Donald Otis Williams v. State of Florida

Supreme Court of Florida
____________

No. SC14-814
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DONALD OTIS WILLIAMS,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

[January 19, 2017]

PER CURIAM.

Donald Otis Williams, who was fifty years old at the time of the crime, was

convicted of the 2010 kidnapping, robbery, and first-degree murder of eighty-one-

year-old Janet Patrick. A jury recommended that Williams be sentenced to death

for the murder by a vote of nine to three, and the trial court, after concluding that

the aggravating factors outweighed the mitigating circumstances, imposed the

death penalty. Williams appeals his convictions and death sentence. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const.

For the reasons set forth below, we affirm Williams’ convictions but reverse

the death sentence based on the United States Supreme Court’s opinion in Hurst v.
Florida (Hurst v. Florida), 136 S. Ct. 616 (2016), and this Court’s opinion on

remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016). Although a special

verdict form was used in Williams’ penalty phase, the jury did not unanimously

conclude that there were sufficient aggravating factors to impose death or that the

aggravation outweighed the mitigation—critical findings that must be made by a

unanimous jury under the Sixth Amendment of the United States Constitution and

article I, section 22, of the Florida Constitution. See Hurst, 202 So. 3d at 43-44.

Further, the jury’s recommendation for death by a vote of nine to three in this case

does not satisfy the constitutional requirement explained in Hurst that the jury’s

final sentencing recommendation be unanimous. Id. Thus, we conclude that the

Hurst error in Williams’ sentencing was not harmless beyond a reasonable doubt.

See id. at 66-69. Accordingly, we reverse Williams’ sentence of death and remand

for a new penalty phase.

FACTS AND PROCEDURAL HISTORY

The Guilt Phase

The victim, Janet Patrick, was last seen alive on October 18, 2010, after

shopping for groceries at Publix near her home in Lake County, Florida. The

defendant, Donald Otis Williams, through both security video and eyewitness

testimony, was identified as accompanying her at Publix and getting into the

passenger seat of her vehicle, a white Chevrolet Impala. Multiple witnesses

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testified that they later saw Williams in a white Chevrolet similar to the one owned

by the victim. One of the witnesses, an acquaintance of Williams, testified that

Williams borrowed his shovel in the days following the victim’s disappearance,

and never returned it. On October 23, a law enforcement officer found Williams in

Polk County, Florida sitting in the victim’s car with her credit cards in his pocket.

While in police custody, Williams gave interviews to the media, in which he

admitted to being with the victim at Publix but denied harming her. He told the

press that he and the victim were abducted by an unidentified assailant. Williams

claimed that during the abduction, both he and the victim were in the trunk and

prayed together, and the victim told Williams that she was afraid something “too

personal” for Williams to discuss with the press was going to happen to her.

According to Williams, the assailant beat the victim and eventually stopped the car

somewhere in Polk County, where he ordered Williams to put the victim on the

ground. Williams claimed that he was then able to escape in the victim’s car.

Law enforcement officers investigated Williams’ story about an assailant but

were unable to corroborate it. Witnesses who interacted with Williams in the days

following the victim’s disappearance testified that there was no indication that he

had been abducted. Williams eventually repudiated the story. The day after

Williams’ press interviews, law enforcement found the victim’s nude, partially

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skeletonized remains in Polk County beneath two tires in a wooded area a mile and

a half from Williams’ former residence, where he lived from 1991 to 1996.

Crime scene investigators documented and processed the scene where the

body was found. They found the victim’s grocery shopping list next to her

remains. There were drag marks that lined up to where the body was found.

Officials did not find any jewelry on or near the body or inside the car, nor did they

find the victim’s wallet or purse. The body itself was unclothed, with the

exception of a pair of socks and a medical alert necklace, and severely

decomposed.

The medical examiner, Dr. Barbara Wolf, performed the autopsy and

reviewed the victim’s medical records, photos from the crime scene, Lake County

Sheriff’s Office reports, laboratory reports, and interviews that Williams gave to

the media. Because of the condition of the victim’s body when it was found, Dr.

Wolf testified that the cause of death could not be determined, but ruled out

accidental death and opined that the manner of death was homicide. Carlton Jane

Beck Findley, an expert in forensic entomology, determined that the victim most

likely died between sunrise on October 19, 2010, and sunset on October 20, 2010.

Katie Skorpinski, an expert in forensic anthropology, examined the remains at the

C.A. Pound Human Identification Lab at the University of Florida and found that

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the body had no fractures from around the time of death, no signs of thermal

damage, and no other perimortem damage.

Crime scene investigators processed the victim’s automobile. Testifying at

trial, they explained the various items that were recovered from the vehicle. In the

trunk, they found two separate pieces of trunk carpeting, the spare tire cover from

beneath the trunk carpeting, a spare tire locking device, and a piece of plastic

irrigation tubing. In the passenger compartment, they found another piece of

plastic irrigation tubing on the front passenger floorboard, a towel on the

dashboard, one pair of green and white shorts on the backseat, two pairs of

underwear briefs—one inside of the other—on the backseat, one pair of jeans on

the floor in front of the driver’s seat, a walking cane, and various other items.

Later, in a nearby cemetery, where some of Williams’ family members were

buried, law enforcement found the shovel that Williams had borrowed from his

acquaintance in the days after the victim’s disappearance. Tubing similar to that

which was found in the victim’s vehicle was found near the shovel. An expert in

the field of trace evidence analysis testified that the tubing found at the cemetery

appeared to have been stretched and had characteristics consistent with being

connected to the piece of tubing that had been in the trunk.

Dr. Mohammad Amer, an expert in DNA profiling, then testified regarding

the scientific significance of these items. He testified that objects recovered from

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inside the trunk of the victim’s vehicle contained blood stains that matched the

victim. Specifically, on the carpeting of the trunk, Dr. Amer testified about a stain

that “gave chemical indications for the presence of blood,” which had a mixed

DNA profile, with the major DNA profile of this stain matching the victim’s

profile. The other profile was indeterminate. The major DNA profile matching the

victim had a frequency of occurrence for unrelated individuals of one in 620

quadrillion Caucasians, one in 45 quintillion African-Americans, and one in 170

quadrillion Southeastern Hispanics.

Dr. Amer testified that the spare tire cover also had a stain giving “chemical

indications for the presence of blood” that had a partial DNA profile that matched

the victim with statistical chances of the partial profile occurring in the population

of one in 12 Caucasians, one in 31 African-Americans, and one in 10 Southeastern

Hispanics. The spare tire locking device had four stains that gave “chemical

indications for the presence of blood,” three of which resulted in partial profiles

matching the victim. In two of the stains, the statistical chances of finding the

partial profile were one in 470 Caucasians, one in 1.7 billion African-Americans,

and one in 290 million Southeastern Hispanics. In the third stain, the statistical

chances of the profile being found in the population were one in 1 billion

Caucasians, one in 4.1 billion African-Americans, and one in 500 million

Southeastern Hispanics. There were also two stains inside the trunk lid, which

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both “gave chemical indications for the presence of blood” that matched the

victim’s DNA profile. In one of those stains, the frequency of occurrence of that

DNA profile was one in 2 quadrillion. In the other stain, the frequency of

occurrence was one in 310 quadrillion.

Dr. Amer also testified about various items found inside the interior of the

victim’s vehicle. He tested some of the items and found DNA that matched

Williams’ DNA profile. These items included the towel that was found on the

dashboard, which contained Williams’ complete DNA profile. The chances of this

DNA profile occurring in the population were one in 2.5 quintillion Caucasians,

one in 3.5 quintillion African-Americans, and one in 19 quintillion Southeastern

Hispanics. Dr. Amer also tested the pair of green and white shorts found in the

backseat, which contained a hair. The shorts contained cells with a partial profile

matching Williams, with the chances of appearing in the population of one in 18

quadrillion, and the hair contained a partial profile matching Williams, with the

chance of finding it in the population of one in 290,000.

Dr. Amer also testified regarding other items found in the interior of the

vehicle that contained the DNA of both Williams and the victim. Specifically,

these items were the pair of jeans that was found on the floor in front of the

driver’s seat and the two pairs of underwear briefs, which had been found lying,

one inside of the other, on the backseat. Dr. Amer swabbed the “friction points” of

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the jeans—inside of the crotch area, inside the pockets, and the waistband area—

and found DNA with a mixed profile matching Williams and the victim. The

major contributor to the mixed profile matched Williams, with chances of being

found in the population of one in 2.5 quintillion Caucasians, one in 3.5 quintillion

African-Americans, and one in 19 quintillion Southeastern Hispanics. The minor

contributor matched the victim with chances of being found in the population of

one in 160,000 Caucasians, one in 290,000 African-Americans, and one in 160,000

Southeastern Hispanics.

Dr. Amer also testified about hairs that were on both of the pairs of briefs

that had been found. One of these hairs matched Williams, and two hairs matched

the victim. Inside one of these pairs of briefs, Dr. Amer found a semen stain in the

front crotch area, and the DNA profile of the semen stain matched Williams with

chances of this profile being found in the population of one in 3.9 quintillion. Dr.

Amer noted that it is not uncommon to find semen in the crotch area of a male’s

underwear. Inside the pair of briefs containing the semen stain, Dr. Amer also

found a mixture of epithelial cells (skin cells). The victim and Williams were

included as possible contributors to the mixture of skin cells with chances of being

found in the population of one in forty.

Inside the crotch area of the other pair of briefs, Dr. Amer found a mixture

of skin cells matching the victim and Williams with statistical chances of their

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DNA profile being found in the population of one in 2.8 million. On cross-

examination, conducted by the defendant, who represented himself for most of the

guilt phase, Dr. Amer acknowledged that it could be possible for DNA to transfer

if someone touched someone with their hands and then put their hands somewhere

else, or if two items of clothing from two different people were commingled.

Although the DNA mixture of the defendant and victim was located on the inside

of the briefs, Dr. Amer also acknowledged that it is not uncommon to obtain a

mixed profile on an outer garment, and this would be possible on an article that

was touching a car seat that had been used for a long time.

Dr. Amer was recalled via telephone the day after he testified in person and

was asked by the prosecutor whether he could determine if the skin cells resulted

from vaginal secretions. He testified that he could not determine whether the skin

cells came from that source.

Sally Streeter, Williams’ probation officer,1 testified that Williams did not

have a place to live as of October 8, 2010. Williams’ brother wired Williams fifty

dollars on Saturday, October 16, and told him that he would not be sending any

more money. Williams later told a detective that on October 18, the day he was

1. The jury was not told that Sally Streeter was Williams’ probation officer
during the guilt phase. The jury was informed that Williams was on probation only
during the penalty phase.

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with the victim at Publix, he was wearing multiple layers of clothing, including

two pairs of underwear and shorts under a pair of jeans. This description was

consistent with the articles of clothing found inside the vehicle by crime scene

investigators and tested for DNA by Dr. Amer.

In his defense case-in-chief, Williams called witnesses to support his

position that he was suffering from a mental illness or seizures at the time of the

crime. These witnesses included family members, who testified about Williams’

behavior and experiences since they had known him, and two people who saw him

and the victim in Publix on the day of the victim’s disappearance. He also called

psychiatrist Dr. Alan S. Berns, who testified that he had diagnosed Williams with

bipolar affective disorder with associated psychotic features and post-traumatic

stress disorder (PTSD). Dr. Berns testified that, after meeting with Williams in

2012 and reviewing some of Williams’ medical records, he determined Williams

had a history of alcohol abuse, cannabis use, and possible use of ephedra. On

cross-examination, Dr. Berns testified that, in his professional opinion, Williams

was not legally insane at the time of the offense.

Williams called forensic psychologist Dr. Steven N. Gold, who also

testified—based on his review of Williams’ records, a meeting with Williams in

2013, and speaking with Williams’ family members—that Williams had bipolar

disorder and PTSD. Finally, Williams called neurologist Dr. Jean Cibula, who

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specializes in epilepsy and had conducted a week-long epilepsy assessment of

Williams in 2012. Dr. Cibula testified that she was unable to document objective

evidence of a seizure disorder.

After calling these witnesses, Williams requested that the trial court

reappoint the former defense counsel who represented him for approximately two

years prior to his decision to represent himself in the beginning of 2013. When

defense counsel resumed representation, they recalled two witnesses who had

testified during the State’s case-in-chief, as well as Corporal Tamara Dale, who

reviewed the security footage from the residential development where the victim

lived but was unable to verify whether the victim’s vehicle entered or exited.

The State presented several witnesses in rebuttal, including individuals who

interacted with Williams close to the time of the crime, who testified that he did

not appear to be suffering from mental illness or hallucinations. The State also

offered its own experts, including Dr. Ava Land, a clinical psychologist, and Dr.

Rafael Perez, a psychiatrist, who both disputed the diagnosis of bipolar disorder.

Instead, both experts diagnosed the defendant with antisocial personality disorder

and alcohol abuse, and Dr. Perez additionally thought Williams might be

malingering.

The jury found Williams guilty of one count of robbery, one count of

kidnapping, and one count of first-degree felony murder.

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 The Penalty Phase

During the penalty phase, the State called the victim of Williams’ previous

carjacking arrest to establish the prior violent felony aggravating factor. The

carjacking victim testified that Williams forced himself into her vehicle and

sexually assaulted her. She further testified that she had agreed to Williams

pleading to carjacking as opposed to sexual battery and kidnapping to avoid

testifying in court at that time. The State presented victim impact evidence

through testimony of the victim’s friends and acquaintances and photographs and a

poem that the victim carried with her.

Williams called his brothers, Randy and David Williams, who both testified

about Williams’ childhood and their abusive father. Additionally, Williams’ son,

Ron Jon Williams, and Williams’ longtime girlfriend, Shirley Kay Harvey,

testified in mitigation. Williams also presented mental mitigation. He called Dr.

Gold again, who opined that Williams suffered from, among other things, PTSD,

severe substance abuse, and bipolar disorder. Dr. Gold also stated that Williams

would qualify for the statutory mitigating circumstances that he was under the

influence of an extreme mental or emotional disturbance at the time of the crime

and that his capacity to appreciate the criminality of his conduct was substantially

impaired.

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 Similar to Dr. Gold, Dr. Berns testified again during the penalty phase,

stating that Williams had bipolar disorder as well as brain abnormalities from a

history of head injuries. As a result, Dr. Berns opined that Williams might have

problems with impulse control and qualifies for the statutory mitigating

circumstance that his capacity to appreciate the criminality of his conduct or to

conform his conduct to the requirements of the law was substantially impaired.

Williams called Dr. Eric L. Mings, a neuropsychologist who reviewed

Williams’ records and performed neuropsychological testing on Williams in 2012.

Dr. Mings testified that Williams’ MRI and PET scans were consistent with bipolar

disorder, and the neuropsychological test results reflected a deterioration in brain

functioning that could be the result of seizures or alcohol abuse. He also

concluded that Williams suffered from mild neurocognitive disorder as a result of a

traumatic brain injury in an area of the brain associated with emotions that control

behavior. He concluded that, consistent with the statutory mitigating circumstance,

Williams’ capacity to appreciate the criminality of his conduct or to conform his

conduct to the requirements of the law was substantially impaired.

At the conclusion of the penalty phase, the jury recommended that Williams

be sentenced to death by a vote of nine to three after completing a special verdict

form, which showed that the jury unanimously found the following aggravating

factors: Williams was on felony probation at the time of the murder; Williams was

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previously convicted of a felony involving the use of violence; the murder was

committed while Williams was involved in a kidnapping; and, the victim was

particularly vulnerable due to advanced age or disability. However, after being

told by the trial court that the jury only needed to fill out the mitigation verdict

form if it found the listed mitigating circumstances by a majority of the jury, the

jury left that form completely blank.

The trial court held a Spencer2 hearing during which the State called Dr.

Land, who testified that after watching videos from a Dollar General Store

depicting Williams approaching another elderly woman and reviewing the

statements of the employees at Publix, there was no indication of a reaction

consistent with a flashback. Dr. Land, who had interviewed Williams, testified

that, during her interviews with him, Williams never told her that he had been

sexually abused by his father but, instead, stated that he had been sexually abused

by three people, one of whom was his stepmother, who assaulted him inside a

white car.

In its sentencing order, the trial court found and gave great weight to each of

the following four statutory aggravating factors: (1) Williams was on felony

probation at the time of the murder; (2) Williams was previously convicted of a

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

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felony involving the use or threat of violence; (3) the murder was committed while

Williams was involved in a kidnapping; and (4) the murder victim was particularly

vulnerable due to advanced age or disability. These were the same aggravating

factors that the jury found unanimously as indicated by its special verdict form. In

addition, the trial court found that the State had proven the aggravating factor that

the murder was committed for pecuniary gain and afforded it some weight. The

jury found this aggravating factor by a vote of nine to three.

The trial court found one statutory mitigating circumstance—that Williams’

capacity to conform his conduct to the requirements of the law was substantially

impaired. As to this mitigating circumstance, the trial court explained in detail the

conflicting experts’ testimony and concluded:

This Court is faced with experts looking at the same facts and
coming to very different conclusions. This Court finds, however, that
even with the differing diagnoses proffered by the experts, it would be
reasonable to conclude that under any of the diagnoses, the Defendant
would fulfill the criteria for this mitigator. Dr. Land’s definition of
antisocial personality disorder being a person who does not conform
to what is expected in society. It involves a lot of rule-breaking,
deceitfulness and a lack of moral judgment. It is also characterized by
a lack of empathy or an inability to feel compassion for the victims of
an individual’s actions. This Court finds that pursuant to either set of
diagnoses, the Defendant has proven this mitigator by the greater
weight of the evidence.

However, the trial court rejected the statutory mitigating circumstance that

the crime was committed while Williams was under the influence of extreme

mental and emotional disturbance, explaining:

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 As an initial matter, this Court must address the issue of the
Defendant’s veracity. The record is replete with instances of the
Defendant fabricating stories to serve his purpose. A primary
example is his fabrication that Ms. Patrick and he were kidnaped by a
black man behind the Publix store. There are numerous other
examples . . . . Thus, this Court finds it cannot rely on evidence to
support a mitigator if it is solely based on the Defendant’s
truthfulness. This Court finds there must be some independent
evidence other than the words of the Defendant to support the finding
of a mitigator.
Respectfully, as stated above, this Court finds this mitigator has
not been proven by the greater weight of the evidence. This Court had
five very well qualified experts who could not agree on a diagnosis of
the Defendant. This Court finds it significant [that] the defense
experts did not view the videos showing the interaction of the
Defendant and Ms. Patrick on the day Ms. Patrick disappeared. Dr.
Gold concluded the Defendant killed Ms. Patrick while under the
influence of extreme mental or emotional disturbance. Moreover, Dr.
Gold admitted the Defendant never told him what he was thinking or
feeling at the time the crime was committed. It is not apparent that
any of the experts asked the Defendant about his actions at the time of
the crime. Thus, it is mere speculation as to what occurred at the time
of the abduction and death of Ms. Patrick. Moreover, the basis for Dr.
Gold’s, Dr. Bern’s and Dr. Ming’s diagnoses was, in large part, the
Defendant relating of his symptoms. As noted above, this Court finds
this to be very problematic and unreliable. This Court finds this
mitigator was not proven by the greater weight of the evidence and
accords it no weight.

(Footnote omitted.)

The trial court also found thirteen nonstatutory mitigating circumstances and

afforded each the following weight: (1) Williams manifested appropriate

courtroom behavior (slight weight); (2) he served in the Marines (slight weight);

(3) he abused drugs and alcohol from an early age (some weight); (4) he would be

a model prisoner (some weight); (5) he suffered physical, mental, and emotional

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abuse as a child (some weight); (6) he was involved in a serious collision which

resulted in a broken leg (little weight); (7) his father and grandfather were abusive

alcoholics (some weight); (8) his father abused his mother in his presence (some

weight); (9) he suffered head injuries while growing up (some weight); (10) he was

a good father (slight weight); (11) he was a good companion to the mother of his

child (slight weight); (12) he was a hard worker (slight weight); and (13) he helped

others (some weight).3 After this evaluation of the aggravating factors and

mitigating circumstances, the trial court sentenced Williams to death, concluding

that the aggravating factors far outweighed the mitigating circumstances.

ANALYSIS

On direct appeal to this Court, Williams alleges that the trial court erred in

(1) failing to give counsel adequate time to properly prepare the case after

reappointment; (2) allowing the medical examiner to testify as to matters beyond

her medical expertise; (3) allowing the jury to hear that Williams had a criminal

past during the guilt phase; (4) permitting prosecutorial misconduct during voir

dire and closing arguments; (5) allowing the State to introduce evidence of

Williams’ prior violent felony and argue for an unsupported aggravating factor in

3. The trial court also found that Williams did not prove that he had been
sexually abused as a child and afforded this proposed mitigating circumstance no
weight because all of the evidence presented in support of it was based on
Williams’ “questionable veracity.”

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the penalty phase; (6) allowing the introduction of improper victim impact

evidence; and (7) denying jury instructions and a verdict form enumerating each

nonstatutory mitigating circumstance. Williams also alleges that (8) the

aggravating factors fail to narrow the field of persons eligible for the death penalty,

and (9) he is entitled to relief based on Ring v. Arizona, 536 U.S. 584 (2002).

Through supplemental briefing, Williams argues that he is entitled to relief on the

Ring claim based on the United States Supreme Court’s recent decision in Hurst v.

Florida.

Because we determine that Williams is entitled to a new penalty phase

proceeding under Hurst, we address only Williams’ guilt phase claims and none of

the other penalty phase claims. In addition, we address whether the evidence in

this case was sufficient to sustain Williams’ first-degree felony murder conviction,

which this Court is independently obligated to review in death penalty cases.

I. Denial of a Continuance

Williams’ first claim is that the trial court erred by not providing an

“adequate” continuance during the guilt phase once the Public Defender’s Office

was reappointed to the case during the middle of the guilt phase. Williams asserts

that this caused prejudice, specifically in the guilt phase, because defense counsel

was not adequately prepared for the DNA evidence the State presented at trial that

Williams asserts was based on a supplemental report dated April 1, 2013, which

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was issued after the DNA expert’s 2011 report and 2012 deposition, and, more

importantly, after counsel was discharged.

On the morning of Wednesday, August 21, 2013—after six days of trial and

two and a half days into Williams’ defense presentation—Williams moved to re-

appoint counsel. After being reappointed, defense counsel moved for a mistrial,

or, in the alternative, a continuance, so that it could adequately prepare to represent

Williams. Defense counsel requested an expedited transcript of testimony that had

already occurred, stating that preparation could take weeks and that it had not

worked out a mitigation case by the time it was relieved of duties in February

2013. The trial court denied the motion for mistrial and continued the trial until

Monday, August 26. The trial court reasoned that “the Public Defender’s Office

was representing [Williams] for over two years and we were at the eve of trial

when Mr. Williams decided to represent himself, so that had the advantage of

getting this case prepared for trial.” Defense counsel was provided with audio

recordings of the first six days of trial.

At a status hearing on Friday, August 23, defense counsel renewed the

motion for mistrial and moved alternatively for a further continuance for the

remainder of the guilt phase. Counsel explained that he was “trying to struggle

through listening to the tape that the court reporter ha[d] furnished [counsel].” The

trial court denied the motions and indicated it had not yet made a decision on

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whether to grant a continuance between the guilt and penalty phases. When the

parties reconvened for the rest of the guilt phase on Monday, August 26, defense

counsel renewed the motions for mistrial and a further continuance. Counsel said

that he could not hear the testimony on recall of Dr. Amer, the DNA expert, but did

not specify how much time was needed. The trial court again denied the motions.

We have stated that “[a] court’s ruling on a motion for continuance will only

be reversed when an abuse of discretion is shown.” Smith v. State, 170 So. 3d 745,

758 (Fla. 2015) (quoting Snelgrove v. State, 107 So. 3d 242, 250 (Fla. 2012)). As

explained in Smith:

This standard is generally not met “unless the court’s ruling on the
continuance results in undue prejudice to the defendant.” [Snelgrove,
107 So. 3d at 250]. . . . “While death penalty cases command our
closest scrutiny, it is still the obligation of an appellate court to review
with caution the exercise of experienced discretion by a trial judge in
matters such as a motion for a continuance.” Doorbal [v. State], 983
So. 2d [464,] 486 [(Fla. 2008)] (quoting Hernandez–Alberto v.
State, 889 So. 2d 721, 730 (Fla. 2004)).

Id. at 758-59.

This Court has held that a trial court does not abuse its discretion in denying

a continuance “where the requesting party has unjustifiably caused the delay or

requests an indefinite suspension of the proceedings.” Snelgrove, 107 So. 3d at

251. In Wyatt v. State, 641 So. 2d 1336, 1340 (Fla. 1994), the defendant told his

counsel that he did not want to call any witnesses in mitigation, and the night

before the penalty phase, knowing of their unavailability, instructed counsel that he

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wanted his mother and sister to testify on his behalf. This Court determined there

was no abuse of discretion in the trial court refusing to suspend the penalty phase

proceedings indefinitely. Id.

In this case, the trial court granted at least one continuance requested by

defense counsel before Williams began self-representation. When Williams sought

to represent himself, defense counsel had been representing Williams for about two

years, and the trial was set to begin less than a month later. After defense counsel

was reappointed, the trial court gave defense counsel a short continuance from the

day Williams sought reappointment of counsel, which was a Wednesday, to the

following Monday. While defense counsel moved for a longer continuance on the

basis that it could not hear some of the trial testimony on the audio recordings,

defense counsel did not specify a definite time frame that it needed for an

additional continuance.

This case is factually distinguishable from Wike v. State, 596 So. 2d 1020,

1025 (Fla. 1992), the case upon which Williams relies, in which this Court

determined that the trial court abused its discretion by denying a continuance

where the request was for “a short period of time and for a specific purpose.” In

this case, defense counsel was given a short continuance but then requested

additional continuances, not for “a short period of time,” but for an unspecified

amount of time.

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 Williams specifically asserts that as a result of being denied a longer

continuance, defense counsel could not listen to the testimony of Dr. Amer, the

DNA expert, and was unable to review the April 2013 DNA report, and therefore

did not know to object to part of the State’s rebuttal closing argument in the guilt

phase based upon that testimony. Williams claims that defense counsel would

have objected to the State’s suggestion that a sexual battery had taken place

because a mixture of the victim’s and Williams’ DNA was found inside both pairs

of underwear briefs that had been on the backseat, by arguing that the evidence did

not support the implication.

However, Williams has failed to demonstrate prejudice. Defense counsel

did not inform the trial court that they could not hear the lengthy live testimony of

the DNA expert, which involved a discussion of all the DNA findings, including

the mixture of Williams’ and the victim’s DNA on the pairs of underwear briefs,

but rather stated that they could not hear the DNA expert’s testimony when he was

recalled by the State, which was done telephonically. During this telephonic

testimony on recall, the DNA expert stated only that he could not determine

whether skin cells were from vaginal secretions, and it therefore neither added to

nor detracted from his in-person testimony. Even without being granted an

additional continuance to allow defense counsel to listen to the telephonic

testimony or read the April 2013 report, defense counsel could have objected to the

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State’s inference that Williams had sexually battered the victim because they knew

that the State did not charge Williams with a sexual offense.

We conclude that defense counsel’s inability to hear Dr. Amer’s telephonic

testimony, which did not add to or detract from his live trial testimony, was neither

a basis for a further continuance without a specific request to obtain an audible

recording or transcript of this brief testimony, nor the basis for a mistrial. There

was no undue prejudice to Williams, and any difficulty caused by Williams

requesting reappointment of counsel was a result of a conscious choice by

Williams to discharge counsel, proceed pro se, and then change his mind again

near the end of the guilt phase.

Both the State and Williams were entitled to orderly and timely proceedings.

After the trial court granted a short continuance, it did not abuse its discretion in

denying the motion for an additional continuance for an unspecified length of time.

Because the trial court did not abuse its discretion in denying a longer continuance

and acted appropriately in providing time for defense counsel to review the

testimony that had already been heard, we conclude that Williams is not entitled to

relief with respect to this claim.

II. Medical Examiner’s Testimony During the Guilt Phase

In his second claim, Williams contends that the trial court erred by allowing

the medical examiner, Dr. Wolf—who testified while Williams was still pro se—to

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opine that the manner of death was homicide based on evidence outside her area of

expertise, and that such an opinion invades the province of the jury on the ultimate

question for the jury’s determination. We disagree.

Without objection, Dr. Wolf, who performed the autopsy and was qualified

in the field of forensic pathology, testified that she was unable to determine the

cause of death because the remains were only bones with some skin attached.

Because of the body’s condition, Dr. Wolf was unable to observe any apparent

injuries that could have accounted for the victim’s death. Dr. Wolf explained that

“[i]n a case such as this, where the cause of death isn’t obvious, we take into

account every available information.”

Accordingly, Dr. Wolf, in trying to determine the cause and manner of

death, reviewed the victim’s medical records to familiarize herself with the

victim’s medical history and condition, and concluded that the victim was not

suffering from any life-threatening diseases. She also reviewed photos from the

crime scene, Lake County Sheriff’s Office reports, laboratory reports, and

interviews that Williams gave to the media. She consulted with professionals at

the C.A. Pound Human Identification Lab for anthropological assistance due to the

body’s skeletonized state.

She explained that the “manner of death” refers to whether the death was an

accident, suicide, homicide, natural, or otherwise undetermined. Dr. Wolf

- 24 -
determined that the manner of death in this case was, with a reasonable degree of

medical certainty, a homicide. She stated, “There was nothing specific that I could

say, that’s what caused this death,” so “the cause of death was certified as

homicidal violence of unknown means, meaning that by my review of the

circumstances and the scene of death, I was confident that the death was a

homicide, but I could not determine specifically how she was killed.”

Because of the state of the victim’s body, Dr. Wolf could rule out certain

possibilities such as being struck in the face or being manually strangled, but could

not rule out other causes of death, such as strangulation by ligature, shooting, or

stabbing. She concluded that the physical facts did not support the story that

Williams gave to the press that the victim was beaten in the passenger’s seat or was

alive inside the trunk. Dr. Wolf also ruled out accidental death.

Because Williams failed to object to Dr. Wolf’s testimony, he must show

fundamental error in order to be entitled to relief. See Doty v. State, 170 So. 3d

731, 743 (Fla. 2015). An error is fundamental if it “reaches down into the validity

of the trial itself to the extent that a verdict of guilty could not have been obtained

without the assistance of the alleged error.” Anderson v. State, 841 So. 2d 390,

403 (Fla. 2003). This is a “high burden, which requires an error that goes to the

foundation of the case or the merits of the cause of action and is equivalent to a

- 25 -
denial of due process.” Bailey v. State, 998 So. 2d 545, 554 (Fla. 2008)(quoting

sources omitted).

A. Whether the Medical Examiner Testified Outside Her Area of Expertise

This Court has previously recognized that medical examiners, whether they

personally performed the autopsy or not, may testify as to their opinions based

upon objective evidence. In Geralds v. State, 674 So. 2d 96, 100 (Fla. 1996), this

Court determined that the trial court did not abuse its discretion by allowing the

medical examiner to provide an opinion based upon review of slides taken at the

murder scene and during the autopsy, the medical examiner’s written records, and

previous testimony. Similarly, in Capehart v. State, 583 So. 2d 1009, 1013 (Fla.

1991), this Court determined that a proper predicate for the medical examiner’s

opinion as to the cause of death had been established where her opinion was

“based upon the autopsy report, the toxicology report, the evidence receipts, the

photographs of the body, and all other paperwork filed in the case.”

However, an expert cannot simply rely on baseless assertions or conjecture.

See Hawkins v. State, 933 So. 2d 1186, 1188-89 (Fla. 4th DCA 2006) (the medical

examiner’s opinion that the victim died as a result of an injection of silicone into

subcutaneous tissue that travelled into the bloodstream was inadmissible because

the medical examiner admittedly did not know whether this conclusion was true,

conceded she was not an expert regarding the mechanism or speed that silicone

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migrates through the body, did not review any literature regarding the effects of

silicone in the body, and could not point to anything to support her conclusion);

Fisher v. State, 361 So. 2d 203, 204 (Fla. 1st DCA 1978) (it was error to allow the

medical examiner to opine that the victim’s knife wounds were more characteristic

of those made by a woman than a man because this opinion was “simply based on

vague notions of stereotyped characteristics of the men and the women in our

culture and it bore no relationship to [the defendant] other than she was a

woman”); Wright v. State, 348 So. 2d 26, 30-31 (Fla. 1st DCA 1977) (the medical

examiner’s testimony went beyond his competence when opining that the victim

had severe injuries that were inflicted prior to being buried by the defendant’s

bulldozer, based in part upon how moist earth would act as an anchor to the body,

how far apart the treads of the bulldozer were, and how bulldozers work).

The record in this case does not support Williams’ assertion that Dr. Wolf’s

testimony was based on speculation and conjecture or was “unsupported by any

discernible, factually-based chain of underlying reasoning.” See Mt. Sinai Med.

Ctr. of Greater Miami, Inc. v. Gonzalez, 98 So. 3d 1198, 1202 (Fla. 3d DCA 2012)

(quoting Div. of Admin. v. Samter, 393 So. 2d 1142, 1145 (Fla. 3d DCA 1981)).

Dr. Wolf stated that when the cause of death is not obvious, as a medical examiner,

she takes into account all the available information. To form her opinion, she

consulted with an anthropological expert and relied upon the police reports, the

- 27 -
autopsy, the victim’s medical records, and photos of the scene. Accordingly, Dr.

Wolf did not testify outside her field of expertise.

B. Whether the Medical Examiner’s Opinion Testimony Invaded the
Province of the Jury

Williams also claims that Dr. Wolf’s opinion testimony invaded the province

of the jury. However, this claim is without merit because Dr. Wolf’s opinion,

which was based on her training and experience, assisted the jury in understanding

the evidence, and she did not testify to conclusions that the jury was qualified to

make or to the ultimate question for the jury’s determination—whether Williams

was guilty of the crimes for which he was charged.

We have determined that a trial court has not abused its discretion when

permitting an expert to testify if the expert’s testimony, based on his or her training

and expertise outside of the common understanding of the jury, assisted the jury in

understanding the evidence or determining a fact in issue. See McWatters v. State,

36 So. 3d 613, 630-31 (Fla. 2010) (concluding that an expert’s opinion, based on

his training and experience, that a rape occurred helped the jury assess “what”

happened); Smith v. State, 28 So. 3d 838, 856 (Fla. 2009) (denying the defendant’s

claim that the medical examiner’s opinion invaded the province of the jury because

it assisted jurors in deciding what happened, not who was responsible for the acts

perpetrated against the victim). Likewise, in this case, Dr. Wolf provided an

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opinion based on her training and experience as a medical examiner, which

assisted the jury in understanding the evidence.

Moreover, Dr. Wolf did not opine as to the ultimate question to be

determined by the jury. Dr. Wolf did not implicate Williams as being guilty of

first-degree murder. Medical examiners have been permitted to opine in many

cases that the manner of death was a “homicide,” though in those cases, this Court

did not address whether that opinion invaded the province of the jury. See, e.g.,

Larkin v. State, 147 So. 3d 452, 457 (Fla. 2014) (involving a medical examiner

who opined that the manner of death of the victim was a homicide); Brown v.

State, 143 So. 3d 392, 397 (Fla. 2014) (same); Kalisz v. State, 124 So. 3d 185, 191

(Fla. 2013) (same).

Williams argues that Ruth v. State, 610 So. 2d 9 (Fla. 2d DCA 1992), and

Gurganus v. State, 451 So. 2d 817 (Fla. 1984), support his position, but those cases

are distinguishable. In Ruth, the defendant was charged with “maintaining an

airplane used for keeping or selling drugs.” 610 So. 2d at 10. The use of the

defendant’s aircraft was a necessary element of the crime with which the defendant

was charged. Id. The expert witness, a customs agent, testified, “I believe the

aircraft was used and was set up to smuggle narcotics.” Id. at 11. The Second

District held this was inadmissible as this was the “sole evidence” that went to the

ultimate act for which the defendant was charged. Id. Here, Dr. Wolf’s expert

- 29 -
testimony is not the “sole evidence” of the crimes of which Williams has been

charged.

In Gurganus, 451 So. 2d at 821, the trial court had excluded the defense

expert’s testimony as to whether the defendant’s actions were those of a “depraved

mind” or a “premeditated plan,” legal terms with specific legal definitions. This

Court determined that the trial court did not err in excluding this testimony because

it was a “legal conclusion no better suited to expert opinion than to lay opinion,

and as such, was an issue to be determined solely within the province of the jury.”

Id.

For all these reasons, Dr. Wolf’s testimony as to the manner of death was

not error, let alone fundamental error. Accordingly, we deny relief as to this claim.

III. Guilt Phase Testimony Revealing Williams’ Criminal Past

In his third claim, Williams argues that the trial court abused its discretion in

denying three motions for mistrial made by his newly reappointed counsel when

State witnesses referenced Williams’ criminal history in the State’s rebuttal case.

Prior to these three instances, when Williams was acting pro se, Williams and his

witnesses referred to his criminal history. First, Williams stated in his opening

statement that he had been to trial once before on a misdemeanor, but that he was

acquitted. Next, during Williams’ direct examination of his brother Randy, Randy

stated, “2010, are you speaking about when you were released from prison?”

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Additionally, defense expert, Dr. Berns, testified during Williams’ direct

examination that Williams had told him that he “had been arrested a few times for

DUI, and once, I believe for a disorderly intoxication.”

After defense counsel resumed representation, defense counsel moved for a

mistrial three times due to comments made in the State’s rebuttal case. Each

motion was denied. In the first instance, the State’s rebuttal witness Howard

Lawrence, head of the mental health department at the Lake County Detention

Center, explained the specific medications prescribed to Williams to rebut the

suggestion that they were prescribed to treat a psychiatric condition or a seizure

disorder, and explained that these medications were prescribed to Williams for

mood stabilization and to aid sleep. In that context, Lawrence explained in general

that sociopathy was “another [way] of depicting antisocial personality disorder in a

person that’s got a lengthy criminal history who looks like he’s probably vying for

some medicine because he’s . . . irritable and disgruntled and probably not sleeping

too well.” Defense counsel moved for a mistrial after this comment.

The second motion for mistrial occurred during the rebuttal testimony of Dr.

Rafael Perez, a psychiatrist who treated Williams beginning in 2010, who was

called to rebut the suggestion that Williams had suffered from seizures or bipolar

disorder and to also testify regarding the reasons for Williams’ prescribed

medications. Dr. Perez referred to records from Williams’ previous prison stay,

- 31 -
using the term “department of corrections,” but was immediately interrupted by the

prosecutor, who stated, “Well, we don’t want to go into the location.” Then,

defense counsel moved for a mistrial.

Finally, the last motion for mistrial was also made during direct examination

of Dr. Perez, after the prosecutor used the word “inmate” in reference to those

records. After the first two references to Williams’ criminal history, the trial court

instructed the jury to disregard the comments, but defense counsel declined the

suggestion for a curative instruction after the third reference.

A trial court should grant a motion for mistrial only “when an error is so

prejudicial as to vitiate the entire trial.” Smith, 170 So. 3d at 757 (quoting

Jackson v. State, 25 So. 3d 518, 528 (Fla. 2009)). “[T]his Court reviews a trial

court’s ruling on a motion for mistrial under an abuse of discretion standard.” Id.

(quoting Jackson, 25 So. 3d at 528).

As we have recently explained, “[r]emarks that relate to a defendant’s prior

imprisonment are to be evaluated in the context of the surrounding circumstances

and do not always require reversal.” Fletcher v. State, 168 So. 3d 186, 207 (Fla.

2015). Here, during Williams’ self-representation, he and his witnesses informed

the jury that Williams had been in prison, had been arrested a few times, and had

been to trial on a misdemeanor offense. By the time the improper statements were

made, the jury was already aware that Williams had at least some criminal history

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and had been in prison. See Evans v. State, 800 So. 2d 182, 189 (Fla. 2001)

(where a State witness referred to the defendant’s prior criminal record, any

possible error resulting from this remark was harmless because the defendant

admitted on the stand that he had two felony convictions).

In this case, as a result of the defendant’s own remarks and those of his

witnesses, the jury was aware of some criminal history. The statements that

occurred during the State’s rebuttal of Williams’ defense that his mental illness

precipitated the murder were brief; the trial court gave curative instructions after

the first two times and the fleeting comments were not the focus of the witnesses’

testimony. Accordingly, the trial court did not abuse its discretion in denying a

motion for mistrial.

IV. Prosecutor’s Comments During Voir Dire and Guilt Phase Closing
Arguments

In his fourth claim, Williams alleges that the State engaged in prosecutorial

misconduct during voir dire and guilt phase closing arguments. Because no

objections were raised to any of these allegedly improper comments, Williams is

entitled to relief only if fundamental error occurred as a result of these comments.

Mordenti v. State, 630 So. 2d 1080, 1084 (Fla. 1994). “[F]or an error to be so

fundamental that it can be raised for the first time on appeal, the error must be

basic to the judicial decision under review and equivalent to a denial of due

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process.” State v. Johnson, 616 So. 2d 1, 3 (citing D’Oleo-Valdez v. State, 531 So.

2d 1347 (Fla. 1988); Ray v. State, 403 So. 2d 956 (Fla. 1981)).

A. Voir Dire

Williams identifies two instances of alleged impropriety made by the

prosecutor during voir dire, which occurred when Williams was acting pro se.

Neither comment was objected to. First, Williams alleges that the State improperly

suggested more evidence of the crime not presented in the guilt phase would be

adduced during the penalty phase through the following comments:

And after you all have returned verdicts on all three counts, then and
only then, if the Defendant is found guilty of murder in the first
degree, we will present additional evidence and give additional
arguments and additional law to help you to make this life and death
decision that we were talking about.

(Emphasis added.)

Later, the prosecutor made the statement that the State would present

additional evidence two more times during voir dire:

But if and only if the jury unanimously decides he’s guilty of
first degree murder, additional evidence presented going to the
Defendant’s background, going to his character, possibly going to
additional factors in the crime itself are allowed per the statute, things
that you may not be allowed to hear in the first phase of the trial
become relevant when you’re trying to decide what is a fair sentence.

These statements mainly reflect what is stated in section 921.141(1), Florida

Statutes (2010), which provides that in the penalty proceeding, “evidence may be

presented as to any matter that the court deems relevant to the nature of the crime

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and the character of the defendant and shall include matters relating to any of the

aggravating or mitigating circumstances.” We conclude there was no error, much

less fundamental error.

Williams also alleges that it was improper for the prosecutor to comment

during voir dire that “would you agree that while you have the Defendant’s life in

your hands, you also have justice for the victim and the victim’s family also in

your hands?” (Emphasis added.) Later on, the State engaged a specific juror, and

told that juror that in addition to Williams’ life being at stake, “justice for [a] little

old lady,” was also at stake.

Florida courts have condemned comments asking for justice for the victim

and this Court has reversed a conviction as a result of that type of improper

comment. See Cardona v. State, 185 So. 3d 514, 522 (Fla. 2016); Davis v. State,

136 So. 3d 1169, 1197 (Fla. 2014); Crew v. State, 146 So. 3d 101, 110 (Fla. 5th

DCA 2014); Edwards v. State, 428 So. 2d 357, 359 (Fla. 3d DCA 1983). Thus it

was improper for the prosecutor to appeal to “justice for [a] little old lady.” The

comments—to which Williams did not object—however, were early in the trial

during voir dire and not repeated. Therefore, we conclude that the prosecutor’s

error in making these comments did not “reach[] down into the validity of the trial

itself” to the extent that a verdict of guilt could not have been obtained without the

- 35 -
assistance of the alleged error. Doty, 170 So. 3d at 743 (quoting Snelgrove, 107

So. 3d at 257).

B. Guilt Phase Closing Argument

Next, Williams takes issue with three aspects of the State’s guilt phase

closing arguments, which occurred after defense counsel was reappointed. First,

Williams alleges it was improper for the State to suggest that an uncharged sexual

battery took place. Specifically, the prosecutor stated:

These are the two pair of underwear . . . with their DNA, the numbers
were 1 in 2.8 million, inside the crotch of one of the two pair of
underwear . . . . Directly north of that particular spot where that DNA
was found is his semen, [defense counsel] suggested, well, it wasn’t
very much. Well, I don’t know. I don’t recall any testimony about
the size of the stain. It was enough to get a clear reading. It’s his
semen above, towards the fly there, DNA. Her blood inside her
trunk . . . . Under those tires she’s wearing a pair of those,
kneehighs . . . . That’s all she’s wearing.

The prosecutor went on to say:

Is it a coincidence that she’s naked and a mixture of his and her DNA
is found on the inside of the crotch of his briefs, just below a semen
stain that happens to be his? Is that just another coincidence?
Probably not.

Finally, the prosecutor stated: “[I]t’s clear from the evidence that then, after he’s

won over her trust, he took advantage of her, I would suggest to you, in more ways

than one.” None of these arguments were objected to and no motion for a mistrial

was made on the basis of these comments.

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 Although prosecutors are “permitted wide latitude in closing arguments” and

are allowed to make inferences reasonably drawn from the evidence, they “are not

permitted to make improper argument.” Merck v. State, 975 So. 2d 1054, 1061

(Fla. 2007). These comments were improper because there was not enough

evidence to lead to the reasonable inference that Williams engaged in sexual

misconduct, and the State never charged Williams with having committed a sexual

offense against the victim.

The evidence of sexual misconduct was insufficient to allow the prosecutor

to insinuate it occurred. Specifically, the DNA expert testified that it was not

uncommon to find semen inside the crotch area of a man’s underwear. And

although both of the briefs that were found on the backseat contained a mixture of

the victim’s and Williams’ skin cells inside the crotch area, the DNA expert

indicated that it would be possible for skin cells to transfer if the clothing of two

people was commingled.

Further, the State never charged Williams with a sexual offense, and courts

condemn arguments suggesting a defendant is guilty of an uncharged crime. See

Huff v. State, 437 So. 2d 1087, 1090-91 (Fla. 1983) (reversing a conviction where

the prosecutor suggested in closing that the defendant was guilty of an uncharged

crime); Jackson v. State, 690 So. 2d 714, 717 (Fla. 4th DCA 1997) (same). Thus,

the State’s innuendo that a sexual battery took place was improper.

- 37 -
 Williams also challenges some of the prosecutor’s other comments as being

unsupported embellishments appealing to the jurors’ emotions. However, we

disagree and conclude that the rest of the prosecutor’s statements were fair

inferences reasonably drawn from the evidence and, therefore, not improper.

We must next determine if any of these comments, whether individually or

cumulatively, amounted to fundamental error. See Braddy v. State, 111 So. 3d

810, 838 (Fla. 2012). This Court does not “examine the allegedly improper

comments in isolation,” but examines the totality of errors in the closing argument

and determines whether the cumulative effect of the numerous improprieties

deprived Williams of a fair trial. Id. at 843 (quoting Card v. State, 803 So. 2d 613,

622 (Fla. 2001)).

The prosecutor’s guilt phase closing argument suggestion that Williams had

engaged in sexual misconduct did not amount to fundamental error. The error was

accompanied by the fact that admissible evidence in the guilt phase showed that

Williams stated that the victim feared that something “too personal” for Williams

to tell the press would happen to her, that a mixture of Williams’ and the victim’s

DNA was found in both pairs of black briefs that were found in the backseat of the

car, and that the victim’s body was found in the nude. That evidence was admitted

without objection and would have allowed the jurors to potentially reach the

- 38 -
conclusion for themselves that Williams had sexually battered the victim. In this

context, the comments did not rise to the level of fundamental error.

We have determined that these comments do not individually constitute

fundamental error. We now consider whether the cumulative effect of the

improper comments denied Williams his right to a fair guilt phase trial. See id.

Considering the prosecutor’s remarks, in addition to not individually amounting to

fundamental error, we conclude that these improprieties do not cumulatively

constitute fundamental error, which would entitle Williams to a new guilt phase

proceeding. There were a small number of improper remarks made during the

course of the entire guilt phase. Further, there was a substantial amount of

evidence to convict Williams on all three of the charges for which he was

indicted—kidnapping, robbery, and first-degree felony murder—such that the

cumulative effect of these improper comments was not so prejudicial that it

vitiated the entire trial. See Chandler v. State, 702 So. 2d 186, 191 n.5 (Fla. 1997).

V. Sufficiency of the Evidence

The Court has a mandatory obligation to independently review the

sufficiency of the evidence in every case in which a sentence of death has been

imposed. See Davis v. State, 148 So. 3d 1261, 1270 (Fla. 2014); see also Fla. R.

App. P. 9.142(a)(5). “In reviewing the sufficiency of the evidence, the question is

whether, ‘after viewing the evidence in the light most favorable to the State, a

- 39 -
rational trier of fact could have found the existence of the elements of the crime

beyond a reasonable doubt.’ ” Davis, 148 So. 3d at 1270 (quoting Simmons v.

State, 934 So. 2d 1100, 1111 (Fla. 2006)).

The evidence in a capital case is judged to be sufficient when it is both

competent and substantial. See Davis v. State, 121 So. 3d 462, 494 (Fla. 2013).

This Court “views the evidence in the light most favorable to the State to

determine whether a rational trier of fact could have found beyond a reasonable

doubt the existence of the elements of the crime.” Fletcher, 168 So. 3d at 221

(citing Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)).

In this case, Williams was the last person to be seen with the victim on

Monday, October 18, 2010, at Publix. At the time, Williams was homeless and

living on money wired to him by his family. One of his brothers, however, had

just informed him that he would no longer send Williams money.

Multiple witnesses testified that, in the days following the victim’s

disappearance, they saw Williams driving in a white Chevrolet like the one owned

by the victim. One witness saw that Williams had a pouch full of credit cards and

enough cash to buy beer and fast food, and another witness saw Williams buy

several beers with cash. During this time, Williams also borrowed, without

returning, a shovel from his acquaintance.

- 40 -
 On Saturday, October 23, the victim’s white Chevrolet Impala was found in

the parking lot of a closed-down restaurant in Polk County, with the license plate

obscured by leaves and branches. Williams was found sitting in the car with the

victim’s credit cards in his pocket. Various items were collected from the vehicle,

including irrigation-type tubing on the floor in front of the front passenger seat and

in the trunk, two pairs of underwear briefs, jeans, and a cane. The victim had been

using a cane the day of her disappearance.

The DNA evidence suggested that Williams was in close contact with the

victim. There was DNA inside the “friction points” of the pair of jeans that was

found on the floor in front of the driver’s seat matching both Williams and the

victim. The two pairs of briefs found on the backseat had hairs on them matching

Williams and the victim. There were skin cells matching Williams and the victim

inside of both pairs of briefs. The DNA evidence also showed that the victim’s

blood was in the trunk. Specifically, bloodstains found on the trunk carpeting,

spare tire cover, and spare tire locking device matched the victim’s DNA.

On October 25, Williams gave the press an interview, during which he stated

that he was with the victim at Publix, but claimed an unknown assailant abducted

them and killed the victim and that Williams was able to escape in the victim’s

vehicle. However, the physical evidence did not support this story, and Williams

eventually admitted that he had fabricated the story.

- 41 -
 The victim’s body was ultimately discovered underneath two tires in an area

a mile and a half from Williams’ former residence. The body, which was mostly

unclothed aside from socks and a medical alert necklace, was badly decomposed

and was devoid of a purse or jewelry. In a nearby cemetery where Williams’

family members were buried, law enforcement found the shovel that Williams

borrowed. Tubing, which appeared to have been stretched, was found near the

shovel and was consistent with the tubing that was found in the victim’s vehicle.

The medical examiner opined that the manner of death was a homicide,

though she was unable to ascertain the precise cause of death. Although Williams

placed his mental health at issue and suggested that he did not recall what

happened due to a seizure, hallucination, or blackout, the State presented a

significant amount of evidence to cast doubt on that claim.

Therefore, competent, substantial evidence existed to support Williams’

convictions.

VI. Hurst v. Florida and Hurst

Williams next argues that the trial court erred in sentencing him to death

under Florida’s former death penalty statute, which violates the Sixth Amendment

under the principles announced in Ring v. Arizona, 536 U.S. 584 (2002). After

briefing and oral argument had taken place in this case, the United States Supreme

Court decided Hurst v. Florida. In Hurst v. Florida, the United States Supreme

- 42 -
Court determined that “[t]he analysis the Ring Court applied to Arizona’s

sentencing scheme applies equally to Florida’s.” 136 S. Ct. at 621-22. Therefore,

Florida’s capital sentencing scheme was unconstitutional because “[t]he Sixth

Amendment requires a jury, not a judge, to find each fact necessary to impose a

sentence of death. A jury’s mere recommendation is not enough.” Id. at 619. On

remand from the United States Supreme Court, in Hurst, we concluded:

[W]e hold that the Supreme Court’s decision in Hurst v. Florida
requires that all the critical findings necessary before the trial court
may consider imposing a sentence of death must be found
unanimously by the jury. We reach this holding based on the mandate
of Hurst v. Florida and on Florida’s constitutional right to jury trial,
considered in conjunction with our precedent concerning the
requirement of jury unanimity as to the elements of a criminal offense.
In capital cases in Florida, these specific findings required to be made
by the jury include the existence of each aggravating factor that has
been proven beyond a reasonable doubt, the finding that the
aggravating factors are sufficient, and the finding that the aggravating
factors outweigh the mitigating circumstances. We also hold, based
on Florida’s requirement for unanimity in jury verdicts, and under the
Eighth Amendment to the United States Constitution, that in order for
the trial court to impose a sentence of death, the jury’s recommended
sentence of death must be unanimous.
Hurst, 202 So. 3d at 44. The decisions in Hurst v. Florida and Hurst apply to this

case, which we review on direct appeal. See State v. Johnson, 122 So. 3d 856, 861

(Fla. 2013) (citing Griffith v. Kentucky, 479 U.S. 314, 328 (1986); Smith v. State,

598 So. 2d 1063, 1066 (Fla. 1992)).

Following Hurst v. Florida, we ordered that Williams and the State file

supplemental briefs to address its impact on this case. Further, Williams requested

- 43 -
and we granted leave to file supplemental briefing based on our holding in Hurst.

Through supplemental briefing, Williams argues that his death sentence was

imposed in violation of Hurst v. Florida and Hurst, and, as a result, his death

sentence must be commuted to a life sentence pursuant to section 775.082(2),

Florida Statutes (2010). Alternatively, he argues that he must get a life sentence

because Hurst error is structural error and, therefore, not amenable to harmless

error review. The State argues that no error occurred at all in this case, but if it

has, it is harmless.

In Hurst, we rejected the argument that section 775.082(2) requires

commutation to a life sentence of a death sentence that was imposed in violation of

Hurst v. Florida. Hurst, 202 So. 3d at 66. We also determined that Hurst errors are

capable of harmless error review. Id. at 67. Thus, we must determine whether a

Hurst error occurred in Williams’ penalty phase and, if so, whether the error was

harmless beyond a reasonable doubt.

First, we determine that a Hurst error occurred in Williams’ penalty phase.

In this case, the special verdict form used for the penalty phase showed that the

jury unanimously found that four out of the five aggravating factors presented by

the State were proven beyond a reasonable doubt. This only satisfies the first

finding the jury must make to impose death in Florida, as explained further in

Hurst. See id. at 53-54. The jury did not indicate any findings as to the sufficiency

- 44 -
of the aggravating factors, nor did the jury indicate whether it determined that the

aggravating factors outweighed the mitigation presented. See id.

While special verdict forms, like the one used in Williams’ penalty phase,

provide courts with more information about the jury’s decision-making process

than usual, the information provided by the verdict form in this case did not meet

the constitutional requirements of Hurst. Nor did the jury unanimously

recommend a sentence of death, as is required by article I, section 22, of the

Florida Constitution under Hurst. Id. at 44. Accordingly, there was a Hurst error

in this case. We, therefore, consider whether the error in Williams’ penalty phase

was harmless beyond a reasonable doubt.

As we explained in Hurst:

The harmless error test, as set forth in Chapman
and progeny, places the burden on the state, as the
beneficiary of the error, to prove beyond a reasonable
doubt that the error complained of did not contribute to
the verdict or, alternatively stated, that there is no
reasonable possibility that the error contributed to the
conviction.

State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986). Where the error
concerns sentencing, the error is harmless only if there is no
reasonable possibility that the error contributed to the sentence. See,
e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000). Although the
harmless error test applies to both constitutional errors and errors not
based on constitutional grounds, “the harmless error test is to be
rigorously applied,” DiGuilio, 491 So. 2d at 1137, and the State bears
an extremely heavy burden in cases involving constitutional error.
Therefore, in the context of a Hurst v. Florida error, the burden is on
the State, as the beneficiary of the error, to prove beyond a reasonable

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 doubt that the jury’s failure to unanimously find all the facts necessary
for imposition of the death penalty did not contribute to Hurst’s death
sentence in this case. We reiterate:

The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a
device for the appellate court to substitute itself for the
trier-of-fact by simply weighing the evidence. The focus
is on the effect of the error on the trier-of-fact.

DiGuilio, 491 So. 2d at 1139. “The question is whether there is a
reasonable possibility that the error affected the [sentence].” Id.

Hurst, 202 So. 3d at 68.

For the following reasons, we conclude that the State in this case has not

proven beyond a reasonable doubt that the error was harmless. Although four out

of five aggravating factors were found unanimously, due to the jury’s nine to three

recommendation for death, we cannot conclude beyond a reasonable doubt that the

jury also unanimously found that there were sufficient aggravating factors to

impose death, or that the aggravators outweighed the mitigation. See § 921.141,

Fla. Stat. (2015), invalidated by Hurst v. Florida, 136 S. Ct. 616; Hurst v. Florida,

136 S. Ct. at 621; Hurst, 202 So. 3d at 68.

It is clear that three jurors voted for Williams to receive a life sentence. We

cannot speculate why these three jurors did not find that sufficient aggravating

factors existed to impose death or that those aggravating factors outweighed the

mitigation, or whether the three jurors, in fact, made those findings but were

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following the trial court’s instructions that they were not required to recommend

death. See Hurst, 202 So. 3d at 58 (quoting Fla. Std. Jury Instr. (Crim.) 7.11

Penalty Proceedings—Capital Cases).

In this case, there was a significant amount of mitigation presented during

the penalty phase. Williams called his brothers, who testified about their abusive

father, and several doctors, who testified about Williams’ post-traumatic stress

disorder, substance abuse, and other mental mitigation. Williams attempted to

establish the statutory mitigating circumstances of being under the influence of

extreme mental or emotional disturbance and diminished capacity to appreciate the

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

well as nonstatutory mitigation.

The fact that the jury left the mitigation form blank does not affect our

analysis. Based on the record, the jury apparently left the form blank because it

was following the instructions on the special verdict form, and the trial court’s

instructions for the jurors to leave the form blank unless a majority of the jury

found the listed mitigating circumstances to exist. In other words, the fact that the

jury left the form blank does not indicate that no jurors found any of the mitigation.

Furthermore, even if not a single juror found that any mitigation was

established, there is still no way to ascertain whether the jury unanimously

concluded that sufficient aggravation existed to warrant a death sentence. Based

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on the jury vote of nine to three, we cannot conclude that the Hurst error in this

case was harmless beyond a reasonable doubt. For these reasons, we grant

Williams relief based on Hurst. Accordingly, we reverse the sentence of death and

remand for a new penalty phase.

CONCLUSION

After a thorough review of all the issues raised by Williams, as well as a

review of whether sufficient evidence supports Williams’ convictions, we affirm

Williams’ convictions for first-degree murder, kidnapping, and robbery, but we

reverse his sentence of death and remand for a new sentencing proceeding pursuant

to Hurst.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY and POLSTON, JJ., concur as to the conviction and dissent as to the
sentence.
PERRY, Senior Justice, concurs in part and dissents in part with an opinion.

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

PERRY, Senior Justice, concurring in part and dissenting in part.

I concur with the majority’s decision to affirm Williams’ convictions and its

determination that the Sixth Amendment requires that we vacate Williams’ death

sentence. However, because Florida law requires that Williams be sentenced to

life in prison as a consequence of his unconstitutional death sentence, I disagree

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with the majority’s decision to remand for a new penalty phase proceeding instead

of remanding for imposition of a life sentence. See § 775.082(2), Fla. Stat. (2016).

As I explained fully in Hurst v. State, 202 So. 3d 40, 75-76 (Fla. 2016)

(Perry, J., concurring in part and dissenting in part), there is no compelling reason

for this Court not to apply the plain language of section 775.082(2), Florida

Statutes. Because the majority of this Court has determined that Williams’ death

sentence was unconstitutionally imposed, Williams is entitled to the clear and

unambiguous statutory remedy that the Legislature has specified:

In the event the death penalty in a capital felony is held to be
unconstitutional by the Florida Supreme Court or the United States
Supreme Court, the court having jurisdiction over a person previously
sentenced to death for a capital felony shall cause such person to be
brought before the court, and the court shall sentence such person to
life imprisonment as provided in subsection (1).

See § 775.082(2), Fla. Stat. (emphasis added). The plain language of the statute

does not rely on a specific amendment to the United States Constitution, nor does it

refer to a specific decision by this Court or the United States Supreme Court.

Further, it does not contemplate that all forms of the death penalty in all cases must

be found unconstitutional. Instead, the statute uses singular articles to describe the

circumstances by which the statute is to be triggered. Indeed, the statute repeatedly

references a singular defendant being brought before a court for sentencing to life

imprisonment. I consequently cannot agree that the statute was intended as a fail-

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safe mechanism for when this Court or the United States Supreme Court declared

that the death penalty was categorically unconstitutional. Cf. Hurst, 202 So. 3d at

64.

An Appeal from the Circuit Court in and for Lake County,
Mark Anthony Nacke, Judge - Case No. 352011CF000105XXXXXX

James S. Purdy, Public Defender, and Nancy Jean Ryan, Assistant Public
Defender, Seventh Judicial Circuit, Daytona Beach, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and C. Suzanne Bechard,
Assistant Attorney General, Tampa, Florida,

for Appellee

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