Michael Shane Bargo v. State of Florida

Supreme Court of Florida
____________

No. SC19-1744
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MICHAEL SHANE BARGO,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

June 24, 2021

PER CURIAM.

This case is before the Court on appeal from a sentence of

death. Michael Shane Bargo appeals the sentence of death that

was imposed at his resentencing for the 2011 first-degree murder of

Seath Jackson. We have jurisdiction. See art. V, § 3(b)(1), Fla.

Const.

We previously affirmed Bargo’s conviction for first-degree

murder with a firearm but vacated his sentence of death and

remanded for a new penalty phase based on Hurst v. State, 202 So.

3d 40 (Fla. 2016), receded from in part by State v. Poole, 297 So. 3d
487 (Fla. 2020), cert. denied, 141 S. Ct. 1051 (2021). Bargo v.

State, 221 So. 3d 562, 570 (Fla. 2017) (Bargo I). At the new penalty

phase, the judge, following the jury’s unanimous recommendation,

imposed a sentence of death. We affirm.

BACKGROUND

The facts relating to the crime and investigation are detailed in

Bargo I. 221 So. 3d at 563-67. In short, the evidence established

that on the night of April 17, 2011, at then-eighteen-year-old

Bargo’s request, codefendant Amber Wright lured fifteen-year-old

Seath Jackson to codefendant Charlie Ely’s home, so that Bargo,

codefendant Kyle Hooper, and codefendant Justin Soto could

ambush and kill Jackson. After Jackson was struck in the head by

Hooper and shot by Bargo, Jackson unsuccessfully attempted to

flee. Id. at 565. Jackson was tackled by Soto, shot again by Bargo,

beaten, and then put into a bathtub. Id.

Bargo’s plan was to keep the victim alive after the
initial assault so that Bargo could kill him and the victim
would know his killer before he died. To that end, Bargo
stayed in the bathroom with the victim and hit him,
cursed at him, and fired more bullets into him. Bargo
ultimately killed the victim by shooting him in the face.
Thereafter, Bargo and Soto carried the victim’s body in a
sleeping bag to Ely’s fire pit and placed it into a large fire.

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 Bargo and Wright later went to bed, and Hooper tended
the fire until about 2:30 a.m.
On the morning of April 18, 2011, James Havens—
Wright’s and Hooper’s “stepdad”—arrived at Ely’s home
and helped dispose of the victim’s remains. Hooper had
previously helped Wright and Ely clean up the blood in
the home with bleach. The remains from the fire pit had
been stored in three paint buckets with lids, which Bargo
and Soto put in the back of Havens’ truck along with
cinder blocks and cable. Havens drove Bargo and Soto—
at Bargo’s direction—to a remote water-filled rock quarry
in Ocala, Florida, where they dumped the cinder block
laden buckets.

Id. (footnotes omitted). Bargo was later arrested, tried, and

“found . . . guilty of first-degree murder with a firearm.” Id. at 567.

During the initial penalty phase, the jury recommended death

by a vote of ten to two. Id. at 568. The trial court found two

aggravators were proven beyond a reasonable doubt—i.e., that the

murder was especially heinous, atrocious, or cruel (HAC), and that

the murder was committed in a cold, calculated, and premeditated

manner without any pretense of moral or legal justification (CCP)—

and assigned both great weight. Id. at 568 n.6. The trial court

concluded that the two aggravators “greatly outweighed . . . two

statutory mitigators and fifty nonstatutory mitigators.” Id. at 568.

And the trial court sentenced Bargo to death. Id.

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 On direct appeal, this Court affirmed Bargo’s conviction but

vacated his sentence of death and remanded for a new penalty

phase based on Hurst v. State, while “declin[ing] to address Bargo’s

other penalty phase claims” or “the proportionality of his death

sentence.” Id. at 570.

At the new penalty phase, the jury unanimously found that

the State established the existence of both proposed aggravators

(HAC and CCP) beyond a reasonable doubt; that the aggravating

circumstances were sufficient to warrant a possible death sentence;

that one or more mitigating circumstances was established by the

greater weight of the evidence; and that the aggravators outweighed

the mitigating circumstances. And the jury unanimously

recommended that Bargo be sentenced to death.

After the Spencer 1 hearing, the circuit court found that the two

statutory aggravators (HAC and CCP) were proven beyond a

reasonable doubt, accorded each great weight, and concluded that

each “alone would justify the imposition of a death sentence.” As to

mitigation, the circuit court was “reasonably convinced of the

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

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existence of twenty-one (21) mitigating circumstances,” assigning

them weight as follows: “one (1) was assigned very little weight, ten

(10) were assigned little weight, eight (8) were assigned slight

weight; and two (2) were assigned moderate weight.” The court

further found that four proposed mitigators were not “reasonably

established” and that three others were not mitigating. 2 Following

the jury’s recommendation, the court sentenced Bargo to death.

2. Specifically, the circuit court found as follows regarding
mitigation: (1) Bargo’s age at the time of the crime (slight weight); (2)
he was under the influence of a mental or emotional disturbance
(slight weight); (3) his capacity to appreciate the criminality of his
conduct, or to conform his conduct to the requirements of the law,
was impaired (not proven); (4) he has a hostile relationship with his
mother (little weight); (5) he was diagnosed with ADHD at age 7, and
was prescribed Ritalin, Concerta, Focolin and Adderall (little
weight); (6) he was found to be a danger to himself or others
because of his growing anger through his parents’ divorce and was
referred to inpatient treatment (little weight); (7) the hostility
between his mother and father impacted his development in a
negative way (slight weight); (8) he was subject to harassment and
teasing during his adolescence because he was smaller than other
children in his age group (little weight); (9) Soto and Ely participated
in the killing and were sentenced to life in prison (moderate weight);
(10) Hooper and Wright participated in the killing (moderate weight);
(11) Bargo was diagnosed with an abnormal brain scan, bipolar
disorder, schizoaffective disorder and a complex partial seizure
disorder (not mitigating “as it was not established . . . that the
Defendant actually suffers from the listed medical or mental health
conditions”); (12) he is a loving brother who has a close relationship
with his sister, Lauren (little weight); (13) he has a severe drug
addiction for which he received treatment (little weight); (14) he

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 ANALYSIS

In this direct appeal of his sentence of death, Bargo raises five

issues: (1) the 2016 amendment to section 782.04(1)(b), Florida

Statutes, retroactively precluded the State from seeking the death

penalty at resentencing; (2) the circuit court erred in the application

of the HAC aggravator; (3) the circuit court abused its discretion in

giving “little or no weight” to the mental mitigation presented by

Bargo; (4) the circuit court abused its discretion by failing to

completed his high school education when he obtained a GED
(slight weight); (15) he had a loving relationship with his paternal
grandmother, Vergie Waller, and his father (little weight); (16) he is
a follower and not a leader (not reasonably established); (17) he is
artistic like his mother, who is a graphic designer (little weight); (18)
he has maintained his behavior during the trial (very little weight);
(19) he completed probation in Michigan (little weight); (20) he loved
and cared for his dog, Lady, and brought her with him when he
moved to Michigan (little weight); (21) he came from a dysfunctional
family (slight weight); (22) he was not taking his medications at the
time of the killing (no evidence presented that Bargo was prescribed
medications that he was not taking at the time of the offense); (23)
he sought employment to make money to be self-sufficient (not
proven); (24) his paternal grandfather had been committed to a
mental health facility and later committed suicide (slight weight);
(25) he was prescribed Seroquel for hallucinations and Risperdal for
anxiety (little weight); (26) he will have mental health treatment if he
is sentenced to life in prison without parole (not mitigating); (27)
Hooper developed a plan to blame everything on Bargo (rejected as
impermissible attempt to relitigate guilt); and (28) Bargo had an
Emotional Quotient (EQ) of a 15-year-old (slight weight).

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adequately consider Bargo’s age and ten other mitigating

circumstances; and (5) Bargo’s death sentence is disproportionate.

We address each issue in turn.

I. Section 782.04(1)(b)

In his first issue, Bargo argues that the State was foreclosed

from seeking the death penalty. He asserts that the Notice of Intent

to Seek the Death Penalty (the Notice) filed by the State in 2011 was

neither “timely filed” nor later “properly amended” to list the

proposed aggravators for the new penalty phase. He relies on the

purported retroactivity of section 782.04(1)(b), which was amended

in 2016 to add certain notice requirements the State must follow

when seeking the death penalty. See ch. 2016-13, § 2, Laws of Fla.

As amended in 2016, section 782.04(1)(b) provides in part that

“[i]f the prosecutor intends to seek the death penalty, the

prosecutor must give notice to the defendant and file the notice with

the court within 45 days after arraignment,” and that “[t]he notice

must contain a list of the aggravating factors the state intends to

prove.” § 782.04(1)(b), Fla. Stat. (2016). The amendment took

effect on March 7, 2016. See ch. 2016-13, § 7, Laws of Fla. Later

in 2016, this Court adopted “new rule 3.181 (Notice to Seek Death

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Penalty)” to implement the statutory amendment. In re

Amendments to Fla. Rules of Crim. Proc., 200 So. 3d 758, 758 (Fla.

2016). Prior to the statutory amendment and rule adoption, no

statute or rule required the State either to file a notice within 45

days of arraignment to be able to seek the death penalty, or to file a

notice listing the proposed aggravators.3

Bargo asserts that the 2011 Notice should be “quashed”

because it was purportedly not filed within 45 days of his waiver of

arraignment, and because it never included a list of aggravators

and was never amended to place him on notice “of the aggravators

for the second penalty phase.” He concedes that the State gave him

3. Florida Rule of Criminal Procedure 3.202(a) (Notice of
Intent to Seek Death Penalty), which was amended in the same
2016 rule-amendments case in which this Court adopted new rule
3.181, did from its adoption in 1995 until its amendment in 2016
contain a requirement that the State “give[] written notice of its
intent to seek the death penalty within 45 days from the date of
arraignment.” See Amendments to Fla. Rule of Crim. Proc. 3.220
Discovery (3.202 Expert Testimony of Mental Mitigation During
Penalty Phase of Cap. Trial), 674 So. 2d 83, 85 (Fla. 1995). But rule
3.202 addresses expert testimony of mental health professionals
and examinations of defendants by state experts. And, in any
event, rule 3.202(a) expressly provided at the time that “[f]ailure to
give timely written notice” under that rule did “not preclude the
state from seeking the death penalty.” Id. (emphasis added).

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notice of the proposed aggravators prior to the initial penalty phase,

in which the State pursued the same two aggravators (HAC and

CCP) later pursued at the new penalty phase.

In concluding that the State was not precluded from seeking

the death penalty, the circuit court here explained that the “new

statute and the rule,” which “did not exist in 2011 or [2013],” were

both “keyed by an arraignment” and that “nobody gets re-arraigned

when their case is sent back for a new resentencing.” Nevertheless,

the court ruled that the State would be limited to the same two

aggravators sought at the initial penalty phase, given that Bargo

had long been on notice of those two aggravators.

We agree with the circuit court that the State was not

precluded from seeking the death penalty. 4 At bottom, nothing in

the 2016 legislation evinces any intent to apply to cases in which a

defendant was arraigned—or waived arraignment—years before the

amendment took effect. See Jackson v. State, 256 So. 3d 975, 976

(Fla. 1st DCA 2018) (concluding that the 2016 amendment to

4. The circuit court’s decision to limit the State to the same
two aggravators sought in the initial penalty phase is not before us.

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section 782.04(1) did “not apply retroactively to an arraignment that

occurred in 2007”).

Bargo claims that the 2016 amendment, enacted in the wake

of the Supreme Court’s decision in Hurst v. Florida, 577 U.S. 92

(2016), “establishe[d] a Sixth Amendment right . . . and as such

applies retroactively.” We disagree. Nothing in Hurst v. Florida

mentions any right to receive written notice of proposed

aggravators, let alone within 45 days of arraignment. Indeed, this

Court later in 2016 recognized as much. See Perry v. State, 210 So.

3d 630, 636 (Fla. 2016) (concluding that the 2016 amendment to

section 782.04(1) was “not required by . . . Hurst v. Florida”),

receded from on other grounds by Rogers v. State, 285 So. 3d 872

(Fla. 2019). We reject Bargo’s claim.

II. HAC – Evidence of Post-death Acts

Bargo next argues that the circuit court improperly “allow[ed]

testimony and evidence to the facts of what happened to the

victim’s body after the murder,” and that this evidence “confused

the jury as to the proper application of the [HAC aggravator].” 5 He

5. The post-death evidence here included that the victim’s
body was burned in the firepit; Bargo later pulled out the victim’s

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relies on Jones v. State, 569 So. 2d 1234 (Fla. 1990), in which

evidence of post-death acts was presented and in which this Court

concluded that the trial court erred in giving the HAC instruction.

But based on our review of the record, we conclude that Bargo did

not properly preserve the argument he now presents.

Bargo filed a motion in limine seeking to exclude “evidence

regarding the disposal of [the victim’s] body” as irrelevant to the

proof of HAC and CCP. In arguing the motion, defense counsel

conceded to “not hav[ing] a case on point” but asserted that, once

the victim was deceased, that “would complete the two aggravators.”

The State countered by arguing only that the evidence was relevant

to CCP because the post-death acts were part of a prearranged

plan. Defense counsel ultimately requested, in the event the

evidence was presented, that the court give “a special instruction”

to advise the jury that the evidence was only relevant to CCP. The

court agreed with the State that the evidence was relevant to CCP.

And the court agreed with defense counsel that a jury instruction

teeth; the victim’s remains were placed in paint buckets; and Bargo
dumped the buckets down a limerock pit.

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would be “the more appropriate way to deal with the evidence.” The

court concluded that, assuming the State could tie the evidence to

CCP, the jury should be instructed “that the evidence is relevant to

[CCP] and . . . not relevant to [HAC].” And the court invited defense

counsel to submit a proposed instruction.

It does not appear that defense counsel submitted a proposed

instruction or that the jury was given a special instruction. As to

the HAC and CCP instructions that were given, defense counsel

offered no objection. And a review of the State’s closing argument

reveals that, other than one unobjected-to reference to “they burned

him” made in the context of arguing for the HAC aggravator, the

State discussed the post-death acts solely in the context of arguing

for the CCP aggravator, also without objection.

Bargo’s argument to this Court is that the evidence of post-

death acts was prejudicial only regarding HAC. Given the record we

just outlined, coupled with what is effectively Bargo’s concession

that the evidence was otherwise relevant to CCP, Bargo’s argument

was not adequately preserved for our review. And Bargo nowhere

asserts that fundamental error occurred.

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 III. Mental Mitigation

Bargo claims that the circuit court abused its discretion in

assigning little or no weight to the mental mitigation he presented.

“In Florida, the finding of a trial court with regard to mitigation will

be upheld if there is competent, substantial evidence for such a

finding in the record. . . . Additionally, the weight assigned to a

mitigating factor is reviewed under an abuse of discretion

standard.” Lebron v. State, 982 So. 2d 649, 660 (Fla. 2008). We

find no abuse of discretion. The circuit court’s conclusions here are

reasonable and supported by the record. See Calloway v. State,

210 So. 3d 1160, 1178 (Fla. 2017) (“This standard [of an abuse of

discretion] is only met if no reasonable person would arrive at the

same conclusion as that of the trial court.”).

A. The first-degree murder was committed while Bargo was under
the influence of a mental or emotional disturbance.

The circuit court concluded that this proposed mitigating

circumstance was established but assigned it slight weight. The

gist of Bargo’s argument is that the circuit court “arbitrarily” chose

the opinion of the State’s experts over those of his experts “without

giving clear, objective, and demonstrable reasons as [to] the weight

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assigned this mitigating circumstance.” But a circuit court is not

obligated to provide “demonstrable reasons” for the weight assigned

to a mitigating circumstance. See Rogers v. State, 285 So. 3d 872,

890 (Fla. 2019) (receding from Oyola v. State, 99 So. 3d 431 (Fla.

2012), “to the extent that it employed a requirement that a trial

court expressly articulate why the evidence presented warranted

the allocation of a certain weight to a mitigating circumstance”).

And the record here supports the circuit court’s decision to find the

State’s expert, Dr. Greg Prichard, more credible than the defense’s

expert, Dr. Hyman Eisenstein. See Ponticelli v. State, 941 So. 2d

1073, 1098 (Fla. 2006) (“[W]e defer to the trial court’s finding of fact

when faced with conflicting expert testimony.”).

Dr. Eisenstein, a clinical psychologist and neuropsychologist,

testified that Bargo was a highly complex individual who had

received multiple diagnoses over the years, including ADD/ADHD,

oppositional defiant disorder (ODD), bipolar disorder, schizoaffective

disorder, anxiety, and depression. Dr. Eisenstein opined that Bargo

was currently suffering from depression and anxiety, that his ODD

had been remedied over time, and that his other diagnoses were all

“inactive.” Dr. Eisenstein also opined that the murder was complex

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but not well planned. At the Spencer hearing, Dr. Eisenstein

testified about “emotional intelligence” or “emotional quotient” (EQ),

concluding that Bargo’s EQ at the time of the murder was

“somewhere between 14, 15 years old . . . in terms of his thought

processes, in terms of his behavior.” While acknowledging there

was “no test, per se” for EQ, Dr. Eisenstein explained that he

reached his conclusion based on all factors and circumstances,

including Bargo’s parents’ acrimonious divorce.

On the other hand, Dr. Prichard, a forensic psychologist,

testified that “the most appropriate diagnosis for Mr. Bargo” was

ODD, which, according to Dr. Prichard, is a behavioral disorder

rather than a neurochemical disorder. Noting that Bargo’s records

contained an earlier diagnosis of ODD, Dr. Prichard opined that

Bargo met “at least six” of the eight criteria for ODD. And Dr.

Prichard offered explanations for why the events surrounding the

murder were consistent with that diagnosis rather than being

driven by psychosis or bipolar disorder, including that Bargo’s

behavior was “far too organized.” As to Bargo’s other past

diagnoses, Dr. Prichard opined that Bargo had likely been

misdiagnosed, reasoning that two of those diagnoses were

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“mutually exclusive,” and noting “the failure of the various

psychotropic medications prescribed for [Bargo] over the course of

his life.” Such medications, according to Dr. Prichard, cannot treat

a behavioral disorder. Dr. Prichard summed up:

[T]he data is not there to say that [Bargo] was under the
influence of extreme mental or emotional disturbance. I
don’t think he was symptomatic of anything at the time.
I think oppositional defiant is kind of his personality, so
he had the same personality, but not symptomatic in
terms of bipolar or anything he couldn’t control.
The planning tells me that, you know, it wasn’t
some kind of acute thing where he just lost it for a
second. This thing went on for a long time from
beginning to end.

The circuit court found Dr. Eisenstein’s testimony less

credible, reasoning in part that Dr. Eisenstein, who indicated he

was aware of the facts of the case, “stated several times that, ‘I don’t

know what happened,’ ” when pressed about evidence and other

witness testimony. The court viewed those statements as an

admission of Dr. Eisenstein’s “lack of knowledge as to the details of

the crime and the exact nature of the Defendant’s role in the

offense.” Elsewhere in the Sentencing Order, the court explained

that “Dr. Eisenstein failed to identify any aspect of [Bargo’s]

‘thought processes’ or ‘behavior’ . . . that suggested that [Bargo] was

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functioning with the maturity level of a 14 or 15-year old.” And the

court noted that Dr. Prichard’s opinion testimony, on the other

hand, “rationally explained” what the records showed to be “a

consistent pattern of behavior on the part of [Bargo].”

In assigning this mitigator slight weight, the circuit court

concluded that it was established that Bargo “suffers from a mental

disorder which may in some way explain [his] behavior at the time

of the offense,” but that there was no evidence the disorder “caused

or contributed to the crime or impacted him such that he was

incapable of regulating his conduct or making the choice not to

plan and carry out the murder.”

Given this record, we cannot say that the circuit court’s

decision was unreasonable. Indeed, we have upheld the outright

rejection of this mitigating circumstance where the facts of the

crime “show[ed] an element of planning” and the defendant was not

shown to be under the influence of a disturbance “at the time of the

murder.” Hoskins v. State, 965 So. 2d 1, 17 (Fla. 2007). We have

also upheld the rejection of this mitigating circumstance when there

was a “conflict in [expert] testimony” and the sentencing order

revealed “thorough consideration of th[e] issue” by the trial court.

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Philmore v. State, 820 So. 2d 919, 937 (Fla. 2002). Here, there was

evidence presented regarding Bargo’s planning of what Dr. Prichard

described as a “very well thought out” crime. Dr. Prichard also

offered reasoned analysis for his conclusion that “the data [was] not

there to say that [Bargo] was under the influence of . . . anything he

couldn’t control.” And a review of the Sentencing Order reveals that

the circuit court carefully considered this issue.

We note that the circuit court employed somewhat similar

reasoning with respect to related proposed mitigating circumstance

“j.,” that Bargo had been “diagnosed with an abnormal brain scan,

bipolar disorder, schizoaffective disorder and a complex partial

seizure disorder.” The court found that, yes, it was established that

Bargo had been “diagnosed” with those conditions over the years,

but that the circumstance did “not tend to mitigate against a

sentence of death.” Noting the conflicting expert testimony, the

court concluded that “it was not established by the greater weight of

the evidence that the Defendant actually suffers from the listed

medical or mental health conditions.” This, too, was a reasonable

conclusion with record support.

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 For example, the circuit court addressed the testimony of

defense expert Dr. Joseph Wu, a psychiatrist, who opined that a

PET scan of Bargo’s brain “was abnormal” and that it “revealed that

[he] suffered from a ‘partial complex seizure spectrum disorder.’ ”

In doing so, the court noted that two of the State’s experts, Dr.

Steven Nelson and Dr. Geoffrey Negin, both medical doctors,

contradicted Dr. Wu’s testimony. As the court noted, “Dr. Nelson

testified that a person experiencing a complex partial seizure would

be disoriented, confused and unable to communicate for a period of

time after suffering the seizure.” Indeed, Dr. Nelson listed reasons

why the murder was not the product of a seizure, including that

Bargo was able to “carry out an organized plan.” Dr. Nelson also

explained why Bargo’s PET scan was “incompatible with epilepsy.”

Dr. Negin similarly testified that Bargo’s PET scan was “not

consistent with” a seizure disorder. Dr. Negin explained “that the

PET scan reviewed by Dr. Wu . . . revealed hyperactivity in an area

of [Bargo’s] brain rather than showing the hypoactivity that would

be expected if the patient was suffering from a seizure disorder.”

Dr. Negin further testified that in any event “an MRI scan was the

normal tool used to verify the existence of seizure-related issues in

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the human brain,” and he offered potential explanations for “the

hyperactivity apparent in [Bargo’s] PET scan.” We decline “to

reweigh the evidence and to ourselves resolve [the] conflicting expert

testimony,” as it “is not our role” to do so. Kocaker v. State, 311 So.

3d 814, 821 (Fla. 2020).

B. The capacity of Bargo to appreciate the criminality of his
conduct, or to conform his conduct to the requirements of the
law, was impaired.

The circuit court concluded that Bargo failed to prove the

existence of this mitigating circumstance. Bargo again argues that

the circuit court abused its discretion in purportedly failing to

provide “ ‘exact’ details” of its decision. We conclude that the circuit

court’s rejection of this proposed mitigator is supported by

“competent, substantial evidence.” Lebron, 982 So. 2d at 660.

The circuit court began by reiterating why it found “the

credibility of Dr. Eisenstein’s opinions [and] explanations of

[Bargo’s] mental status” to be “diminished.” The court further

noted that Dr. Eisenstein nevertheless “did not testify that he

believed [Bargo’s] capacity to appreciate the criminality of his

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

was impaired.” On the other hand, the court concluded that Dr.

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Prichard had “rationally explained” Bargo’s “consistent pattern of

behavior” and had testified that Bargo’s behavioral disorder “did not

affect [his] ability to choose to act in conformity with rules.” Indeed,

Dr. Prichard gave an example of how Bargo had demonstrated that

ability, namely when Bargo “chose to stop using drugs while he was

in prison in order to regain his visitation privileges.” Again, these

conclusions all have record support.

Bargo also asserts that the trial court “failed to include the

important findings of Doctor Joseph Wu and Doctor Robert

Berland” when addressing Bargo’s mental mitigation. But the

testimony of those two experts was contradicted by the State’s

experts and, in the case of Dr. Berland, was additionally

questionable.

As noted above, the circuit court, when separately addressing

proposed mitigating circumstance “j.,” explained how Dr. Wu’s

opinion that Bargo suffered from a “partial complex seizure

spectrum disorder” was contradicted by Dr. Nelson and Dr. Negin.

That was a conflict for the circuit court to resolve.

Dr. Berland, whose prior testimony was read to the jury, he

had conducted a mental health evaluation of Bargo, reviewed

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records, and administered the MMPI-II, a psychological test, by

reading it to Bargo. Dr. Berland had also administered the test to

Bargo’s father. Dr. Berland testified that Bargo “had a lot of

delusional paranoid thinking” and “had symptoms of psychosis.” In

the end, Dr. Berland concluded that Bargo “suffers from a

biological, mental illness . . . and brain injury has probably

enhanced the symptoms.” But Dr. Berland also testified that

“there’s a group of people that say you shouldn’t read [the MMPI-II

test], that you should use the recorded version [of the test].” And

Dr. Berland conceded on cross-examination that Bargo’s “extremely

high” score on one of the validity scales for the test would lead

“most professionals” to conclude that the test was invalid. It is

difficult to fault the circuit court for not discussing Dr. Berland’s

testimony at length. And in any event, as the circuit court noted,

Dr. Prichard testified as to why he “did not believe that [Bargo]

suffered from bipolar disorder or a schizoaffective disorder.”

We have upheld a trial court’s rejection of this mitigator “when

a defendant’s actions during and after the crime has indicated that

he was aware of the criminality of his conduct.” Bright v. State, 299

So. 3d 985, 1006 (Fla. 2020) (quoting Ault v. State, 53 So. 3d 175,

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188 (Fla. 2010)), cert. denied, 141 S. Ct. 1697 (2021). Here, the

evidence supports the conclusion that Bargo’s actions “indicated

that he was aware of the criminality of his conduct.” Id. Indeed,

Dr. Prichard testified that “the coverup tells you [Bargo] recognized

how criminal it was,” including “burning the body,” “removing

teeth,” disposing of “[t]he ashes and the body parts,” and “leav[ing]

town.”

IV. Bargo’s Age and Other Mitigators

Bargo next argues that the circuit court failed to adequately

consider and assigned too little weight to his age and certain other

mitigating circumstances. “[T]he weight assigned to a mitigating

factor is reviewed under an abuse of discretion standard.” Lebron,

982 So. 2d at 660. Bargo’s claim lacks merit.

A. Bargo’s age—given “slight weight”

“In Florida, numerical age alone may not be mitigating if not

linked to some other material characteristic (e.g., immaturity).” Id.

This Court has “long held that the fact that a defendant is youthful,

‘without more, is not significant.’ ” Mahn v. State, 714 So. 2d 391,

400 (Fla. 1998) (quoting Garcia v. State, 492 So. 2d 360, 367 (Fla.

1986)). In order “to be accorded any significant weight as a

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mitigating factor, ‘[a defendant’s age] must be linked with some

other characteristic of the defendant or the crime such as

immaturity.’ ” Id. (quoting Echols v. State, 484 So. 2d 568, 575 (Fla.

1985)).

Bargo relies on Dr. Eisenstein’s testimony that Bargo had an

EQ of a fourteen- or fifteen-year-old “in terms of his thought

processes, in terms of his behavior.” Bargo argues that, among

other things, the circuit court “did not take the time or the

resources to actually understand the body of research behind EQ.”

We conclude that the circuit court did not abuse its discretion.

As an initial matter, the circuit court noted that Dr. Eisenstein

conceded there was “no test, per se” for measuring EQ. The court

thus considered his opinions to be “subjective and closer to a

‘guess.’ ” Moreover, as the court alluded to, Dr. Eisenstein

repeatedly stated something to the effect of “I don’t know what

happened” when pressed about evidence and other testimony. But

more importantly, the court explained that “Dr. Eisenstein failed to

identify any aspect of [Bargo’s] ‘thought processes’ or ‘behavior’

before, during or after the instant offense that suggested that

[Bargo] was functioning with the maturity level of a 14 or 15-year

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old.” Indeed, the court concluded that “[n]o part of the evidence . . .

suggest[ed] that any lack of maturity contributed to [the] murder.”

Rather, according to the court, the evidence established that the

murder was “conceived, explained and orchestrated” by Bargo, who

“encouraged, directed and corrected the activities of others.” The

court, which was unable to reconcile Dr. Eisenstein’s testimony

with Bargo’s “behavior at the time of the offense,” was under no

obligation to attribute much weight to that testimony. See Coday v.

State, 946 So. 2d 988, 1002 (Fla. 2006) (“[E]ven uncontroverted

expert opinion testimony may be rejected if that testimony cannot

be squared with the other evidence in the case.”).

Lastly, Bargo asserts that this Court in Bargo I “recognized the

age of Mr. Bargo as a mitigating circumstance.” But Bargo I did no

such thing. Indeed, Bargo I addressed the Hurst issue and no

“other penalty phase claims.” Bargo I, 221 So. 3d at 570.

B. Weight assigned to certain nonstatutory mitigation

Bargo argues that “[t]he trial court abused its discretion when

it assigned ‘little weight’ or ‘slight weight’ to [ten] mitigating

circumstances without giving a factual or legal analysis.” Relying

principally on Hudson v. State, 708 So. 2d 256 (Fla. 1998), and

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Campbell v. State, 571 So. 2d 415 (Fla. 1990), receded from on other

grounds by Trease v. State, 768 So. 2d 1050 (Fla. 2000), Bargo’s

argument is that the circuit court did “not explain the reasons for

the weight assigned to” the mitigating circumstances. But we have

made clear that our caselaw does not impose such a requirement

on the sentencing court. See Rogers, 285 So. 3d at 890 (receding

from Oyola “to the extent that it employed a requirement that a trial

court expressly articulate why the evidence presented warranted

the allocation of a certain weight to a mitigating circumstance”). We

thus reject Bargo’s argument.

V. Proportionality – Relative Culpability

Lastly, Bargo argues that his death sentence is

disproportionate. He recognizes that this Court in Lawrence v.

State, 308 So. 3d 544 (Fla. 2020), “eliminate[d] comparative

proportionality review from the scope of our appellate review.” Id. at

552. But he asserts that “relative culpability review” survived

Lawrence and that, under a relative culpability review, his death

sentence is disproportionate “in light of the other sentences of the

codefendants,” none of whom has been given a death sentence.

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 We need not decide whether “relative culpability review”

survived Lawrence. Indeed, Bargo’s claim fails under this Court’s

pre-Lawrence caselaw, which generally rejected claims of relative

culpability raised by “triggerman” defendants. See, e.g., Blake v.

State, 972 So. 2d 839, 849 (Fla. 2007) (“We have rejected relative

culpability arguments where the defendant sentenced to death was

the ‘triggerman.’ ”). And although “the triggerman has not been

found to be the more culpable where the non-triggerman

codefendant is ‘the dominating force’ behind the murder,” Stein v.

State, 995 So. 2d 329, 341 (Fla. 2008), here the sentencing order

makes clear that the evidence established that Bargo not only fired

the gun but planned all aspects of the murder. We reject Bargo’s

claim of relative culpability. 6

CONCLUSION

For the reasons stated above, we affirm Bargo’s death

sentence.

6. Two of Bargo’s four codefendants (Wright and Hooper) were
juveniles at the time of the murder. Any relative culpability review
would thus be “inapplicable” with respect to them, given their
“ineligib[ility] for the death penalty.” Sanchez-Torres v. State, 130
So. 3d 661, 675 n.5 (Fla. 2013).

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 It is so ordered.

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

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

LABARGA, J., dissenting.

In my dissent in Lawrence v. State, 308 So. 3d 544 (Fla. 2020),

I raised my concerns about this Court’s elimination of comparative

proportionality review in cases where a death sentence has been

imposed. Because Bargo’s case is a prime example of the need for

comparative proportionality review, I respectfully dissent.

Comparative proportionality review previously required this

Court to complete a comprehensive analysis in every death penalty

case to determine whether the crime at issue falls within the

category of both the most aggravated and the least mitigated of

murders, thereby assuring uniformity in the application of the

death sentence. While Bargo’s case involves significant aggravation,

it also involves significant mitigation. As the majority notes, during

the initial penalty phase, the trial court found two statutory

mitigators and fifty nonstatutory mitigators. Majority op. at 3. The

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record revealed evidence of significant mental health mitigation

dating back to Bargo’s childhood.

In Bargo’s initial direct appeal, Justice Pariente explained in a

concurring opinion her “serious concerns in this case about

whether the death sentence is proportionate for this eighteen-year-

old with significant mental health mitigation.” Bargo v. State, 221

So. 3d 562, 570 (Fla. 2017) (Pariente, J., concurring). Justice

Pariente described the following:

The defendant was eighteen years old at the time of
the crime, and the trial court found two statutory
mitigators (age and under the influence of extreme
emotional distress) and numerous nonstatutory
mitigators—including that defendant suffers from frontal
lobe brain damage, bipolar disorder, schizoaffective
disorder, complex partial seizure disorder, hallucinations,
and diminished control over inhibitions, was abandoned
by his father, grew up in a disadvantaged and abusive
home, has a severe substance abuse problem which
aggravated a neurological disorder, along with the
possibility that the defendant was misdiagnosed and
treated for ADHD. The trial court did not ascribe great
weight to any of this mitigation. However, a review of the
record indicates that Bargo's mental health mitigation
reaches far back into his childhood, rather than
emanating from evaluations occurring after the murder
occurred.

Id. at 570-71.

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 Prior to this Court’s abandonment of comparative

proportionality review, our case law determined that reliable,

uncontroverted evidence of mental health mitigation coupled with

age indicates that a sentence of death may be disproportionate,

even in light of substantial aggravation. See, e.g., Crook v. State,

908 So. 2d 350, 352, 358 (Fla. 2005); see also Morgan v. State, 639

So. 2d 6, 14 (Fla.1994); Livingston v. State, 565 So. 2d 1288, 1292

(Fla.1988).

As this Court aptly observed in Tillman v. State, 591 So. 2d

167, 169 (Fla. 1991), “proportionality review in death cases rests at

least in part on the recognition that death is a uniquely irrevocable

penalty, requiring a more intensive level of judicial scrutiny or

process than would lesser penalties.” Given Bargo’s extensive

mental health mitigation dating far back into his childhood, coupled

with the fact that he was only eighteen years old at the time of the

crime, a comparative proportionality review would have benefitted

this Court’s analysis. “Failing to consider a death sentence in the

context of other death penalty cases impairs the reliability of this

Court’s decision affirming that sentence.” Lawrence, 308 So. 3d at

558 (Labarga, J., dissenting).

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 Accordingly, because I believe comparative proportionality

review would have provided this Court with a significant and useful

lens through which to analyze Bargo’s case, I respectfully dissent.

An Appeal from the Circuit Court in and for Marion County,
Anthony Michael Tatti, Judge – 422011CF001491CFAXXX

Philip J. Massa of Philip J. Massa, P.A, West Palm Beach, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Doris
Meacham, Assistant Attorney General, Daytona Beach, Florida,

for Appellee

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