Michael Lawrence Woodbury v. State of Florida

Supreme Court of Florida
____________

No. SC19-8
____________

MICHAEL LAWRENCE WOODBURY,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

April 15, 2021

PER CURIAM.

Michael Lawrence Woodbury appeals his conviction of first-

degree murder and sentence of death. We have jurisdiction. See

art. V, § 3(b)(1), Fla. Const.

FACTS AND PROCEDURAL HISTORY

In March 2018, Woodbury was indicted on one count of first-

degree murder for killing his cellmate, Antoneeze Haynes. At the

time of the offense, Woodbury was serving life sentences for killing

three people in New Hampshire during a 2007 robbery.
 The evidence presented at trial showed that on September 22,

2017, Woodbury barricaded the door to the cell he shared with

Haynes and then proceeded to brutally assault Haynes for hours,

using his fists, boots, and makeshift weapons Woodbury had

gathered in preparation for the attack. Woodbury appeared to

delight in torturing Haynes, at one point telling the victim: “I know

it hurts, I know. You deserved that one, you know you did. It’s

called torture. Welcome to the house of pain. Welcome to the

house of pain. The house of pain actually exists. It’s in the ninth

level of hell. I used to run it.” The assault lasted about four hours,

and it involved what Woodbury admitted was a hostage situation,

with Woodbury threatening to further harm Haynes if officers on

the scene failed to meet Woodbury’s demands. At one point,

Woodbury instructed the correctional officers to take away medical

equipment that had been brought in to treat the victim, saying:

“You’re probably going to need a body bag, but not medical

equipment. You can take that stuff with you.” Woodbury only

stopped assaulting Haynes and surrendered when he realized a

forcible extraction was imminent.

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 At his first appearance in court, Woodbury invoked his right to

represent himself at trial, which prompted the court to conduct a

Faretta 1 inquiry. Woodbury indicated that he understood every

question asked and informed the court that he was taking

medication for treatment of bipolar disorder. The next time

Woodbury appeared in court, he remained adamant about wanting

to represent himself at trial, and when the court explained the

advantages of counsel and the disadvantages of self-representation,

Woodbury said he understood. He expressed frustration when told

to expect renewed offers of counsel and Faretta inquiries

throughout the proceedings.

The court asked Woodbury about his history of bipolar

disorder and Woodbury told the court that he had experienced

“[m]ood swings, just stuff like that.” The court also asked about the

treatment Woodbury was undergoing for his disorder and asked if

there were any physical issues that would impair Woodbury’s ability

to represent himself, and Woodbury said he had no other issues.

The court granted Woodbury’s request to proceed pro se, finding

1. Faretta v. California, 422 U.S. 806 (1975).

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that Woodbury’s waiver of counsel was made freely and voluntarily

with a full understanding of his rights, and that Woodbury was

competent to make that decision. With Woodbury’s agreement, the

court appointed standby counsel for Woodbury and told him that

counsel would be appointed to represent him if, at any point in the

proceedings, he ever decided that he wanted an attorney.

At a subsequent pretrial hearing, the trial court conducted

another Faretta inquiry and again found Woodbury competent to

waive counsel and that he had done so knowingly and intelligently.

The State asked the court to conduct new Faretta inquiries each

day of the trial to perfect the record. Woodbury objected to having

to endure so many inquiries, saying he had read more than 105

cases and failure to conduct repeated Faretta inquiries was not a

basis for appeal.

Woodbury’s trial began on May 14, 2018. On the first day of

trial, the court renewed the offer of counsel and conducted another

lengthy Faretta inquiry. Woodbury maintained his decision to

proceed pro se, explaining that he would want an attorney to

handle his appeal if he were to be convicted but that he did not

want counsel for the trial. Woodbury answered more questions

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about his bipolar disorder and other issues that might affect his

ability to proceed pro se. The court again found that Woodbury

understood the charges against him and the consequences of

waiving counsel, and found that he had voluntarily, knowingly, and

intelligently waived his right to counsel.

During jury selection that same day, Woodbury conducted voir

dire on the potential jurors and occasionally consulted with his

standby counsel. The State asked for a finding on Woodbury’s

competence and demeanor, and the court said:

I think you’ve done actually very well for somebody in
your circumstance with what you’re charged with, the
seriousness of it . . . . I actually will compliment you on
your behavior. It’s a little more laid back than an
attorney is going to do, there’s no question about that,
you know what I mean. But overall I think you’ve
complied with the general courtroom demeanor that’s
necessary and I appreciate that for what it’s worth.
....

. . . You’d be surprised, some people come here unrepresented
and you can’t figure what their focus is. Yours I think is
pretty clear. So I’ll leave the record at that and I think it’s
actually . . . quite impressive.

The following day, the court renewed the offer of counsel and

Woodbury maintained his insistence on representing himself. The

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trial court found that Woodbury was competent to waive his right to

counsel and that he had done so knowingly and voluntarily.

In his opening statement to the jury, Woodbury claimed that

the victim had tried to sexually assault him and that the assault

and killing of the victim was in response to that attempted sexual

assault. Woodbury admitted, however, that he “went berserk” and

that he kicked the victim in the face “like a 50-yard field goal that

would have been good from 60.”

During the State’s case-in-chief, law enforcement officers and

prison staff provided gruesome details about Woodbury’s four-hour

assault on the victim. Correctional officers testified that they were

unable to enter the cell because Woodbury had barricaded the door,

but that they could see Woodbury through a window and could see

another inmate lying face down on a bunk with blood “all over the

place.” The State introduced photographs of the victim’s extensive

injuries, and the medical examiner testified that by the time officers

got into Woodbury’s cell, the victim had died from severe blunt force

trauma, and that he died experiencing a “great, great, great deal of

suffering.”

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 During a brief recess to discuss time to call defense witnesses,

Woodbury told the court that he was planning to change his plea to

guilty. He said, “I know, it’s crazy, but that’s what I’m doing

tomorrow. I’ll be changing my plea to guilty of first-degree murder

tomorrow after I get done testifying.” The next day of trial, the court

renewed the offer of counsel and conducted a truncated Faretta

inquiry. The court stated that a full inquiry was unnecessary

because one had already been conducted during the same stage of

the proceeding. The State called Major Frank Gatto, who testified

that Woodbury was “very malicious . . . in his intent on what he

was trying to do” and appeared “methodical” with his actions, which

“seemed to be almost planned out, like he had a plan in mind.” The

State played a lengthy video recording filmed during Woodbury’s

assault on the victim, in which Woodbury could be heard

assaulting, torturing, and tormenting the victim.

The next day of trial began with another renewed offer of

counsel, and Woodbury said he understood the disadvantages of

representing himself and rejected the offer. The trial court found

that Woodbury was competent to waive counsel and had done so

knowingly, voluntarily, and intelligently. When the State rested, the

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court began yet another Faretta inquiry, but Woodbury objected,

declaring: “I have a constitutional right to represent myself, and

this has rose to the level of harassment.” The court replied:

You know what. For the record, I don’t disagree. I think
the fact is you’ve understood this the multiple times I’ve
done it. That doing it again, if an appellate court were to
think that it’s a good idea to do this as often as we have, I
think that I would disagree with them and you’d be in
agreement with me. However, the above trial level courts
have a different way of viewing things. They’re not as
worried about practicality as they are about structural
integrity of the system. So I’m going to go through them
relatively quickly, you can answer them yes or no. If at
any point, though, you do have a question, please let me
know. So, again, I’m going to do it relatively quickly.

Woodbury asked the court: “[H]ow long do I got to answer? We’re

going to play the game now. . . . Do I got five minutes, ten minutes?

I might want to think about each question and consider it.”

Woodbury insisted that his right to represent himself superseded

the need for constant Faretta inquiries, and he threatened to stall

the proceedings. The court asked, “[A]m I right to conclude you are

requesting the Court not to ask you these questions at this time?”

Woodbury stated that this was exactly what he was requesting and

declared that in all the cases he had read, “every time they only did

the Faretta hearing one time and that was enough.” Woodbury

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acknowledged that a new Faretta inquiry would be required before

moving to the penalty phase, and he said he would cooperate fully

with that inquiry when the time came. The court found that

Woodbury validly requested to forgo a Faretta inquiry before the

defense case-in-chief, and that Woodbury had knowingly and

voluntarily waived counsel and was competent to do so.

During the defense case-in-chief, Woodbury briefly called two

defense witnesses and then took the stand on his own behalf. He

testified that he woke up on the morning in question to find the

victim attempting to sexually assault him. Woodbury admitted he

had a weapon at the ready but he claimed the victim’s death was

not premeditated, saying: “[I]f I was planning on killing my

roommate before I went to bed, I would have at least put a point on

my knife.” He also admitted to holding the victim hostage but

claimed he only did so to stall for time until a tactical team with

cameras arrived. He insisted he did not wish to keep hurting the

victim but that the victim kept sitting up, and so “every time he sat

up, [Woodbury] refreshed him with the business.”

After giving the jury his version of events, Woodbury declared

in open court: “So in the eyes of the law, you know, what the

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prosecution has charged me with is true. And at this time, I’d like

to plead guilty to first-degree premeditated murder, your Honor.

What you got?”

The trial court quickly excused the jury and then went

through the plea form line-by-line, with Woodbury’s input. The

court conducted a colloquy on the voluntariness of Woodbury’s

plea, and Woodbury indicated that he understood that the death

sentence was still a possibility. Before it accepted Woodbury’s plea,

the court renewed the offer of counsel, conducted another Faretta

inquiry, and found that Woodbury was competent to waive his right

to counsel. The court then complimented Woodbury again, stating:

[Y]our ability to understand, you’re obviously intelligent
and you have been able to handle yourself in court,
whether it’s questioning or just behavior or being -- being
able to ask your standby counsel. Even asking to do so,
you’ve been polite, you’ve been courteous, and I think
your behavior has been, compared to all the other pro se
people in the past, actually better than all of them
combined.

Woodbury told the court that his standby counsel had provided

excellent assistance with all legal questions, and the trial court

accepted Woodbury’s guilty plea. Woodbury then asked to be

permitted to represent himself at the penalty phase trial and said

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he had consulted with standby counsel about that decision. The

court ordered a presentencing investigation, and the State asked

the court to appoint a mental health expert for potential mitigation.

Three days later, the court appointed Dr. Joseph Sesta to conduct a

mental health evaluation for mitigation.

Woodbury’s penalty phase trial began on July 23, 2018. The

proceeding began with another renewed offer of counsel and Faretta

inquiry, and with the court taking judicial notice of Woodbury’s

previous statements about his bipolar disorder. Woodbury

indicated that he understood the rights he was waiving and the

disadvantages of self-representation, and the court granted his

request to proceed pro se after finding him competent to waive his

right to counsel.

Woodbury asked the court to read either of two special jury

instructions Woodbury had prepared that would have informed the

jurors that even if they found death to be justifiable, they could still

recommend life in prison as an act of mercy. Following a recess

and an abridged Faretta inquiry, the court rejected Woodbury’s

instructions. Woodbury did not object to the final instructions

read.

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 The State presented penalty phase testimony from law

enforcement officers and victims of Woodbury’s prior crimes,

introduced fingerprint evidence and a judgment from another case

to show that Woodbury had prior convictions for robbery and three

other murders, and presented evidence to show that Woodbury

killed his cellmate while serving a sentence of imprisonment and

that the killing was particularly heinous and cruel. The State also

played portions of an interview given shortly after the murder, in

which Woodbury made no mention of the victim attempting to

sexually assault him but did describe how he had sharpened a

piece of metal, taken a lock from his locker, waited until an inept

correctional officer was on duty, put on and laced up his boots, and

barricaded his cell door to prevent entry by responding officers.

Woodbury testified on his own behalf. He admitted that his assault

on the victim constituted torture, but he claimed that the victim

had tried to rape him and that “it was getback time. . . . It was just

getback, it was just vengeance, it was just wanting to hurt you for

what you tried to do to me, for what you thought you could do. . . .

That’s really why I did what I did.”

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 The court instructed the jury that in order to recommend the

death penalty, it must unanimously find that at least one

aggravating factor had been proven beyond a reasonable doubt.

The court read instructions on the four aggravators alleged by the

State: (1) Woodbury was previously convicted of a felony and under

sentence of imprisonment; (2) he was previously convicted of

another capital felony or a felony involving the use or threat of

violence to another person; (3) the murder was especially heinous,

atrocious, or cruel; and (4) the murder was committed in a cold,

calculated, and premeditated manner without any pretense of moral

or legal justification. The court then instructed the jury to consider

mitigation, such as whether the crime was committed while

Woodbury was under extreme mental or emotional disturbance or

any other factors that mitigate against the death penalty. The jury

unanimously recommended the death penalty after unanimously

finding that the State had proved all four aggravators alleged and

that the aggravators outweighed the mitigators and were sufficient

to impose death.

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 A Spencer 2 hearing was held on September 21, 2018. It began

with a Faretta inquiry that included asking Woodbury if he

understood that the State was in possession of mental health

mitigation evidence. Woodbury said he understood all questions

asked. The court asked Woodbury about his bipolar disorder and

treatment for it. Woodbury said he began taking Tegretol shortly

after the murder, that he took it consistently during the trial, and

that it did not affect his ability to understand the proceedings. The

court asked Woodbury if he had been diagnosed with any other

mental illnesses. When he said no, the court replied: “You had

hesitation. It’s fine with me if you answer it. I mean, now–look, it’s

for your benefit.” Woodbury said: “None that I believe.” The court

found that Woodbury knowingly and intelligently waived counsel

and was competent to do so.

Standby counsel testified at the hearing that Woodbury knew

there was a factual basis for mental health mitigation, including

opinions contained in the report written by Dr. Sesta, but that

Woodbury elected not to present any such mitigation. When

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

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pressed on that issue by Woodbury, standby counsel agreed with

Woodbury that the decision was strategic in nature—that Woodbury

already had a penalty phase strategy and never intended to present

mental health mitigation. After Woodbury explained why he did not

wish to present mental health mitigation on his own behalf, the

State offered Dr. Sesta’s report into evidence, and the court

admitted the report for potential mitigation.

Woodbury was adjudicated guilty and sentenced to death. In

the sentencing order, the court found that all four aggravators

alleged by the State had been proved and assigned great weight to

each aggravator. The court then examined whether the murder was

committed while Woodbury was under the influence of extreme

mental or emotional disturbance. The court found that although

there was no competent evidence to support that mitigator, it could

not say there was no evidence whatsoever in the record, and so

assigned the mitigator minimal weight. The court then examined

whether Woodbury’s capacity to appreciate the criminality of his

conduct or conform his conduct to the requirements of law was

substantially impaired, finding that this mitigator was never raised

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and that any applicability would be covered by the findings on

mental or emotional disturbance.

The court also found that although the facts cast doubt on

Woodbury’s version of the incident, there was at least some

mitigation on that issue in the record, but only worthy of minimal

weight. In addition, the court found that although Woodbury did

not present any mental health mitigation on his own behalf, there

was mental health mitigation in the record because Dr. Sesta’s

report mentioned bipolar disorder and schizophrenia. The court

assigned little weight to Woodbury’s diagnosis and history of bipolar

disorder and assigned minimal weight to Dr. Sesta’s mention of

schizophrenia. After making findings on each aggravator and

mitigator, the court sentenced Woodbury to death.

ANALYSIS

In this direct appeal of the judgment of conviction and

sentence of death, Woodbury argues that the trial court erred by: (1)

granting Woodbury’s waiver of counsel and request to proceed pro

se without first ordering a mental health evaluation; (2) failing to

sua sponte order a competency hearing to determine if Woodbury

was competent to stand trial; (3) accepting a guilty plea that was

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not entered intelligently and voluntarily and had no factual basis;

(4) failing to renew the offer of counsel at the start of the defense

case-in-chief and when Woodbury announced his change of plea; (5)

accepting Woodbury’s waiver of mental health mitigation without

appointing special counsel to present mitigation evidence; (6)

finding that the murder was committed in a cold, calculated, and

premeditated manner, and instructing the jury on that aggravator;

(7) admitting a noncomprehensive presentence investigation report

that contained impermissible sentencing recommendations; (8)

assigning minimal weight to the mitigator of extreme mental or

emotional disturbance; (9) rejecting a requested special jury

instruction on mercy; and (10) failing to instruct the jury that it

must find beyond a reasonable doubt that the aggravators

outweighed the mitigators and were sufficient for the death

penalty. 3 We address each claim in turn, and for the reasons set

forth below, we affirm Woodbury’s conviction and sentence of death.

3. Woodbury also asserts that the court’s failure to consider
mitigators precludes us from conducting proportionality review. In
light of our recent decision in Lawrence v. State, 308 So. 3d 544
(Fla. 2020), we need not address this claim.

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 1. Competency to Stand Trial and the Right to Self-
Representation

Woodbury insists that the record shows that the trial court

knew of Woodbury’s history of bipolar disorder and observed

instances of erratic behavior from Woodbury in court. Thus,

Woodbury argues that the trial court knew he suffered from a

severe mental illness to the point of being incompetent to conduct

the proceedings without assistance and should therefore have

denied his request to proceed pro se at trial. Even more

fundamentally, Woodbury argues that his bipolar disorder diagnosis

and erratic behavior gave the trial court reasonable ground to

believe Woodbury was not mentally competent to stand trial, and

that the court should therefore have ordered a competency hearing

before proceeding.

A. Whether a Competency Hearing was Required

An accused has a right to adequate process to ensure he is not

tried or sentenced while mentally incompetent to stand trial. Pate

v. Robinson, 383 U.S. 375, 378 (1966). Florida Rule of Criminal

Procedure 3.210(b) provides:

If, at any material stage of a criminal proceeding, the
court of its own motion, or on motion of counsel for the

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 defendant or for the state, has reasonable ground to
believe that the defendant is not mentally competent to
proceed, the court shall immediately enter its order
setting a time for a hearing to determine the defendant’s
mental condition . . . .

When a defendant claims a trial court failed to order a competency

hearing, either sua sponte or on request from a party, we will

uphold the court’s determination absent an abuse of discretion.

Rodgers v. State, 3 So. 3d 1127, 1132 (Fla. 2009).

Woodbury argues that his admission of bipolar disorder gave

the court reasonable ground to believe he was not mentally

competent, but “[n]ot every manifestation of mental illness

demonstrates incompetence to stand trial; rather, the evidence

must indicate a present inability to assist counsel or understand

the charges.” Barnes v. State, 124 So. 3d 904, 913 (Fla. 2013)

(defendant’s disclosure of mental illness did not require the trial

court to order a competency hearing because nothing about the

defendant’s behavior during the proceedings created grounds to

believe he was incompetent) (quoting Card v. Singletary, 981 F.2d

481, 487-88 (11th Cir. 1992)); see also Nelson v. State, 43 So. 3d

20, 29 (Fla. 2010) (defendant’s suicide attempt and treatment with

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antipsychotic medication did not raise doubts about his

competency to stand trial).

Like the defendant in Barnes, Woodbury disclosed a history

and diagnosis of bipolar disorder, but nothing about his behavior in

court indicated a present inability to understand the proceedings

against him or an inability to consult with his standby counsel (or

with counsel, had an attorney been appointed). Woodbury filed

motions on his own behalf, was consistently alert, demonstrated

knowledge of legal issues, behaved appropriately, and stated

multiple times that he understood the proceedings. At no time did

the trial court, Woodbury’s standby counsel, or the attorneys for the

State express any concerns about Woodbury’s competency. Rather,

the trial court outright praised Woodbury more than once for his

ability to conduct himself appropriately and properly engage with

the court, jury, and standby counsel. The court went so far as to

call Woodbury’s behavior better than all other pro se defendants the

court had seen, combined.

Woodbury invokes Drope v. Missouri, 420 U.S. 162, 179

(1975), where the Supreme Court held that a trial court ignored

details that raised doubts about the defendant’s competency. But

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the defendant in Drope did not merely disclose a history of mental

illness and demonstrate attention problems; he attempted suicide

during the trial. Id. at 180. That suicide attempt plus uncontested

testimony about the defendant’s wildly irrational recent behavior—

including trying to choke his wife to death just before trial—created

sufficient grounds to doubt the defendant’s competency to stand

trial. Id.

Here, by contrast, Woodbury did nothing so extreme as

attempting suicide during the trial, and the trial court was given no

evidence of wildly irrational recent behavior. 4 Woodbury points to

moments from trial that supposedly show erratic and irrational

behavior, but at most, the cited conduct suggests attention span

problems or overconfidence; nothing put the court on notice that

Woodbury had a present inability to understand the proceedings or

to consult with counsel.5

4. Certainly, Woodbury’s behavior during the assault of the
victim could be described as irrational, but that was not as recent
as the pretrial behavior in Drope, and the court here conducted in-
depth inquiries into the mental health treatment and medication
Woodbury had received following the murder.

5. Woodbury further argues that the side effects of his
medication created reasonable ground to doubt his competency to

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 Likewise, although Dr. Sesta’s psychological report, which was

entered for potential mitigation, described Woodbury as having a

fluctuating attention span, the report never suggested that

Woodbury’s behavior during the examination indicated an inability

to understand the charges or consult with counsel. Thus, even

though the trial court knew that Woodbury had been diagnosed

with (and treated for) bipolar disorder, nothing about his behavior

in court, and nothing presented to the trial court, created a

reasonable ground to believe Woodbury was not mentally competent

to stand trial. Accordingly, the trial court was not required to sua

sponte order a competency hearing.

B. Whether the Court Erred in Granting Woodbury’s Request to
Represent Himself at Trial

Woodbury argues that even if he was competent to stand trial,

the trial court knew he had a severe mental illness that rendered

him incompetent to represent himself, and that the trial court

therefore erred in granting his request to proceed pro se. Trial

stand trial. But the side effects he said he had experienced were
sleepiness, nervousness, blurry vision, and trouble urinating.
Woodbury points to no authority declaring that these side effects
create grounds to doubt one’s ability to understand the trial
proceedings or assist counsel.

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court rulings regarding competency to waive counsel are reviewed

for abuse of discretion. Trease v. State, 41 So. 3d 119, 124 (Fla.

2010).

An accused has a Sixth Amendment right to represent himself

at trial. Tennis v. State, 997 So. 2d 375, 377 (Fla. 2008). And while

an accused also has a right to the assistance of counsel, that right

confers just what it says—assistance. “To thrust counsel upon the

accused, against his considered wish . . . violates the logic of the

[Sixth] Amendment. In such a case, counsel is not an assistant,

but a master . . . .” Faretta, 422 U.S. at 820. Therefore, each

defendant “must be free personally to decide whether in his

particular case counsel is to his advantage. And although he may

conduct his own defense ultimately to his own detriment, his choice

must be honored out of ‘that respect for the individual which is the

lifeblood of the law.’ ” Id. at 834 (quoting Illinois v. Allen, 397 U.S.

337, 350-51 (1970) (Brennan, J., concurring)).

Given the constitutional right to self-representation, “once an

unequivocal request for self-representation is made, the trial court

is obligated to hold a hearing, to determine whether the defendant

is knowingly and intelligently waiving his right to court-appointed

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counsel.” Tennis, 997 So. 2d at 378. The purpose of this inquiry

(often called a Faretta inquiry) is not to assess whether the

defendant possesses a degree of technical skill at trial advocacy, but

whether his waiver of counsel is knowing and intelligent. McKenzie

v. State, 29 So. 3d 272, 281 (Fla. 2010); see also Faretta, 422 U.S.

at 835 (“Although a defendant need not himself have the skill and

experience of a lawyer in order competently and intelligently to

choose self-representation, he should be made aware of the dangers

and disadvantages of self-representation . . . .”).

That said, while technical skill is not part of the Faretta

calculus, “the government’s interest in ensuring the integrity and

efficiency of the trial at times outweighs the defendant’s interest in

acting as his own lawyer.” Indiana v. Edwards, 554 U.S. 164, 177

(2008) (quoting Martinez v. Court of Appeal, 528 U.S. 152, 162

(2000)). Thus, after conducting a Faretta inquiry, a trial court may

preclude a defendant from exercising his right to proceed pro se if

the court finds that the defendant is “unable to carry out the basic

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tasks needed to present his own defense without the help of

counsel.” Id. at 175-76. 6

In Florida, Rule of Criminal Procedure 3.111(d)(3) addresses

the right to self-representation. It accounts for the aforementioned

bases by which a court may lawfully force counsel on an unwilling

defendant, stating:

Regardless of the defendant’s legal skills or the
complexity of the case, the court shall not deny a
defendant’s unequivocal request to represent himself or
herself, if the court makes a determination of record that
the defendant has made a knowing and intelligent waiver
of the right to counsel, and does not suffer from severe
mental illness to the point where the defendant is not
competent to conduct trial proceedings by himself or
herself.

Fla. R. Crim P. 3.111(d)(3). Thus, a Florida trial court may deny a

defendant’s request to proceed pro se if: (1) the defendant’s waiver

of his right to counsel was not made knowingly and intelligently; or

(2) the defendant suffers from severe mental illness to the point of

being incompetent to conduct trial proceedings without assistance.

6. In Edwards, the Supreme Court did not define these “basic
tasks,” but it did cite a case declaring that basic trial tasks included
“organization of defense, making motions, arguing points of law,
participating in voir dire, questioning witnesses, and addressing the
court and jury.” Edwards, 554 U.S. at 176 (citing McKaskle v.
Wiggins, 465 U.S. 168, 174 (1984)).

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The competency standard to waive one’s right to counsel is the

same as the competency standard to stand trial, whereas the

competency standard to conduct trial proceedings without

assistance is somewhat higher. See Wall v. State, 238 So. 3d 127,

140 (Fla. 2018) (“[D]efendants may be competent to waive counsel

yet incompetent to represent themselves.”).

Here, starting from his first appearance, Woodbury never

wavered in his insistence on representing himself at trial. As it was

required to do upon receiving an unequivocal request for self-

representation, the trial court explained the benefits of counsel and

the pitfalls of self-representation and conducted a full Faretta

inquiry. The court renewed the offer of counsel and conducted

additional Faretta inquiries approximately a dozen times over the

course of the proceedings. 7 At the conclusion of each inquiry, the

court found that Woodbury’s rejection of the offer of counsel was

7. We do not suggest that all of these offers and Faretta
inquiries were legally required. The record indicates that the trial
court conducted so many inquiries to ensure that the offer of
counsel was renewed at all critical stages of the proceedings.
Nothing in the record suggests that any of the inquiries were
prompted by new concerns about Woodbury’s behavior or
competency.

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knowing and intelligent and that Woodbury was competent to make

his decision. We agree. Woodbury responded appropriately to the

court’s questions and indicated that he understood both the

proceedings against him and the rights he was giving up by

proceeding pro se.

That leaves the question whether Woodbury’s behavior in

court, together with his bipolar disorder diagnosis, required the trial

court to find that Woodbury suffered from severe mental illness to

the point of being incompetent to conduct the proceedings by

himself. To that end, Woodbury filed pro se discovery motions and

a demand for speedy trial, conducted voir dire examination of the

potential jurors by himself, cross-examined witnesses, argued

evidentiary objections, and even requested a special jury instruction

derived from the federal standard instructions. In fact, the record

reveals several instances where Woodbury’s pro se representation

could easily be mistaken for the work of a veteran trial attorney.

Take for example this excerpt from voir dire of Woodbury

questioning a potential juror’s ability to set aside biases and

consider mitigation:

- 27 -
 MR. WOODBURY: Sir, just three minutes ago you
said you have a very biblical view of the Bible, that it
should be an eye for an eye, a tooth for a tooth, a life for
a life. With respect to what he just said, do you still feel
like that now?

PROSPECTIVE JUROR: I have to say yes, but you
still have to take each situation, you know, you have to
take each case, case by case.

MR. WOODBURY: So would -- so I am to
understand that you can look past the Bible and obey
Florida law and give consideration to mitigators such as
self-defense, a bad childhood, level of involvement, all the
mitigators that may be out there, you can give due
consideration even though now the Florida law has
trumped your Bible law, you’re not going to have a
problem with that?

PROSPECTIVE JUROR: No. I can – that’s tough.

Thus, Woodbury’s behavior in court defeats any claim that he

was not competent to conduct the proceedings on his own. And

Woodbury cites no authority—and we are aware of none—where a

bipolar disorder diagnosis, without more, established that a

defendant suffered from severe mental illness to the point of being

incompetent to conduct trial proceedings without assistance.

Woodbury’s own arguments on appeal describe bipolar disorder as

a broad spectrum of mental conditions, with varying degrees of

symptoms and severity, including “hypomania,” which Woodbury

- 28 -
describes as a less severe form of mania in which individuals are

able to function well in social situations or at work and can retain

the ability to act rationally on subjects beyond the sphere of the

controlling delusion. Given that certain people with bipolar

disorder function well and act rationally, we see no logic in creating

a per se rule or presumption that all individuals with bipolar

disorder suffer so severely from mental illness that they are unable

to carry out basic trial tasks without assistance.

Woodbury points out that some individuals with bipolar

disorder exhibit “confusion and poor judgment” and “potential

disordered thinking,” but these are only possible symptoms of

bipolar disorder. When asked how bipolar disorder affected him

personally, Woodbury told the trial court that prior to taking

Tegretol (which he claimed was very effective at treating his

symptoms), he experienced “[m]ood swings, just stuff like that.”

Mood swings, without more, do not indicate that a defendant is

suffering from a severe mental illness to the point of incompetency.

Accordingly, on this record, knowledge of Woodbury’s bipolar

disorder did not require the court to go beyond a Faretta inquiry

before granting Woodbury’s request to proceed pro se.

- 29 -
 Woodbury argues that in addition to his history of bipolar

disorder, his erratic courtroom behavior created reasonable ground

to doubt his competence. Woodbury points out that he: (1) filed a

demand for speedy trial before receiving any discovery; (2)

announced he was ready to start trial just a month after being

arrested; (3) indicated that he was unconcerned about the guilt

phase; (4) compared the likelihood of a death penalty

recommendation to getting struck by lightning; (5) said his prison

outfit and handcuffs made for “excellent” courtroom attire; (6) told

the jury he had chosen to represent himself because it was simple;

(7) admitted his guilt during his guilt phase testimony; and (8)

goaded the jurors by telling them to sentence him to death if it

would make them feel better.

Even without any context, most of these purportedly erratic

moments merely suggest a lack of technical skill. They can be

considered “irrational” only insofar as they imply a nonchalant

attitude from Woodbury about being found guilty. But Woodbury

was already serving life sentences for three prior murders; the only

way this trial could have affected him in any meaningful sense was

in the penalty phase. In fact, Woodbury told the court that he

- 30 -
expected to be found guilty and that his focus was on sentencing.

Thus, the cited behavior suggesting a blasé attitude toward a guilty

verdict did not create grounds to doubt his competence.

As to the “lightning strike” comment, although Woodbury’s

appellate counsel frames this remark as a manic rant showing that

Woodbury believed he was more likely to get struck by lightning

than get the death penalty, Woodbury was not raving about the

likelihood of weather phenomena. He was explaining to the court

that while he was confident a jury would recommend a life

sentence, he wanted a guilt phase trial “in case lightning strikes

and somehow you find 12 people to agree and I get the death

penalty, I want appeal issues for the guilt phase.” If this comment

demonstrates anything, it is not that Woodbury had erratic

outbursts in court; it is that he was cognizant of the fact that a

death penalty recommendation was possible notwithstanding his

confidence in his penalty phase case, and that an appellate record

would be helpful should he need to appeal.

Woodbury further argues that Dr. Sesta’s psychological report

created doubts about Woodbury’s competence to proceed pro se. In

that report, Dr. Sesta opined that Woodbury was experiencing an

- 31 -
active manic episode during the examination, had a fluctuating

attention span, made some inappropriate comments, and was

undermedicated. But Woodbury points to no case where

inattentiveness or overenthusiasm rendered a defendant

incompetent to represent himself at trial.

In sum, nothing in the record shows that the court abused its

discretion by finding that Woodbury knowingly and intelligently

rejected the court’s offer of counsel, or that the court was required

to find that Woodbury suffered from severe mental illness to the

point of incompetency. Thus, the trial court did not err in allowing

Woodbury to invoke his constitutional right to conduct his own

defense.

2. Woodbury’s Guilty Plea

Woodbury argues that the trial court erred in accepting his

guilty plea. He insists that his decision to change his plea to guilty

in open court, in front of the jury, gave the trial court reasonable

ground to believe he was not mentally competent to enter the plea.

Woodbury further argues that the trial court erred in finding that

there was a factual basis for the plea. We find no error on either

basis.

- 32 -
 A. Whether the Court Erred in Finding Woodbury Competent to
Plead Guilty

The competency standard to plead guilty is the same as the

competency standard to stand trial, Wall, 238 So. 3d at 140, and

so, “[d]uring ‘any material stage’ of a criminal proceeding, a

defendant must immediately be examined for competence if the trial

court ‘has reasonable ground to believe that the defendant is not

mentally competent to proceed.’ ” Id. (quoting Fla. R. Crim. P.

3.210(b)). “If that sufficient basis exists, the trial court ‘shall

immediately enter its order setting a time for a [competency]

hearing . . . and may order the defendant to be examined by no

more than 3 experts, as needed, prior to the date of the hearing.’ ”

Id. (modifications in original) (quoting Fla. R. Crim. P. 3.210(b)).

“Due process requires a court accepting a guilty plea to carefully

inquire into the defendant’s understanding of the plea, so that the

record contains an affirmative showing that the plea was intelligent

and voluntary.” Sanchez-Torres v. State, 130 So. 3d 661, 668 (Fla.

2013) (quoting Koenig v. State, 597 So. 2d 256, 258 (Fla. 1992)).

Woodbury points out that when he initially told the court that

he was planning to change his plea to guilty, he himself called the

- 33 -
decision “crazy.” But while the decision to change one’s plea in

open court may be unorthodox, and while Woodbury may have

believed at the time that he was doing something crazy, he points to

no authority declaring that announcing a change of plea in front of

a jury creates reasonable ground to believe the defendant is not

mentally competent.

In any event, the trial court did not simply accept Woodbury’s

plea without question. It went through a colloquy with Woodbury

to determine if his plea was being entered intelligently and

voluntarily, and it explained to Woodbury that first-degree murder

has only two possible sentences: life in prison and the death

penalty. The court also told Woodbury that the plea form would

indicate that there was no agreement for his open plea, meaning

Woodbury could still be sentenced to death. Woodbury said he

understood. The court then went through the plea form line-by-line

with Woodbury to make sure he understood what he was doing,

and at no time did Woodbury say anything that suggested he did

not understand the plea or the consequences of pleading guilty. 8

8. The State argues that Woodbury’s decision to change his
plea in open court was an attempt to game the system by

- 34 -
On this record, we find no error in finding Woodbury competent to

enter a guilty plea.

B. Whether There Was a Factual Basis for the Plea

Woodbury argues that the trial court erred in finding that

there was a factual basis for his guilty plea. “[I]n order to challenge

a guilty plea for lack of a factual basis determination by the trial

judge, a defendant must show prejudice or manifest injustice.”

State v. Kendrick, 336 So. 2d 353, 355 (Fla. 1976). The inquiry to

determine if a plea has a factual basis “need not be a ‘mini-trial’ ”; a

court may be satisfied from “statements and admissions made by

the defendant, or by his counsel, or by the prosecutor.” Farr v.

State, 124 So. 3d 766, 778 (Fla. 2012) (quoting Monroe v. State, 318

So. 2d 571, 573 (Fla. 4th DCA 1975)); see also Santiago-Gonzalez v.

presenting a sympathetic explanation for his actions and then avoid
a damning cross-examination that would have impeached him with
prior inconsistent statements and convictions for felonies and
crimes of dishonesty. It is true that Woodbury objected when told
he might still be cross-examined, and that he said his plea change
was “110 percent my idea to spin a circle around you like I said I
was going to.” But it matters not why Woodbury chose to change
his plea the way he did; what matters is that his actions did not
establish reasonable grounds to believe his plea was not being
entered voluntarily and intelligently. See Brant v. State, 21 So. 3d
1276 (Fla. 2009).

- 35 -
State, 301 So. 3d 157, 180 (Fla. 2020) (“The State provided a factual

basis for the murder, to which the defense conceded for the purpose

of the guilty plea.”). However, when the defendant raises the

possibility of a defense to his guilty plea during the plea colloquy,

“the potential prejudice is apparent” and so the trial judge “should

make extensive inquiry into factual basis before accepting the guilty

plea.” Kendrick, 336 So. 2d at 355.

Here, the trial court did not err in finding a factual basis for

Woodbury’s guilty plea to premeditated first-degree murder. During

the trial, law enforcement and correctional officers who responded

to the incident described Woodbury’s assault on the victim as

“methodical” and planned out. And video played at trial showed

that Woodbury had weapons on hand and that he brutally attacked

the victim several times after the victim had been completely

incapacitated.

Woodbury also said nothing during the plea colloquy

suggesting a defense to premeditated murder. Although he testified

on the stand that he had no intent to kill the victim when he went

to bed the night before, this does not establish a defense to the

charged offense such that an extensive inquiry into factual basis

- 36 -
was required, for “[p]remeditation can be formed in a moment and

need only exist ‘for such time as will allow the accused to be

conscious of the nature of the act he is about to commit and the

probable result of that act.’ ” DeAngelo v. State, 616 So. 2d 440,

441 (Fla. 1993) (quoting Asay v. State, 580 So. 2d 610, 612 (Fla.

1991)).

Because the guilty plea to premeditated first-degree murder in

this case was entered intelligently and voluntarily and there was a

factual basis for the plea, we affirm the trial court’s acceptance of

Woodbury’s plea.

3. Renewed Offer of Counsel

Woodbury’s next claim is that the court failed to renew the

offer of counsel at all critical stages of the proceedings. Specifically,

Woodbury argues that the trial court was required to, but did not,

offer counsel at the start of the defense case-in-chief and at the

time Woodbury announced his change of plea.

Florida Rule of Criminal Procedure 3.111(d)(5) provides that if

a waiver of counsel is accepted at any stage of the proceedings, “the

offer of assistance of counsel shall be renewed by the court at each

subsequent stage of the proceedings at which the defendant

- 37 -
appears without counsel.” This rule does not require a renewed

offer of counsel each time the defendant appears in court; rather, a

court must renew the offer of counsel at “critical” stages of the

proceedings. Knight v. State, 770 So. 2d 663, 670 n.6 (Fla. 2000);

see Muehleman v. State, 3 So. 3d 1149, 1156 (Fla. 2009) (“[T]he

waiver applies only to the present stage and must be renewed at

each subsequent crucial stage where the defendant is

unrepresented.” (quoting Traylor v. State, 596 So. 2d 957, 968 (Fla.

1992)).

Woodbury points to no case holding that the transition from

the State’s case-in-chief to the defense’s case-in-chief marks a new

critical stage of the proceedings such as to require a new offer of

counsel and new Faretta inquiry. To the contrary, in Knight, we

held that a renewed offer of counsel was not required “during the

same stage of the proceeding where Knight waived his right to

counsel, the trial portion.” Knight, 770 So. 2d at 669.

As to whether a new offer of counsel was required at the time

Woodbury announced his change of plea, there was no intervening

stage of the proceeding that separated the court’s previous Faretta

inquiry from Woodbury’s announcement of his change of plea. See

- 38 -
id. at 669-70 (holding that a Faretta inquiry conducted at a pretrial

hearing satisfied the requirement to offer counsel at the start of trial

because the pretrial hearing was held to discuss the upcoming trial

and there were no intervening proceedings). On the previous day of

trial, Woodbury told the court that he intended to change his plea

to guilty when he finished testifying, and the court held a Faretta

inquiry at the start of the next day of trial. The court also

conducted a full Faretta inquiry and made a renewed offer of

counsel before accepting Woodbury’s plea. These inquiries and

offers of counsel were sufficient to satisfy the obligations imposed

by rule 3.111(d)(5).

4. Aggravating and Mitigating Circumstances

Woodbury makes a series of claims related to the trial court’s

findings on the statutory aggravators alleged by the State, and on

certain statutory and nonstatutory mitigators. Woodbury argues

that the trial court erred by allowing him to waive his right to

mental health mitigation, by failing to consider mental illness

mitigation that was in the record, and by not appointing special

counsel to argue mitigation. Woodbury further argues that the trial

court erred in assessing the “extreme mental or emotional

- 39 -
disturbance” statutory mitigator. Finally, Woodbury asserts that

the court erred in instructing the jury on the “cold, calculated, and

premeditated” aggravator and in finding its existence.

A. Mental Health Mitigation

A competent defendant may waive his right to present

mitigating evidence in the penalty phase of his first-degree murder

trial. Spann v. State, 857 So. 2d 845, 854 (Fla. 2003). We review

for abuse of discretion a trial court’s determination on a defendant’s

competence to waive mitigation. Id.

When a defendant does not challenge the imposition of the

death penalty and refuses to present mitigation evidence on his own

behalf, the trial court has an obligation “to require the preparation

of a meaningful, comprehensive presentence investigation report

(PSI).” Marquardt v. State, 156 So. 3d 464, 491 (Fla. 2015). In such

circumstances, the trial court should require the State to place into

the record all evidence of a mitigating nature that the State has in

its possession. Id. Then, “[i]f the PSI and the accompanying

records alert the trial court to the probability of significant

mitigation, the trial court has the discretion either to call its own

- 40 -
witnesses or . . . appoint an independent, special counsel, who can

call witnesses to present mitigation evidence.” Id.

Woodbury argues that the trial court erred in this case when it

let Woodbury waive his right to present mental health mitigation.

Woodbury insists that “severe mental illness prevented him from

entering a knowing, voluntarily [sic], and intelligent waiver” of his

right to present mitigation. Woodbury also argues that a report

discussing his mental health revealed an aspect of his character

that mitigated against imposition of the death penalty, and that

notwithstanding his waiver of mental health mitigation, the trial

court should have considered the information in that report and

should have appointed special counsel to argue the evidence.

As to whether Woodbury was competent to waive his right to

present mitigating evidence, the trial court conducted a Faretta

inquiry at the start of the penalty phase, advised Woodbury about

the aggravators being alleged by the State, went over possible

mitigating circumstances with Woodbury, and explained to

Woodbury his right to present mental health mitigation.

Woodbury’s history of bipolar disorder did not in itself create a

reasonable ground for the court to believe Woodbury was not

- 41 -
competent to waive his right to present mitigation, and Woodbury’s

responses to the court’s inquiries created no such ground.

Moreover, the record demonstrates that Woodbury’s waiver of

mental health mitigation was not a product of mania, but of

strategy. Woodbury told the court that his penalty phase strategy

was to emphasize his alleged sexual assault by the victim, and he

said, “I don’t want to really mess that up with oh, he was a bad

kid.” And Woodbury’s standby counsel testified that he and

Woodbury discussed how Woodbury might avoid a mental health

evaluation by the State and that Woodbury chose not to present

mental health mitigation. Under these circumstances, we find that

the trial court had no reasonable ground to doubt Woodbury’s

competency to waive his right to present mental health mitigation,

and we therefore find no abuse of discretion in allowing the waiver.

As to whether the court failed to consider mitigating evidence

in the record, particularly information mentioned in Dr. Sesta’s

psychological report, we note that the trial court properly ordered a

PSI report after Woodbury waived his right to present mitigation.

The State then introduced Dr. Sesta’s report as potential mitigation.

Later, in its sentencing order, the court found that “Dr. Sesta

- 42 -
diagnosed [Woodbury] with bi-polar disorder and some degree of

Schizophrenia.” And ultimately, the court found: “[T]here is proof in

the record that [Woodbury] has been diagnosed with and is

medicated for [bipolar] disorder. The Court will find that the

mitigation is reasonably established and will assign little weight to

the mitigation.” Given that the trial court found the existence of

mental health mitigation in the record and assigned it weight, at

least in part based on information in Dr. Sesta’s report, and given

the weighty aggravation and minimal mitigation in this case, any

error in the trial court’s characterization or assessment of aspects

of Dr. Sesta’s report was harmless beyond a reasonable doubt.9

To the extent Woodbury is asserting that the trial court should

have given more weight to the mental health mitigation, Woodbury

has not demonstrated that the trial court abused its discretion in

determining the degree of weight to assign to this mitigator. See

Covington v. State, 228 So. 3d 49, 66 (Fla. 2017) (finding no abuse

9. We also find no merit in Woodbury’s claim that the trial
court was required to appoint special counsel to argue mitigation on
Woodbury’s behalf. See Lockhart v. State, 655 So. 2d 69, 74 (Fla.
1995).

- 43 -
of discretion in the trial court affording moderate weight to a

mitigator, given the court’s findings on that mitigator).

Moreover, “HAC, CCP, and prior violent felony are three of the

weightiest aggravating circumstances.” Damas v. State, 260 So. 3d

200, 216 (Fla. 2018). Given that all those aggravators (and more)

were found in this case and assigned great weight, there is no

reasonable possibility that affording too little weight to mental

health mitigation affected Woodbury’s sentence. See, e.g., Tanzi v.

State, 964 So. 2d 106, 119-20 (Fla. 2007) (“[T]he trial court [made] a

finding that is contrary to this Court’s precedent. However, any

error present was harmless beyond a reasonable doubt in light of

the following: (a) the trial court recognized and gave weight to

numerous other mitigating circumstances; (b) this case involves

substantial aggravation, including the HAC and CCP aggravating

circumstances; and (c) the . . . proposed mitigator is minor and

tangential with respect to the record in this case.”). 10

10. Woodbury also asserts a procedural defect, insisting that
after the Spencer hearing, the trial court should have ordered a
recess and convened a separate proceeding for imposition of the
sentence. However, Woodbury himself expressly objected to the
court delaying the pronouncement of sentence and told the court to
proceed directly to sentencing. Thus, the asserted error was

- 44 -
 B. Extreme Mental or Emotional Disturbance Mitigation

Section 921.141(7), Florida Statutes (2017) lists the statutory

mitigators that, if applicable, can weigh against imposition of the

death penalty. One such statutory mitigator is when the capital

felony was committed while the defendant was under the influence

of extreme mental or emotional disturbance. See § 921.141(7)(b),

Fla. Stat. (2017). Another statutory mitigator—addressed in a

separate subsection—is when the defendant’s capacity to appreciate

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

requirements of law, was substantially impaired. § 921.141(7)(f),

Fla. Stat. (2017). Woodbury argues that the trial court conflated

the tests for these two distinct mitigators when it assessed whether

Woodbury was under the effect of mental or emotional disturbance.

It does appear from the sentencing order that the court

applied the wrong test for determining the existence of the extreme

mental or emotional disturbance mitigator. Specifically, when

evaluating in the sentencing order whether Woodbury was under

invited, and Woodbury may not be heard to complain of it on
appeal. See Lowe v. State, 259 So. 3d 23, 53 (Fla. 2018). And even
if we were to consider this claim, Woodbury has not shown that the
asserted procedural defect rose to the level of fundamental error.

- 45 -
extreme mental or emotional disturbance, the trial court stated that

“[t]here is no evidence that [Woodbury]’s emotional state was

anywhere close to the level of obviating his knowledge of right and

wrong.” But while the degree to which a defendant knows right

from wrong is relevant to assess whether the section 921.141(7)(f)

mitigator applies (i.e., that defendant’s capacity to appreciate the

criminality of his conduct or conform his conduct to the

requirements of the law was substantially impaired), see Duncan v.

State, 619 So. 2d 279, 283 (Fla. 1993), the section 921.141(7)(b)

mitigator (i.e., that the capital felony was committed while the

defendant was under the influence of extreme mental or emotional

disturbance) does not speak to a defendant’s knowledge of right and

wrong.

Nonetheless, the court ultimately assigned weight to the

mitigator, remarking that “the Court cannot say there is no

evidence of emotional disturbance.” Thus, Woodbury cannot

complain that the court’s incorrect method of analysis resulted in a

viable mitigator going unconsidered. Because the mitigator was

considered, even if the path to get there was incorrect, and because

extremely weighty aggravators were proved in this case, there is no

- 46 -
reasonable possibility that Woodbury would have received a

different sentence had the trial court engaged in the proper analysis

or had given more weight to the mitigator. See Covington, 228 So.

3d at 66. Accordingly, we find no reversible error as to the extreme

mental or emotional disturbance mitigator.

C. Cold, Calculated, and Premeditated Aggravation

Woodbury next argues that the trial court erred in instructing

the jury on the cold, calculated, and premeditated (CCP)

aggravating factor and erred in finding the existence of the

aggravator. We disagree.

Competent and substantial evidence from the penalty phase

supports the trial court’s instruction to the jury and its finding as to

the CCP aggravator. Although Woodbury had told the jury that the

victim attempted to rape him, Woodbury’s testimony on the stand

during the sentencing phase trial described the killing as an act of

retribution, not self-defense. Woodbury said that the murder of his

cellmate “was just getback [sic], it was just vengeance, it was just

wanting to hurt you for what you tried to do to me, for what you

thought you could do.” This evidence supports the conclusion that

Woodbury had no moral or legal justification for his actions. See

- 47 -
Williamson v. State, 511 So. 2d 289, 293 (Fla. 1987) (affirming a

finding of CCP where the defendant’s explanation that the victim

posed a danger to others was not held to be a pretense of moral

justification).

The penalty phase jury was also informed that Woodbury had

admitted to procuring in advance the lock that he later used to beat

the victim to death, to sharpening a blade prior to the murder, to

waiting until a correctional officer whom Woodbury viewed as

particularly inept came on duty, and to barricading his cell door to

prevent officers from entering the cell during the assault. All this

evidence, taken together, supports a conclusion that Woodbury

made calculated and highly premeditated plans to carry out the

killing of his victim.

Moreover, the jury watched a video played during the penalty

phase, in which Woodbury said that he “was so happy to kill

someone again” and that he “enjoyed torturing” the victim. Cf.

Pham v. State, 70 So. 3d 485, 498 (Fla. 2011) (affirming a CCP

finding where the defendant had obtained the murder weapon to

commit the killing and then committed the murder as “a matter of

course”).

- 48 -
 Because evidence introduced during the penalty phase

supports each aspect of the proof required for the CCP statutory

aggravator, we find no error in the trial court finding the existence

of the CCP aggravator or instructing the jury on the aggravator.11

5. Presentence Investigation Report

Woodbury’s next claim is that the trial court erred in admitting

a presentence investigation report that allegedly violated the

requirements of Florida Rule of Criminal Procedure 3.710. Because

Woodbury never brought any concerns with the report to the trial

court’s attention, this claim is reviewed for fundamental error.

Rule 3.710(b) provides that when a criminal defendant refuses

to present mitigation evidence, the trial court shall refer the case to

the Department of Corrections for the preparation of a presentence

11. Because Woodbury failed to preserve his claim that the
trial court erred in instructing the jury on the CCP aggravator, we
would have corrected the asserted error only if it rose to the level of
fundamental error. See Rogers v. State, 285 So. 3d 872, 887 (Fla.
2019). Moreover, given the other weighty aggravators found in this
case, even if the CCP aggravator were invalid, there is no reasonable
possibility that an absence of this one aggravator would have
resulted in a different sentence. See Hall v. State, 246 So. 3d 210,
215 (Fla. 2018) (an error in finding the existence of CCP was
harmless because “Hall has significant and weighty aggravation
beyond the invalidated CCP aggravator.”).

- 49 -
investigation report. That report “shall be comprehensive and

should include information such as previous mental health

problems (including hospitalizations), school records, and relevant

family background.” Fla. R. Crim. P. 3.710(b).

Woodbury argues that the PSI report prepared for this case

was inadmissible because it lacked a comprehensive summary of

his mental health history. But the trial court had ample

information about Woodbury’s mental health issues at the time it

evaluated the aggravating and mitigating circumstances. At trial,

Woodbury described his long history of bipolar disorder during

numerous Faretta inquiries, and he gave the court documentation

describing his treatment and medication. And Dr. Sesta’s report,

which was placed into evidence for mitigation purposes, addressed

Woodbury’s mental health issues and included additional

diagnoses. Because the trial court had the relevant information

and found the existence of mental health mitigation in the record,

the absence of a summary of that information in the PSI report does

not constitute fundamental error.

Woodbury also argues that the PSI report included an

improper sentencing recommendation in favor of the death penalty.

- 50 -
Woodbury relies upon Robertson v. State, 187 So. 3d 1207 (Fla.

2016), where we held that although the governing statute provides

that the Department of Corrections must include a disposition

recommendation based on several factors in noncapital cases, those

factors do not apply to capital sentencing matters. Id. at 1215.

However, in Robertson, the recommendation for death did not

render the PSI report invalid, for “the sentencing order show[ed]

that while the court relied upon the PSI for information about

Robertson’s background, the officer’s recommendation of a death

sentence did not influence the judge’s sentencing decision.” Id. at

1215-16.

In this case, the sentencing order contains the trial court’s

findings on each aggravating and mitigating circumstance,

including four weighty aggravators, and the sentencing order never

mentions any “recommendation” from the Department of

Corrections. Thus, as in Robertson, the sentencing order shows

that the trial court’s decision on whether to impose a life sentence

or the death penalty was not influenced by any recommendation in

the PSI report. See id.; see also Barnes v. State, 29 So. 3d 1010,

1028 (Fla. 2010) (holding that an unpreserved challenge to a PSI

- 51 -
report was barred, but that if preserved, there was “no basis to find

that had the trial court not considered the PSI, Barnes would have

received a life sentence”). Accordingly, we find that any error in this

case in the inclusion of a sentencing recommendation in the PSI

report does not rise to the level of fundamental error.

6. Special Jury Instruction on Mercy

Next, Woodbury argues that the trial court erred by rejecting

his requested special jury instructions on mercy, and by reading

the standard jury instruction instead. Standard Jury Instruction

7.11 (criminal), which the trial court read to the jury, informs jurors

that “[r]egardless of the results of each juror’s individual weighing

process—even if you find that the sufficient aggravators outweigh

the mitigators—the law neither compels nor requires you to

determine that the defendant should be sentenced to death.” In re

Standard Criminal Jury Instructions in Capital Cases, 214 So. 3d

1236, 1263 (Fla. 2017). Woodbury proposed a special instruction

derived from the federal standard instructions, which added: “You

may always consider mercy in making this determination.” He

proposed an alternate instruction that he claimed came from “the

ether,” which added: “Mercy itself is sufficient to justify a sentence

- 52 -
other than death.” He now claims that the court erred by rejecting

his proposed instructions.

We affirm the trial court’s ruling because the instruction that

was read to the jury adequately informed the jurors of the

applicable legal standard. See Coday v. State, 946 So. 2d 988, 994

(Fla. 2006) (“[F]ailure to give special instructions does not constitute

error where the instructions given adequately address the

applicable legal standards.” (quoting Stephens v. State, 787 So. 2d

747, 755 (Fla. 2001)). When a juror votes for a life sentence despite

finding that the aggravators outweighed the mitigators and were

sufficient to impose death, this decision is often referred to as a

mercy vote. In fact, we have referred to the relevant provision of

Standard Instruction 7.11 as the “mercy instruction.” Reynolds v.

State, 251 So. 3d 811, 816 n.5 (Fla. 2018). Thus, the court did

read an instruction on mercy, and although Woodbury might have

preferred the wording of his proposed instruction, Standard Jury

Instruction 7.11 is not ambiguous when it comes to addressing the

jurors’ options.

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 7. Beyond a Reasonable Doubt Standard for Sentencing
Considerations

Woodbury next argues that the trial court reversibly erred by

failing to instruct the jury that it must find beyond a reasonable

doubt that the aggravating circumstances outweighed the mitigating

circumstances and were sufficient to justify the death penalty. We

affirm because Woodbury did not preserve this claim for appeal and

because (as Woodbury acknowledges) we have already determined

that “these determinations are not subject to the beyond a

reasonable doubt standard of proof.” Rogers, 285 So. 3d at 886.

CONCLUSION

Because Woodbury has not demonstrated any reversible error,

we affirm the judgment of conviction and sentence of death.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, and COURIEL,
JJ., concur.
LABARGA, J., concurs in result with an opinion.
GROSSHANS, J., did not participate.

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

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LABARGA, J., concurring in result.

While I agree that Woodbury is not entitled to relief, I write to

emphasize the importance of ensuring that a defendant—especially

one who is facing the death penalty—is competent to conduct the

basic tasks necessary to represent one’s self at trial. Here, where

the defendant had a significant mental health history, a competency

evaluation would have been in order.

An Appeal from the Circuit Court in and for Okeechobee County,
Sherwood Bauer, Judge – Case No. 472018CF000164CFAXMX

Carey Haughwout, Public Defender, Mara C. Herbert and Paul
Edward Petillo, Assistant Public Defenders, Fifteenth Judicial
Circuit, West Palm Beach, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Rhonda
Giger, Assistant Attorney General, West Palm Beach, Florida,

for Appellee

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