Khadafy Kareem Mullens v. State of Florida

Supreme Court of Florida
____________

No. SC13-1824
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KHADAFY KAREEM MULLENS,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

[June 16, 2016]

PER CURIAM.

Khadafy Kareem Mullens pleaded guilty to two counts of first-degree

murder for the murders of Mohammad Uddin and Ronald Hayworth, and one count

of attempted first-degree murder of Albert Barton. After Mullens waived his right

to a penalty phase proceeding by a jury, the trial court sentenced Mullens to death

for the murders of Uddin and Hayworth and life imprisonment for the attempted

murder of Barton. Mullens now appeals his sentences. We have jurisdiction. See

art. V, § 3(b)(1), Fla. Const.
 FACTS AND PROCEDURAL HISTORY

The Central Food Mart in St. Petersburg was a convenience store equipped

with a visible, but inoperative videocassette recording device (VCR), as well as at

least seven other concealed devices that recorded and captured the events that

occurred in the store on the evening of August 17, 2008. Spencer Peeples and

Mullens entered the store on that evening and initiated a robbery of Uddin, the

clerk who was working in the store that evening. Peeples brandished a gun and

together with Mullens, demanded money from the cash register. At one point,

Peeples tucked his hand into his shirt to prevent his fingerprints from being left on

the register. While the three men stood behind the counter as Uddin opened the

register, Hayworth entered the store and stood quietly at the counter.

After Peeples and Mullens removed cash from the register, they asked Uddin

about the inoperative VCR equipment. Peeples removed the equipment and

handed it to Mullens, who placed it in a plastic bag. Peeples returned to the

counter, filled another plastic bag with lottery tickets, and handed a small box to

Hayworth across the counter at Hayworth’s request. Hayworth left the counter to

approach the door, but did not exit the store. Peeples and Mullens dragged Uddin

from the counter to the entrance of the store and at gunpoint demanded the keys to

Uddin’s car, but Uddin refused. The three men returned to the counter where

Peeples took a green carton of Newport cigarettes and handed it to Mullens, who

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placed it in a plastic bag. As Peeples continued to demand the keys from Uddin,

Mullens walked around the store and spoke to Hayworth before returning to the

store entrance. Peeples eventually obtained the keys from Uddin, handed the gun

to Mullens, and indicated that he would return shortly with Uddin’s car before he

exited.

Mullens stood in front of the door and alternatively looked outside the door

and back at the counter at Uddin. When Mullens opened the door and leaned

outside, Uddin reached for a telephone and dialed a number. Mullens saw the

movement and ran toward him with the gun pointed at Uddin. Mullens pushed

Uddin back toward the phone and struggled with Uddin before shooting Uddin

once in the head.

Mullens then walked away from the counter and grabbed the arm of

Hayworth, who had remained in the store but was not standing in front of the door

or blocking Mullens’s exit. Mullens pushed Hayworth to the floor and shot him in

the head as well. As Mullens exited the store, he placed the gun in his pocket.

Barton then opened the door of the store, but balked as Mullens attempted to pull

him into the store. Barton and Mullens struggled and Mullens fired several shots at

Barton. Barton eventually fell to the ground and crawled away, at which point

Mullens abandoned Barton and picked up the bag full of lottery tickets before he

exited the store.

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 After reviewing footage from the operative surveillance equipment, officers

issued a “Be On The Lookout” notice with a description of Peeples, Mullens, and

Uddin’s stolen car. Peeples was arrested driving Uddin’s car in the early morning

of August 18, and he gave a voluntary statement to officers. Officers also

recovered from Uddin’s car a cylinder from a revolver and a pack of Newport

cigarettes. In his statement, Peeples indicated that he only intended to commit a

robbery, not murder. Peeples also consented to a search of his apartment, from

which officers recovered the lottery tickets, VCR equipment, and clothing that

matched that worn by both of the assailants in the video recordings. Detectives

Rodney Tower and Brian Taylor later saw Mullens in an alley and arrested him

because they recognized him from the surveillance footage. When Mullens was

arrested, officers searched him and found lottery tickets with serial numbers that

matched those taken from the store.

On September 4, 2008, a grand jury indicted Mullens and Peeples on two

counts of first-degree murder and one count of attempted first-degree murder,

although the joint indictments were eventually severed. Between July and

September 2011, a hearing was conducted to determine whether Mullens was

competent to proceed. Dr. Jill Poorman testified that in her opinion, Mullens was

competent to proceed, although Dr. Scot Machlus offered an opinion to the

contrary. Dr. Peter Bursten, a psychologist, opined that while Mullens suffered

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from antisocial personality disorder, he did not display any symptoms consistent

with an Axis I disorder. Bursten also offered an opinion that Mullens was

malingering. However, Dr. Machlus testified that in his opinion it would be

difficult for someone of Mullens’s intelligence level and behavioral patterns to

malinger. The trial court orally found that Mullens was competent to proceed. On

April 29, 2013, Mullens pleaded guilty to the first-degree murders of Uddin and

Hayworth and the attempted first-degree murder of Barton. During the penalty

phase, he waived the right to present evidence to a jury,1 and aggravating and

mitigating evidence was received by the trial court.

During the testimony of Detective Tower, the State introduced video

recordings and still photographs obtained from the surveillance cameras. Defense

counsel objected that the State could not establish a sufficient foundation for this

evidence to be admitted through Tower, who did not immediately respond to the

crime scene and did not know how the footage was downloaded into an accessible

format. Law enforcement personnel from the City of St. Petersburg were initially

unable to access the surveillance footage. Tower contacted Robert Dematti of

Able Solutions, who assisted law enforcement personnel in retrieving and

1. The State objected to Mullens’s waiver of a penalty-phase jury. The trial
court conducted a colloquy of Mullens and accepted the waiver.

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accessing the surveillance footage. The court admitted the material into evidence

over the objections of defense counsel.

The State also presented testimony from Detective Taylor, who interviewed

eyewitnesses and supervised the search of Peeples’s apartment. One witness,

Russell Watson, informed Taylor that an individual, later identified as Peeples, had

approached him earlier that day, indicated that Peeples was armed, and invited him

to participate in the robbery of the Central Food Mart. Watson declined, but

observed Peeples enter the convenience store later that day. Another witness

informed Taylor that she watched a driver in Uddin’s gray Toyota Camry, which

had been parked in front of the store that day, drive away from the store, make a U-

turn, and return to the store. Officer Willard Smith also testified that the serial

numbers of the lottery tickets found in Mullens’s possession matched those

registered to the Central Food Mart. Dr. Jon Thogmartin, the medical examiner,

also testified that the cause of death for both Uddin and Hayworth was a gunshot

wound to the head, and that while Uddin lost consciousness immediately, there

was a possibility that Hayworth did not. The State did not present testimony from

Dematti, who assisted law enforcement with the surveillance footage, or Barton,

the surviving witness.

After the State concluded the presentation of penalty-phase evidence,

Mullens presented various witnesses in mitigation. Ali Sultan, another local

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convenience store owner, testified that he knew Peeples had a reputation for

violence and intimidation. He stated that he and Peeples were involved in an

ongoing dispute, and on the day of the crimes, Peeples had first come to Sultan’s

store, looking for Sultan, but Sultan was not there at the time. Sultan also testified

that while he did not know Mullens well, he was a known local drug addict who

seemed “simple” to Sultan.

Several family members and friends of Mullens also testified with respect to

Mullens’s childhood and character. During much of Mullens’s childhood,

Mohammad Ibrahim, his father, was incarcerated, leaving Cassandra Washington,

his mother, to care for several children while she completed her education.

Cassandra often relied on her oldest child, Shandra, to supervise the children while

she worked or attended school. Relatives described Mullens’s childhood home as

cluttered, decrepit, and lacking food to feed the family. At one point, Cassandra

and her family were evicted.

When Ibrahim was released from prison, he offered little support to Mullens,

Cassandra, or the rest of the family. He verbally and physically abused Cassandra

in front of the children, and when Mullens observed this, he removed his younger

sister Kendra from the room. Ibrahim abused drugs and stole food stamps, the

household television, and a Mickey Mouse watch from Shandra to purchase drugs.

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Additionally, he taught both Shandra and Mullens to shoplift when they were

children.

During one of the periods of Ibrahim’s incarceration, Cassandra married

Levi McClendon, who also had problems with substance abuse. Cassandra

testified that McClendon was tougher on Mullens than the rest of the children.

Sharon Mullens, the sister of Ibrahim and aunt of Mullens, testified that she did not

like the interactions between Mullens and McClendon.

Family members and friends described Mullens as a happy, outgoing, and

loving child who was easily manipulated and influenced, especially by his older

brother, Wesley. Wesley once directed Mullens to break into a neighbor’s garage

and steal bicycles. Mullens also cared for his younger sister Kendra and always

attempted to make sure that Kendra would not go hungry, even if it required that

he steal food for her. Kenneth Mullens, the uncle of Mullens, testified that

Mullens was fiercely protective of his family and recounted an incident in which

Mullens physically attacked someone who had threatened his cousin during a

football game. Kenneth considered taking in Mullens to live with his family, but

his wife feared that Mullens would negatively influence their own children.

Mullens was described as an immature child, but when he grew older, he

underwent wild mood swings and began to act inappropriately. As a teenager, he

asked his mother, who worked at a family planning center, to speak to his

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girlfriend about birth control so that she would agree to have sex with him. When

he was fifteen, his mother eventually told Mullens that he could no longer live in

her home, and he was arrested and incarcerated in an adult facility shortly

thereafter. After he was released from prison at the age of sixteen, his demeanor

upon his return to Cassandra’s home was markedly different. Mullens became

angry, hostile, and paranoid. It was difficult to maintain a conversation with him,

due to his rapid and discordant speech. Neighbors approached Cassandra, asking

her to force him to leave the neighborhood, and she contemplated poisoning her

son, “to put him out of his misery.”

In addition to behavioral problems, evidence was presented regarding

Mullens’s substance abuse. Sultan testified that Mullens was one of the local

addicts. Cassandra testified that after Mullens was released from prison in 2007

and returned to her home, he used marijuana, and she suspected that he also used

cocaine. Michael Wonka, Mullens’s roommate at the time of his arrest, testified

that they regularly consumed drugs together. Mullens also told Dr. Machlus that

he began using drugs when he was eleven years old and began drinking at thirteen,

although Dr. Machlus admitted that such reports were not necessarily reliable.2

2. Dr. Machlus noted that it would be unusual for an individual to begin
using cocaine at age eleven, alcohol at thirteen, inhalants at thirteen or fourteen,
and marijuana at fifteen, as Mullens reported.

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 Mullens also presented evidence regarding his mental health. According to

testimony from Cassandra Washington, several relatives in her family suffered

from mental illness, including diagnoses of schizophrenia, depression, and

alcoholism. Ibrahim testified that he suffered from bipolar disorder and post-

traumatic stress disorder (PTSD). Dr. Machlus testified that given this family

history, Mullens had a genetic predisposition toward certain mental illnesses,

which was exacerbated by his own substance abuse. While Mullens was

incarcerated in 2007, prior to the murders, he was diagnosed with bipolar I disorder

and schizophrenia, Axis I disorders, as well as avoidant personality disorder and

independent personality disorders, Axis II disorders. When Dr. Machlus first

attempted to evaluate his competency, Mullens acted inappropriately, but after he

received medication, Dr. Machlus noted that he became more focused and

cooperative. Family members also noted that it became easier to maintain

conversations with him. Dr. Machlus opined that Mullens (1) committed the

murders while under an extreme emotional or mental disturbance, and (2) acted

under the duress of Peeples during the robbery.

Mullens presented evidence of two other proposed mitigating circumstances.

Dr. Machlus testified that Mullens informed him that he had been sexually abused

by McClendon when he was a child and on eight occasions during a prior

incarceration. Both Cassandra and Ibrahim also testified that Mullens exhibited

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paranoia regarding sexual abuse after he was released from prison. Ibrahim also

testified that he named Mullens after Muammar Gaddafi, whom he respected for

opposing the administration of President Reagan.

The trial court issued its sentencing order on August 23, 2013. It found the

existence of three aggravating circumstances with respect to each murder: (1)

Mullens had been convicted of prior violent felonies under section 921.141(5)(b),

Florida Statutes (including a prior conviction for aggravated battery, the

contemporaneous murders of Uddin and Hayworth, and the attempted murder of

Barton); (2) the capital felonies were committed during the course of a robbery,

section 921.141(5)(d), which merged with pecuniary gain, section 921.141(5)(f);

and (3) the capital felonies were committed for the purpose of avoiding lawful

arrest, section 921.141(5)(e). The court assigned great weight to each aggravating

circumstance.

The court found that two statutory mitigating circumstances applied. First,

the court concluded that the capital felony was committed while Mullens was

under the influence of an extreme mental or emotional disturbance, section

921.141(6)(b), and assigned it moderate weight. The court noted that while

Mullens had been diagnosed with bipolar disorder, personality disorder (not

otherwise specified), and polysubstance abuse, there was no evidence of Mullens’s

precise mental state during the murders because Dr. Machlus did not ask Mullens

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about his mental state at that time. The court also found that Mullens’s capacity to

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

requirements of the law was substantially impaired, section 921.141(6)(f), and

assigned it moderate weight. This circumstance was based on the evidence

presented by members of his family that detailed his difficult childhood, mental

health, history of substance abuse, and the lack of protective factors that might

otherwise insulate someone from the negative consequences of such a childhood.

Regarding nonstatutory mitigation, the court explained that of the thirty-one

circumstances that Mullens presented as mitigation, sixteen had been addressed as

statutory mitigation and would not be reconsidered as nonstatutory mitigation. 3

The court consolidated the remaining factors into nine nonstatutory mitigating

circumstances: (1) Mullens was sexually abused as a child and while in prison (not

proven and given no weight); (2) his mental illness can be successfully treated

(some weight); (3) he is immature, impulsive, and easily manipulated (little

3. These sixteen factors include Mullens’s: (1) genetic predisposition to
psychological disorders; (2) genetic predisposition to substance dependency; (3)
exposure to parental conflict; (4) exposure to and victim of child abuse and
neglect; (5) poor parental attachment; (6) exposure to family drug and alcohol
abuse; (7) exposure to family criminal behavior; (8) abuse at the hands of his older
brother; (9) residential instability; (10) impoverished childhood; (11) poor
academic performance; (12) incarceration as a juvenile in an adult facility; (13)
diagnosis of bipolar disorder; (14) diagnosis of polysubstance abuse; (15)
diagnosis of a personality disorder; and (16) being taught to commit crimes when
he was five years old by his father.

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weight); (4) he acted under the domination and control of Peeples (some weight);

(5) he has a low IQ and poor academic achievement scores (little weight); (6) he

accepted responsibility for his crimes (little weight); (7) his family and friends love

and support him (little weight); (8) he was “too far gone to be helped” at ten years

old (not proven and given no weight); and (9) he was named after Muammar

Gaddafi (not mitigating and given no weight).

Upon review of the weight assigned to all of the established aggravating and

mitigating circumstances, the court sentenced Mullens to death for the murders of

both Uddin and Hayworth, and life imprisonment for the attempted murder of

Barton. This review follows.

DISCUSSION

Authentication of Surveillance Video Recordings and Photographs

Mullens’s principal claim is that the trial court permitted the State to enter

into evidence DVDs and still photographs derived from the surveillance footage

without first authenticating them. He asserts that Detective Tower was not

qualified to authenticate the surveillance footage because Tower did not

immediately respond to the crime scene and was unfamiliar with the surveillance

equipment. Further, Mullens alleges that the State could have called either

Dematti, the technician who assisted law enforcement with the surveillance

footage, or Barton, the surviving witness.

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 We review conclusions by the trial court regarding authentication for abuse

of discretion. Coday v. State, 946 So. 2d 988, 1000 (Fla. 2006). The standard

required to authenticate evidence first admitted during the penalty phase of a

capital trial is a novel issue for this Court. Generally, the proponent of

photographic or videographic evidence bears the burden of establishing that the

evidence is a fair and accurate representation of the events depicted. See § 90.901,

Fla. Stat. (2008). The requirement of authentication is “satisfied by evidence

sufficient to support a finding that the document in question is what the proponent

claims.” Id. We have indicated that authentication for the purpose of admission is

a relatively low threshold that only requires a prima facie showing that the

proferred evidence is authentic; the ultimate determination of the authenticity of

the evidence is a question for the fact-finder. Gosciminski v. State, 132 So. 3d

678, 700 (Fla. 2013). For example, in Gosciminski, we rejected a claim that a

receipt was insufficiently authenticated because it did not include specific details

regarding the cash register, cashier, or the transaction number. Id. Despite lacking

these details, the receipt did contain the store’s logo and return policy, as well as

details that were corroborated by the testimony of a witness; therefore, it was

sufficiently authenticated to be admitted during the guilt phase of a capital trial.

Id.

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 However, the paramount consideration in this case is the fact that

evidentiary standards in the sentencing phase of a capital felony are relaxed:

Upon conviction or adjudication of guilt of a defendant of a capital
felony, the court shall conduct a separate sentencing proceeding to
determine whether the defendant should be sentenced to death . . . . In
the proceeding, evidence may be presented as to any matter that the
court deems relevant to the nature of the crime and the character of
the defendant and shall include matters relating to any of the
aggravating or mitigating circumstances . . . . Any such evidence
which the court deems to have probative value may be received,
regardless of its admissibility under the exclusionary rules of
evidence, provided the defendant is accorded a fair opportunity to
rebut any hearsay statements. However, this subsection shall not be
construed to authorize the introduction of any evidence secured in
violation of the Constitution of the United States or the Constitution
of the State of Florida.

§ 921.141(1), Fla. Stat. (2008) (emphasis added). Therefore, relevant evidence that

does not otherwise offend the rights guaranteed to a criminal defendant by the

Constitutions of Florida or of the United States is admissible during the penalty

phase of a capital trial.

We conclude that the State satisfied its burden to establish that the DVDs

were relevant to the penalty phase of Mullens’s capital trial. The surveillance

footage depicts the events of the robbery, which escalated into the murders of

Uddin and Hayworth and attempted murder of Barton. Accordingly, this evidence

was relevant to the consideration of the aggravating and mitigating circumstances,

particularly the avoid arrest aggravating circumstance that is discussed below.

Although Tower admitted that he was not present in the store during the crimes,

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nor could he explain the operation of the surveillance footage or the transfer to

DVDs, his testimony nonetheless provided a sufficient foundation to support their

admission. He testified that after he watched the footage, he was able to identify

and apprehend Mullens and Peeples within hours. A search of Peeples’s apartment

yielded clothing that matched that worn by the assailants in the surveillance

footage. Cf. United States v. Cox, 544 Fed. Appx. 908, 912 (11th Cir. 2013) (“If,

however, there is independent evidence of the accuracy of the tape recordings

admitted at trial, we shall be extremely reluctant to disturb the trial court’s decision

even though at the time that decision was made the government had not carried its

particularized burden of going forward.” (citation omitted)).4 Tower was also

present when Dematti from Able Solutions, the business that installed the

surveillance footage, arrived at the store and assisted law enforcement in viewing

the footage recorded earlier that day. Additionally, the events depicted in the

DVDs are internally consistent, and there are no claims that either the DVDs were

altered, or the footage mistakenly identified Mullens.

4. It should be noted that the court in Cox applied the federal authentication
standard, which requires the proponent of photographs or audio recordings to show
“(1) the competency of the operator; (2) the fidelity of the recording equipment; (3)
the absence of material deletions, additions, or alterations in the relevant part of the
tape; and (4) the identification of the relevant speakers.” 544 Fed. Appx. at 912
(citation omitted).

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 Admittedly, the DVDs in this record are not perfect. The video recordings

on several of the DVDs freeze, and the video playback of one camera recorded

from an exterior vantage point is almost entirely frozen. However, authentication

does not require that the evidence in question be perfect, only that the evidence is

what the proponent purports it to be. See Gosciminski, 132 So. 3d at 700. Further,

such a problem is a problem of credibility, rather than admissibility. Once the

DVDs were admitted, it became the task of the fact-finder—here, the trial court—

to determine whether the problems with the playback affected the ultimate

credibility of the evidence. Cf. id. (“Once a prima facie showing of authenticity is

made, the evidence comes in, and the ultimate question of authenticity is for the

jury.” (citing Charles W. Ehrhardt, Florida Evidence, § 901.1, at 1092-93 (2013

ed.))).

This evidence was clearly relevant to the consideration of the aggravating

and mitigating circumstances. Mullens does not assert that he was denied the

opportunity to rebut any hearsay statements contained within the footage, nor does

he suggest that the admission of the DVDs in any way violated his rights under the

Florida or United States Constitutions, which are the only evidentiary limitations

expressed in section 921.141(1). In light of the relaxed evidentiary standards of a

capital penalty phase, we hold that the trial court did not abuse its discretion

regarding the authentication of the DVDs and still photographs.

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 Avoid Arrest Aggravating Circumstance

Mullens next alleges that the State failed to prove beyond a reasonable doubt

that Mullens’s sole or dominant motive to kill Uddin and Hayworth was to

eliminate them as witnesses, thereby avoiding arrest. This claim of error is related

in part to the authentication of the DVDs, which we have explained were properly

admitted into evidence. Mullens also asserts that his behavior as depicted on the

recordings, the timing between the shootings, and his various mental health

problems all support a reasonable alternative theory that he acted impulsively when

he shot and killed Uddin and Hayworth.

When a defendant challenges the aggravation found by the trial court, we

review the record to ensure that the trial court applied the correct law and that

competent, substantial evidence exists to support the findings of the trial court.

Calhoun v. State, 138 So. 3d 350, 361 (Fla. 2013) (citing McWatters v. State, 36

So. 3d 613, 641 (Fla. 2010)). Any errors regarding improper aggravation are

reviewed for harmless error. Wilcox v. State, 143 So. 3d 359, 386-87 (Fla. 2014),

cert. denied, 135 S. Ct. 1406 (2015); Calhoun, 138 So. 3d at 362.

When the avoid arrest aggravating circumstance is found to apply to victims

who are not law enforcement officers, this Court has explained that the State bears

a higher burden of proof:

[T]he State must demonstrate beyond a reasonable doubt that the sole
or dominant motive for the murder was witness elimination.

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 Hernandez v. State, 4 So. 3d 642, 667 (Fla. 2009); see also Connor v.
State, 803 So. 2d 598, 610 (Fla. 2001). In such cases, proof of the
intent to avoid arrest or detection must be very strong, and mere
speculation on behalf of the State that witness elimination was the
dominant motive is insufficient to support the aggravating
circumstance. Id.; see also Riley v. State, 366 So. 2d 19, 22 (Fla.
1978). However, it is not necessary for the State to present direct
statements by the defendant to establish a motive of witness
elimination. Rather, even without direct evidence of the offender’s
thought processes, the aggravating factor can be supported by
circumstantial evidence through inference from the facts shown.
Swafford v. State, 533 So. 2d 270, 276 n.6 (Fla. 1988).

Wilcox, 143 So. 3d at 384-85.

This heightened standard of proof requires more than a simple inference that

the defendant might have been motivated by the concern to eliminate a witness.

See Connor, 803 So. 3d at 610. This aggravating circumstance is not satisfied

simply because a victim might have been able to identify the defendant. E.g.,

Davis v. State, 148 So. 3d 1261, 1278 (Fla. 2014) (citing Farina v. State, 801 So.

2d 44, 54 (Fla. 2001)). We have stricken the avoid arrest aggravating circumstance

if the evidence suggests that the defendant killed the victim because: the victim

was screaming; the victim was on the phone; or the defendant panicked. Cook v.

State, 542 So. 2d 964, 970 (Fla. 1989); Garron v. State, 528 So. 2d 353, 360 (Fla.

1988); Perry v. State, 522 So. 2d 817, 820 (Fla. 1988).

However, when we have concluded that this aggravating circumstance was

properly found by the trial court, additional evidence of affirmative conduct of the

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defendant to avoid detection often supports the inference that the defendant acted

with the intent to eliminate witnesses and avoid prosecution:

While [the fact that the victims knew and could identify the
defendant] alone is insufficient to prove the avoid arrest aggravator,
we have looked at any further evidence presented, such as whether the
defendant used gloves, wore a mask, or made any incriminating
statements about witness elimination; whether the victims offered
resistance; and whether the victims were confined or were in a
position to pose a threat to the defendant.

Buzia v. State, 926 So. 2d 1203, 1210 (Fla. 2006) (emphasis omitted); see Jennings

v. State, 718 So. 2d 144, 151 (Fla. 1998) (affirming avoid arrest aggravating

circumstances because the defendant “used gloves, did not use a mask, and stated

that if he ever committed a robbery, he would not leave any witnesses”); see also

Cole v. State, 36 So. 3d 597, 607 (Fla. 2010) (approving the avoid arrest

aggravating circumstance when the defendant transported a victim before killing

the victim); Looney v. State, 803 So. 2d 656, 676-78 (Fla. 2001) (affirming trial

court’s finding of avoid arrest where the defendant knew the victims well and

committed the murders after they had already completed the robbery and secured a

getaway vehicle); Foster v. State, 778 So. 2d 906, 918 (Fla. 2000) (affirming avoid

arrest aggravating circumstance upon evidence that a group, of which the

defendant was a member, decided to kill the victim to prevent the victim from

reporting the group to law enforcement); Fotopoulos v. State, 608 So. 2d 784, 792

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(Fla. 1992) (concluding that evidence that the victim intended to blackmail the

defendant was sufficient to support the avoid arrest aggravating circumstance).

In Consalvo v. State, 697 So. 2d 805, 819 (Fla. 1996), the defendant

challenged the trial court’s finding of the avoid arrest aggravating circumstance.

During trial, a witness testified that Consalvo told him that he shot the victim after

she discovered him in her home, threatened to call the police, reached for the

phone, and began to scream. Id. We stated that this testimony, along with the

facts that the defendant knew the victim and the victim pressed charges against the

defendant for an earlier crime, supported the trial court’s finding of the avoid arrest

aggravating circumstance. Id. Such facts made Consalvo’s claim distinguishable

from Garron, where the defendant’s motive was unclear, and Cook, where the

defendant instinctively reacted when he shot the victim. Id. at 819-20.

The only evidence that establishes the avoid arrest aggravating circumstance

in this case is the surveillance footage from inside the store. We conclude that the

footage provides competent, substantial evidence that supports the findings of the

trial court that Mullens acted with the sole or dominant intent to eliminate

Hayworth and Barton as witnesses who might identify him to law enforcement.

Regarding the murder of Uddin, the surveillance footage reveals that Mullens

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quickly shot Uddin after he saw Uddin with a phone in his hand.5 We have

stricken the avoid arrest aggravating circumstance when the only evidence in

support of this circumstance was the fact that the defendant saw the victim with a

phone in hand. Garron, 528 So. 2d at 360 (“The fact that [a potential witness] was

on the telephone at the time of the shooting hardly infers any motive on the

appellant’s part.”). This reaction is distinguishable from Consalvo, where the

defendant knew the victim; the victim had intended to prosecute the defendant for

an earlier crime; and the victim had actually threatened to call the police. 697 So.

2d at 819-20. We therefore conclude that the trial court incorrectly applied the law

regarding the avoid arrest aggravating circumstance with respect to the murder of

Uddin.

However, Mullens’s actions following the murder of Uddin indicate that he

acted with the primary intention of avoiding arrest and prosecution. After Uddin

was shot, Mullens walked away from Uddin and, instead of exiting the store,

Mullens searched for Hayworth, who did not block Mullens’s exit. As the trial

court noted in its sentencing order:

Finding him in one of the store’s aisles, the Defendant forcefully
grabbed Hayworth’s arm and spun him about, getting him into a
position where he could be more easily shot. Hayworth was not
resisting the Defendant and was pleading for the Defendant to let him

5. The record does not reflect whom Uddin called, or if he even successfully
dialed any number.

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 live. Ignoring Hayworth’s pleas, the Defendant raised the revolver
and fired a shot into Hayworth’s head. Like Uddin, Hayworth had
been passive and submissive during the robbery and remained so up
until his death. He had obeyed all orders from the Defendant and
Peeples and stood exactly where they told him to during the robbery.
Hayworth posed absolutely no threat to the Defendant.

See Farina, 801 So. 2d at 54-55 (noting that victims offered no resistance and did

not impede the exit of the defendant in affirming the avoid arrest aggravating

circumstance). Further, Mullens began to exit the store and had placed the gun in

his pocket when Barton attempted to enter. When Barton hesitated, Mullens

grabbed Barton, dragged him into the store, and engaged in an altercation with

Barton that resulted in Mullens firing several shots at Barton before Mullens

ultimately exited the store. Additionally, Mullens took with him the inoperative

surveillance equipment that Peeples had earlier disconnected and removed from its

shelf, and neither Mullens nor Peeples wore masks. See Buzia, 926 So. 2d at 1210;

Jennings, 718 So. 2d at 151. These actions clearly constitute sufficient

circumstantial evidence that Mullens’s sole or dominant intent in killing Hayworth

and attempting to kill Barton was to eliminate them as witnesses. Therefore, we

affirm the finding of the avoid arrest aggravating circumstance.

Campbell Error

The next error that Mullens asserts is that the sentencing order issued by the

trial court violates the requirements established in Campbell v. State, 571 So. 2d

415, 419 (Fla. 1990), receded from in part by Trease v. State, 768 So. 2d 1050,

- 23 -
1055 (Fla. 2000). He alleges that the trial court failed to address two proposed

nonstatutory mitigating circumstances: (1) that he was protective and nurturing of

his younger sister, and (2) he was kind and helpful to his roommate. He also

asserts that the trial court erred when it refused to consider some of the mitigating

factors proposed as nonstatutory mitigation because the court concluded that such

evidence qualified as statutory mitigation. He also claims that the court improperly

found that the allegations that he had been the victim of sexual abuse were not

supported by competent, substantial evidence. We conclude that there is no merit

to these claims.

This Court has emphasized the need for trial courts to clearly and expressly

delineate findings related to aggravation and mitigation in written sentencing

orders. Oyola v. State, 99 So. 3d 431, 446 (Fla. 2012) (citing Campbell, 571 So.

2d at 419-20). This emphasis on procedure enables this Court to conduct a proper

and meaningful review of a death sentence on appeal. Walker v. State, 707 So. 2d

300, 319 (Fla. 1997). We review findings of aggravating and mitigating

circumstances for competent, substantial evidence. See Ault v. State, 53 So. 3d

175, 187 (Fla. 2010). However, the weight assigned to each circumstance is

reviewed for abuse of discretion. E.g., Oyola, 99 So. 3d at 445; Ault, 53 So. 3d at

187. We review any errors made in the sentencing order for harmless error. Ault,

53 So. 3d at 187 (citing Lebron v. State, 982 So. 2d 649, 661 (Fla. 2008));

- 24 -
Singleton v. State, 783 So. 2d 970, 977 (Fla. 2001). An error made during the

penalty phase is harmless if there is no reasonable possibility that a lesser sentence

would have resulted without the error. Rogers v. State, 511 So. 2d 526, 535 (Fla.

1987) (citing State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986)).

In Campbell, we held that a trial court must clearly consider whether each

proposed mitigating circumstance (1) is actually mitigating in nature; and (2) has

been established by the preponderance of the evidence. 571 So. 2d at 419; see

Oyola, 99 So. 3d at 446. The court then must assign weight to every established

mitigating and aggravating circumstance and weigh the aggravating and mitigating

circumstances in determining whether the death penalty is the appropriate

punishment. Campbell, 571 So. 2d at 419-20. We later clarified that the court may

conclude that a particular mitigating circumstance exists, but assign it no weight.

Trease, 768 So. 2d at 1055. In this analysis, a trial court is also permitted to

aggregate several related nonstatutory mitigating circumstances. Gonzalez v.

State, 136 So. 3d 1125, 1166 (Fla.), cert. denied, 135 S. Ct. 193 (2014); Ault, 53

So. 3d at 194. Indeed, the Court indicated in Campbell that it is preferable for trial

courts to aggregate proposed nonstatutory factors into categories of related

conduct. 571 So. 2d at 419 n.3.

The trial court below found that the State had proven beyond a reasonable

doubt three aggravating circumstances: prior violent felony (great weight);

- 25 -
committed during the course of a robbery, merged with pecuniary gain (great

weight); and avoid arrest (great weight). The court noted that the prior violent

felony included both an earlier conviction for aggravated battery and convictions

for the murders of Uddin and Hayworth and the attempted murder of Barton. It

also found that Mullens established two statutory mitigating circumstances: (1)

Mullens committed the crimes under the influence of an extreme emotional or

mental disturbance (moderate weight); and (2) his capacity to appreciate the

criminality of his conduct or conform his conduct to the requirements of law was

substantially impaired (moderate weight). The court made the following findings

with respect to nonstatutory mitigating circumstances: (1) Mullens was sexually

abused as a child and while in prison (not established; no weight); (2) his mental

illness can be treated (some weight); (3) he is immature, impulsive, and easily

manipulated (little weight); (4) he acted under the domination and control of

Peeples (some weight); (5) he has a low IQ and poor academic achievement scores

(little weight); (6) he took responsibility for his crimes (little weight); (7) he has

loving and supportive family and friends (little weight); (8) his family members

considered him to be “too far gone” by the age of ten years old (not proven; no

weight); and (9) his father named him after Muammar Gaddafi (not mitigating; no

weight).

- 26 -
 Number of Proposed Mitigating Circumstances

Mullens asserts that the court failed to address two proposed nonstatutory

mitigating circumstances: (1) that he was protective and nurturing of his sister

Kendra; and (2) that prior to his arrest, he was kind and helpful to his roommate

Michael Wonka. Relatedly, Mullens alleges an apparent inconsistency regarding

the number of proposed mitigating circumstances that violates Campbell. Mullens

submitted a sentencing memorandum that proposed thirty-five nonstatutory

mitigating circumstances, but the sentencing order reported thirty-one proposed

nonstatutory mitigating circumstances.6 Although the sentencing order does not

6. The thirty-five factors that Mullens proposed were: (1) his genetic
predisposition to psychological disorders; (2) genetic predisposition to substance
dependency; (3) exposure to parental conflict; (4) exposure to and victim of child
abuse and neglect; (5) poor parental attachment; (6) exposure to family drug and
alcohol abuse; (7) exposure to family criminal behavior; (8) abuse at the hands of
his older brother; (9) residential instability; (10) impoverished childhood; (11) poor
academic performance; (12) incarceration as a juvenile in an adult facility; (13)
diagnosis of bipolar disorder; (14) diagnosis of polysubstance abuse; (15)
diagnosis of a personality disorder; (16) low IQ; (17) low academic achievement
scores; (18) low cognitive scores; (19) sexual abuse by his stepfather; (20) victim
of sexual battery while incarcerated; (21) being taught to commit crimes when he
was five years old by his father; (22) his mental illness can be successfully treated;
(23) he took responsibility for his crimes by pleading guilty; (24) he took
responsibility for his crimes by waiving a sentencing recommendation by a jury;
(25) he did not initiate or plan the robbery; (26) Peeples provided the gun; (27)
Mullens’s immaturity; (28) impulsivity; (29) he is gullible and easily manipulated;
(30) he acted under the domination and control of Peeples; (31) he has the love and
support of many family members and friends; (32) he was protective of and
nurturing to his younger sister, Kendra; (33) he was kind and helpful to Michael
Wonka; (34) by the age of ten years old, his relatives thought he was “too far gone

- 27 -
address the discrepancy regarding the number of proposed nonstatutory mitigating

circumstances, the trial court explained that proposed factors numbers one through

fifteen and 21 had been considered and addressed as statutory mitigation. The

remaining factors were consolidated into the following nine categories: (1) the

sexual abuse he allegedly suffered; (2) his mental illness; (3) his immaturity,

impulsivity, and ability to be manipulated; (4) the fact that he acted under the

influence of Peeples; (5) his low IQ and poor achievement scores; (6) the fact that

he took responsibility for his crimes because he pleaded guilty and waived the right

to an advisory sentence by a jury; (7) the fact that he has loving and supporting

friends and family; (8) the fact that some of his relatives thought he was “too far

gone” to be helped when he was ten years old; and (9) the fact that his father

named him after Muammar Gaddafi.

We hold that Mullens is not entitled to relief on this claim. The trial court

aggregated several related nonstatutory factors into general categories for its

consideration, which was permissible. See Gonzalez, 136 So. 3d at 1166; Ault, 53

So. 3d at 194. The court did not overlook the proposed circumstance that Mullens

was kind and helpful to Wonka, but in fact referenced the testimony of Wonka as

part of the general nonstatutory category that Mullens has loving and supportive

to be helped”; and (35) his father named him after Muammar Gaddafi, whom his
father respected.

- 28 -
friends and family. This factor was assigned little weight. Regarding Mullens’s

relationship with his sister, Kendra, it appears that the trial court considered this to

be part of the statutory mitigation that Mullens’s capacity to appreciate the

criminality of his conduct or to conform his conduct to the requirements of law

was substantially impaired, although the court did not indicate that this

circumstance was one of the sixteen circumstances already considered as statutory

mitigation.7 In finding that this statutory mitigating circumstance applied, the

court referenced the impoverished childhoods that Mullens and his siblings

endured, as well as the abuse inflicted on Mullens, his mother, and his siblings by

Mullens’s father. Because the court did consider the effects that Mullens’s

difficult childhood had on himself and his family as mitigation, we conclude that

any error by the trial court in overlooking Mullens’s relationship with his late sister

Kendra is harmless, particularly in light of the fact that the trial court found the

existence of three aggravating circumstances and assigned great weight to each.

See Sparre v. State, 164 So. 3d 1183, 1198 (Fla. 2015) (concluding that a

potentially overlooked mitigating circumstance was harmless in light of the

evidence of guilt and established aggravating circumstances).

7. Mullens’s relationship with Kendra was not apparently encompassed by
the general nonstatutory category that Mullens “has loving and supportive family
and friends” who testified that they will continue to support Mullens during his
incarceration because Kendra had passed away before Mullens’s trial.

- 29 -
 With respect to the discrepancy in the number of proposed nonstatutory

mitigating circumstances, we conclude that any error is also harmless. See Merck

v. State, 975 So. 2d 1054, 1066 n.5 (Fla. 2007) (noting that factual errors in

sentencing orders are reviewed for harmless error). Other than the two allegedly

absent factors considered above or the errors discussed below, Mullens does not

indicate which specific nonstatutory mitigating circumstances the trial court may

have overlooked. Although the trial court found that two statutory mitigating

circumstances were established, each meriting moderate weight, and seven

established nonstatutory mitigating factors ranging from none to some weight, such

mitigation did not outweigh the great weight assigned to each of three aggravating

circumstances. We therefore conclude that there was no reasonable possibility that

a lesser sentence would have been imposed in the absence of such an error.

Refusal to Reconsider Statutory Mitigation as Nonstatutory Mitigation

Mullens also claims that the court improperly refused to consider sixteen

proposed nonstatutory mitigating circumstances. In its sentencing order, the court

stated that it had already considered these mitigating circumstances in finding the

existence of two statutory mitigating circumstances. Accordingly, the court

refused to find that those mitigating circumstances qualified as nonstatutory

mitigation as well.

- 30 -
 Although a trial court must evaluate established mitigating circumstances,

Mullens offers no support for his claim that a trial court must reconsider evidence

as nonstatutory mitigation after the court has already concluded that such evidence

qualifies as statutory mitigation. In Ault, the trial court rejected the defendant’s

contention that his mental health qualified as either statutory or nonstatutory

mitigation. 53 So. 3d at 189. On review, this Court affirmed the rejection of this

evidence as statutory mitigation, but concluded that the trial court erred when it

then refused to consider such evidence as nonstatutory mitigation. Id. at 188-90

(“However, the rejection of statutory mental health mitigation did not require the

trial court to reject brain damage as an independent nonstatutory mitigating

factor.”).8

In Oyola, this Court also held that the trial court’s mitigation analysis was

insufficient. 99 So. 3d at 446-47. There, the trial court concluded that Oyola’s

mental health issues did not rise to the level of statutory mitigation, and provided

the following analysis regarding nonstatutory mitigation: “The alleged non-

statutory mitigation included serious drug abuse, an abusive home life as a child,

created a cycle of violence, and mental disorder. While the evidence did establish

such circumstances, the Court only gives such circumstances slight weight in

8. The Court in Ault ultimately concluded that this error, along with other
sentencing errors, was harmless. 53 So. 3d at 196.

- 31 -
weighing the aggravating circumstances against the mitigating circumstances.” Id.

We explained that such a cursory review of the mitigating evidence failed to meet

the specific sentencing procedure articulated in Campbell. Id. at 447.

However, these cases do not support Mullens’s claim that a Campbell error

occurred below. Unlike Ault, the trial court below accepted the proposed evidence

as statutory mitigation and simply did not recount that evidence again as

nonstatutory mitigation as well. The error in Oyola emerged because the trial court

failed to detail its conclusions regarding mitigation. Essentially, Mullens asks this

Court to require a trial court to “double count” mitigating evidence that has already

been found to have established statutory mitigation as nonstatutory mitigation as

well, something this Court has not yet mandated.

Furthermore, we have previously indicated that the proportionality analysis

that we perform following an appropriately detailed sentencing order by the trial

court is not a simple matter of counting the number of aggravating circumstances

against the mitigating circumstances; rather, this is a qualitative analysis. See

Brown v. State, 143 So. 3d 392, 407 (Fla.), cert. denied, 135 S. Ct. 726 (2014);

Muehleman v. State, 3 So. 3d 1149, 1166 (Fla. 2009). Therefore, there is no

purpose to be served by requiring trial courts to recount factors as both statutory

and nonstatutory mitigation. We conclude that the trial court did not err in refusing

- 32 -
to find that the factors that supported Mullens’s statutory mitigation also qualified

as nonstatutory mitigation.

Allegations of Sexual Abuse

Mullens also insists that the trial court erred when it improperly concluded

that no competent, substantial evidence supported the nonstatutory mitigating

circumstance that he was sexually abused as a child and as an adult in prison. We

disagree.

Although a trial court must consider and weigh each established mitigating

circumstance, it may reject a proposed mitigating factor if the record lacks

competent, substantial evidence to support that circumstance. Coday, 946 So. 2d

at 1001-03. A trial court may even reject uncontroverted expert opinion testimony

regarding proposed mitigating evidence if that opinion is unsupported by the

record. Hoskins v. State, 965 So. 2d 1, 16-17 (Fla. 2007); Nelson v. State, 850 So.

2d 514, 530 (Fla. 2003); Philmore v. State, 820 So. 2d 919, 935-37 (Fla. 2002);

Foster v. State, 679 So. 2d 747, 755 (Fla. 1996). For example, in Philmore, this

Court approved the rejection by the trial court that the defendant suffered from an

extreme mental or emotional disturbance during the commission of the capital

crime after the State extensively cross-examined the expert witness for the defense.

820 So. 2d at 937; see also Nelson, 850 So. 2d at 530 (affirming rejection of expert

opinion largely derived from defendant’s self-reporting of hallucinations and

- 33 -
depression). We have also found that the omission of allegations of sexual abuse

submitted as nonstatutory mitigation was harmless because the only evidence of

this allegation was testimony from the defendant’s father, who indicated that he

only learned of the alleged abuse several years later. Caylor v. State, 78 So. 3d

482, 497-98 (Fla. 2011) (“The appellant himself never testified regarding the

allegation and never gave any description of the abuse or how it may have affected

him.”).

The sentencing order in this case provides the following analysis with

respect to this issue:

The Defendant alleges that he was sexually abused as a child by
his step-father and that he was also sexually abused while incarcerated
in prison. However, no competent evidence was presented during the
penalty phase to substantiate these claims. Accordingly, the Court
finds that this non-statutory mitigation has not been proven and
therefore accords it no weight.

During the penalty phase, Mullens presented testimony from Dr. Machlus, who

informed the court that Mullens reported to him that he was sexually abused by his

stepfather as a child and on eight separate occasions while incarcerated. However,

Dr. Machlus admitted during cross-examination that Mullens had failed to report

these allegations prior to the interview, which was conducted during the course of

Mullens’s competency evaluation. He also admitted that Mullens may have been

malingering, which was consistent with similar suggestions proffered by other

experts during the competency hearing. Thus, the record provides a basis to

- 34 -
question the validity of Dr. Machlus’s conclusions. See Philmore, 820 So. 2d at

937; Nelson, 850 So. 2d at 530.

Additionally, although other witnesses for Mullens testified that they

suspected that he had been sexually assaulted by his stepfather and while he was

incarcerated, such testimony only amounted to speculation. Indeed, one such

witness, Mullens’s father Ibrahim, admitted that it was difficult to pinpoint exactly

when he first suspected that Mullens had been sexually abused in prison because

Ibrahim himself was incarcerated for much of the relevant period of Mullens’s life

and because he was high on drugs during his intermittent periods of freedom. We

therefore agree with the trial court’s finding that there was no competent,

substantial evidence in the record to support this mitigating circumstance.

Moreover, to the extent that the trial court failed to detail the specific reasons that

it did not find that this mitigating circumstance had been proven—i.e., the lack of

credibility of Dr. Machlus’s conclusions and the speculative nature of the

testimony offered by Mullens’s family members—we conclude that any error is

harmless. See Caylor, 78 So. 3d at 497-98.

The sentencing order provided by the trial court was detailed and it

extensively reviewed the facts of the crimes, as well as the aggravating and

mitigating circumstances before the court. The court explained why it found that

certain aggravating and mitigating circumstances had been established (or not),

- 35 -
assigned weight to each established circumstance, and weighed the aggravation

and mitigation before it sentenced Mullens to death, as Campbell requires.

Although sentencing orders must provide sufficient detail to enable this Court to

conduct a meaningful review, see Ault, 53 So. 3d at 187, there is by no means a

requirement that a sentencing order must pedantically or repeatedly address each

individual factor proposed as mitigation. See Campbell, 571 So. 2d at 419 n.3

(“As with statutory mitigating circumstances, proposed nonstatutory circumstances

should generally be dealt with as categories of related conduct rather than as

individual acts.”). We therefore conclude that the sentencing order satisfied the

requirements of Campbell and reject Mullens’s assertions of error.

Proportionality

Mullens also claims that the death sentence is not proportionate for the

crimes committed because he asserts that the murders resulted from a robbery gone

awry. As noted above, this is a qualitative evaluation of the reasons for the

established aggravating and mitigating circumstances. Brown, 143 So. 3d at 407;

Muehleman, 3 So. 3d at 1166. Accordingly, we consider all of the aggravating and

mitigating circumstances in comparison to similar cases where we have upheld the

death penalty. McLean v. State, 29 So. 3d 1045, 1052 (Fla. 2010). Additionally,

the Court accepts the weight assigned to the aggravating and mitigating

- 36 -
circumstances, unless there is no competent, substantial evidence to support such a

finding. Hayward v. State, 24 So. 3d 17, 46 (Fla. 2009).

When it appears that a murder has occurred in the course of a “robbery gone

wrong,” we have on some occasions concluded that the death penalty is

disproportionate. E.g., Yacob v. State, 136 So. 3d 539, 550-52 (Fla. 2014); Jones

v. State, 963 So. 2d 180, 187-88 (Fla. 2007) (vacating death penalty because only a

single aggravating circumstance remained); Larkins v. State, 739 So. 2d 90, 95

(Fla. 1999) (noting the extensive mental health evidence presented as mitigation);

see also Urbin v. State, 714 So. 2d 411, 417 (Fla. 1998) (finding the fact that the

defendant was a minor at the time of the crime to be “particularly compelling”

(citing Livingston v. State, 565 So. 2d 1288 (Fla. 1988)). Relatedly, this Court has

indicated that where only a single valid aggravating circumstance exists, a sentence

of death may be inappropriate. See Green v. State, 975 So. 2d 1081, 1088 (Fla.

2008) (“[A]bsent unusual circumstances, death is not indicated in a single-

aggravator case where there is substantial mitigation.”); Jones, 963 So. 2d at 189.

Mullens insists that this case is similar to Yacob, in which we held that the

death penalty was not proportionate. 136 So. 3d at 550. In that case, the defendant

entered a convenience store and initiated a robbery. Id. at 541. During the course

of the robbery, he asked the clerk if the security camera had any videotape or CD

that recorded store activity. Id. The clerk answered in the negative, and as Yacob

- 37 -
prepared to exit the store, the clerk reached for a switch to automatically lock the

doors of the store. Id. In response, Yacob shot at the clerk before ultimately

finding a different point of exit from the store. Id. During sentencing, the trial

court found the existence of two aggravating circumstances, commission during

the course of a robbery and pecuniary gain, which merged into a single aggravating

circumstance. Id. at 544. Rather than qualify as one of the most aggravated and

least mitigated murders, the Court concluded that this murder instead was the result

of a botched robbery and held that the death penalty was disproportionate. Id. at

550-52.

However, we consider Yacob to be distinguishable for several reasons.

First, in finding the sentence in Yacob to be disproportionate, this Court noted that

the facts of Yacob were similar to cases that resulted from botched robberies and

that were also found to be disproportionate. 136 So. 3d at 550-52 (citing Scott v.

State, 66 So. 3d 923, 925 (Fla. 2011); Johnson v. State, 720 So. 2d 232, 236 (Fla.

1998); Sinclair v. State, 657 So. 2d 1138, 1142-43 (Fla. 1995); Thompson v. State,

647 So. 2d 824, 827 (Fla. 1994)). Notably, Yacob and the cases upon which it

relied involved only one count of first-degree murder. See id.9 Likewise, in other

cases in which we have found the death penalty to be disproportionate because we

9. The defendant in Thompson was also convicted of attempted first-degree
murder. 720 So. 2d at 233.

- 38 -
concluded that the first-degree murders resulted from a botched robbery, the

defendant killed only one victim. See Jones, 963 So. 2d at 181, 184; Larkins, 739

So. 2d at 91-92; Urbin, 714 So. 2d at 413. By contrast, the fact that Mullens

committed two counts of first-degree murder and attempted to commit a third

count of first-degree murder after he and Peeples had completed the robbery

distinguishes this case from other cases that involved “robberies gone wrong.”

Additionally, we reversed the sentence in Yacob in part because there was

only a single valid aggravating circumstance. See 136 So. 3d at 552. Even if we

were to strike the avoid arrest aggravating circumstance here, two aggravating

circumstances, prior violent felony and that the murders were committed during

the course of a robbery, would remain. Therefore, this case is not one in which

only a single valid aggravating circumstance exists, which might support the

imposition of a life sentence. See Green, 975 So. 2d at 1088.

Rather, we conclude that this case is closer to McLean, 29 So. 3d 1045, and

Troy v. State, 948 So. 2d 635 (Fla. 2006), in which we affirmed the imposition of

the death penalty. In McLean, the trial court found the existence of three

aggravating circumstances—the defendant was on felony probation at the time of

the capital offense; prior violent felony, including both a contemporaneous

conviction and a prior conviction for armed robbery; and the murder was

committed during the course of a robbery. 29 So. 3d at 1049. The court also

- 39 -
found the same two statutory mitigating circumstances that were found in this case,

as well as six categories of nonstatutory mitigation, but concluded that the

aggravation outweighed the mitigation. Id. at 1049-50. Similarly, we upheld the

sentence of death in Troy, after the trial court found four aggravating

circumstances—the murder was especially heinous, atrocious, and cruel; prior

violent felony; committed by a defendant under community control; and

committed during the course of a sexual battery and robbery—the same two

statutory mitigating circumstances, and sixteen nonstatutory mitigating

circumstances. 948 So. 2d at 654-55.

Here, the trial court concluded that the great weight assigned to each of three

aggravating circumstances outweighed the established mitigation. We conclude

that competent, substantial evidence supports the findings of the trial court

regarding aggravation and mitigation. Therefore, we affirm the imposition of the

death penalty in this case.

Sufficiency

Although Mullens does not raise the issue, this Court has an independent

obligation to review the record for competent, substantial evidence that supports

his convictions. E.g., Brown, 143 So. 3d at 407 (citing Blake v. State, 972 So. 2d

839, 850 (Fla. 2007); Fla. R. App. P. 9.142(a)(5)). However, when a defendant

pleads guilty to a capital offense, this Court instead must consider whether that

- 40 -
plea was knowing, intelligent, and voluntary. Tanzi v. State, 964 So. 2d 106, 121

(Fla. 2007) (citing Winkles v. State, 894 So. 2d 842, 847 (Fla. 2005); Lynch v.

State, 841 So. 2d 362, 375 (Fla. 2003)).

After a competency hearing in 2011, in which the court found that Mullens

was competent to proceed, Mullens was represented by counsel and pleaded guilty

on April 29, 2013. During a colloquy with the court, Mullens stated that he

understood that by pleading guilty to two counts of first-degree murder, he faced

either death or life imprisonment. The court confirmed that Mullens understood

that he chose to waive his right to have a jury decide his guilt and recommend an

advisory sentence. The State also provided a factual basis for two counts of first-

degree murder and one count of attempted murder, and the court accepted the plea.

See Russ v. State, 73 So. 3d 178, 199-200 (Fla. 2011) (finding the defendant’s

guilty plea was knowingly, intelligently, and voluntarily made). Therefore, we

conclude that the plea was knowingly, intelligently, and voluntarily made, and it

provides competent, substantial evidence to support Mullens’s convictions.

Written Order of Competency

Finally, Mullens insists that this matter must be remanded to the trial court

for a written order of competency. Florida Rule of Criminal Procedure 3.212(b)

requires a trial court to consider a defendant’s competency before proceeding

further. “If the court finds the defendant competent to proceed, the court shall

- 41 -
enter its order so finding and shall proceed.” Fla. R. Crim. P. 3.212(b); see also

Fla. R. Crim. P. 3.212(c)(7) (applying identical language for competency

determinations where a defendant has been found competent after having been

previously committed for treatment). The district courts of this state have

interpreted this language to require a written order of competency; when a trial

court has issued only an oral finding of competency, the district courts have

typically remanded for a nunc pro tunc written order of competency. See, e.g.,

Williams v. State, 130 So. 3d 763, 764 (mem.) (Fla. 2d DCA 2014); Razuri v.

State, 126 So. 3d 261, 261-62, n.1 (mem.) (Fla. 3d DCA 2010); Molina v. State,

946 So. 2d 1103, 1105 n.1 (Fla. 5th DCA 2006); White v. State, 548 So. 2d 765,

768 (Fla. 1st DCA 1989); see also Boone v. State, 805 So. 2d 1040, 1041 (Fla. 4th

DCA 2002) (remanding for written order of competency, but not specifying a nunc

pro tunc order). Additionally, this Court recently indicated that a trial court must

delineate its findings regarding the competency of the defendant in a written order.

Dougherty v. State, 149 So. 3d 672, 676, 679 (Fla. 2014) (noting that the claim in

that case was procedurally barred because the defendant first raised the issue in a

postconviction proceeding nearly seven years after his initial competency

proceeding, but reviewing the competency procedures outlined in Florida Rules of

Criminal Procedure 3.210-3.212).

- 42 -
 The State insists that Mullens waived his right to seek a written competency

order through his plea agreement. We disagree. The plea agreement entered into

between Mullens and the State indicates that Mullens waived his “right to appeal

the facts of the case.” The trial court orally found Mullens to be competent on

September 16, 2011, and neither party disputes his competency. Mullens’s request

that this case be remanded for a nunc pro tunc written order of competency does

not seek to challenge the facts of this case. Therefore, we remand this matter to the

trial court for the entry of a written order of competency, nunc pro tunc to

September 16, 2011.

Hurst

During the pendency of Mullens’s appeal, the United States Supreme Court

issued its decision in Hurst v. Florida, 136 S. Ct. 616 (2016). The Court held that

Florida’s capital sentencing scheme violated the Sixth Amendment under Ring v.

Arizona, 536 U.S. 584 (2002). Following that decision, Mullens requested leave to

file supplemental briefing to address the effects of Hurst on his appeal, which we

granted.

We need not extensively consider the implications of Hurst to determine that

Mullens cannot avail himself of relief pursuant to Hurst. Hurst said nothing about

whether a defendant could waive the Sixth Amendment right to jury factfinding in

sentencing procedures as recognized by Ring and Apprendi v. New Jersey, 530

- 43 -
U.S. 466 (2000). In light of the fact that Mullens waived this right, his argument

that his sentence must be commuted to life imprisonment pursuant to section

775.082(2), Florida Statutes (2008), fails.

Although the United States Supreme Court has not directly addressed

whether a defendant can waive his or her rights to jury factfinding in the specific

context of capital sentencing, the Court has concluded that defendants are free to

waive the general right to jury factfinding that was recognized in Apprendi:

[N]othing prevents a defendant from waiving his Apprendi rights. . . .
If appropriate waivers are procured, States may continue to offer
judicial factfinding as a matter of course to all defendants who plead
guilty. Even a defendant who stands trial may consent to judicial
factfinding as to sentence enhancements, which may well be in his
interest if relevant evidence would prejudice him at trial.

Blakely v. Washington, 542 U.S. 296, 310 (2004). Even more broadly, it has long

been recognized that defendants may entirely waive their right to a jury trial. E.g.,

Singer v. United States, 380 U.S. 24, 32-35 (1965); Patton v. United States, 281

U.S. 276, 308 (1930), abrogated on other grounds by Williams v. Florida, 399 U.S.

78 (1970); State v. Upton, 658 So. 2d 86, 87 (Fla. 1995).

Other states have reached similar conclusions in the context of capital

sentencing. In states where defendants who pleaded guilty to capital offenses

automatically proceeded to judicial sentencing, courts have held that Ring did not

invalidate their guilty plea and associated waiver of jury factfinding. State ex rel.

Taylor v. Steele, 341 S.W.3d 634, 646-47 (Mo. 2011); State v. Piper, 709 N.W.2d

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783, 803-07 (S.D. 2006) (citing Colwell v. State, 59 P.3d 463 (Nev. 2002); Moore

v. State, 771 N.E.2d 46 (Ind. 2002)); State v. Downs, 604 S.E.2d 377, 380 (S.C.

2004); State v. Murdaugh, 97 P.3d 844, 852-54 (Ariz. 2004); see also Lewis v.

Wheeler, 609 F.3d 291, 309 (4th Cir. 2010) (refusing to grant federal habeas

corpus relief pursuant to Ring, explaining that “neither Apprendi nor Ring holds

that a defendant who pleads guilty to capital murder and waives a jury trial under

[Virginia’s] capital sentencing scheme retains a constitutional right to have a jury

determine aggravating factors”). These courts reasoned that the defendants knew

that when they entered a guilty plea, they fully forfeited their right to a jury trial.

Taylor, 341 S.W.3d at 647-48; Colwell, 59 P.3d at 474; Moore, 771 N.E.2d at 49.

A subsequent change in the law regarding the right to jury sentencing did not

render that initial waiver involuntary. Murdaugh, 97 P.3d at 853 (citing Brady v.

United States, 397 U.S. 742 (1970)). Moreover, where defendants have

strategically chosen to proceed before a judge alone in order to avoid a death

sentence, their jury waivers have been upheld. Taylor, 341 S.W.3d at 647-48;

Murdaugh, 97 P.3d at 853.

Unlike the capital sentencing schemes at issue in Taylor, Piper, Colwell,

Moore, Downs, and Lewis, in Florida, a defendant who pleaded guilty to a capital

offense retained the right to present mitigating evidence to a jury, which, prior to

Hurst, would issue an advisory sentence. See § 921.141(1), Fla. Stat. (2008). As

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with a guilty plea, in which a defendant waives his or her right to a jury

determination of guilt, a waiver of the right to jury sentencing will be upheld if that

waiver is knowingly, voluntarily, and intelligently made. Winkles v. State, 21 So.

3d 19, 23 (Fla. 2009) (citing Grim v. State, 971 So. 2d 85, 101 (Fla. 2007)); Griffin

v. State, 820 So. 2d 906, 912 (Fla. 2002).

In this case, Mullens waived his right to jury sentencing after he pleaded

guilty to two counts of first-degree murder. Moreover, the State contested this

waiver, although it recognized that Mullens had that right and the trial court could,

in its discretion, accept or reject his waiver.10 The trial court conducted a thorough

colloquy and asked Mullens if he understood the right that he was relinquishing

and that he was subject to sentences of either death or life imprisonment. The trial

court was fully cognizant of Mullens’s status and his background. After the

persistent questions by the trial court, the following exchange occurred:

[MULLENS]: Sir, it seem[s] like you keep asking the same thing like
I’m making the wrong decision or something.

THE COURT: No. I’m just making sure so the record’s clear that
you’ve talked about it enough and that you’re comfortable that you’re
making the right decision for you.

10. See, e.g., Grim, 971 So. 2d at 101 (explaining that a trial court may
exercise discretion in convening a jury for sentencing purposes, even if the
defendant has validly waived the right to an advisory jury) (citing Muhammad v.
State, 782 So. 2d 343, 361 (Fla. 2001); State v. Carr, 336 So. 2d 358, 359 (Fla.
1976)).

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 [MULLENS]: I’m absolutely positive, sir.

THE COURT: Okay. All right. . . .

(Emphasis added.) Upon review of this record, we conclude that Mullens’s waiver

was knowing, voluntary, and intelligent.

If a defendant remains free to waive his or her right to a jury trial, even if

such a waiver under the previous law of a different jurisdiction automatically

imposed judicial factfinding and sentencing, we fail to see how Mullens, who was

entitled to present mitigating evidence to a jury as a matter of Florida law even

after he pleaded guilty and validly waived that right, can claim error. As our sister

courts have recognized, accepting such an argument would encourage capital

defendants to abuse the judicial process by waiving the right to jury sentencing and

claiming reversible error upon a judicial sentence of death. Piper, 709 N.W.2d at

808 (citing People v. Rhoades, 753 N.E.2d 537, 544 (Ill. 2001)). This we refuse to

permit. Accordingly, Mullens cannot subvert the right to jury factfinding by

waiving that right and then suggesting that a subsequent development in the law

has fundamentally undermined his sentence. We reject his claim that his sentence

should be commuted to life imprisonment.

CONCLUSION

We conclude that Mullens knowingly, intelligently, and voluntarily pleaded

guilty to the charged offenses. Additionally, Mullens is not entitled to relief on

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any of the errors that he alleges. We also determine that Mullens is not entitled to

relief pursuant to Hurst. Therefore, we affirm his sentences and remand for entry

of a written order of competency, nunc pro tunc to September 16, 2011.

It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, and PERRY, JJ., concur.
PARIENTE, J., concurs with an opinion.
LEWIS, J., specially concurs with an opinion, in which LABARGA, C.J., and
PARIENTE, J., concur.
CANADY, J., concurs in result with an opinion, in which POLSTON, J., concurs.

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

PARIENTE, J., concurring.

I concur in the affirmance of the defendant’s conviction and death sentence.

The defendant entered a plea of guilty for the tragic murder of two victims and the

attempted murder of a third victim—all of whom he shot at close range. The grim

sequence of the robbery and ensuing murders was documented by the convenience

store’s security camera. The defendant, who was twenty-four years old at the time

of the murders, waived a penalty phase before a jury. I agree that the defendant

knowingly, voluntarily, and intelligently waived his right to a jury trial, and that

therefore the defendant “cannot avail himself to relief pursuant to Hurst.” Majority

op. at 43.

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 I write only to highlight, as demonstrated through the trial court’s excellent

sentencing order, the sentencing judge’s profound understanding of how Mullens’s

dysfunctional upbringing influenced the person he became as an adult:

However, while the Court firmly believes that the Defendant
was well aware of the criminality of his actions, competent evidence
was presented that suggests that the Defendant’s ability to conform his
conduct to the requirements of law was substantially impaired. In
addition to Dr. Machlus’s testimony regarding the Defendant’s mental
health, the Court also heard testimony from several of the Defendant’s
family members regarding his upbringing. The totality of their
testimonies painted a very bleak picture of the Defendant’s childhood
and background.

The Defendant’s father was incarcerated in prison for the
majority of the Defendant’s life. However, during the periods of his
release, his father admitted to brutally beating the Defendant’s mother
in front of the Defendant and his siblings, and to also viciously
beating the children themselves. Like his father, the Defendant’s
brother also took to inflicting violence on the Defendant, horribly
beating him on several occasions. In addition to these beatings, the
Defendant’s father was constantly seeking out narcotics and abusing
them in front of the Defendant. His father would often steal
household funds as well as others’ property to pay for drugs and
alcohol. The Defendant was no older than five when his father taught
him how to shoplift in order to supply the family with food and other
items they needed. Similarly, the Defendant’s mother was an
alcoholic who abused both alcohol and marijuana in the presence of
the Defendant. His parents’ addictions led to a lack of residential
stability and inadequate resources to supply food, clothes or utilities,
forcing the Defendant and his siblings to go without these items.

The testimony from the Defendant’s family members made
clear that throughout his formative years, the Defendant was exposed
to severe physical and emotional abuse, rampant alcohol and drug
abuse and lessons on how to commit crimes. Compounding the
effects of the Defendant’s childhood is the lack of any “protective
factors.” Dr. Machlus testified that the Defendant did not have any of

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 the protective factors that would typically insulate an individual from
experiencing the negative consequences of such an upbringing.

Additionally, when the Defendant was sixteen years old he was
sentenced to prison. The Defendant’s mother testified that when he
returned from prison, the Defendant was “very different,” and that he
had become “angry” and “paranoid.” She testified that his behavior
worsened to the point that their neighbors were concerned enough to
start a petition to have Defendant removed from the neighborhood.
Having tried to convince the Defendant to seek professional help and
failing, even the Defendant’s mother thought his condition had
become so irrevocable that she believed he would have been better off
dead.

Furthermore, both Dr. Machlus and the Defendant’s mother
testified as to the Defendant’s predisposition to psychological
disorders and substance abuse. It was well established that the
Defendant’s lineage is saturated with individuals who suffered not
only from psychological disorders, but also severely abused drugs and
alcohol. As previously noted, Dr. Machlus testified that individuals
who suffer from both Bipolar Disorder and substance abuse are six
times more likely to commit violent criminal acts as opposed to those
individuals who suffer solely from Bipolar Disorder. Given the
Defendant’s mental health and substance abuse history, family
upbringing and lack of protective factors, it is evident that the
Defendant lacks the ability to conform his conduct to the requirements
of law.
While the Court has no doubt that the Defendant was well
aware of the criminality of his actions, it is the combination of the
Defendant’s mental health and substance abuse issues along with his
upbringing that indicate the Defendant lacked the capacity to conform
to the requirements of law. In light of the foregoing, the Court finds
that this factor has been proven and accords it moderate weight.

As long as we continue to have a death penalty in Florida, we will see that

many of the defendants who sit on death row have backgrounds similar to the

history and life of Khadafy Kareem Mullens. While Mullens’s multiple traumas,

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including his numerous adverse childhood experiences, serve as substantial non-

statutory mitigation, I cannot disagree with the trial court’s weighing of the

aggravating circumstances against the mitigating circumstances, nor with our

conclusion that the death sentence in this case was proportional, and agree that this

case is dramatically different from Yacob v. State, 136 So. 3d 539, 550-52 (Fla.

2014), a case we reduced to life. Accordingly, I concur in the affirmance of

Mullens’s conviction and death sentence.

LEWIS, J., specially concurring.

I agree with the conclusions reached by the Court today. However, I write

to express my concern that this decision should not in any way be understood to

eliminate or undermine the legal procedures regarding the admission of

nontestimonial evidence. See Johnson v. State, 660 So. 2d 637, 645 (Fla. 1995)

(“The rules of evidence may be relaxed during the penalty phase of a capital trial,

but they emphatically are not to be completely ignored.”); see also § 921.141(1),

Fla. Stat. (2008) (“[T]his subsection shall not be construed to authorize the

introduction of any evidence secured in violation of the Constitution of the United

States or the Constitution of the State of Florida.”)

Courts in Florida have held that authentication of surveillance footage

during the determination of guilt is satisfied upon the testimony of an individual,

such as an employee or business owner, who was familiar with the installation and

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operation of the surveillance equipment. Dragani v. State, 759 So. 2d 745, 746

(Fla. 5th DCA 2000) quashed in part on other grounds, 791 So. 2d 1083 (Fla.

2001); Dolan v. State, 743 So. 2d 544, 546 (Fla. 4th DCA 1999). Additionally, in

Wagner v. State, 707 So. 2d 827, 830 (Fla. 1st DCA 1998), the First District held

that authentication was satisfied upon testimony from a police officer who

installed, operated, and explained the chain of custody of a video camera.

However, no court in Florida has concluded that authentication of evidence that

proves the guilt of a defendant can be satisfied only upon the testimony of an

officer who was familiar with the investigation, but ultimately could not verify the

reliability of the recording device. I would caution trial courts against relying on

the decision today to support such an evidentiary ruling made outside the context

of the sentencing phase of a capital trial.

Rather, the conclusions reached today must be considered in the relatively

rare context that this defendant pleaded guilty to a capital offense and waived the

right to an advisory sentence by a jury of his peers. Additionally, there were

absolutely no allegations that the surveillance footage was materially altered, nor is

there any suggestion that law enforcement officers mistakenly identified Mullens

after viewing the footage. Many of the evidentiary restrictions in the Florida

Evidence Code, including the requirement that evidence must be authenticated

before it can be admitted, exist to prevent juror confusion and to guarantee

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criminal defendants the right to a fair trial. See, e.g., § 90.403, Fla. Stat. (2008)

(excluding relevant but unduly prejudicial or confusing evidence); § 90.802, Fla.

Stat. (2008) (generally excluding hearsay evidence). When there are no jurors to

potentially confuse and the defendant has conceded his or her guilt, relevant,

nontestimonial evidence that is not otherwise of questionable origin is admissible

during a penalty phase of a capital trial. See § 921.141(1), Fla. Stat.

However, the fact that evidence need only be relevant during the sentencing

phase of a capital trial should not be interpreted to mean that trial courts can or

should admit evidence that is patently unreliable. The definition of relevant

evidence is “evidence tending to prove or disprove a material fact.” § 90.401, Fla.

Stat. (2008). Further, authentication is central to the understanding of relevancy:

The authentication requirement may be viewed as an aspect of
relevancy. In a contract action, for example, evidence in the form of a
writing is relevant as proof of the actual terms of an alleged agreement
only if it is shown to be the very document to which the parties
somehow manifested their assent, or at least a true copy of that
document. In this sense, it is actually [Federal Rule of Evidence] 401
and [Federal Rule of Evidence] 402 that impose the requirement to
authenticate, for these provisions define relevancy and make it a
condition of admissibility.

Christopher B. Mueller & Laird C. Kirkpatrick, 5 Federal Evidence § 9.2 (4th ed.

2015) (emphasis added). Therefore, it follows that evidence that is obviously

unreliable, fabricated, or of unknown origin is necessarily irrelevant.

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 Accordingly, the proponent of nontestimonial, non-self-authenticating

evidence cannot simply proffer for admission such evidence alone to establish its

relevancy. For example, this Court has held that in the absence of evidence linking

a given weapon to the charged offense, the weapon itself is irrelevant and

inadmissible. Agatheas v. State, 77 So. 3d 1232, 1236 (Fla. 2011) (holding that it

is insufficient to establish the relevancy of a particular gun by simply introducing it

and instead requiring the prosecution to somehow link that gun to the crime).

Likewise, the foundation for photographic and videographic evidence can be

established either through the testimony of a witness with knowledge under the

pictorial testimony theory of admission, or upon additional proof of the reliability

of the recording under the silent witness theory. Hannewacker v. City of

Jacksonville Beach, 419 So. 2d 308, 311 (Fla. 1982); Bryant v. State, 810 So. 2d

532, 536 (Fla. 1st DCA 2002) (citing Charles W. Ehrhardt, Florida Evidence, §

401.2 at 114 (2001 ed.)); Dolan, 743 So. 2d at 545-46.

In this case, the testimony of Detective Tower—who responded to the crime

scene, arrested Mullens after viewing the surveillance footage, and testified after

Mullens admitted his guilt—provided a sufficient foundation for the admission of

the surveillance footage. I therefore concur in the decision of the Court.

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

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CANADY, J., concurring in result.

I agree with the decision to affirm the convictions and sentences. But I

disagree with the conclusion that the “trial court incorrectly applied the law

regarding the avoid arrest aggravating circumstance with respect to the murder of

Uddin.” Majority op. at 22. Contrary to the unelaborated assertion in Garron v.

State, 528 So. 2d 353, 360 (Fla. 1988), when a victim is slain while attempting to

make a phone call during the course of a robbery, a strong inference arises that the

defendant first concluded that the phone call was likely being made to summon the

police and then acted against the victim to thwart phone contact with the police and

thereby to avoid arrest for the robbery. The imputation of another motive to the

defendant in such circumstances can only be produced by a flight of fancy. I also

disagree with remanding for a written order on competency, which is an

unnecessary and useless act.

POLSTON, J., concurs.

An Appeal from the Circuit Court in and for Pinellas County,
Philip James Federico, Judge - Case No. 522008CF018029XXXXNO

Howard L. Dimmig, II, Public Defender, and Cynthia Jean Dodge, Assistant Public
Defender, Tenth Judicial Circuit, Bartow, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Timothy Arthur
Freeland, Assistant Attorney General, Tampa, Florida,

for Appellee

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