the

confines of what is permitted by section 921.141(8). 21 None of the

statements characterize or opine upon “the crime, the defendant,

[or] the appropriate sentence.” 

 Thus, Fletcher is not entitled to

any relief on this claim.

   Constitutionality of Florida’s Capital Sentencing Scheme
                            (claim 6)

     As he did in his original appeal in 2015, Fletcher generally

challenges Florida’s death sentencing scheme under section

921.141 as unconstitutional, raising both facial and as-applied

challenges. Apart from his arguments on “aggravator drift” (i.e., the




      21. § 921.141(8), Fla. Stat. (providing that once aggravators
are presented, the prosecution may present victim impact evidence
demonstrating “the victim’s uniqueness as an individual human
being and the resultant loss to the community’s members by the
victim’s death” and that “[c]haracterizations and opinions about the
crime, the defendant, and the appropriate sentence shall not be
permitted as a part of victim impact evidence”).


                                 - 32 -
overprovision of statutory aggravators), however, Fletcher never

specifically raised below two of the arguments now raised here—

that the abandonment of both proportionality review and the

circumstantial evidence rule has rendered the entire statute

unconstitutional. Additionally, Fletcher did not directly challenge

the constitutionality of the cold, calculated, premeditated (CCP)

aggravator below.

     To the extent these are facial challenges, Fletcher may raise

them for the first time on appeal. 22 But, we find no merit in them.

     First, we recognized in Lawrence that proportionality review is

not required by the Eighth Amendment. 308 So. 3d at 548.

Further, the remedy to the historic concern about arbitrariness is

individualized sentencing. 23 Thus, there is no merit to the



       22. Though these facial challenges were not raised below, this
Court has stated that “[t]he facial validity of a statute, including an
assertion that the statute is infirm because of overbreadth, can be
raised for the first time on appeal even though prudence dictates
that it be presented at the trial court level to assure that it will not
be considered waived.” Trushin v. State, 

(Fla. 1982). “The constitutional application of a statute to a
particular set of facts is another matter and must be raised at the
trial level.” 

.

     23. See generally Enmund, 

 (“The question
before us is not the disproportionality of death as a penalty for

                                 - 33 -
suggestion that the lack of proportionality review renders the entire

capital sentencing scheme in Florida facially unconstitutional for

failing to narrow the class of death-eligible defendants. See Wells v.

State, 

, 1015 (Fla. 2023) (“We have repeatedly

rejected the argument that the death-penalty statute violates the

Eighth Amendment because it fails to sufficiently narrow the class

of murderers eligible for the death penalty.”).

     Second, the now-abrogated circumstantial evidence rule 24 was

applied at the guilt phase in determining the sufficiency of the

State’s evidence in circumstantial evidence cases, not to the penalty

and sentencing phases.25 Further, the rule was previously applied



murder, but rather the validity of capital punishment for Enmund’s
own conduct. The focus must be on his culpability, not on that of
those who committed the robbery and shot the victims, for we insist
on ‘individualized consideration as a constitutional requirement in
imposing the death sentence,’ which means that we must focus on
‘relevant facets of the character and record of the individual
offender.’ ” (citations omitted)).

      24. See Bush v. State, 

, 200 (Fla. 2016)
(eliminating the circumstantial evidence rule).

     25. Knight v. State, 

 (Fla. 2016)
(“Courts should ask whether the evidence of that particular
defendant’s guilt is entirely circumstantial, not whether all of the
State’s evidence of the crime is circumstantial.” (emphasis omitted)).


                                - 34 -
to all criminal circumstantial evidence cases, not just capital

cases. 26 Thus, the circumstantial evidence rule was not designed to

help narrow the class of death-eligible defendants, and its

abrogation is of no value in a facial challenge to Florida’s capital

sentencing scheme. See Loyd v. State, 

, 1098 (Fla.

2023) (rejecting argument that “the elimination of the special

standard of review previously used in cases involving wholly

circumstantial evidence” contributes to rendering the death penalty

statute unconstitutional and explaining that the circumstantial

evidence rule was abrogated, in part, because it is confusing (citing

Bush, 295 So. 3d at 200)).

     Third, Fletcher’s facial challenge to the CCP aggravator (which

is not an aggravator in Fletcher’s case) has previously been rejected

by this Court. 27



      26. See, e.g., Knight v. State, 

 (Fla. 5th DCA
2013) (explaining that this Court (previously) mandated that
“Florida’s appellate courts use a ‘special standard of review of the
sufficiency of the evidence . . . where a conviction is wholly based
on circumstantial evidence’ ” (citation omitted)), approved, 

.

     27. See Lynch v. State, 

 (Fla. 2003)
(“Finally, defendant’s claim that Florida’s death penalty scheme is
unconstitutional because the CCP aggravating factor is applied in

                                 - 35 -
     Next, we consider Fletcher’s facial and as-applied challenges to

the constitutionality of each of the four aggravators proven in his

case, challenges he raised in motions in limine below, and to the

statute’s so-called “aggravator drift.” We conclude the lower court

committed no error in rejecting these challenges.

     First, Fletcher asserts that the “committed while under

sentence for a prior felony conviction” aggravator is

unconstitutional on its face and as applied because it is vague and

overbroad and, thus, has been applied in an arbitrary manner.

This claim is meritless because this aggravator clearly applies here,

where Fletcher escaped jail just before committing this murder.

And when a provision may be applied constitutionally in some

circumstances, it is not facially unconstitutional. See Gainesville

Woman Care, LLC v. State, 

 (Fla. 2017)

(Canady, J., dissenting) (describing the “no-set-of-circumstances”

test applicable to facial constitutional challenges), receded from by

Planned Parenthood of Sw. & Cent. Fla. v. State, 

 (Fla.



an arbitrary and capricious manner is without merit. This Court
has upheld the CCP aggravating factor as constitutional.” (citing
Fotopoulos v. State, 

 (Fla. 1992))).


                                - 36 -
2024).

     Second, Fletcher’s facial and as-applied constitutional

challenges to the “pecuniary gain” aggravator are meritless.

Fletcher asserts this aggravator is unconstitutional because of the

risk of doubling and repeating the same aspects of the underlying

felony, a robbery, for purposes of the felony murder aggravator.

But no doubling with the underlying robbery occurred here because

the lower court merged it with the pecuniary gain aggravator. See

Francis v. State, 

 (Fla. 2001) (finding no

improper doubling where the sentencing court merged the

pecuniary gain aggravator with during the course of a felony

aggravator based on a robbery).

     Third, Fletcher’s facial and as-applied challenges to the so-

called felony murder aggravator on the basis that it is overbroad

and, essentially, automatic, are meritless. This Court has rejected

similar if not identical arguments.28 Further, Fletcher’s as-applied



      28. See Miller v. State, 

 (Fla. 2006)
(rejecting the argument that “Florida’s capital felony sentencing
statute is unconstitutional because every person who is convicted of
first-degree felony murder automatically qualifies for the
aggravating circumstance of commission during the course of an
enumerated felony”); Ault v. State, 

 (Fla. 2003)

                                - 37 -
challenge is moot given that this aggravator was merged with the

pecuniary gain aggravator by the lower court.

     Fourth, this Court has consistently rejected Fletcher’s

argument that the HAC aggravating circumstance is

unconstitutionally vague and overbroad. 29 Further, HAC was

constitutional as applied here given the evidence of the torture and

prolonged strangulation of a scared, elderly, conscious victim in her

own home. See Barnhill v. State, 

 (Fla. 2002)

(“Because strangulation of a conscious victim involves

foreknowledge and the extreme anxiety of impending death, death

by strangulation constitutes prima facie evidence of HAC.”).




(rejecting the argument that the murder in the course of a felony
aggravator is unconstitutional because it constitutes an automatic
aggravator and does not narrow class of death-eligible persons).

       29. See Dillbeck v. State, 

, 104-05 (Fla. 2023)
(explaining that “the Court has consistently rejected as ‘without
merit’ challenges that the HAC aggravator is ‘overbroad, vague, and
fail[s] to narrow the class of persons eligible for the death penalty’ ”
(quoting Card v. State, 

 (Fla. 2001)); Cruz, 320
So. 3d at 731 (“declin[ing] to revisit” precedent “rejecting as
meritless the argument that the jury instruction on HAC is
unconstitutionally vague” (citing Gilliam v. State, 

 (Fla. 1991))).


                                 - 38 -
     Finally, we have consistently rejected Fletcher’s challenge to

the death penalty statute’s so-called “overprovision” of aggravators

(which Fletcher labels “aggravator drift”). See Bevel, 376 So. 3d at

597 (rejecting claim that Florida’s capital sentencing scheme is

unconstitutional because the number of aggravating factors does

not sufficiently narrow the class of individuals who are eligible to

receive the death penalty (citing Colley v. State, 

, 15-16

(Fla. 2020))); see also Wells, 364 So. 3d at 1015 (finding no

constitutional defect with Florida’s death penalty statute based on

the number of aggravating factors).

     Accordingly, we deny relief on Fletcher’s facial and as-applied

constitutional challenges to Florida’s death penalty scheme.

             B. Fletcher’s Claims of Fundamental Error

     Conceding he launched no contemporaneous objection below,

Fletcher’s next two claims assert that the sentencing court

fundamentally erred by instructing the penalty phase jury that the

defendant had to prove mitigation by a preponderance of the

evidence (claim 7), and by omitting the Enmund/Tison jury

instruction and specifically labeled finding in the sentencing order

(claim 8).


                                - 39 -
     To establish fundamental error concerning unobjected-to and

thus unpreserved penalty phase jury instructions on appeal, the

“alleged error must reach down into the validity of the sentencing

proceeding itself such that the sentence could not have been

obtained without the assistance of the alleged error.” Smiley v.

State, 

, 174 (Fla. 2020) (citing Archer v. State, 

 (Fla. 1996)). This Court has also defined it as “error

which goes to the foundation of the case.” Farina v. State, 

 (Fla. 2006) (quoting Ray v. State, 

(Fla. 1981)).

      Instruction on Burden of Proving Mitigation (claim 7)

     Fletcher asserts that the sentencing court fundamentally erred

by instructing the jury that the defendant must establish mitigators

by a preponderance of the evidence at the penalty phase because

placing any burden of proof on the defendant is neither authorized

by section 921.141 nor the Eighth Amendment. To that end,

Fletcher urges this Court to recede from its decision in Campbell v.

State, 

 (Fla. 1990), receded from on other

grounds in Trease v. State, 

 (Fla. 2000), where this

Court held that “[t]he [sentencing] court must find as a mitigating


                                - 40 -
circumstance each proposed factor that is mitigating in nature and

has been reasonably established by the greater weight of the

evidence.” Fletcher argues that Campbell read additional

requirements into the law of mitigation without statutory authority

from section 921.141 and was referring to standards that applied to

a judge’s findings, not a jury’s findings.

     Fletcher’s claim is patently meritless. Generally, a “burden of

proof” is procedural, not substantive, meaning it falls within the

province of the judiciary and its rule-making authority. While the

Legislature has the authority to adopt procedural provisions in

statutes that are “intertwined with substantive rights,” see Caple v.

Tuttle’s Design–Build, Inc., 

 (Fla. 2000), this Court

always has the authority to adopt rules of practice and procedure

under article V, section 2(a) of the Florida Constitution, cf. Love v.

State, 

 (Fla. 3d DCA 2018) (concluding that

statute setting burden of proof did not violate the separation of

powers doctrine by invading the province of the judiciary because it

was substantive enough, and noting in a parenthetical that this

Court has “consistently rejected constitutional challenges [to

statutes] where the procedural provisions were intertwined with


                                 - 41 -
substantive rights” (citing Caple, 

)), decision

quashed on other grounds, 

 (Fla. 2019).

     Further, this Court recently rejected a similar but preserved

claim in Loyd, 

. In Loyd, this Court addressed

“whether the trial court erred in reading the standard jury

instruction because in Loyd’s view it does not comport with section

921.141(2)(b), Florida Statutes (2021).” Id. at 1092. This Court

rejected Loyd’s argument, explaining that it is a firmly established

principle in Florida law that a mitigating circumstance that must be

“found to exist” under section 921.141(2)(b)2.b. is one “established

by the greater weight of the evidence.” Id. (quoting Bright v. State,

, 1000 (Fla. 2020)).

     And setting a burden of proof to establish mitigation in a

capital case does not run afoul of the Eighth Amendment. See

Walton v. Arizona, 

 (1990) (rejecting the

contention that Arizona’s capital sentencing statute violated the

Eighth and Fourteenth Amendments because it imposed on

defendants the burden of showing by a preponderance of the

evidence that there were mitigating circumstances sufficiently




                                - 42 -
substantial to call for leniency), overruled on other grounds by Ring

v. Arizona, 

 (2002).

     To the extent Fletcher claims that the standard instruction on

mitigation is fundamental error because it shifts the burden to the

defendant, this claim is also meritless. See Bush, 295 So. 3d at 210

(explaining that the “standard penalty phase jury instructions do

not ‘impermissibly shift the burden to the defense to prove that

death is not the appropriate sentence’ ” (quoting Rogers v. State,

 (Fla. 2007))).

     In sum, because Fletcher’s arguments are meritless, he cannot

establish any error, much less fundamental error. Thus, the Court

denies relief on this claim.

            Lack of Enmund/Tison Instruction (claim 8)

     Fletcher claims the trial court fundamentally erred by failing

to give an Enmund/Tison 30 instruction to the jury and by failing to

make an Enmund/Tison finding in the sentencing order. He

concedes that he did not object to the omission of the instruction to

the jury.



     30. Enmund, 

; Tison, 

.


                                - 43 -
     Enmund and Tison require that, under the Eighth

Amendment’s prohibition against cruel and unusual punishment,

each codefendant in a felony murder case must be sentenced

proportionally to their individual culpability. As this Court

explained in Smiley, Enmund and Tison stand “for the proposition

that ‘the death penalty may be proportional punishment if the

evidence shows both that the defendant was a major participant in

the crime, and that the defendant’s state of mind amounted to

reckless indifference to human life.’ ” 295 So. 3d at 175 (quoting

Jackson v. State, 

 (Fla. 1991)).

     We recently rejected a fundamental error claim based on the

omission of the Enmund/Tison instruction in Cruz, 

.

In Cruz, this Court held that the omission of the Enmund/Tison

instruction was not fundamental error because the record showed

Cruz was a “major” participant in the felony committed and had a

“reckless indifference to human life.” Id. at 723 (first quoting Tison,

; and then citing Jackson v. State, 

 (Fla. 1986)); see also Jackson, 

 (“[B]y being a

major participant in the armed robbery, [the defendant], at the very

least, contemplated that life would be taken.”). Here, although not


                                - 44 -
specifically labeled an Enmund/Tison finding, the lower court

expressly found that the evidence pointed to Fletcher as the person

who actually strangled Googe, that he was a major participant, and

that his participation was more significant than Brown’s because he

was the mastermind.

     Fletcher seeks to distinguish Cruz because, during the guilt

phase in that case, the jury answered special interrogatories on the

verdict form and found that Cruz actually possessed a firearm. 320

So. 3d at 708. 31 However, special interrogatory verdict forms are

not required for the Enmund/Tison instruction during the penalty

phase. Jackson, 

 (“No special interrogatory jury

forms are required.”). 32 Further, Fletcher’s penalty phase jury was

instructed to consider Brown’s life sentence as a “statutory”



     31. We ultimately concluded that the jury’s special finding
that Cruz actually possessed a firearm was not supported by
competent, substantial evidence. Id. at 716-17.

     32. Fletcher suggests such findings are necessary to increase
the penalty under Ring, 

. But Ring imposes
requirements to protect a defendant’s right to have the jury find any
factor that exposes him to greater sentencing liability under the
Sixth Amendment, whereas the Enmund/Tison requirements
protect the defendant’s Eighth Amendment right to individualized
sentencing based on the defendant’s individual culpability. Thus,
there is no Ring issue here.

                                - 45 -
mitigator and was even given his negotiated plea agreement to

review. Thus, the jury was given the opportunity to recommend

that the lower court sentence Fletcher to life as well. The lower

court also gave Brown’s life sentence great weight as a “statutory”

mitigator but ultimately found that the evidence pointed to Fletcher

as the person who actually murdered Googe. This conclusion is

supported by the evidence presented by the State.

     Based on this record, Fletcher has failed to demonstrate that

his death sentence could not have been obtained without the

assistance of the omission of an Enmund/Tison instruction. Thus,

he is entitled to no relief.

                               III. Conclusion

     Because we find no reversible error in Fletcher’s second

penalty phase and resentencing proceedings, we affirm his death

sentence.

     It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS, and
SASSO, JJ., concur.
LABARGA, J., concurs in result with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.



                                   - 46 -
LABARGA, J., concurring in result.

     While I agree with the decision to affirm Fletcher’s conviction

for first-degree murder, I concur in result as to the Court’s opinion.

     Although the majority has rejected this Court’s decades-long

practice of conducting comparative proportionality review in cases

involving the direct appeal of a sentence of death, I continue to

adhere to the views expressed in my dissenting opinion in Lawrence

v. State, 

 (Fla. 2020).

     Moreover, in this appeal of Fletcher’s death sentence, I agree

that the sweeping elimination of the circumstantial evidence rule in

criminal cases does not support his challenge to the

constitutionality of Florida’s death penalty. See Bush v. State, 

 (Fla. 2020) (eliminating heightened standard of review of

convictions based solely on circumstantial evidence). Nonetheless, I

reaffirm my dissent in Bush, wherein I lamented the “abandon[ment

of] the reasonable safeguard provided by the heightened sufficiency

of the evidence standard.” Id. at 217 (Labarga, J., concurring in

part and dissenting in part).

An Appeal from the Circuit Court in and for Putnam County,
    Howard O. McGillin, Jr., Judge
    Case No. 542009CF000648CFAXMX


                                - 47 -
Matthew J. Metz, Public Defender, and Nancy Ryan, Assistant
Public Defender, Seventh Judicial Circuit of Florida, Daytona
Beach, Florida,

     for Appellant

James Uthmeier, Attorney General, Tallahassee, Florida, and Naomi
Nichols, Assistant Attorney General, Daytona Beach, Florida,

     for Appellee




                              - 48 -