Scottie D. Allen v. State of Florida

Supreme Court of Florida
____________

No. SC19-1313
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SCOTTIE D. ALLEN,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

June 3, 2021

PER CURIAM.

Scottie D. Allen appeals his conviction for first-degree murder

and his sentence of death. We have jurisdiction. See art. V, §

3(b)(1), Fla. Const. For the reasons below, we affirm Allen’s

conviction and sentence of death.

BACKGROUND

Allen was indicted for the October 2, 2017, first-degree

premeditated murder of Ryan Mason on June 25, 2018, and soon

thereafter began asserting his right to self-representation. After

finding Allen competent and conducting two inquiries under Faretta
v. California, 422 U.S. 806 (1975), the trial court ruled that Allen

could represent himself pro se, without standby counsel. Allen’s

guilt phase occurred on February 19-20, 2018. In his opening

statement, Allen told the jury that he would not be presenting any

evidence or calling any witnesses because it was the State’s burden

to prove his guilt.

The evidence presented at trial established that while serving a

twenty-five-year prison sentence for second-degree murder, Allen

strangled Mason to death in the cell they shared at Wakulla

Correctional Institution. Allen confessed to planning and carrying

out Mason’s murder, including to an investigator from the Florida

Department of Law Enforcement (FDLE) during a recorded

interview, which was played for the jury, without objection from

Allen. As the trial court cogently explained in its sentencing order,

the evidence showed that:

[Allen] planned the murder for weeks after learning
Mason had lied to him about the nature of the criminal
offense that landed Mason in prison. Upon learning that
Mason was convicted of child molestation, [Allen] decided
he would kill him. [Allen] raped Mason periodically over
the following two weeks to make Mason’s life miserable.
During this time, [Allen] was paying careful attention to
the timing of the inmate head counts throughout each

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 day. On October 1, 2017, [Allen] decided the following
morning would be the day he killed Mr. Mason.
On the morning of October 2, 2017, in-between
head counts, [Allen] raised and draped a sheet over the
cell bars to keep anyone from being able to see into the
cell. [Allen] then committed the murder and immediately
made himself a cup of coffee, sat down, ate half of a
honey bun and finished the cup of coffee.

Allen then calmly reported to a correctional officer that he had

murdered his cellmate, which resulted in the discovery of Mason’s

body.

During his recorded statement to the FDLE agent, Allen said

that Mason was “kicking like crazy” and that, during the strangling,

when Mason was still conscious, Allen told Mason, “I’m going to

strangle the life out of you. . . . Tell the devil I said hello.”

The medical examiner testified that Mason was choked with

such force as to fracture his C6 vertebrae and that after three to five

minutes of constant pressure, Mason suffered irreversible brain

damage and died. He further testified that the shirt found around

Mason’s neck was wrapped and knotted so tightly it was difficult to

cut through with a surgical scalpel, and that in addition to the

injuries indicating that Mason’s cause of death was ligature

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strangulation, Mason had injuries to his wrist, forearm, and ankle,

as well as unusual bruising behind his left knee.

The State presented testimony that the DNA mixture obtained

from the shirt found around Mason’s neck was 130 billion times

more likely to come from Allen and Mason than Mason and an

unrelated individual. In addition, the DNA mixture obtained from

the victim’s left-hand fingernails was 700 billion times more likely

to have come from Allen and Mason than Mason and an unrelated

individual.

After the State rested, Allen elected not to testify and rested

without presenting a defense. He also did not present a closing

argument. The jury found Allen guilty of first-degree murder on

February 20, 2019. 1

The penalty phase occurred later the same day, and Allen, who

continued to represent himself, did not present mitigation or

argument to the penalty-phase jury. Following the State’s

presentation, Allen’s jury unanimously found that the State had

established beyond a reasonable doubt the existence of the

1. Allen’s jury was instructed on first-degree premeditated
murder.

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following four aggravating factors: (1) Allen was previously convicted

of a felony and under sentence of imprisonment; (2) Allen was

previously convicted of a felony involving the use or threat of

violence to another person; (3) the first-degree murder was

especially heinous, atrocious, or cruel (HAC); and (4) the first-

degree murder was committed in a cold, calculated, and

premeditated manner, without any pretense of moral or legal

justification (CCP). 2 In addition, the jury unanimously found that

the aggravating factors it found the State had established beyond a

reasonable doubt were sufficient to warrant a possible sentence of

death; found that one or more individual jurors had not found that

one or more mitigating circumstances was established by the

greater weight of the evidence; and unanimously found that the

aggravating factors it found the State had established beyond a

reasonable doubt outweighed the mitigating circumstances.

Finally, the jury unanimously found that Allen should be sentenced

to death.

2. The jury unanimously found that the State had not
established beyond a reasonable doubt that the victim’s murder
was committed for financial gain.

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 Following the penalty-phase trial, Allen continued to represent

himself and maintained his desire not to present mitigation during

the Spencer3 hearing. The trial court ordered a presentence

investigation report (PSI) pursuant to Florida Rule of Criminal

Procedure 3.710(b). Additionally, the trial court appointed amicus

counsel to develop and present mitigation to the trial court at the

Spencer hearing. Amicus counsel retained Dr. Martin Falb as a

mental health expert, and Allen submitted to and cooperated with

an evaluation by Dr. Falb.

At the Spencer hearing, amicus counsel’s mitigation

presentation included the testimony of a mitigation specialist, who

testified regarding Allen’s background, and the testimony of Dr.

Falb, a forensic psychologist. Dr. Falb testified that he did not

diagnose Allen with antisocial personality disorder because the

psychologist who performed Allen’s competency evaluation had

already done so. However, Dr. Falb opined that as a result of

Allen’s antisocial personality disorder, he is “likely unable” to

conform his conduct to the requirements of the law. Dr. Falb also

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

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testified that Allen “suffered some extreme measures of trauma in

terms of emotional abuse, physical abuse, and sexual abuse

beginning at a young enough age, along with substance abuse,” and

that Allen received a “very, very high” score of six on the ten-

question Adverse Childhood Experiences (ACE) test. Based on the

testimony of the mitigation specialist during the Spencer hearing,

Dr. Falb testified that Allen’s ACE score could have been as high as

eight out of ten. Dr. Falb further opined that it was likely Allen

suffered from post-traumatic stress disorder (PTSD). In explaining

his PTSD diagnosis, Dr. Falb testified that Allen told him during

their interview, “I can’t say that what I did to him [the victim] wasn’t

related to my being angry about what had happened to me [earlier

in life], but I was mad that he had been lying to me [about why he

was in prison] for nine months.” Regarding Allen’s statement, “I

can’t say that what I did to him wasn’t related,” Dr. Falb testified

that this statement “makes the point” for “a recurrence of the PTSD

of that experience of what happened to [Allen] when he was being

molested back at the age of eight to eleven.” However, Dr. Falb

further testified that Allen’s statement, “I was mad at him for lying

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to me for nine months,” was not “inconsistent with somebody rising

to a level of anger if they’re antisocial.”

Following amicus counsel’s mitigation presentation, the State

relied on Florida Rule of Criminal Procedure 3.202 to argue that it

was entitled to have Allen evaluated by its own mental health

expert, Dr. Greg Prichard, for purposes of rebutting the testimony of

Dr. Falb. Allen stated, “I will not submit to an interview by [the]

prosecution’s doctor.” Despite voicing uncertainty about how to

proceed in light of Allen’s decision not to present mitigation—a

circumstance which rule 3.202 does not address—the trial court

ultimately ordered Allen to submit to an evaluation by the State’s

mental health expert. The trial court ruled that the evaluation

would be limited in scope to the mitigation addressed by Dr. Falb

and further told Allen that his “cooperation is appreciated” but that

if, during Dr. Prichard’s interview, Allen got “to a situation . . .

outside what [Allen] want[ed] to answer, then [Allen should] just tell

them that.” Allen cooperated with Dr. Prichard’s evaluation.

At the continued Spencer hearing on June 21, 2019, the

State’s mental health expert, Dr. Prichard, testified that he agreed

with Dr. Falb that Allen has antisocial personality disorder and

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further testified that “antisocial personality disorder is very much a

driving factor for [Allen].” However, Dr. Prichard disagreed with Dr.

Falb’s PTSD diagnosis and testified that he did not see any

indication of dissociation associated with PTSD. Dr. Prichard

further testified that Allen told him “he was completely sober and

straight the day the murder occurred,” that Allen “said that he

actually made the decision . . . on Friday that he was going to kill

[the victim on] Sunday,” and that Allen’s statements regarding the

murder indicate that the killing was “very calm and pretty well

planned out.” Consequently, Dr. Prichard opined that he “didn’t

see any indication of . . . mental, emotional disturbance anywhere

around the time of the offense.” Regarding the statutory mitigator

that Allen’s capacity to appreciate the criminality of his conduct

and conform his conduct to the requirements of law were

substantially impaired, Dr. Prichard agreed with Dr. Falb’s

testimony that “antisocial personality disorder intervenes” when

considering the mitigator. However, Dr. Prichard testified that Allen

“could conform and he did understand,” but acted “for his own

selfish reasons.” Dr. Prichard further opined that he did not see

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any indication that Allen was under duress at the time of the

murder.

Upon cross-examination by amicus counsel, Dr. Prichard

acknowledged that his disagreement regarding Dr. Falb’s PTSD

diagnosis did not mean that Allen had not suffered trauma as a

result of his background, including childhood sexual abuse.

However, Dr. Prichard reiterated his position that he “definitely”

disagrees with Dr. Falb’s PTSD diagnosis.

Allen, who was still representing himself pro se, also cross-

examined Dr. Prichard. While doing so, Allen referenced his

“agreement to be interviewed by [Dr. Prichard] in our last court

proceeding.” Much of Allen’s cross-examination of Dr. Prichard

focused on why Dr. Prichard disagreed with Dr. Falb’s PTSD

diagnosis.

On redirect, Dr. Prichard reaffirmed that he disagreed with Dr.

Falb’s PTSD diagnosis and testified that “everything with Mr. Allen

is better explained by personality issues than any kind of PTSD

response associated with trauma.” At the conclusion of Dr.

Prichard’s testimony, the prosecutor stated, “[T]he evidence

presented at trial is what we’re going to be relying on for the

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substantial amount of the aggravating -- or for the aggravating

circumstances. This was just rebuttal to the Amicus case.”

At the conclusion of the Spencer hearing, the trial court

discussed sentencing memoranda with the parties. Allen stated

that he would submit a pro se memorandum, in which he would “be

arguing toward the findings of Dr. Falb as far as the PTSD

diagnosis” and the “extreme mental distress . . . mitigator as well.”

Allen subsequently filed his sentencing memorandum, in which he

stated, “I cannot refute the evidence that was presented which led

to a finding of guilt[,] nor can I argue against the four aggravating

factors . . . which led to a 12-0 jury verdict for a sentence of death.”

Allen further stated, “I believe the amicus curiae you appointed for

mitigation did a great job given the material and restrictions they

had to contend with. So I leave any findings they made or

established unargued and supported. The one concern I have

though is the testimony of the State’s witness Dr. Prichard. I found

it to be made of 3⁄4 truths and spin as he said his ‘job’ was to refute

the findings of Dr. Falb. I don’t think he did that, as I tried to

establish during questioning of him during his testimony.”

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 Thereafter, the trial court followed the jury’s recommendation

and sentenced Allen to death on July 23, 2019. The sentencing

order reflects that the trial court found and assigned great weight to

each of the four aggravating factors that Allen’s jury found to exist

beyond a reasonable doubt.

The trial court rejected the statutory mitigating circumstance

proposed by amicus counsel that the capital felony occurred while

Allen was under the influence of extreme mental or emotional

disturbance. In so doing, the trial court explained, in pertinent

part:

The Court finds competent evidence was presented to
establish [Allen] has PTSD and Anti-Social Personality
Disorder. The Court, however, does not find [Allen] was
under extreme mental or emotional disturbance at the
time the murder was committed. The murder was
planned for weeks and was deliberate. The evidence
clearly established [Allen] was calm and coherent
immediately following the murder. There was no
testimony or other credible evidence that [Allen] exhibited
any signs of being under the influence of drugs, alcohol
or from an episodic PTSD event at the time of the
murder.

However, the trial court found one statutory mitigating

circumstance to which it assigned moderate weight, namely that

Allen’s ability to conform his conduct to the requirements of the law

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is substantially impaired “by adverse childhood experiences that

have rendered him less than effective at making good decisions.” In

addition, the trial court found the following five nonstatutory

mitigating circumstances and assigned them the noted weight: (1)

the defendant has been diagnosed with alcohol abuse and drug

dependency (some weight); (2) the defendant was diagnosed with

major depression (moderate weight); (3) the defendant was raised in

a dysfunctional family setting (great weight); (4) the defendant was

courteous, respectful, and considerate to the court during every

court appearance (some weight); and (5) the defendant did not want

his family contacted for mitigation purposes (some weight).

In sentencing Allen to death, the trial court further found as

follows:

The Court has conducted its own independent
evaluation weighing the aggravating factors found by the
jury in their verdict and weighing the mitigating
circumstances presented and reasonably established by
the evidence. The Court assigned great weight to each of
the four aggravating factors. The Court finds the
aggravating factors cumulatively outweigh the mitigating
circumstances and a sentence of death is appropriate for
the murder of Ryan Mason.

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 ANALYSIS

In this direct appeal, Allen raises four unpreserved challenges

to his sentence of death. Specifically, Allen argues that (1) the trial

court’s failure to renew the offer of counsel before commencing the

penalty phase constitutes fundamental error; (2) a guilt-phase jury

instruction and a penalty-phase argument by the prosecutor violate

Caldwell v. Mississippi, 472 U.S. 320 (1985), and collectively

amount to fundamental error; (3) fundamental error occurred

because the State violated Allen’s Fifth Amendment right against

compelled self-incrimination during the Spencer hearing; and (4) the

trial court fundamentally erred by failing to instruct the penalty-

phase jury that it must determine beyond a reasonable doubt that

the aggravating factors were sufficient to justify the death penalty

and that those factors outweighed the mitigating circumstances.

The State raises the sufficiency of the evidence. See Fla. R. App. P.

9.142(a)(5).

(1) Failure to Renew Offer of Counsel

Allen first argues that the trial court’s failure to renew the offer

of counsel before commencing the penalty phase constitutes

fundamental error. We review this question of law de novo, see

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State v. Smith, 241 So. 3d 53, 55 (Fla. 2018), and hold that Allen is

not entitled to relief because the trial court cured the error, thereby

eliminating the need to address whether, had the error not been

cured, it would amount to fundamental error.

Contrary to our precedent and Florida Rule of Criminal

Procedure 3.111(d)(5), the trial court failed to renew the offer of

counsel between the guilt and penalty phases. See Traylor v. State,

596 So. 2d 957, 968 (Fla. 1992) (interpreting article I, section 16 of

the Florida Constitution as entitling a criminal defendant to “decide

at each crucial stage of the proceedings whether he or she requires

the assistance of counsel” and concluding that “[w]here the right to

counsel has been properly waived, . . . the waiver applies only to the

present stage and must be renewed at each subsequent crucial

stage where the defendant is unrepresented”); Fla. R. Crim. P.

3.111(d)(5) (“If a waiver 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

appears without counsel.”); see also Muehleman v. State, 3 So. 3d

1149, 1156-57 (Fla. 2009) (applying Traylor and rule 3.111(d)(5) to

a penalty-phase trial).

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 Although the offer of counsel was not renewed before the

penalty phase began, at the State’s urging, immediately after the

penalty-phase jury returned its recommendation, and again, sua

sponte, at a hearing the next day, the trial court inquired of Allen as

to whether, if the offer of counsel had been renewed between the

guilt and penalty phases, he would have accepted the offer of

penalty-phase counsel. Further, upon the State’s request that an

additional Faretta inquiry accompany the renewed offer of counsel,

the trial court conducted a “nunc pro tunc Faretta inquiry”—the

third Faretta inquiry in the case. In his responses to the trial court,

Allen consistently represented that he would have waived penalty-

phase counsel and that he would have continued to exercise his

right to self-representation had the trial court renewed the offer of

counsel before commencing the penalty phase. The trial court

found that Allen’s decisions, including to waive counsel, were

knowing, voluntary, and intelligent.

Because the record demonstrates that the trial court cured the

error while it still had jurisdiction to do so, by confirming with Allen

that he had not wavered in his decision to represent himself, see

Traylor, 596 So. 2d at 968, we hold that there is no basis for

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appellate relief. Cf. Sullivan v. State, 170 So. 2d 632, 635 (Fla.

1974) (“It is well-established law that where the trial judge has

extended counsel an opportunity to cure any error, and counsel

fails to take advantage of the opportunity, such error, if any, was

invited and will not warrant reversal.”).

(2) Caldwell

Next, Allen argues that the trial court’s guilt-phase jury

instruction that it was “the judge’s job to determine a proper

sentence” if the jury found Allen guilty of first-degree premeditated

murder, combined with the prosecutor’s statement during the

State’s penalty-phase opening argument that it would ask the jury

to return a “recommendation” of death, violate Caldwell and

collectively constitute fundamental error requiring a new penalty-

phase trial. We review this question of law de novo, see Davis v.

State, 136 So. 3d 1169, 1201 (Fla. 2018), and hold that Allen is not

entitled to relief.

Taking the statements in reverse order, no error, let alone

fundamental error, occurred as a result of the prosecutor’s

statement that he would ask the jury to return a “recommendation”

of death because the statement did not “improperly describe[] the

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role assigned to the jury by local law.” Romano v. Oklahoma, 512

U.S. 1, 9 (1994) (“[T]o establish a Caldwell violation, a defendant

necessarily must show that the remarks to the jury improperly

described the role assigned to the jury by local law.”) (quoting

Dugger v. Adams, 489 U.S. 401, 407 (1989)). Under the plain text

of Florida’s death penalty statute, a sentencing “recommendation” is

precisely what the penalty-phase jury provides. See § 921.141(2),

Fla. Stat. (2018).

Regarding the guilt-phase instruction, “[w]hen the jury is to be

involved in a penalty phase,” the standard jury instructions direct

trial courts to “omit” from the instructions the following italicized

sentence: “Your duty is to determine if the defendant has been

proven guilty or not, in accord with the law. It is the judge’s job to

determine a proper sentence if the defendant is found guilty.” Fla.

St. Jury Instr. (Crim.) 3.10 (emphasis added). The purpose of the

italicized sentence is to prevent a jury pardon on the issue of guilt.

See generally Broughton v. State, 790 So. 2d 1118, 1119 (Fla. 2d

DCA 2001) (explaining that the italicized sentence reflects “the

evolving policy of removing from a noncapital jury any knowledge of

potential penalties for the crimes with which a defendant is

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charged” to ensure “ ‘that the jury should decide a case in

accordance with the law and the evidence and disregard the

consequences of its verdict’ ”) (quoting Legette v. State, 718 So. 2d

878, 881 (Fla. 4th DCA 1998)). Precluding an improper jury pardon

on the issue of guilt is just as relevant in a capital case as a

noncapital case. However, because the instruction is an incomplete

statement of Florida law where the jury may go on to participate in

a penalty phase, the trial court should not have included it in the

guilt-phase instructions.

In addressing the instructional error, the State argues that

Allen “waived” any claim that the guilt-phase instruction

constitutes fundamental error because he “agreed” to it. The State

is correct that Allen stated he had “no objection” to the entirety of

the guilt-phase instructions read by the trial court. However, the

State’s attempt to label Allen’s statement as a “waiver” fails because

the statement does not amount to “the voluntary and intentional

relinquishment of a known right” that is necessary to establish a

“waiver.” Major League Baseball v. Morasani, 790 So. 2d 1071,

1077 n.12 (Fla. 2001). The record is devoid of any indication that

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Allen knew the instruction at issue deviated from the standard jury

instruction, but agreed to its use anyway.

Although the State’s claim is more properly analyzed as one of

“invited error,” that label also does not fit the facts. This Court’s

precedent requires more than “mere acquiescence” to an incorrect

jury instruction to support the conclusion that the defendant

invited the error and thereby is precluded from challenging the

error on appeal, even under a fundamental-error standard. See

Lowe v. State, 259 So. 3d 23 at 50 (Fla. 2018). More specifically, to

support a finding of invited error, defense counsel must either

request the incorrect instruction or be aware an instruction is

incorrect but agree to it anyway:

[This Court has] also recognized, in the context of certain
erroneous jury instructions, a fundamental error analysis
exception “where defense counsel affirmatively agreed to
or requested the incomplete instruction.” State v. Lucas,
645 So. 2d 425, 427 (Fla. 1994), receded from on other
grounds by State v. Spencer, 216 So. 3d 481 (Fla. 2017).
However, [this Court] also recognized in that context that
the exception did not apply “where defense counsel
merely acquiesced to [the incomplete] instructions.”
Spencer, 216 So. 3d at 486.

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Id. 4

Applying Lowe to Allen’s case, the conduct necessary to

support a finding of invited error did not occur. However, we agree

4. In Lowe, we also cited approvingly to Black v. State, 695
So. 2d 459, 461 (Fla. 1st DCA 1997), for the proposition that
“defense counsel [(1)] must be aware that an incorrect instruction is
being read and [(2)] must affirmatively agree to, or request, the
incomplete instruction.” 259 So. 3d at 50. However, this language
has proven to be problematic, as it has caused some courts to
conflate two different factual scenarios—i.e., acquiescing to an
incorrect instruction versus requesting or affirmatively agreeing to
an incorrect instruction—and improperly label unpreserved error as
unreviewable, invited error. See, e.g., Calloway v. State, 37 So. 3d
891, 893, 896-97 (Fla. 1st DCA 2010) (concluding that the
defendant “acquiesced” to alleged errors in jury instructions,
thereby prohibiting reversal under the invited-error doctrine, where
“defendant specifically agreed to the instructions and stated he had
no objections to them as proposed [at the charge conference] and as
read [to the jury]”). To be clear, acquiescing to an incorrect
instruction constitutes a failure of preservation that does not
preclude fundamental-error review. See Crain v. State, 894 So. 2d
59, 68 (Fla. 2004) (holding that the defendant failed to preserve his
challenge to a jury instruction for appeal where “trial counsel did
not object to the instruction when presented with a packet of
corrected jury instructions before closing arguments”); Suarez v.
Dugger, 527 So. 2d 190, 193 (Fla. 1988) (“Because trial counsel
failed to object to the absence of [certain jury] instructions the
matter was not properly preserved . . . .”). In contrast,
unreviewable, invited error occurs when a party either proposes
(i.e., requests) an instruction and therefore cannot argue against its
correctness on appeal, or when a party is aware a standard
instruction or an instruction proposed by another party is incorrect
but agrees to its use anyway and as a result of having affirmatively
agreed to the instruction cannot argue against its correctness on
appeal. See Lowe, 259 So. 3d at 50.

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with the State on the merits that the trial court’s erroneous

inclusion of the guilt-phase instruction at issue did not violate

Caldwell or amount to fundamental error.

In Caldwell, a plurality of the Supreme Court ruled that “it is

constitutionally impermissible [under the Eighth Amendment] to

rest a death sentence on a determination made by a sentencer who

has been led to believe that the responsibility for determining the

appropriateness of the defendant’s death rests elsewhere.”

Caldwell, 472 U.S. at 328-29. Applying this rule, the Supreme

Court vacated the defendant’s death sentence after finding that his

jury was “led to believe that responsibility for determining the

appropriateness of a death sentence rest[ed] not with the jury but

with the appellate court which later reviews the case.” Id. at 323.

Since Caldwell, the Supreme Court has explained that, as a result

of precedent governing its plurality decisions, it “read[s] Caldwell as

‘relevant only to certain types of comment--those that mislead the

jury as to its role in the sentencing process in a way that allows the

jury to feel less responsible than it should for the sentencing

decision.’ ” Romano, 512 U.S. at 9 (quoting Darden v. Wainwright,

477 U.S. 168, 184 n.15 (1986)).

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 In addressing Caldwell’s application to Florida’s capital

sentencing scheme, this Court has explained that “[i]n Caldwell, the

United States Supreme Court was considering the application of the

Mississippi death penalty procedure which is dissimilar to that

utilized by Florida” because “[t]he Florida procedure does not

empower the jury with the final sentencing decision; rather, the

trial judge imposes the sentence.” Combs v. State, 525 So. 2d 853,

856 (Fla. 1988). More recently, in Davis v. State, 136 So. 3d 1169,

1201 (Fla. 2014), this Court rejected the argument that the same

guilt-phase jury instruction that Allen challenges here violates

Caldwell. See also id. (rejecting the related claim that the

prosecutor “improperly disparaged the role of the jury” in violation

of Caldwell by referencing the jury’s “recommendation” as

“advisory” and stating that “the final [sentencing] decision rests

with [the trial court]”).

We recognize that, since Combs and Davis, Florida’s capital

sentencing scheme has changed in light of the mandate of Hurst v.

Florida, 577 U.S. 92, 102-03 (2016), that the Sixth Amendment

requires a jury to unanimously find beyond a reasonable doubt the

fact that renders the defendant eligible for imposition of the death

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sentence—i.e., the existence of a statutory aggravating

circumstance, State v. Poole, 297 So. 3d 487, 501-03 (Fla. 2020);

see § 921.141(2)(a)-(b), Fla. Stat. (2018). Also, Florida’s capital

sentencing scheme has since been amended in additional ways,

including requiring the jury’s recommendation for death to be

unanimous, see § 921.141(2)(c), and precluding the trial court from

imposing a sentence of death if the jury recommends a sentence of

life without the possibility of parole, see § 921.141(3)(a)1. Despite

these changes and the fact that the guilt-phase instruction in

Allen’s case was an incomplete statement of Florida law, Florida’s

statutory scheme remains a hybrid sentencing scheme that does

not place the ultimate responsibility for sentencing the defendant

on the jury. See § 921.141(2)-(4).

Moreover, in analyzing whether the “remarks to the jury

improperly described the role assigned to the jury by local law” so

as to violate Caldwell’s mandate against “mislead[ing] the jury as to

its role in the sentencing process in a way that allows the jury to

feel less responsible than it should for the sentencing decision,”

Romano, 512 U.S. at 9 (quoting Dugger, 489 U.S. at 407, and then

Darden, 477 U.S. at 184 n.15), we cannot myopically focus on a

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single statement or instruction. Rather, Caldwell claims are

properly evaluated by “look[ing] to the ‘total trial scene,’ including

jury selection, the guilt phase of the trial, and the sentencing

hearing, examining both the court’s instructions and counsel’s

arguments to the jury.” Barrientes v. Johnson, 221 F.3d 741, 777

(5th Cir. 2000) (quoting Montoya v. Scott, 65 F.3d 405, 420 (5th Cir.

1995)).

In Allen’s case, despite the guilt-phase instructional error, the

record establishes that the jury was properly informed as to its role

in Allen’s sentencing, including that if the jury found Allen guilty of

first-degree premeditated murder, a separate penalty-phase trial

would occur in which the jury’s role would be to determine Allen’s

eligibility for the death penalty and recommend the appropriate

sentence. Large portions of jury selection were devoted to

addressing the jury’s role should the case proceed to a penalty

phase, including the death qualification of the jury, and the trial

court properly instructed the jury regarding its role during the

penalty phase. Thus, no Caldwell violation occurred.

Nor did the guilt-phase instructional error amount to

fundamental error in light of the correct penalty-phase jury

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instructions and accurate descriptions of the jury’s role in

sentencing that otherwise permeated Allen’s trial. See Bush v.

State, 295 So. 3d 179, 212 (Fla. 2020) (explaining that where, as

here, the claim of fundamental error relates to the death sentence,

“fundamental error” is error that “reaches down into the validity of

the trial itself to the extent that a . . . jury recommendation of death

could not have been obtained without the assistance of the alleged

error”) (quoting Card v. State, 803 So. 2d 613, 622 (Fla. 2001)).

Accordingly, we deny relief as to this claim.

(3) Fifth Amendment

Next, Allen argues that the State’s introduction of his

statements through Dr. Prichard’s rebuttal testimony during the

Spencer hearing violated his Fifth Amendment right against

compelled self-incrimination and that the error was fundamental.

We review this legal issue de novo. See Smith, 241 So. 3d at 55.

Compelling the mental health examination of a defendant

during the penalty phase of a capital trial potentially implicates the

Fifth Amendment protection against any person being “compelled in

any criminal case to be a witness against himself.” U.S. Const.

amend. V; see Estelle v. Smith, 451 U.S. 454, 468 (1981) (“A

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criminal defendant, who neither initiates a psychiatric evaluation

nor attempts to introduce any psychiatric evidence, may not be

compelled to respond to a psychiatrist if his statements can be used

against him at a capital sentencing proceeding.”); see also generally

Burns v. State, 699 So. 2d 646, 651 (Fla. 1997) (“[T]he Fifth

Amendment right against self-incrimination, made applicable to the

States through the Fourteenth Amendment, continues through the

sentencing phase of a capital murder trial.”).

However, permitting the State’s mental health expert to

examine a capital defendant in order to rebut the defense’s penalty

phase mental health expert testimony does not violate the Fifth

Amendment right against self-incrimination. Davis v. State, 698 So.

2d 1182, 1191 (Fla. 1997); see also Philmore v. State, 820 So. 2d

919, 932-33 (Fla. 2002) (rejecting capital defendant’s argument that

“a compelled mental health evaluation under Florida Rule of

Criminal Procedure 3.202 impermissibly requires the defendant to

forego either his constitutional right to present mitigating evidence

or forego his constitutional right not to be a witness against

himself” and “conclud[ing] that there is no error, let alone

fundamental error, in allowing the State to subject the defendant to

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a mental health examination after the defendant decides to present

mitigation”); Dillbeck v. State, 643 So. 2d 1027, 1030 (Fla. 1994)

(holding trial court did not abuse discretion “in striving to level the

playing field by ordering Dillbeck to submit to a prepenalty phase

interview with the State’s expert” where “Dillbeck planned to, and

ultimately did, present extensive mitigating evidence in the penalty

phase through defense mental health experts who had interviewed

him”).

Allen’s case presents facts that do not neatly fit within this

Court’s precedent or the text of rule 3.202, which establishes the

procedure by which the State’s mental health expert may examine a

defendant who has been convicted of capital murder with respect to

the “mitigating circumstances the defendant expects to establish

through expert testimony” and provides consequences for the

defendant’s refusal to cooperate. Fla. R. Crim. P. 3.202(d)-(e).

Here, Allen declined to present any mitigation to the penalty-phase

jury or to the trial court during the Spencer hearing. However, the

trial court exercised its discretion to appoint amicus counsel to

develop and present mitigation during the Spencer hearing. Thus, it

was the trial court’s decision, not Allen’s, that mitigation should be

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presented on Allen’s behalf. Consequently, it was the trial court’s

decision, not Allen’s, that resulted in Allen’s evaluation by amicus

counsel’s mental health expert, Dr. Falb, which in turn resulted in

the trial court compelling Allen’s examination by the State’s rebuttal

mental health expert, Dr. Prichard, and the subsequent

introduction of Allen’s compelled statements through both experts.

These facts suggest the making of a Fifth Amendment

quandary. 5 But, there is more. Allen does not challenge his

compelled evaluation by amicus counsel’s expert, Dr. Falb. On the

contrary, in the pro se sentencing memorandum that Allen filed in

the trial court, he adopted amicus counsel’s mitigation

presentation. Moreover, in this appeal, to remedy the alleged Fifth

Amendment violation, Allen seeks to retain the benefit of the mental

5. As the State’s brief suggests, allowing the trial court to
force a mitigation presentation upon an unwilling, competent
defendant in order to avoid a potential Eighth Amendment problem,
see generally Muhammad v. State, 782 So. 2d 343, 363-64 (Fla.
2001), that no United States Supreme Court decision says exists
also potentially implicates the conformity clause of the Florida
Constitution, see art. I, § 17, and the right to self-representation
under both the United States and Florida Constitutions. However,
these issues were not raised below, and it is unnecessary to
consider them to resolve the Fifth Amendment claim that Allen
raises on appeal.

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health mitigation established through Dr. Falb’s testimony but

strike the rebuttal mental health testimony that the State presented

through Dr. Prichard.

We hold that by making the mental health mitigation

presented by amicus counsel his own, Allen has forfeited his claim.

The Fifth Amendment is a shield, not a sword or a scalpel, cf.

Kansas v. Cheever, 571 U.S. 87, 94 (2013) (“[W]hen a defendant

chooses to testify in a criminal case, the Fifth Amendment does not

allow him to refuse to answer related questions on cross-

examination.”), and it does not provide cover for unrebutted mental

health mitigation, cf. Philmore, 820 So. 2d at 932-33 (“[T]here is no

error, let alone fundamental error, in allowing the State to subject

the defendant to a mental health examination after the defendant

decides to present mitigation.”); see also Estelle, 451 U.S. at 468

(limiting availability of Fifth Amendment claim to “[a] criminal

defendant, who neither initiates a psychiatric evaluation nor

attempts to introduce any psychiatric evidence”).

However, even if we were to accept Allen’s argument that the

Supreme Court’s decision in Estelle requires us to conclude that a

Fifth Amendment violation occurred, he still would not be entitled

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to relief. Any Fifth Amendment error in admitting Allen’s compelled

statements through Dr. Prichard would not satisfy the applicable

standard of fundamental error that applies to our review of Allen’s

unpreserved Fifth Amendment claim. See Smith, 241 So. 3d at 55.

The first-degree murder at issue was substantially aggravated and

included three of the qualitatively weightiest aggravators in Florida’s

capital sentencing scheme: CCP, HAC, and prior violent felony. See

Damas v. State, 260 So. 3d 200, 216 (Fla. 2018). The mitigation,

which included the trial court’s crediting of Dr. Falb’s PTSD

diagnosis over Dr. Prichard’s rebuttal testimony that Allen does not

have PTSD, was comparatively minimal. Moreover, the record is

clear that Allen’s statements to Dr. Prichard were used for purposes

of rebutting mitigation, not to establish aggravation that would have

rendered Allen eligible for the death penalty. Any error in admitting

Allen’s statements through the rebuttal testimony of Dr. Prichard

during the Spencer hearing did not “reach[] down into the validity of

the trial itself to the extent that [the sentence of death] could not

have been obtained without the assistance of the alleged error.”

Bush, 295 So. 3d at 212. Accordingly, any error was not

fundamental. Id.

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 Therefore, we deny relief as to this claim.

(4) Penalty-Phase Jury Instructions

In the last issue Allen raises on appeal, he argues that the trial

court fundamentally erred by failing to instruct the jury that it must

determine beyond a reasonable doubt whether the aggravating

factors were sufficient to justify the death penalty and whether

those factors outweighed the mitigating circumstances. We have

repeatedly held that “these determinations are not subject to the

beyond a reasonable doubt standard of proof.” Newberry v. State,

288 So. 3d 1040, 1047 (Fla. 2019) (citing Rogers v. State, 285 So.

3d 872, 878-79 (Fla. 2019)); see also Rogers, 285 So. 3d at 886

(holding that “the sufficiency and weight of the aggravating factors

and the final recommendation of death” are not elements and “are

not subject to the beyond a reasonable doubt standard of proof”).

Although Allen urges us to reconsider our precedent, he fails to

demonstrate that it is “clearly erroneous.” Poole, 297 So. 3d at 507.

Accordingly, because the trial court did not err, let alone

fundamentally so, in instructing the penalty-phase jury, we deny

relief as to this claim.

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 (5) Sufficiency

“In appeals where the death penalty has been imposed,”

regardless of whether the defendant raises the sufficiency of the

evidence as an issue on appeal, this Court “independently reviews

the record to confirm that the jury’s verdict is supported by

competent, substantial evidence.” Davis v. State, 2 So. 3d 952,

966-67 (Fla. 2008); see also Fla. R. App. P. 9.142(a)(5). “In

determining the sufficiency of the evidence, the question is whether,

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

rational trier of fact could have found the existence of the elements

of the crime beyond a reasonable doubt.” Bradley v. State, 787 So.

2d 732, 738 (Fla. 2001).

Sufficient evidence supports Allen’s conviction for first-degree

murder under the theory that the murder was premeditated. See

Glover v. State, 226 So. 3d 795, 804 (Fla. 2017) (explaining that to

prove first-degree premeditated murder, the State must establish

that (1) the victim is dead, (2) the victim’s death was premeditated,

and (3) the victim’s death resulted from the criminal act of the

defendant). Allen confessed multiple times to planning the victim’s

killing and to strangling the victim to death. DNA evidence

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collected from the shirt around the victim’s neck and from under

the victim’s fingernails and testimony from the medical examiner

corroborate Allen’s confessions. Accordingly, the evidence is

sufficient to support Allen’s conviction.

CONCLUSION

For the foregoing reasons, we affirm Allen’s conviction for first-

degree murder and his sentence of death.

It is so ordered.

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

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

LABARGA, J., concurring in result.

Although the trial court failed to renew the offer of counsel

before Allen’s penalty phase began, the trial court subsequently

conducted multiple inquiries during which Allen maintained his

decision to represent himself. Because Allen’s repeated refusals of

counsel throughout the trial proceedings corroborate his belated

waiver, I agree that he is not entitled to relief.

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 However, I adhere to the view expressed in my dissenting

opinion in Lawrence v. State, 308 So. 3d 544 (Fla. 2020) (receding

from proportionality review requirement in death penalty direct

appeal cases), and consequently, I can only concur in the result.

An Appeal from the Circuit Court in and for Wakulla County,
Ronald Wallace Flury, Judge –652018CF000203CFAXMX

Jessica Yeary, Public Defender, and Barbara J. Busharis, Assistant
Public Defender, Second Judicial Circuit, Tallahassee, Florida,

for Appellant

Ashley Moody, Attorney General, and Michael T. Kennett, Assistant
Attorney General, Tallahassee, Florida,

for Appellee

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