Kim Jackson v. State of Florida

Supreme Court of Florida
____________

No. SC13-2090
____________

KIM JACKSON,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

[August 27, 2015]

PER CURIAM.

This case is before the Court on appeal from a judgment of conviction of

first-degree murder and a sentence of death. We have jurisdiction. See art. V, §

3(b)(1), Fla. Const. For the reasons that follow, we affirm the conviction and the

death sentence.

FACTS

Debra Pearce was stabbed to death in her kitchen on or around October 17,

2004. The murder remained unsolved until 2008, when DNA from a hair found on

Pearce’s body was matched to Kim Jackson and a fingerprint found in blood on the

sink above Pearce’s body was also matched to Jackson.
 The Murder

Pearce was last seen by her mother between midnight and 1:30 a.m. on

October 15 to 16, 2004. Pearce was discovered late in the evening on October 18,

or in the early morning hours of October 19, by a neighbor and friend of Pearce

who purchased drugs from her and used them at the house. That evening, the

friend walked past Pearce’s house and saw that the gate was open. Over the

previous days, he had called her several times, but received no answer, and he had

noticed that her van was not in her driveway. When he approached the house, he

saw that the sliding glass door was open. He entered and found Pearce’s body. He

returned to his house and called the police.

The medical examiner determined that the cause of Pearce’s death was

hypovolemic shock due to vascular hemorrhage as a result of stab wounds to the

neck and shoulder—in layman’s terms, Pearce bled to death as a result of a fatal

stab wound to her neck that struck her jugular vein and a fatal stab wound to her

chest/shoulder area that struck her subclavian artery and vein. The stab wound to

the chest pierced through Pearce’s bra, sliced her left breast, continued across into

the right side of her chest, and pierced her scapula. The knife, which had been left

in Pearce’s chest, was only five inches long, but it had penetrated seven to eight

inches into her body. The blow with the knife was forceful enough to pierce the

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scapula and break off a 3/4 inch area of bone, and the wound would have caused a

significant amount of blood loss as well as an arterial blood spurt pattern.

The medical examiner also found several other injuries. Because the body

was in the early stages of decomposition, the medical examiner could not

determine whether certain injuries were lacerations or incisions. One such injury

was a superficial wound to Pearce’s forehead, and another was a wound to her left

cheek. Additionally, there were two wounds to Pearce’s chin—one where the

blade entered, and the other where the blade exited. Pearce also had two cuts

across her ear, a scrape or abrasion on the left side of her head that indicated she

had been hit or her body was dragged, and five shallow cuts on the left side of her

head. Her right eye was bruised from a forceful blow. Additionally, Pearce had

two lacerations/incisions to her right forehead that were jagged, due to either a

knife with a dull blade, or the blade of a knife being raggedly ripped across her

skin.

The medical examiner could not be certain as to whether Pearce was

conscious throughout the attack, but stated that it was possible because she bled to

death—she was not knocked unconscious, her spinal cord was not severed, and no

major organs were involved. Additionally, Pearce’s right pinky finger had a deep

cut that penetrated the tendons and was consistent with a defensive wound. Pearce

also had a cut on the back of her left forearm that went from shallow to deep,

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which could have occurred while she attempted to ward off a blow. Further, the

medical examiner testified that minor blunt-force injuries which were present—

including those to her forehead, head, and ear—demonstrated that she struggled.

A crime scene reconstructionist was called to Pearce’s house on October 19,

and he noted that Pearce, who was face-down on the kitchen floor below the sink,

had been dead for some time. The reconstructionist retrieved a dark-colored hair

from the back of Pearce’s right calf that appeared out of place. He observed the

knife that had been left in Pearce’s chest and also found a second knife beneath her

body.1 Additionally, the reconstructionist found significant blood spatter in the

kitchen and determined that the spatter around the sink was consistent with either a

weapon being swung back, or from the impact when the weapon was swung down.

He also discovered a fingerprint in blood on the lip of the sink.

The reconstructionist utilized luminal testing on red stains detected on the

rug outside of the kitchen, which revealed an impression left by a person wearing a

sock, and another impression left by a person wearing a shoe. He testified that it

appeared as though the person who left the tread dragged his or her feet, and the

tread appeared to lead toward the master bathroom. He could not determine

1. The small knife located under Pearce tested positive for the presence of
blood, and presented a mixed profile with Pearce as a major contributor. Two to
three other DNA profiles were present on the knife, and Jackson was excluded as
being one of the possible contributors.

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whether the impressions had been left by more than one person and stated that it

was possible more than one person had been at the scene.

The investigation revealed that around the time of the murder, an eyewitness

saw three individuals near the back of Pearce’s house. The lead detective spoke

with two of these individuals, who admitted that they took several items from the

house, including a television, a VCR, and a DVD player. However, no forensic

evidence linked these individuals to the home or Pearce.

Fingerprints that were found at Pearce’s house were submitted to the Florida

Department of Law Enforcement (FDLE) latent print unit in Jacksonville. The

analyst there determined that none of the prints were of value. However, the lead

detective discovered that the Pinellas County unit possessed equipment that could

enhance latent prints, and the sink was transported there so that more detail could

be obtained from the latent fingerprint located on the sink. Although the

equipment did not prove to be particularly useful, the Pinellas County latent print

unit examined the photographs of the sink fingerprint and determined that it was of

value. However, no match for the fingerprint was found at that time. The lead

detective also submitted photographs of several of the prints lifted from Pearce’s

house to the Federal Bureau of Investigation (FBI). The FBI determined that

among the prints it received, one latent fingerprint was of value (the sink

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fingerprint), and one latent palm print was of value. The FBI was also unable to

match either print to any known individual at that time.

Identification

It was only later that FDLE matched DNA extracted from the hair that was

found on Pearce’s calf to Jackson.2 After receiving this information, the lead

detective located Jackson in Georgia, where he had been incarcerated since 2005.

During an interview with Jackson on January 22, 2008, the lead detective asked

whether Jackson knew Pearce or had been to her house. The detective showed

Jackson a photograph of Pearce, as well as several pictures of her house. Jackson

asserted that he had never met or seen Pearce, and had never been to her house.

After Jackson was identified as a suspect, latent print analysts with the FBI

and Pinellas County were asked to compare Jackson’s known prints with the

fingerprint from the sink. Jacqueline Slebrch, the FBI latent print examiner,

examined the photograph of the sink fingerprint.3 She noted spots or distortion on

the fingerprint, and that the fingerprint was one of multiple prints left on top of

2. The record does not clearly state when the identification was made.
However, the lead detective testified that he located Jackson after he obtained the
DNA and fingerprint evidence, and the interview of Jackson occurred in January
2008.

3. Slebrch was not the first FBI analyst to examine the prints, which were
first examined by an analyst who later left the FBI. Slebrch performed her own
analysis, and her conclusions matched those made by the first FBI analyst.

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each other. However, she determined that the print was of value and matched the

right ring finger of Jackson. With respect to when the fingerprint could have been

placed on the sink, Slebrch testified that she had never encountered a situation in

which a fingerprint was left and, at a later date, captured and preserved by being

coated in a substance such as blood, but that such an occurrence could be possible.

She also explained that when a person has an excess amount of blood or other

substance on his or her hand and then touches a surface, the substance will be

pushed between the friction ridges on a fingerprint, and an imprint of the furrows

will be left on the surface. She testified that this is a factor to consider when

looking at a latent print such as the sink fingerprint.

The sink fingerprint was also examined by William Schade, who worked for

the Pinellas County Sheriff’s Office. Like Slebrch, he concluded that the sink

fingerprint matched the right ring finger of Jackson, and that the fingerprint was

left on the sink while Jackson’s finger was coated in a wet substance, such as

blood. When Schade made the comparison, he had no knowledge that Slebrch had

also concluded that the sink fingerprint matched the right ring finger of Jackson.

However, during trial, Jackson presented the testimony of Michelle Royal,

the Jacksonville Sheriff’s Office latent print analyst who concluded that the sink

fingerprint was of no value and could not be used to identify any suspect. She

nonetheless testified that even prints of no value can be used to exclude suspects,

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and acceded both that Jackson could not be excluded as the individual who left the

sink fingerprint, and that similarities existed between the sink fingerprint and the

known print of Jackson.

Alibi

Jackson presented as an alibi that he visited Adel, Georgia, between October

15, 2004, and October 22, 2004, to celebrate his birthday with his family, which he

did every year for a weekend around his birthday. His birthday is October 13,

which fell on a Wednesday in 2004. October 15 was the Friday that followed his

birthday. The testimony of Jackson and his wife, sister, and father presented as an

alibi that his cousin drove him to Adel on Friday, October 15, and he did not return

until after the murder occurred. He had intended to return on Sunday with his

cousin, but did not, and later obtained money from a friend for bus tickets, missed

the initial bus, and eventually returned to Jacksonville by bus on October 22. The

friend who provided Jackson with bus money testified that she recalled that

Jackson visited her work place in October 2004, but she could not recall the date.

Jackson testified that he knew Pearce through her boyfriend, had met her

between five and ten times, and had been to her house approximately five times.

He had previously purchased crack cocaine from Pearce’s boyfriend, as well as

from Pearce. He also testified that he and Pearce had become comfortable

interacting with each other, and that she would let him enter her house.

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 Jackson explained that when he was interviewed by the lead detective, he

did not admit that he knew Pearce or that he had been to her house because he

knew the detective was investigating a homicide, wished to distance himself from

Pearce, and did not want to be implicated in something he did not do. He also

testified that he did not recognize Pearce in the photograph he was shown during

the interview because it was in black and white, and she appeared dead in the

photograph.

Jackson testified that he had been at Pearce’s house one week before his trip

to Adel, and he helped move a couch while he was there. Jackson explained that

his fingerprint could be on the sink because he had removed a rag from the garbage

disposal and placed his hand on the sink while he looked under it. He admitted

that his hands were not bloody when he repaired the disposal, and that this

occurred months before the murder.

In rebuttal, the State presented the lead detective, who testified that Pearce’s

vehicle was found on the same road where Jackson resided at the time of the

murder. The vehicle was approximately one to one and a half miles from his

residence. However, no evidence connected Jackson to the vehicle.4

4. The upholstery covering of the armrest tested positive for blood, and the
DNA profile matched Pearce. Additionally, a mixed DNA profile with Pearce as
the major contributor was found on the steering wheel cover of the vehicle. The
DNA results with respect to the second contributor were inconclusive, but the
FDLE DNA analyst testified that the second contributor was male.

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 Because the evidence suggested that another person may have been present

during the murder—i.e., the footprints and the second knife with DNA that did not

match Pearce or Jackson—the State requested that a principal instruction be given.

The trial court agreed, and a principal instruction was read to the jury. On April

17, 2013, the jury found Jackson guilty of the first-degree murder of Debra Pearce.

Penalty Phase

During the penalty phase, the State presented the victim impact statements

of Pearce’s mother and daughter. The parties stipulated to two aggravating

circumstances: (1) Jackson was on probation at the time of the murder, and (2)

Jackson was previously convicted of three violent felonies.5 Additionally, despite

the stipulation, the State presented the testimony of the victims of two of the prior

violent felonies. The victim of the armed robbery testified that Jackson robbed her

at gunpoint while she was at work. The surveillance video of the event was played

for the jury. The victim of the aggravated assault testified that he worked for the

Georgia Bureau of Investigation and, while he was assigned to purchase cocaine

while undercover in the Adel area, he unsuccessfully attempted to purchase crack

5. These felony convictions were: (1) a 1988 conviction for robbery; (2) a
1992 conviction for aggravated assault; and (3) a 2006 conviction for armed
robbery. Jackson was on probation at the time of the murder for the 1992
aggravated assault conviction. The trial court ultimately based the aggravating
circumstance of prior violent felony only on the second two felony convictions
because there was no indication that the 1988 robbery, which was from Georgia,
actually involved violence.

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from Jackson. However, when he approached another individual, Jackson ran up,

pushed the individual out of the way, pulled his shirt up, and pulled out a gun.

Jackson presented the testimony of forensic psychologist Dr. Jerry Valente,

who met with Jackson twice to determine whether he was competent for trial. Dr.

Valente performed a standardized intelligence test on Jackson, and determined that

Jackson is of low-average intelligence. Specifically, Jackson’s IQ is within a 10-

point range of 84. His brain is fully developed and he completed the 12th grade.

Dr. Valente testified that Jackson displayed no evidence of psychosis, neurosis, or

hallucinations, and was cooperative, well-mannered, and respectful of authority.

Dr. Valente described Jackson’s psychological profile as flat and with nothing of

clinical significance.

Jackson also presented several people who testified with respect to his

positive attributes, including that he: (1) was good at sports; (2) worked well with

others; (3) coached and participated in softball; (4) was a role model and a leader;

(5) was caring, supportive, and kind; (6) was upbeat; (7) motivated and encouraged

others; (8) was dependable; (9) was helpful; (10) was humble; (11) was respectful;

(12) was religious and attended prayer meetings; (13) spoke well of and displayed

genuine concern for others; (14) regretted and was sorry for certain actions during

his life, and wished to be and do better; (15) was a hard worker, who did good

work, was prompt, and did not complain about long hours; (16) was protective;

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(17) was trusted around and good with children; and (18) would be a positive

influence in others’ lives.

Jackson’s father testified that he was in the Army when Jackson was a child

and was stationed at various locations both within and outside of the United States.

When the father was stationed in the United States, Jackson spent summers at the

army bases. When the father was stationed out of the country, Jackson lived with

his grandfather. The father described Jackson as a good child who had friends and

played sports. He attended Jackson’s games when he could, but often could not

because of his work. The father believed that Jackson would be a productive

person and would assist other prisoners if given a life sentence. He stated that he

has a good relationship with Jackson and would continue to be involved in

Jackson’s life.

Several other family members testified, including Jackson’s sister, half-

sister, daughter, stepson, and wife. Jackson’s sister and half-sister testified that he

was a good influence and played sports. Jackson’s sister testified he was

protective of her as a child and taught her sports. Jackson’s daughter and stepson

testified that Jackson encouraged them to make good choices in life. His stepson

testified that Jackson was a better influence and father figure than his biological

father. Both the stepson and Jackson’s wife described him as a good father and

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husband. Additionally, his family members stated that Jackson is positive and that

they intend to maintain a relationship with him during his incarceration.

In rebuttal, the State presented the testimony of a Georgia Department of

Corrections employee, who testified that Jackson received nine disciplinary reports

in 2007.

On April 26, 2013, the jury recommended a sentence of death by a vote of 8

to 4. The jury form required the jury to indicate whether Jackson played a

significant role in the homicide of Debra Pearce. The jury unanimously found

beyond a reasonable doubt that Jackson played a significant role in the homicide.

During the Spencer6 hearing, the State presented victim impact statements of

Pearce’s mother and sister. The defense presented the testimony of a mitigation

specialist, who testified that he spoke with Jackson’s best friend, who would have

been able to provide mitigation with respect to good deeds by Jackson.7 The friend

agreed to appear during the guilt phase, but then failed to respond to all attempts to

contact him. The mitigation specialist stated that the friend had told him Jackson

was in Adel in 2004 for Jackson’s birthday.

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

7. The State objected to the mitigation specialist’s testimony on the basis of
hearsay, and the testimony was admitted only to assist the trial court in assessing
the mitigating evidence already presented and to explain the steps taken by the
investigator to contact the friend.

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 On October 1, 2013, the trial court sentenced Kim Jackson to death for the

murder of Debra Pearce. The trial court found the State had proven beyond a

reasonable doubt the existence of three aggravating circumstances: (1) Jackson had

previously been convicted of two felonies that involved the use or threat of

violence (great weight); (2) Jackson was under felony probation at the time of the

murder (great weight); and (3) the murder was especially heinous, atrocious, or

cruel (HAC) (great weight).

Jackson presented numerous nonstatutory mitigating circumstances. The

trial court found that sixty-six had been established, and grouped them into twelve

categories. Additionally, within the twelve categories, the trial court often

discussed several factors together in assigning them weight. The trial court found

that Jackson did not prove the mitigating circumstance that he is religious/faith

based and guided his daughter spiritually.

The first category of mitigation found by the trial court is that Jackson is a

good father and husband and shares the love of his family. The trial court found

twenty-four mitigating circumstances within this category: (1) Jackson is a good

father to his daughter (moderate weight); (2) Jackson encouraged his daughter to

study (some weight); (3) Jackson encouraged his daughter to go to college (some

weight); (4) Jackson encouraged his daughter to grow beyond Nashville, Georgia

(some weight); (5) Jackson is involved in his daughter’s life and taught her right

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from wrong (some weight); (6) Jackson’s daughter intends to maintain a

relationship with Jackson (some weight); (7) Jackson and his daughter love each

other (moderate weight); (8) Jackson assumed the role of stepfather and went

beyond his legal responsibilities (moderate weight); (9) Jackson was involved in

raising his stepson (moderate weight); (10) Jackson is a good father to his stepson

(moderate weight); (11) Jackson has been a good role model to his stepson (some

weight); (12) Jackson taught his stepson the value of hard work (some weight);

(13) Jackson taught his stepson to have a good work ethic (some weight); (14)

Jackson taught his stepson and they worked together for more than one year (some

weight); (15) Jackson encouraged his stepson to study (some weight); (16) Jackson

was a good athlete and instructed his stepson athletically (slight weight); (17)

Jackson provided emotional encouragement to his stepson8 (some weight); (18)

Jackson and his stepson love each other (moderate weight); (19) Jackson’s stepson

maintains a relationship with him and communicates with him through his mother

(slight weight); (20) Jackson’s stepson intends to continue a relationship with him

(slight weight); (21) Jackson is a good husband, friend, and companion (moderate

weight); (22) Jackson’s wife will continue to foster a relationship with and visit

8. This mitigating factor was presented with two parts: that Jackson
encouraged his stepson to join the military and that he provided emotional
encouragement. However, the trial court found that Jackson did not establish that
he encouraged his stepson to join the military.

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him while he is incarcerated (some weight); (23) Jackson was a good provider to

his stepson (some weight); and (24) Jackson was a good provider to his family

(some weight).

The second category is that Jackson is a good sibling and son, and he shares

the love of his relatives in Georgia. The trial court found eleven mitigating

circumstances within this category: (25) Jackson assumed the role of protector and

role model to his younger sister (slight weight); (26) Jackson was a good influence

on his sister (slight weight); (27) Jackson encouraged his sister through difficulties

as she grew up (slight weight); (28) there is mutual love and respect between

Jackson and his sister (slight weight); (29) Jackson’s sister will maintain a

relationship with him while he is incarcerated (slight weight); (30) Jackson is a

good son and has been good to his father as an adult (slight weight); (31) Jackson

is respectful and polite to his father (slight weight); (32) Jackson has a good

relationship with his father (slight weight); (33) Jackson’s father will continue to

foster their relationship while Jackson is incarcerated (slight weight); (34) Jackson

visited his father, family, and friends in Adel, Georgia (slight weight); and (35)

Jackson was active in his church9 (slight weight).

9. This mitigating factor was presented with two parts: that Jackson
supported his family to the best of his ability in a very poor town and was active in
his church. However, the trial court found that Jackson did not establish that he
provided support to his family.

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 The third category is that Jackson experienced a difficult childhood and

upbringing, and the trial court found nine mitigating circumstances within this

category: (36) Jackson’s mother worked long hours to support the family and,

therefore, was not home as he grew up (slight weight); (37) Jackson’s mother

passed away (slight weight); (38) the passing of Jackson’s mother was hard on him

(slight weight); (39) Jackson’s father was in the U.S. Army and was overseas in

some underdeveloped, dangerous areas (slight weight); (40) Jackson’s father was

not home for long periods of time and could not be with his son (slight weight);

(41) Jackson did not have a strong male role model growing up (slight weight);

(42) Jackson did not have good adult guidance (slight weight); (43) Jackson was

raised by various relatives and lived in a dysfunctional family (slight weight); and

(44) Jackson was raised in poverty (slight weight).

The fourth category is that Jackson is a nice, generous, helpful person and

friend, and the trial court found six mitigating circumstances within this category:

(45) Jackson has a good reputation in Adel, Georgia as a nice and good person

(slight weight); (46) Jackson was not known by his friends to be violent (slight

weight); (47) Jackson was not a trouble-maker as a child or teenager (slight

weight); (48) Jackson was humble, generous, and helped others (some weight);

(49) Jackson was a good and trusted friend (slight weight); and (50) Jackson is

trustworthy and has a good heart (some weight).

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 The fifth category is that Jackson is athletic, dependable, and helped children

learn sports. The trial court found five mitigating circumstances within this

category: (51) Jackson was a good athlete and coached softball for the area

children (slight weight); (52) Jackson volunteered his time to children and their

families, was a great mentor for youngsters, and taught them about patience (slight

weight); (53) Jackson was a nurturing and caring person with children, was very

dependable, and was trusted and reliable (slight weight); (54) Jackson was an

excellent athlete, dependable, and a good teammate (slight weight); and (55)

Jackson was proud of and a good representative of his softball team (slight

weight).

The sixth category is that Jackson is a polite, respectful person. The trial

court found three mitigating circumstances within this category: (56) Jackson was

a gentleman and respectful of women (slight weight); (57) Jackson was not rude to

friends or strangers (slight weight); and (58) Jackson was polite, respectful, and

had good manners (slight weight).

The seventh category is that Jackson is religious, and the trial court found

two mitigating circumstances within this category: (59) Jackson believes in and

gave himself to God (some weight); and (60) Jackson and his wife hosted church

functions at their home (some weight).

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 The eighth category is that Jackson is a hard worker. The trial court found

two mitigating circumstances within this category: (61) Jackson is a productive and

hard worker (some weight); and (62) Jackson grasps artistic concepts easily,

perseveres through hard work, and is a good project worker (some weight).

The final categories each contain only one mitigating circumstance: (63)

Jackson had a positive outlook on life (slight weight); (64) Jackson’s friends and

associates will continue to foster a relationship with and visit him while he is

incarcerated, which the trial court found to be established as to Jackson’s family,

but not as to his friends (some weight); (65) Jackson has low-average intelligence

(slight weight); and (66) Jackson respects the judicial process and has been polite

and cooperative throughout these proceedings (some weight).

In its sentencing order, the trial court addressed the instruction it read to the

jury during the penalty phase with respect to whether Jackson played a significant

role in Pearce’s murder. The trial court recognized that the instruction approved

by this Court with respect to Enmund/Tison10 addresses the defendant’s state of

mind, which was not included in the instruction read in this case.11 However, the

10. Tison v. Arizona, 481 U.S. 137 (1987); Enmund v. Florida, 458 U.S.
782 (1982).

11. The language of the instruction approved by this Court provides: “In
order for you to recommend a sentence of death in this case you must find [the
Defendant] was a major participant in the crime of robbery or burglary and that

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trial court noted that Enmund/Tison concern the proportionality of the death

penalty for the crime of felony murder where the defendant is only a minor

participant in the offense and does not have the requisite mental state that amounts

to a reckless indifference to human life. Because Jackson was convicted based on

a theory of premeditation—not felony murder—and the jury was never instructed

with respect to felony murder, the trial court concluded that Enmund/Tison do not

apply.

The trial court weighed the aggravating circumstances against the mitigating

circumstances, and noted that the mitigating evidence demonstrated that Jackson

had a good home and family life, many friends, did not lack for the necessities in

life, did not suffer any abuse or trauma as a child, and did not have any mental

health issues. The trial court stated that the image of Jackson as a good friend,

father, and husband starkly contrasted with his commission of a brutal and savage

murder, as well as the earlier armed robbery. The trial court concluded that the

aggravating factors far outweighed the mitigating circumstances and imposed a

sentence of death.

This direct appeal followed.

ANALYSIS

[the Defendant’s] state of mind at the time amounted to [reckless] indifference to
human life.” Perez v. State, 919 So. 2d 347, 366 (Fla. 2005).

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 Sufficiency

Jackson’s conviction is based on the circumstantial evidence of the sink

fingerprint and the hair discovered on Pearce’s calf. When the evidence of guilt is

wholly circumstantial, it must be inconsistent with any other reasonable hypothesis

of innocence. See Twilegar v. State, 42 So. 3d 177, 188 (Fla. 2010). Evidence that

provides nothing more than a suspicion that the defendant was the perpetrator of

the crime is insufficient to sustain the conviction. See Ballard v. State, 923 So. 2d

475, 482 (Fla. 2006) (citing Davis v. State, 90 So. 2d 629, 631-32 (Fla. 1956)).

However, the State is not required to rebut all possible hypotheses that could be

inferred from the evidence. See Durousseau v. State, 55 So. 3d 543, 557 (Fla.

2010) (citing State v. Law, 559 So. 2d 187, 189 (Fla. 1989)). Instead, it is required

to present evidence that is inconsistent with the version of events given by the

defendant during trial. Id.; see also Smith v. State, 139 So. 3d 839, 845 (Fla.)

(“The relevant inquiry regarding whether the circumstantial evidence of guilt is

inconsistent with the defense’s theory of innocence is based on the evidence

presented and the theory argued to the jury at trial.”), cert. denied, 135 S. Ct. 711

(2014). When there is an inconsistency between the evidence presented by the

State and the theory of innocence presented by the defendant, the issue is one for

the jury and its determination will not be disturbed if supported by competent,

substantial evidence. Law, 559 So. 2d at 188.

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 After the State rested, Jackson moved for a judgment of acquittal on the

basis that the circumstantial evidence presented by the State was insufficient to

sustain the conviction. Specifically, Jackson contended that the expert testimony

did not establish when the fingerprint and hair were left in Pearce’s home. The

trial court ruled the evidence, when viewed in the light most favorable to the State,

negated all reasonable hypotheses of innocence, and denied the motion.

On appeal, Jackson contends that the evidence is insufficient to exclude

every reasonable theory of innocence for the following reasons: (1) Jackson had an

alibi for the murder, i.e., he was in Georgia to celebrate his birthday; (2) the latent

fingerprint found on the sink was not of sufficient value for comparative purposes;

(3) the sink fingerprint could have been left prior to the murder; (4) the hair could

have been left at Pearce’s home on an earlier date and transferred onto the body

after the murder; and (5) there is insufficient evidence of premeditation.

Alternatively, Jackson asserts that even if he were present during the murder, there

is no evidence that he was an active participant in the murder.

The jury was presented with two mutually exclusive theories of what

occurred—either Jackson committed the murder, or he was in Adel when the

murder occurred. The State introduced competent, substantial evidence that

contradicted Jackson’s alibi, and, accordingly, the trial court properly denied

Jackson’s motion for judgment of acquittal. Because of this, it became the role of

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the jury to decide the factual issues presented in this case. The jury was free to

reject the alibi defense when presented with an alternate and inconsistent version

of events by the State. This is especially true because Jackson made inconsistent

statements with regard to his relationship with Pearce. See Carpenter v. State, 785

So. 2d 1182, 1195 (Fla. 2001); see also Finney v. State, 660 So. 2d 674, 680 (Fla.

1995). The challenges Jackson raises with respect to the identification and timing

of the sink fingerprint, the hair, and his participation in the murder are all issues

that were properly presented to and decided by the jury. Because the jury’s

determination is supported by competent, substantial evidence, it will not be

overturned by this Court. Perry v. State, 801 So. 2d 78, 84 (Fla. 2001).

Sink Fingerprint

The latent fingerprint relied on by the State was lifted from the lip of the

sink above where Pearce was discovered. Jackson asserts that the evidence was

insufficient to establish that the fingerprint belonged to him to the exclusion of all

reasonable inferences. However, the State presented the testimony of two

fingerprint experts whose qualifications were not questioned or contested during

trial. Those experts identified the fingerprint as a match to the right ring finger of

Jackson. Thus, the State presented evidence with respect to the identification of

the print that was sufficient to withstand a motion for judgment of acquittal and,

therefore, this was an issue of fact to be decided by the jury.

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 With respect to the timing of the fingerprint, the crime scene

reconstructionist testified without objection that the sink fingerprint was left while

Jackson’s finger was coated in Pearce’s still-wet blood:

DEFENSE COUNSEL: Now, with regard to this print, there’s not a
way to determine—and I’m going to use a phrase—which came first,
in a sense, the print was there and the blood came after or the blood
was there and the print went through it. There’s not a way to
determine that, is there?

RECONSTRUCTIONIST: Well, there is with regard to [the]
fingerprint at the sink. That was transferred from a hand to the sink so
the blood is on the hand and then gets transferred to the sink.

The reconstructionist further testified that the sink fingerprint was a transfer

impression that was not left before the attack and could not have been there before

the blood.

Counsel alleged for the first time during oral arguments that the

reconstructionist was not qualified to state this opinion. Even if, as a crime scene

reconstructionist rather than a fingerprint expert, he was not qualified to testify that

the fingerprint was a blood transfer print, Pinellas County fingerprint expert

Schade also testified that fingerprints that are left in a wet substance are distinctive:

SCHADE: Now, I should point out that the [photograph of the sink
fingerprint] is a print that was left in a wet substance. Now, when I
told you before about touching a surface and leaving behind the
impression of your fingers, that’s assuming that the surface of those
ridges are coming in contact and that’s what’s left behind, is the
moisture that’s on the surface of the ridges. Even when you get dirt
and grease on your hands or paint, if you touch something, most times
you’ll leave an impression of the ridges. The furrows are not

- 24 -
 touching. Only the ridges are. But what happens on a print when the
fingers or the palms are covered in a wet surface, heavy perspiration
or another foreign substance, when you touch, you’re actually
squeezing that substrate, you’re squeezing the matrix into the furrows,
and so the ridges are not the white part, they’re the black—I’m sorry.
I got that backwards. The ridges are not the black part that was
developed, they are the white part, because the substance was pushed
into the furrows.
I’m not sure if I’m making sense, but it’s a tonal reversal. It’s
very common when you’re dealing with prints left in a foreign
substance. . . .

PROSECUTOR: Would that be common on, let’s say, a bloody
fingerprint?

SCHADE: Yeah, blood is an example of a foreign substance. . . .

(Emphasis supplied.) This testimony supports the conclusion that Jackson’s finger

was coated in wet blood before he touched the sink.

Further, the testimony provided by Slebrch also alludes to this theory.

Slebrch testified:

SLEBRCH: What can happen if you get an excess amount of blood
or any substance on your hand and then touch a surface with a certain
amount of pressure, that will push any of the substance coating your
fingers and coating those friction ridges into the spaces in between the
ridges or the furrows and that will end up being behind the impression
of the furrows.

PROSECUTOR: And is that something you take into account when
looking at latent prints like this?

SLEBRCH: Yes.

Thus, Slebrch indicated that the sink print was left while Jackson’s finger was

coated in an excess amount of blood.

- 25 -
 In contrast, no affirmative evidence was presented in the record that the

fingerprint could have been left at an earlier date and was then coated and

preserved by Pearce’s blood. The sole comment relied on by Jackson for this

proposition did not establish that such a scenario was even possible in this case.

During direct examination, the prosecutor asked Slebrch:

There’s been some discussion in this trial about the possibility that a
latent print was left behind on this object, on a sink, and that later
blood kind of preserved that print or captured it by going on top of it,
similar to the way black powder would be applied to a latent print to
preserve and capture that. Have you ever seen anything like that in
your training and experience?

Slebrch responded that she had not. During cross examination, defense counsel

elicited the following responses:

DEFENSE COUNSEL: Now, Ms. Slebrch, you—when [the
prosecutor] was asking you a moment ago if you had ever seen where
blood had been dropped and then a print had gone through it, you
stated that you had never seen that before, is that right?

SLEBRCH: That’s correct. I had never seen that.

DEFENSE COUNSEL: Does that mean that that could never happen?

SLEBRCH: No, it’s possible that that could occur.

(Emphasis supplied.) The emphasized portion of this testimony is not evidence

that Jackson’s theory of events is possible based on the evidence in this case.

Rather, this is simply a statement that such an event may, generally and in some

hypothetical set of circumstances, be possible. Such vague testimony that does not

- 26 -
relate to any actual evidence is not sufficient to prevent the case from being

decided by the jury.

Hair Evidence

The DNA expert testified that the hair found on the back of Pearce’s calf

provided a complete DNA profile of Jackson, and the presence of a complete DNA

profile demonstrated that the hair had been forcibly removed. She explained that

there are three stages of hair growth: (1) the first stage, in which hair has a fleshy

root with DNA cells and is growing and firmly attached to the head; (2) the second

stage, during which the root begins to die, the hair no longer actively grows, and

only a partial DNA profile may be present; and (3) the third stage, during which

hair is no longer attached to the root, may be naturally shed, and is unsuitable for

DNA testing. She also testified that normal handling, such as brushing or running

a hand through hair, would not be sufficient to forcibly remove hair in the first

stage of growth. However, once hair has been removed, it may be transferred from

one object to another, and there is no way to determine when the hair was

removed.

Jackson’s theory of innocence is that the hair was removed prior to the

murder, possibly while he moved a couch at Pearce’s house, and was transferred

onto Pearce by a cat or when she sat on the couch. However, the State presented

evidence that a struggle occurred between Pearce and her attacker—i.e., the

- 27 -
defensive wounds and Jackson’s forcibly removed hair. Also, the crime scene

reconstructionist testified that he found the hair on the back of Pearce’s calf, it was

not attached in any way to the calf, and that had Pearce stood up, the hair would

have fallen off. Because of this, it is not reasonably possible that the hair was

transferred onto Pearce’s leg prior to the attack. The theory that a cat deposited the

hair onto the body after the murder stretches the bounds of reason. Additionally,

as discussed below, the combination of the hair with the sink fingerprint provides

sufficient evidence to negate all reasonable hypotheses of innocence.

Circumstantial Evidence Cases

The presence of both the hair and the fingerprint distinguishes this case from

other circumstantial cases in which only one piece of evidence connected the

defendant to the murder scene. For example, in Jaramillo v. State, 417 So. 2d 257,

258 (Fla. 1982), the defendant’s fingerprints were lifted from a knife found on a

table in the victims’ house, a grocery bag found next to a chair, and the packaging

for a knife that was found near one of the victims. The victims had been shot to

death in their home. Id. at 257. The defendant testified that he knew the nephew

of one victim, who lived in the home, and that during a visit to the home a day

prior to the murders, he helped organize the garage. Id. at 258. He explained that

he needed a knife to cut boxes, and was told to use a knife that was in a bag on the

dining room table. Id. Notably, fingerprints that did not match the defendant were

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found in the house on the handcuffs that restrained one victim, the knife packaging,

and in the bedrooms and closets that had been ransacked. Id. This Court noted

that the evidence presented by the State did not establish when the defendant’s

fingerprints were left at the house and was not inconsistent with the defendant’s

theory that the fingerprints had been left prior to the murder. Id. at 257.

Accordingly, the Court held that the defendant’s fingerprints, which were the only

evidence offered by the State, did not provide sufficient circumstantial evidence to

support the convictions. Id.

Similarly, in Shores v. State, 756 So. 2d 114, 115 (Fla. 4th DCA 2000), the

Fourth District Court of Appeal reversed a burglary conviction where the only

evidence that implicated the defendant was the presence of his fingerprint on a box

of ammunition in a drawer that was ransacked. The district court noted that there

was no evidence with regard to when the fingerprint had been left on the box, and

when identity in a circumstantial case is established exclusively by fingerprint

evidence, there must be evidence that the print could have been left only at the

time the crime was committed. Id. (citing C.E. v. State, 665 So. 2d 1097, 1098

(Fla. 4th DCA 1996)). Moreover, the district court noted that when a fingerprint is

found on an item that was accessible to the public, the evidence is insufficient to

sustain a conviction. Id. at 116. The defendant in Shores alleged that his

fingerprint could have been on the ammunition box before the victim purchased it,

- 29 -
and there was no evidence that refuted this hypothesis. Id. The court determined

that this scenario was comparable to other Florida cases in which the evidence was

held to be insufficient, including one case in which the defendant’s fingerprints

were found on a candy bar wrapper purchased by the victim from the same store

where the defendant shopped, Leonard v. State, 731 So. 2d 712 (Fla. 2d DCA

1999), and another case in which the defendant’s fingerprints were found on a

gumball machine in a store, Mutcherson v. State, 696 So. 2d 420 (Fla. 2d DCA

1997).

Instead, this case is more comparable to Darling v. State, 808 So. 2d 145,

157 (Fla. 2002), in which the circumstantial evidence included not only a

fingerprint, but also DNA evidence in the form of semen. In Darling, the

defendant asserted that he had consensual sex with the victim, and she was then

killed by another person. Id. at 156. However, the evidence of sexual assault

combined with the lack of any evidence that the defendant had a relationship with

the victim was inconsistent with this theory. Id. Additionally, this Court rejected

the defendant’s contention that the presence of his fingerprint on a lotion bottle in

the victim’s bathroom was not compelling and insufficient to establish guilt

pursuant to Jaramillo and Shores. Id. at 157. The Court concluded that the

fingerprint combined with the evidence of rape and DNA evidence distinguished

- 30 -
the case from those in which fingerprint evidence, standing alone, was held to be

insufficient. Id.

Similarly, the evidence here includes the blood transfer fingerprint as well as

Jackson’s forcibly removed hair. The presence of both pieces of evidence that are

unique to Jackson distinguishes this case from circumstantial cases that are based

on a sole piece of evidence. Further, the evidence is inconsistent with the theory

that Jackson was in Adel at the time of the murder and supports the conclusion that

Jackson was inside Pearce’s home and struggled with her at the time of the murder.

Moreover, the cases relied on by Jackson are distinguishable. In Ballard,

over one hundred fingerprints were lifted from the crime scene, four of which were

from the bedframe near where one of the two victims was found. Ballard, 923 So.

2d at 479. One of the prints on the bedframe belonged to the defendant. Id.

Additionally, six hairs were found in the hand of one of the victims, three of which

belonged to the victim, two that were too short to provide sufficient information,

and one that belonged to the defendant. Id. at 479-80. This hair was in the third

phase of growth, and there was no cellular tissue on it, so the expert could not

determine whether the hair was forcibly removed or naturally shed. Id. at 480.

Additionally, five unidentified forcibly removed hairs were also discovered in the

house, and hundreds of hairs in total were recovered. Id.

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 Other evidence suggested that the defendant may not have been the killer. A

week prior to the murders, a person affiliated with a street gang shot at the house,

and the State presented no evidence that definitively ruled out the gang members as

the perpetrators. Id. at 485. One victim was known to sell marijuana and hide cash

within the home. Id. at 477. Additionally, the vehicle that belonged to one victim

was found in the woods approximately one mile from the defendant’s residence

with blood and fingerprints in it, but neither the blood nor the fingerprints

belonged to the defendant. Id. Finally, bloody fingerprints that did not match

those of the defendant were found on a barbell and a curl bar located in the room

where the second victim was found. Id. at 479. This Court held that the

circumstantial evidence in Ballard was not sufficient to support the conviction. Id.

at 483. The defendant had been a regular visitor at the home, and the Court

concluded that the hair and fingerprint evidence could have been left during one of

his many visits. Id. Accordingly, the evidence was not inconsistent with his

reasonable hypothesis of innocence. Id. at 485-86.

Jackson contends that this case is comparable to Ballard. Like in Ballard,

there was other hair and fingerprint evidence. A total of five hairs were found in

Pearce’s home, three of which were not suitable for DNA testing, one that matched

Pearce, and one that matched Jackson. A palm print was lifted from a doorjamb

inside the house that remained unidentified, but Jackson was excluded as a person

- 32 -
who could have left the print. Other latent prints were also found in the house.12

Additionally, items had been stolen from the home by three individuals who were

seen leaving from the back of the house before Pearce was discovered. Finally, the

DNA on the second knife, and the sock and footwear impressions, suggested that

more than one person could have been involved in the murder.

However, despite these similarities, significant distinctions render Ballard

inapplicable. For example, the hair found in this case had been forcibly removed,

whereas the hair in Ballard could have been naturally shed. Additionally, unlike in

Ballard, there were no hairs other than the defendant’s found on Pearce. With

respect to the print evidence, the sink fingerprint was left in wet blood, and placed

Jackson above or near the body during the murder. In Ballard, there was no

evidence as to when the defendant’s fingerprint was left on the bed. 923 So. 2d at

484. Moreover, in Ballard many fingerprints remained unidentified. Id. at 479.

Here, the only print that remained unidentified was the palm print left on a

doorjamb.

With respect to the evidence of other crimes (here, the stolen property; in

Ballard, the drive-by shooting), there is no evidence that any violent crimes had

been directed towards Pearce around the time of the murder. Further, the lead

12. There is no testimony with respect to how many prints were lifted from
the home. However, Royal testified that she received twelve latent lift cards.

- 33 -
detective testified that he identified the individuals who entered the home, and he

spoke with two of them, who admitted that they took a television. However, no

forensic evidence linked these individuals to the house.

This Court’s opinion in Cox v. State, 555 So. 2d 352 (Fla. 1989), also relied

on by Jackson, is equally inapplicable. In Cox, the evidence against the defendant

included that: (1) O-type blood, the same type as the defendant’s, was found in the

car of the victim; (2) the tongue of the defendant had been bitten off and appeared

to have been bitten by a person other than the defendant; (3) a hair that was

consistent with that of the defendant was found in the vehicle of the victim; and (4)

a print that appeared to be made by a military-type boot was found in the victim’s

vehicle, and the defendant was in the military at the time of the crime, but no

comparison was performed on the print found in the vehicle and the defendant’s

boots. Id. at 353. This Court held the circumstantial evidence to be insufficient.

Id. However, the evidence here is more compelling. The hair found on Pearce was

tested for DNA and matched Jackson, thus placing him in Pearce’s house. The

blood transfer print demonstrates that he was in the house during the murder. In

contrast, nothing in Cox conclusively linked the defendant to the victim. Id.

The third case relied on by Jackson, Lindsey v. State, 14 So. 3d 211 (Fla.

2009), is even less comparable. In Lindsey, the Court summarized the

circumstantial evidence as follows:

- 34 -
 (1) a Crown Royal bag containing jewelry was taken during the
robbery of Big Dollar pawn shop; (2) [the defendant’s ex-wife] found
a Crown Royal bag containing jewelry in a closet of an apartment
where she sometimes stayed with [the defendant] and several other
individuals, including [another individual who had been convicted for
the second-degree murder of the victim and the robbery of the pawn
shop]; (2) [the defendant] eventually sold the jewelry from the bag in
the closet at a flea market; [and] (3) [the defendant told another
inmate] that [the inmate] should always kill witnesses to crimes and
that [the defendant] had to do that.

Id. at 215-16. In addition, a fingerprint that matched the defendant was found on a

pawn shop slip dated several weeks before the murder. Id. at 214. The Court held

this evidence insufficient to establish that the defendant was in the pawn shop at

the time of the murder. Id. at 216. As previously discussed, the evidence here

places Jackson in Pearce’s house during the murder.

Active Participant

Jackson alleges for the first time on appeal that the evidence is insufficient to

establish that he was an active participant in the murder. Jackson relies on the

evidence that more than one person may have been in the home to assert that he

may merely have been present during the killing. However, where a conviction is

based on circumstantial evidence, the State is not required to contradict every

possible version of events. See Smith, 139 So. 3d at 845. Rather, the State is

required to present evidence that contradicts the theory of innocence presented by

the defendant during trial. Id. Further, this claim is not preserved because it was

not asserted before the jury.

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 Moreover, even if this claim had been preserved, it is without merit. The

evidence presented during trial establishes that Jackson was at the sink above

where Pearce’s body was found with her wet blood on his hand. The forcibly

removed hair suggests that Pearce engaged in a struggle with Jackson prior to her

death. Moreover, the jury heard evidence that more than one person may have

been present, was given a principal instruction, and convicted Jackson of first-

degree murder. The jury was additionally given a special interrogatory during the

penalty phase that asked whether Jackson played a significant role in the homicide

of Pearce. Again, the jury found that he did. Thus, although the parties did not

assert before the jury that more than one person was present during the murder, the

jury found that Jackson was an active participant, and its decision is supported by

competent, substantial evidence.

Premeditation

Whether premeditation exists is a question of fact for the jury, as is whether

the State has presented evidence to exclude all reasonable hypotheses of

innocence. Premeditation is a fully formed and conscious purpose to kill, and can

be formed up to even only a moment before a killing occurs, but must exist for a

sufficient time to permit reflection as to the nature and probable result of the act.

Green v. State, 715 So. 2d 940, 943-44 (Fla. 1998) (citing Coolen v. State, 696 So.

2d 738, 741 (Fla. 1997)). When a victim is deliberately stabbed with a knife

- 36 -
several times in vital organs, as occurred here, the manner of death can provide

circumstantial evidence of premeditation. See Perry, 801 So. 2d at 85-86. The

wounds here are similar to those in cases where this Court determined

premeditation was established.

In Perry, the victim was stabbed four times in the chest and three times in

the neck, and also suffered a defensive wound to the thumb. Id. at 81. Four of

these wounds would have been fatal individually. Id. at 86. One stab wound

penetrated the chest bone of the victim, which required extensive force and

demonstrated the injury was carefully inflicted in a deliberate manner so as to

effectuate death. Id. Similarly, in Morrison v. State, 818 So. 2d 432, 452 (Fla.

2002), the victim suffered two major knife wounds to the neck, and the second

blow was sufficiently deep to nick the victim’s vertebrae. This Court concluded

that the use of a knife to stab the victim in this manner was sufficient evidence to

support the jury’s conclusion that the murder was premeditated. Id.

Here, the State presented as circumstantial evidence of premeditation the

multiple and violent stab wounds inflicted with a knife, many of which were to

Pearce’s head. Additionally, the stab wounds to the neck and chest were both fatal.

Because the knife was left in Pearce’s chest, it is likely that the neck wound was

inflicted first. Thus, even after Jackson had fatally wounded Pearce in the neck, he

stabbed her again in the chest and with such force that the five-inch knife

- 37 -
penetrated approximately eight inches into Pearce’s body and broke off a piece of

her scapula. Accordingly, the nature, number, and manner of these wounds

provides competent, substantial evidence to support the jury finding of

premeditated murder.

This case is distinguishable from Green, 715 So. 2d at 940; Coolen, 696 So.

2d at 738; and Kirkland v. State, 684 So. 2d 732 (Fla. 1996), relied on by Jackson.

In each case, the State relied exclusively on the nature and number of stab wounds

to establish premeditation, and this Court held the circumstantial evidence to be

insufficient. In both Green and Coolen, the evidence reasonably supported a

scenario in which the killings resulted from an escalated fight. 715 So. 2d at 944;

696 So. 2d at 742. Here, because Jackson relied exclusively on an alibi defense,

the only possible conclusions from the evidence presented during trial were that

Jackson was not present, or he committed a premeditated killing. With respect to

Kirkland, the nature and number of wounds is not comparable to those inflicted on

Pearce. Additionally, the Court in Kirkland noted that the defendant had an IQ in

the sixties. 684 So. 2d at 735.13 Jackson has an IQ within a ten-point range of

eighty-four. Accordingly, this case is closer to Perry and Morrison than to Green,

Coolen, or Kirkland.

13. Kirkland was decided prior to Atkins v. Virginia, 536 U.S. 304 (2002)
(holding unconstitutional the execution of individuals with intellectual disabilities).

- 38 -
 Based on the foregoing, we deny Jackson’s claims with respect to the

sufficiency of the evidence.

Closing Statements

During trial, Schade testified with respect to changes in the testimony given

by fingerprint experts over the last ten to twenty years. For example, the

prosecutor asked Schade to explain how laboratories have changed over the years,

and Schade responded:

Well, we’ve always talked about the science of fingerprints,
however, we did not always adhere to some of the other principles of
science that are now coming to the forefront. Science is never
absolute, one hundred percent certain. Science always leaves the door
open for additional information, additional examination, and even
changing conclusions. Early on, and as recently as 15 years ago,
fingerprint people were trained you examine the evidence carefully,
you come to a conclusion and you stand by it, come hell or high
water. It was weakness to say, well, I’m reconsidering my opinion.
And that’s a big change for us. It’s still is very difficult sometimes to
think that, you know, we can no longer say we’re one hundred percent
certain, this is a one hundred percent match.
Those terms are no longer allowed in court and that’s really
holding to the [tenets] of science. It’s just the way it is. It’s a
preponderance of evidence, it’s a conclusion that, you know, it can be
possible or plausible conclusions but science never says one hundred
percent. That’s a big change for us to go from the days of it’s my
opinion, I’m a hundred percent and I will not be swayed to
reconsidering.

In addition, when the State cross-examined Royal, the following exchange

occurred:

PROSECUTOR: Okay. Now, would you agree with the concept that
if an identification is made, for example, when you come into court

- 39 -
 and you say that matches that person, that that’s a hundred percent
accurate?

ROYAL: That is correct.

PROSECUTOR: Okay. Is there any doubt in your mind whatsoever
when you make those decisions?

ROYAL: No, the identification is made then I’m a hundred percent
certain that the unknown print was identified to a set of known prints.

PROSECUTOR: And that’s the way you’ve been taught to operate?

ROYAL: That is how I operate.

During closing statements, the prosecutor made the following remark:

Now, Michelle [Royal] is a good woman. I’ve put her on the
stand before in many cases to convict defendants of crimes. She’s just
wrong on this one. It happens. It was interesting, the reason I asked
her this question about the hundred percent and the reason why Bill
Schade spent all that time talking about the change is Michelle Royal
is old school. She was taught you walk into court, it’s a hundred
percent, no doubt, this is the way I am. She’s also taught that once a
lab makes a decision, that decision is final. She runs that lab, she
made the call that wasn’t a print of value and she’s going to stand by
that conclusion because that’s what she does in court. A hundred
percent.
Bill Schade told you that’s really not where the business—not
where the expertise is going. You saw a lot of that from the FBI.
Jacqueline Slebrch. She’s the new school. She’s been taught new.
That’s why they’re doing the whole blind verifications. That’s why
they’re doing those things. Regardless, he admits it’s his print.

No objection was made to this remark, and as such, we review it for fundamental

error. Braddy v. State, 111 So. 3d 810, 837 (Fla. 2012), cert. denied, 134 S. Ct.

275 (2013). An error is not fundamental unless it reaches down into the validity of

- 40 -
the trial itself to the extent that the guilty verdict could not have been obtained in

the absence of the error. Id.

To the extent that the prosecutor’s closing statement compared “old school”

and “new school” methodology, these remarks were related to testimony that was

presented to the jury. Where the jury is to decide a matter based on the testimony

of competing experts, it is the job of the attorney to highlight how the testimony of

the expert presented by the opposing party differs from that of his or her own

expert and explain why the opposing expert’s opinion is flawed. Counsel must

attempt to persuade the jury why it should credit one expert over another by

attacking the opposing expert’s credentials and distinguishing the methods and

procedures used by each expert.

However, it is impermissible to vouch for the credibility of a witness, see

Williamson v. State, 994 So. 2d 1000, 1013 (Fla. 2008), assert personal

knowledge, see Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010,

1028 (Fla. 2000), or comment on facts outside the evidence presented during trial,

see Bigham v. State, 995 So. 2d 207, 214 (Fla. 2008). To the extent that the

prosecutor vouched for or asserted personal belief as to the credibility of Royal,

asserted personal knowledge of how she operates, commented on matters outside

the evidence presented during trial, or bolstered the testimony of Slebrch, we

conclude that any error was not fundamental.

- 41 -
 During trial, the State presented two qualified latent print experts who

identified the sink fingerprint. Slebrch testified that after she received her

bachelor’s degree in chemistry, she then completed an approximately eighteen-

month training program with the latent print unit at the FBI. This training included

written and oral exams, moot courts, oral boards, comparison and processing

exams, and a comprehensive qualifications exam. To maintain her qualifications,

she is required to complete an annual comparison test. She explained that the FBI

uses standard operating procedures to ensure the latent print analysts report

accurate results. One of these procedures is the use of blind verification in which

another qualified examiner who has no knowledge of the case or the conclusion of

the original examiner conducts an independent analysis, comparison, and

evaluation of the latent print. With respect to Schade, he worked as a latent print

expert for over forty years. He received training from both the Nassau County

Police Department in New York and the FBI Academy in Quantico. He is a

member of the International Association for Identification and has been certified

by that organization as a fingerprint examiner since 1978. Accordingly, two

qualified experts presented testimony in which they concluded that the sink

fingerprint belonged to Jackson, and there is no reasonable possibility that the

comment by the prosecutor about the fingerprint experts is such that the guilty

- 42 -
verdict could not have been reached without it. See Gonzalez v. State, 136 So. 3d

1125, 1140 (Fla.), cert. denied, 135 S. Ct. 193 (2014).

HAC

Jackson asserts that the HAC aggravating circumstance was impermissibly

vicariously applied to him. The trial court addressed in its sentencing order

whether HAC may be applied to Jackson in light of the request by the State that a

principal instruction be given. The trial court found the following:

In this case, the Court has no trouble finding that the Defendant
was “particularly physically involved” in the murder of Debra Pearce.
The Defendant testified that he wasn’t present when the crime
occurred. Clearly the jury rejected the Defendant’s claim of alibi
when it found him guilty of Premeditated First Degree Murder. With
the jury’s rejection of the Defendant’s alibi claims, and no testimony
from the Defendant, or anyone else, that specifically identified anyone
other than the Defendant who could have done the actual killing, the
overwhelming conclusion to reach is that the Defendant directly
caused the victim’s death.
However, even if there was an unknown assailant that did the
actual killing, the forensic evidence linking the Defendant to the crime
scene supports the determination that the Defendant was “particularly
physically involved” in killing Debra Pearce. The Defendant’s
fingerprint left in the victim’s blood next to the kitchen sink not only
identified the Defendant as a suspect, but also indicated that he was
present while the victim’s blood was still fresh and had not dried up.
The imprint was, therefore, made close to the time that the victim
struggled with her attacker. Also, a hair expert testified during the
guilt phase that the hair found on the victim’s calf matching the
Defendant’s DNA profile was a pulled hair containing the root, not
one that was cut or clipped with a sharp instrument. As such, this
evidence was consistent with a finding that the Defendant engaged in
some type of struggle with the victim, again, at or near the time of her
death.

- 43 -
Additionally, the jury unanimously found beyond a reasonable doubt via a penalty

phase special interrogatory that Jackson played a significant role in the homicide of

Pearce. Where an aggravating circumstance is supported by competent, substantial

evidence, it will not be overturned on appeal. See, e.g., Guardado v. State, 965 So.

2d 108, 115 (Fla. 2007).

As previously discussed, we conclude that the evidence is sufficient to

support the jury conviction for first-degree, premeditated murder to the exclusion

of all reasonable theories of innocence that were presented during trial. The

evidence presented during trial establishes that: (1) Jackson had the wet blood of

Pearce on his hand and touched the sink above where Pearce was found; (2) a hair

that had been forcibly removed from Jackson was found on Pearce such that it

would have fallen off had she stood up; (3) Pearce suffered defensive wounds; and

(4) Jackson lied and denied knowing Pearce or ever having been to her house until

confronted with the evidence against him. This evidence supports the jury

determination that Jackson struggled with Pearce and ultimately stabbed her to

death. Accordingly, the HAC aggravating circumstance was not applied

vicariously in this case, and this claim is without merit.

Moreover, this case is not comparable to Perez v. State, 919 So. 2d 347 (Fla.

2005), relied on by Jackson. In Perez, the evidence conclusively established that

two identified individuals were present during the murder. Id. at 356. The

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defendant admitted that he and two other individuals went to the victim’s house to

steal her car. Id. at 355. He also admitted that he witnessed his codefendant stab

the victim, and he then ran through the house behind the codefendant, who stole

various items. Id. at 356. However, the defendant consistently asserted that his

codefendant committed the murder of his own accord and without prior discussion.

Id. at 381. Because there was no evidence that the defendant directed the murder,

knew that the victim would be killed, or knew how the victim would be killed, this

Court struck the HAC aggravator as applied to him. Id. Notably, in Perez, this

Court expressed concern that the trial court did not address the line of cases that

requires a showing that the defendant directed or knew that the victim would be

killed and how the victim would be killed where HAC is applied vicariously. Id.

Here, the evidence was merely ambiguous as to whether more than one

person was present during the murder. Although a second knife was found under

Pearce with DNA on it that did not match either Jackson or Pearce, there is no

evidence that this knife was used during the attack. Further, in contrast to the

defendant in Perez, Jackson never asserted until this appeal that he was present and

simply not active in the murder. Accordingly, this case is not comparable to Perez.

Additionally, even though Jackson does not appear to dispute that HAC

applies to the murder, we note that competent, substantial evidence supports this

aggravating circumstance, which has been consistently upheld in cases where the

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victim was repeatedly stabbed. See, e.g., Francis v. State, 808 So. 2d 110, 134

(Fla. 2001). Here, Pearce suffered defensive wounds to her arms and several

lacerations or abrasions to her head and face. Her shirt had been twisted around

her body and displaced. The medical examiner testified that he could not be

certain whether Pearce was conscious throughout the attack but, because she bled

to death, it is possible. He additionally testified that she was not immediately

stabbed in a major organ, “so it would take sometime [sic], especially if the jugular

was the first one and then the scap—the chest one is later.” Thus, the evidence

indicates that Pearce, who was at home and in her kitchen, struggled against an

attacker armed with a knife during a vicious attack and attempted, unsuccessfully,

to ward off numerous blows aimed at her face, neck, and chest. Accordingly,

competent, substantial evidence supports this aggravating factor with regard to the

murder itself.

Proportionality

Jackson asserts that the death penalty cannot be imposed because it violates

the requirement of individualized punishment delineated by Enmund and Tison.

However, Enmund and Tison do not apply to this case, which was prosecuted

exclusively on the basis of premeditated first-degree murder. No felony murder

instruction was read to the jury. In Jackson v. State, 575 So. 2d 181, 190-91 (Fla.

1991), this Court explained the holdings of Enmund and Tison:

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 In Enmund and Tison, the Court said that the death penalty is
disproportional punishment for the crime of felony murder where the
defendant was merely a minor participant in the crime and the state’s
evidence of mental state did not prove beyond a reasonable doubt that
the defendant actually killed, intended to kill, or attempted to kill.
Mere participation in a robbery that resulted in murder is not enough
culpability to warrant the death penalty, even if the defendant
anticipated that lethal force might be used . . . .

(Emphasis supplied.) Accordingly, the Enmund/Tison claim raised by Jackson is

without merit.

Jackson also asserts that the death sentence is disproportionate. In each case

that imposes the death penalty, the Court performs a comprehensive analysis to

determine whether the crime is among the most aggravated and least mitigated.

See Taylor v. State, 937 So. 2d 590, 601 (Fla. 2006). The Court considers the

totality of the circumstances and compares the case with other capital cases so as to

ensure uniform application of the death sentence. Id.

Here, the three aggravating factors of prior violent felony conviction (based

on two convictions), murder committed while on felony probation, and HAC were

each given great weight. These aggravating factors were weighed against sixty-six

mitigating circumstances, many of which were substantially similar and related to

Jackson’s positive attributes as a father, husband, friend, and worker. Of the sixty-

six mitigating circumstances, the trial court found that thirty-six warranted only

slight weight, twenty-three warranted some weight, and only seven warranted

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moderate weight. The trial court did not give any mitigating circumstance great

weight.

Proportionality is not a comparison of the number of circumstances, but

instead is a qualitative review of the totality of the circumstances and the

underlying basis that supports the application of each circumstance. See Simpson

v. State, 3 So. 3d 1135, 1148 (Fla. 2009). This Court has previously held the death

sentence to be proportionate despite the finding of a large number of mitigating

circumstances. See Abdool v. State, 53 So. 3d 208, 215, 228 (Fla. 2010) (holding

death sentence proportionate where cold, calculated, and premeditated and HAC

were weighed against four statutory mitigating factors and forty-eight nonstatutory

mitigating factors); see also Willacy v. State, 696 So. 2d 693, 695 n.2, 696 (Fla.

1997) (holding death sentence proportionate where five aggravating circumstances

were weighed against thirty-one nonstatutory mitigating factors, most of which

were cumulative and general in nature). Here, although the trial court found a

large number of mitigating factors, they are repetitive and involve positive aspects

of Jackson’s life, whereas the three aggravating factors demonstrate an individual

who repeatedly commits violent criminal acts. Accordingly, we conclude that the

underlying bases for the aggravating circumstances in this case are weightier than

those that support the mitigating circumstances.

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 Moreover, prior violent felony and HAC are among the weightiest

aggravating circumstances. See Gonzalez, 136 So. 3d at 1167. Jackson does not

challenge the weight applied to the aggravating factors, but to support his assertion

that the death penalty is disproportionate, he contends that the prior violent felony

and felony probation factors are relatively weak. Jackson asserts that because one

felony conviction was used to support both the prior violent felony and felony

probation aggravating circumstances, neither is compelling. However, the trial

court considered two convictions when it weighed the prior violent felony

aggravating circumstance. One conviction was for an armed robbery that occurred

only months after the murder of Pearce. Additionally, although no shots were fired

during either felony, the trial court specifically noted that:

the videotape of the . . . robbery shows an individual who, with all
deliberate intent and absolutely no hesitation, walked into the lobby of
a hotel, immediately pointed a handgun at an innocent victim, and
demanded money. [The victim of the aggravated assault], likewise,
provided the description of an individual involved in a narcotics
transaction that was willing to brandish a handgun despite the risks
presented by such an act.

The court further concluded that the felony probation aggravating circumstance

warranted enhanced weight because Jackson was on probation for a violent crime

when he committed the murder.

The Court has held the death penalty to be proportionate in cases that

involve similar aggravating and mitigating circumstances to those here. In Duest

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v. State, 855 So. 2d 33, 45, 47 (Fla. 2003), the death sentence was affirmed where

the victim was stabbed twelve times, and three aggravating circumstances—prior

violent felony (on the basis of two convictions), murder committed during a

robbery or for pecuniary gain, and HAC—were weighed against twelve non-

statutory mitigating circumstances. Of the mitigating circumstances, two

warranted great weight—that the defendant had a physically and emotionally

abusive childhood, and that he experienced childhood traumatization and

deprivation of love. Id. at 38 n.3. Similarly, in Singleton v. State, 783 So. 2d 970,

972-73, 979-80 (Fla. 2001), this Court held the death sentence to be proportionate

where the victim had been stabbed seven times and the two aggravating

circumstances of prior violent felony and HAC were weighed against three

statutory mitigating circumstances (the defendant suffered from an extreme mental

or emotional disturbance at the time of the murder, the defendant’s capacity to

appreciate the criminality of his conduct or conform his conduct to the

requirements of the law was substantially impaired, and the defendant was sixty-

nine at the time of the murder), and nine nonstatutory mitigating circumstances.

The cases relied on by Jackson are not comparable. In Larkins v. State, 739

So. 2d 90, 92 (Fla. 1999), the aggravating factors of prior violent felony and

pecuniary gain were weighed against two statutory mitigating factors and eleven

nonstatutory mitigating factors. The Court noted that the most serious aggravator

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(prior violent felony) was based on two convictions that occurred almost twenty

years before the murder, and the defendant had led a comparatively crime-free life

in the interim. Id. at 95. The Court specifically noted that HAC was not present in

that case. Id. With respect to mitigation, the defendant in Larkins presented

evidence of an extensive history of mental and emotional problems and brain

damage. Id. at 94.

In contrast, HAC was found in this case. Additionally, Jackson had no

mental health or emotional mitigation, and the forensic psychologist testified that

there was nothing clinically significant in Jackson’s psychological profile. Further,

Jackson did not lead a relatively crime-free life and had violent felony convictions

for acts both before and after the murder. When the trial court weighed the

aggravating and mitigating circumstances, it specifically noted: “From the

evidence, the Defendant has consistently led an entirely separate life from the one

known to his family and friends that involved a repeated willingness to resort to

violent criminal acts to further his intentions.”

In Johnson v. State, 720 So. 2d 232, 235 (Fla. 1998), the aggravating

circumstances of prior violent felony (based on four convictions) and murder

committed during a burglary merged with pecuniary gain were weighed against the

statutory mitigating circumstance of young age and six nonstatutory mitigating

circumstances. This Court noted that although the prior violent felony aggravating

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circumstance was properly found, it was not strong when considered in light of the

facts of the case because it was based in part on the aggravated assault committed

by the defendant on his brother, who testified that he was not injured, and the

incident was a misunderstanding. Id. at 238. Two of the other felonies were based

on contemporaneous convictions as a principal to crimes simultaneously

committed by a codefendant. Id. For these reasons, the Court vacated the death

sentence. Id. In contrast, neither of the felonies that formed the basis for the prior

violent felony aggravating circumstance here was committed during the murder.

Additionally, the weighty circumstance of HAC was found.

The other cases relied on by Jackson are equally uncompelling. See

Robertson v. State, 699 So. 2d 1343, 1347 (Fla. 1997) (death penalty vacated

where the murder was “an unplanned, senseless murder committed by a nineteen-

year-old, with a long history of mental illness, who was under the influence of

alcohol and drugs at the time”); Terry v. State, 668 So. 2d 954, 965 (Fla. 1996)

(holding death sentence disproportionate where the murder was the result of a

robbery gone bad, and the aggravating circumstances of prior violent felony and

murder committed during the course of an armed robbery/pecuniary gain were not

compelling given the underlying facts); Wilson v. State, 493 So. 2d 1019, 1023

(Fla. 1986) (holding death sentence disproportionate where “the murder . . . was

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the result of a heated, domestic confrontation and the killing, although

premeditated, was most likely upon reflection of a short duration”).

Accordingly, we hold the death sentence to be proportionate in this case.

Ring

Jackson asks that we revisit prior decisions that hold that Florida’s death

penalty statute does not violate the Sixth Amendment under the principles

announced in Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey,

530 U.S. 466 (2000). We decline to revisit the numerous decisions that hold that

Florida’s capital sentencing scheme does not violate the United States Constitution

under Ring or Apprendi. See, e.g., Abdool, 53 So. 3d at 228 (“This Court has also

rejected [the] argument that this Court should revisit its opinions in Bottoson v.

Moore, 833 So. 2d 693 (Fla. 2002), and King v. Moore, 831 So. 2d 143 (Fla.

2002).”); see also Duest, 855 So. 2d at 49. Moreover, this Court has repeatedly

held that Ring does not apply where the trial court found the aggravating factors of

prior violent felony and felony probation, both of which are present in this case.

See, e.g., Hampton v. State, 103 So. 3d 98, 116 (Fla. 2012); Hodges v. State, 55

So. 3d 515, 540 (Fla. 2010).

CONCLUSION

Based on the foregoing, we affirm Jackson’s conviction and sentence of

death.

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 It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ.,
concur.
PARIENTE, J., concurs in result.

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

An Appeal from the Circuit Court in and for Duval County,
James Hunt Daniel, Judge - Case No. 162008CF010726AXXXMA

Nancy Ann Daniels, Public Defender, and Nada Margaret Carey, Assistant Public
Defender, Second Judicial Circuit, Bartow, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, and Patrick M. Delaney, Assistant Attorney
General, Tallahassee, Florida,

for Appellee

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