Kevin G. Jeffries, Jr. v. State of Florida

Supreme Court of Florida
____________

No. SC14-1965
____________

KEVIN G. JEFFRIES, JR.,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

[July 13, 2017]

PER CURIAM.

Appellant Kevin G. Jeffries, Jr. was convicted for the first-degree murder of

Wallace Reid Scott, armed burglary of a dwelling, and armed robbery. Jeffries

was sentenced to death for the first-degree murder conviction after a jury

recommended the death penalty by a vote of ten to two. We have jurisdiction. See

art. V, § 3(b)(1), Fla. Const.

FACTS AND TRIAL

On April 6, 2013, Wallace Scott was found dead, sitting up against his bed,

by a concerned neighbor, who had noticed an accumulation of newspapers. When

officers from the Bay County Sheriff’s Office (BCSO) arrived at Scott’s residence,
a gate and back door to the house were open. There were no signs of forced entry

into the home. The pool in the backyard was dirty and had not been cleaned

recently. The house smelled strongly of bleach and other household cleaners. An

empty gallon-size bottle of bleach, an empty can of Comet cleaner, and an aerosol

canister of air purifier were found in the bedroom. A bottle of toilet-bowl cleaner

was found turned upside-down, which allowed the liquid to soak into the carpet.

Investigators found bleach stains throughout Scott’s bedroom, and the carpet was

so saturated that investigators had to frequently replace the paper boots they were

wearing to prevent cross-contamination of the crime scene.

The house appeared to have been ransacked. In the bedroom where Scott

was found, the bed had been pushed aside and was askew from its box springs.

Electric cords that had been cut and belts were found next to Scott, who was found

with ligature marks on his ankles and legs. There was blood on the floor next to

Scott. Investigators also found a plunger, a pair of scissors, and the tip of a blue

latex glove in the bedroom, as well as a wooden box containing shotgun shells. A

fire poker that contained no traces of soot was also found on top of a washing

machine.

The medical examiner found that Scott had abrasion and impact injuries on

his face and a fractured nose. There was also a lacerating injury to his left ear that

was forceful enough to split the ear. Scott had lacerations across his upper body,

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hands, and neck, as well as several fractures of his ribs. The medical examiner

later testified that some of these injuries could have been inflicted by a long,

cylindrical object such as a fire poker. Additionally, the medical examiner noted

that Scott’s ankles had been bound, and there was some evidence of binding on his

left wrist. There were also superficial sharp-force injuries to Scott’s penis.

BCSO investigators initially identified Sherri Mercer as a person of interest

in Scott’s murder. She had served as Scott’s live-in caretaker for several years

until a few weeks before Scott’s death. Scott had introduced her to a friend, a

private investigator, whom Scott asked to assist Mercer in obtaining a driver’s

license. The private investigator suspected that Scott and Mercer had a personal

relationship, and Mercer’s sister, Mary Goldsmith, the mother of Jeffries, later

testified that Mercer had a sexual relationship with Scott that Mercer did not enjoy;

however, Mercer later denied that her relationship with Scott was sexual in nature.

In February 2013, Scott executed a will that named Mercer as the principal

beneficiary of his estate, which included his residence and several pieces of real

property. Mercer also had a joint checking account with Scott and access to one of

his credit cards.

A female friend of Mercer’s had lived in Scott’s home with Mercer and

Scott until sometime in February 2013, when Scott evicted the friend, and Mercer

moved out with her. Mercer continued to use the credit card and write checks from

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the joint account. Apparently, these actions were done without the consent of

Scott, who filed a complaint with the BCSO on March 14, 2013, against Mercer for

claims of credit card and check fraud. However, he subsequently informed law

enforcement that he did not wish to prosecute Mercer for these offenses. Around

the same time, Scott also contacted the friend who was a private investigator and

asked him for assistance with amending his will and power of attorney.

Although Mercer remained a person of interest throughout the investigation,

investigators later sought to arrest Jeffries after results from DNA testing of the tip

of the blue latex glove matched both Scott and Jeffries. At that time, Ashley

Griffin, Jeffries’s girlfriend, also became a suspect. Officers first located and

arrested Griffin in Georgia, and she agreed to assist law enforcement in the

apprehension of Jeffries and his cousin, David Challender, the son of Sherri

Mercer. Following his arrest, Jeffries admitted to officers that he participated in

the burglary and fatal assault on Scott. During trial, Griffin testified on behalf of

the State with respect to the events that culminated in the murder of Scott, and her

testimony was largely corroborated by Jeffries’s post-arrest statement, a recording

of which was admitted during trial.

On April 4, 2013, Jeffries, Challender, and Griffin decided to leave

Challender’s home in Atlanta and travel to Panama City to commit robbery,

including the robbery of Scott. Scott was known to each of them: Jeffries and

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Griffin had met him on at least one occasion, and Challender had stayed with

Mercer and Scott in January or February 2013. Challender believed that Scott kept

money and valuable guns in his house. Several weeks before the decision to travel

to Panama City, Challender also told Jeffries that he wanted to drown Scott in his

own pool, which Jeffries understood as an offhand comment at the time. There

was also some evidence presented that the plan to travel to Panama City would

also permit Challender to travel to his mother’s upcoming wedding to another

individual.

Throughout the two weeks leading up to this decision, all three had

chronically consumed methamphetamines and marijuana. They had also been

awake for several days prior to the murder. Griffin agreed to use her car as their

vehicle. En route, an officer pulled the car over in Dothan, Alabama, while Jeffries

was driving the car. Although Griffin had an outstanding warrant for check fraud,

the officer only issued Jeffries a ticket for a traffic violation and permitted them to

proceed without arresting Griffin.

After arriving in Lynn Haven later that day, they purchased gloves from a

local Walmart. This purchase was confirmed by surveillance footage and a receipt

from Walmart. Jeffries also informed officers that they had purchased zipties

earlier that day as well. After purchasing gloves from the local Walmart, they

drove past Scott’s house several times that day and waited until dark. They knew

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that Scott, who was ninety years old and suffered from some hearing loss, usually

went to sleep fairly early in the evening. Griffin dropped Jeffries and Challender

off at Scott’s home, with the understanding that she would return to Alabama while

Jeffries and Challender would stay at Scott’s home for a week and use his debit

cards and credit cards.

Jeffries and Challender entered Scott’s home through a back window that

Challender knew was unlocked. As they crawled through the kitchen toward

Scott’s bedroom, lights in the bedroom were suddenly turned on, and a physical

fight between Scott and Challender ensued. Jeffries later admitted that he chose to

participate in the attack by subduing Scott after Challender requested his

assistance. Challender continued to beat Scott as Jeffries worked to restrain Scott

with a belt and electric cords. At some point, Challender obtained two guns that

were next to Scott’s bed, beat Scott with one, and handed the other to Jeffries.

Challender demanded that Scott reveal the personal information number (PIN) for

his debit and credit cards.

Approximately twenty minutes after she had left Jeffries and Challender at

Scott’s residence, Griffin received a phone call from Jeffries, who asked her to

return. When she arrived, Griffin did not want to enter the house; however,

Jeffries exited the house and sat in the car with Griffin for a few minutes as they

smoked marijuana and a cigarette before they entered the house.

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 According to Griffin and Jeffries, Challender was the principal attacker,

while Jeffries spent most of his time rummaging through the house for items to

take, and Griffin was directed to use household cleaning products to clean the

blood from the carpet. When Scott refused to disclose his PIN, Challender

threatened to cut off his genitalia with scissors and sodomize him with a toilet

plunger. Challender apparently displayed some degree of force to support these

threats, as Scott was found with superficial lacerations on his penis, and Griffin

testified that she saw Challender strike Scott on the buttocks with the plunger.

Challender later informed Jeffries that Scott bit him during their initial struggle and

told Jeffries that if they were apprehended, he would tell law enforcement that

Griffin caused the injuries to Scott’s penis. At some point in the evening, Scott

told Jeffries that he would cooperate if Jeffries removed the restraints and helped

him sit up, which Jeffries did. Jeffries also apologized to Scott. After rendering

some aid to Scott, Jeffries later returned to the bedroom, but realized Scott had

died. Upon exiting Scott’s house, the group took $100 in cash, a ring, four guns,

and a clock.

After they left Scott’s residence, Jeffries, Griffin, and Challender engaged in

a series of arguments that escalated into Challender and Jeffries pointing weapons

at each other. The three eventually parted ways, and Griffin was arrested shortly

thereafter and assisted law enforcement in the arrests of both Jeffries and

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Challender. After Griffin was arrested, officers impounded and searched her car

pursuant to a warrant.

On May 22, 2013, Jeffries, Griffin, and Challender were indicted for first-

degree murder, armed burglary of a dwelling, and armed robbery. After the cases

were severed, the State proceeded against Jeffries in a one-week trial. Griffin

pleaded guilty to second-degree murder, principal to armed burglary, and principal

to armed robbery; in exchange for cooperating with the State, she received a

twenty-year sentence. Griffin, who was by that time Jeffries’s fiancée, testified on

behalf of the State during Jeffries’s trial, but Challender did not testify. The State

also presented testimony from Scott’s granddaughter and friends, who all testified

that Scott was an active ninety-year-old man who swam regularly. However, one

witness described that during his last week, Scott suffered back pain from an old

injury that prevented him from swimming, and Scott did have some trouble

walking.

The State also presented several law enforcement officers and technicians

from BCSO, as well as the surveillance footage and a receipt from the Lynn Haven

Walmart to confirm that Jeffries, Griffin, and Challender purchased gloves on

April 4, 2013. Kelly Dowd, an analyst from the Florida Department of Law

Enforcement, offered testimony regarding the DNA testing performed on various

items recovered from Scott, his home, and Griffin’s car. Dowd testified that the tip

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of the blue glove contained a mixed DNA profile matching both Jeffries and Scott.

Further, electric cords recovered near Scott’s body were found with blood and

handler DNA, which may be left on an object via skin contact. Testing of that

DNA provided a match to Scott’s known DNA profile. Blood obtained from a pair

of men’s blue jeans recovered from Griffin’s car also matched Scott. Officers also

recovered a black T-shirt from Griffin’s car that contained blood from a mixed

profile: the major contributor of blood from the T-shirt was Scott, and the minor

contributor of blood was Challender. Dowd also testified that blood and handler

DNA on the pair of scissors recovered from Scott’s bedroom matched that of Scott.

Dr. Michael Hunter, the medical examiner for the Fourteenth Judicial

Circuit, also testified on behalf of the State. In addition to describing the various

injuries that Scott suffered before his death, Dr. Hunter noted that some of the

injuries to Scott’s hands and arms could have resulted from attempts to repel an

attacker. He offered an opinion that the cause of Scott’s death was strangulation,

along with blood loss from multiple blunt injuries, after noting that Scott had

internal bruising and bleeding on the soft tissues of his neck, a fractured hyoid

bone, and petechial hemorrhages in his eyes and lips. According to Dr. Hunter,

Scott would have lost consciousness within seconds, and death would have

resulted several minutes later. In light of Scott’s age, Dr. Hunter noted that Scott,

who also suffered from atherosclerosis, emphysema, and a diseased kidney, was

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likely to have succumbed to loss of consciousness and death sooner than a

younger, healthier individual.

Following the testimony of Dr. Hunter, the State rested, and Jeffries

presented Dr. William Robert Anderson, who challenged Dr. Hunter’s opinion

regarding the cause of death. According to Dr. Anderson, Scott suffered partial

strangulation, as evidenced by the petechial hemorrhages and injuries to his neck.

However, Dr. Anderson opined that Scott was revived from the partial

strangulation, but ultimately died from aspiration of blood into his lungs as a result

of multiple injuries. Dr. Anderson reached this conclusion based on the volume of

blood found in Scott’s lungs, a factor that Dr. Hunter opined was insignificant.

After the testimony of Dr. Anderson, the defense rested. On July 17, 2014, the

jury convicted Jeffries of first-degree murder under theories of both premeditated

and felony murder, as well as armed burglary of a dwelling, and armed robbery.

During the penalty phase, the State did not present any further evidence.

Jeffries presented testimony from family members regarding his childhood and

upbringing. According to various family members, Jeffries and his siblings were

placed in foster care for several years while his mother, Mary Goldsmith, was

incarcerated. An aunt of Jeffries testified that Mary verbally abused Jeffries.

Darrell Goldsmith, the ex-husband of Mary and stepfather of Jeffries, testified that

he treated Jeffries as his son. Further, Darrell testified that Challender, Jeffries’s

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cousin, was a bad influence on Jeffries: after Challender sold Darrell a motorcycle

that turned out to be stolen from Challender’s father, Darrell discouraged Jeffries

from spending time with Challender.

Jeffries also advanced a theory that Challender, the son of Sherri Mercer,

was the primary individual who planned and carried out the attack on Scott.

Although officers could not place Mercer at the scene of the crime, evidence was

presented that she knew she was the beneficiary of Scott’s estate. She later wrote a

letter to Scott, alleging that he was evil and complaining about her inability to

access their shared account. Another witness testified that when Mercer learned of

Scott’s death, she repeatedly expressed happiness over her expected inheritance.

Mary Goldsmith, the twin sister of Mercer and Jeffries’s mother, testified that

Mercer had confided in her that Scott was a “pervert” who forced her to perform

oral sex on him. Mercer told Mary that she did not enjoy this relationship and that

she wanted to cut off Scott’s penis and sodomize him with it. However, Mercer

herself denied many of these claims. Mercer insisted that Scott was a kind

individual who had helped her and several members of her family, including her

son Challender and her sister Mary. On July 18, 2014, the jury recommended the

death penalty by a vote of ten to two.

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 The trial court conducted a Spencer1 hearing on August 29, 2014. Jeffries

presented evidence that he did not have serious disciplinary records while he was

incarcerated at the BCSO jail. Griffin offered additional testimony that all three of

them were high on methamphetamines during the forty-eight hour period prior to

Scott’s murder. She also testified that when Jeffries was high, he was more willing

to follow along with Challender’s suggestions than to challenge them, and that

Challender spent much more time with Scott than Jeffries did.

Jeffries also testified during the Spencer hearing. He stated that it was

Challender’s idea to drive from Challender’s home in Atlanta to Lynn Haven to

commit a robbery, and that Challender renewed this idea after they were pulled

over in Dothan and Griffin became concerned about a lack of money. When he

and Challender entered Scott’s house, Challender knew that Scott went to bed

around 8 p.m. and knew of an open window in the kitchen. After Scott turned on

the lights and Challender attacked him, Jeffries testified that he considered running

away at that point until Challender asked him for help subduing Scott; he admitted

during cross-examination that he made the conscious decision to assist Challender

and participate in the attack on Scott. He later asked Scott if there was anything

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

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Scott wanted or needed and removed the restraints after Scott asked him to do so.

Jeffries also denied that he was the individual who strangled Scott.

Following the Spencer hearing, defense counsel filed an addendum to the

sentencing memorandum that noted that Challender, who did not testify during

Jeffries’s trial, had pleaded guilty to first-degree murder. Challender was

sentenced to life imprisonment.

The trial court issued its sentencing order on September 26, 2014. The court

found that the State had established the following four aggravating factors beyond

a reasonable doubt: (1) Jeffries committed the capital felony during the course of a

burglary and/or robbery (great weight); (2) the murder was especially heinous,

atrocious, and cruel (HAC) (great weight); (3) the murder was cold, calculated, and

premeditated and without any pretense of moral justification (CCP) (great weight);

and (4) Scott was a particularly vulnerable victim due to his age (some weight).

The court also found the existence of six mitigating factors: (1) Jeffries suffered an

abusive childhood (little weight); (2) he acted under the influence or control of an

extreme mental or emotional disturbance due to the fact that he was high on

methamphetamines before the murder (little weight); (3) he acted under the

extreme duress or substantial domination of Challender (little weight); (4) Jeffries

has been a model prisoner during his incarceration (little weight); (5) he

cooperated with law enforcement during the investigation (little weight); and (6)

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Challender received a life sentence (little weight). With respect to the final

nonstatutory mitigating factor, the trial court refused to conduct a relative

culpability analysis between Jeffries and Challender because Challender’s lesser

sentence was the result of a plea negotiation. Upon weighing the aggravation and

mitigation, the trial court sentenced Jeffries to death for the murder of Scott and

life imprisonment for the additional convictions.

This review follows.

ANALYSIS

Guilt Phase

Although Jeffries does not allege that any errors occurred during the guilt

phase of his trial, this Court has an independent obligation to ensure that

competent, substantial evidence supports his convictions. See, e.g., Brown v.

State, 143 So. 3d 392, 407 (Fla. 2014) (citing Blake v. State, 972 So. 2d 839, 850

(Fla. 2007); Fla. R. App. P. 9.142(a)(5)). After reviewing the evidence in the light

most favorable to the State, this Court will affirm the convictions if a rational trier

of fact could have concluded that the elements of the crime have been proven

beyond a reasonable doubt. Id. Additionally, when a jury finds a defendant guilty

of first-degree murder following instructions on both premeditated and felony

murder, we will affirm the conviction if competent, substantial evidence supports

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at least one of the theories of conviction. See Crain v. State, 894 So. 2d 59, 73

(Fla. 2004).

We conclude that competent, substantial evidence supports Jeffries’s

convictions under both premeditated murder and felony murder. During Jeffries’s

trial, both circumstantial and direct evidence were presented to the jury regarding

Jeffries’s intent to participate in the burglary and robbery of Scott. The tip of a

torn rubber glove with DNA that matched Jeffries was found near Scott’s body.

Surveillance footage and a receipt from Walmart indicated that Jeffries,

Challender, and Griffin purchased rubber gloves on the day of the murder. Scott’s

blood was found on clothing recovered from Griffin’s car. Griffin testified that the

three of them planned to drive to the Panama City area to rob Scott, and they took

$100 in cash, a ring, four guns, and a clock when they left. Testimony from law

enforcement officers confirmed that two handguns and two larger guns belonging

to Scott were never recovered. Griffin testified that she heard Challender demand

the PIN to Scott’s credit or debit cards and ask Jeffries for his assistance in

torturing Scott, while Jeffries searched the house for items to steal. She also told

the jury that Jeffries smoked marijuana with her outside the house before he

returned to the house with Griffin.

Most importantly, Jeffries’s own account confirmed his involvement. In his

post-arrest statement, Jeffries confessed to law enforcement that he knew

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Challender wanted to rob Scott, and they purchased gloves and zipties in

anticipation of that crime. They drove past Scott’s house several times that day

and waited until it was dark before entering through a back window of Scott’s

home. When Scott turned on the lights and Challender proceeded to attack Scott,

Jeffries admitted that he participated in beating Scott and eventually restrained

Scott by the ankles and wrists with electric cords. He further admitted that he

accepted a gun from Challender, although he denied that he himself struck Scott

with a gun as Challender did. He also admitted that he searched the house and

took the guns with them when they left. Finally, although not considered by the

jury, Jeffries admitted during his Spencer hearing that when Challender first asked

him for help as Challender struggled with Scott, Jeffries paused and considered

fleeing before he ultimately decided to help Challender subdue Scott. Although

Jeffries insisted that he restrained Scott to prevent Challender from further beating

him and that he later removed Scott’s restraints at Scott’s request, Jeffries admitted

that he restrained Scott, participated in the assault on Scott, and did not stop

Challender from torturing Scott in an attempt to force Scott to reveal his PIN.

Therefore, we conclude that there is competent, substantial evidence to affirm

Jeffries’s convictions.

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 Penalty Phase

Regarding the penalty phase of his trial, Jeffries asserts four points of error:

(1) the trial court erred when it instructed the jury regarding, and found the

existence of, the CCP aggravating circumstance; (2) the trial court erred when it

instructed the jury regarding, and found the existence of, the vulnerable victim

aggravating circumstance; (3) Jeffries’s sentence is disproportionate; and (4)

Florida’s capital sentencing statute is unconstitutional under Ring v. Arizona, 536

U.S. 584 (2002).

Proportionality

Relative Culpability

When there are several participants to a capital offense, an analysis of the

relative culpability of the parties often becomes relevant to defendants sentenced to

death. E.g., Shere v. Moore, 830 So. 2d 56, 61-62 (Fla. 2002). If performed by the

trial court, we do not disturb the factual findings regarding the relative culpability

of codefendants that are supported by competent, substantial evidence. Gonzalez

v. State, 136 So. 3d 1125, 1165 (Fla. 2014); Puccio v. State, 701 So. 2d 858, 860

(Fla. 1997). We may also consider relative culpability as part of our mandatory

proportionality review, and may even entertain such issues as newly discovered

evidence in a motion for postconviction relief. Wright v. State, 19 So. 3d 277, 305

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(Fla. 2009); Stein v. State, 995 So. 2d 329, 341-42 (Fla. 2008); Scott v. Dugger,

604 So. 2d 465, 468-69 (Fla. 1992).

However, a relative culpability analysis is not always conducted. For

example, we have held that such a review cannot be performed if a codefendant is

ineligible for the death penalty because of age or intellectual disability. Farina v.

State, 801 So. 2d 44, 56 (Fla. 2001) (citing Brennan v. State, 754 So. 2d 1, 5-6

(Fla. 1999)); Henyard v. State, 689 So. 2d 239, 254 (Fla. 1996). Relative

culpability is also inappropriate when a codefendant is adjudicated of a lesser

offense that does not carry a possible sentence of death. See, e.g., Caballero v.

State, 851 So. 2d 655, 662-63 (Fla. 2003) (refusing to conduct relative culpability

review because codefendant was found guilty of second-degree murder by a jury);

Shere, 830 So. 2d at 61-62.

Additionally, we have historically refused to review the relative culpability

of codefendants when a codefendant pleads guilty and receives a lesser sentence as

a result. E.g., Krawczuk v. State, 92 So. 3d 195, 207 (Fla. 2012); Victorino v.

State, 23 So. 3d 87, 107 (Fla. 2009); England v. State, 940 So. 2d 389, 406 (Fla.

2006) (citing Kight v. State, 784 So. 2d 396, 401 (Fla. 2001); San Martin v. State,

705 So. 2d 1337, 1350-51 (Fla. 1997); Brown v. State, 473 So. 2d 1260, 1268-69

(Fla. 1985)). In such cases, we have indicated that we will not make further

inquiry “where the codefendant’s lesser sentence was the result of a plea

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agreement or prosecutorial discretion.” Kight, 784 So. 2d at 401; see also

McCleskey v. Kemp, 481 U.S. 279, 311-12 (1987) (refusing to consider

prosecutorial discretion regarding capital sentencing as arbitrary and capricious

under Gregg v. Georgia, 428 U.S. 153 (1976)).

A codefendant may be rendered ineligible for the death penalty by age,

intellectual disability, or the lack of at least one aggravating circumstance

established beyond a reasonable doubt. See Farina, 801 So. 2d at 56; Henyard, 689

So. 2d at 254; State v. Steele, 921 So. 2d 538, 545-46 (Fla. 2005) (explaining that

section 921.141, Florida Statutes, requires a finding of at least one aggravating

circumstance to impose the death penalty). Even assuming that the same

aggravating circumstances would apply to both a defendant and codefendant, the

codefendant might present very different mitigation than the defendant, which

potentially affects the decision of the State to seek the death penalty. Such

information rarely becomes part of the record of the defendant presently before the

Court for review. Indeed, in this case, codefendant Challender did not plead guilty

to first-degree murder and receive a sentence of life imprisonment until after

Jeffries’s Spencer hearing. Therefore, there is little for us to truly compare,

beyond the facts of the crimes presented during the defendant’s trial.

The trial court below did not consider the relative culpability of either

codefendant Challender, who pled guilty to first-degree murder, or codefendant

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Griffin, who pled guilty to second-degree murder.2 We conclude that the trial

court properly applied existing law concerning relative culpability of a codefendant

who receives a lesser sentence as a result of a plea deal. We further conclude that

Jeffries is not entitled to relief under our existing Florida law. See Smith v. State,

998 So. 2d 516, 528 (Fla. 2008) (“We have previously rejected claims of disparate

sentencing when the codefendant’s sentence resulted from his entry of a plea or

prosecutorial discretion.” (citing England, 940 So. 2d at 406)).

Therefore, because we have historically refused to entertain claims of

disparate sentencing when one sentence is the result of a plea, we affirm the trial

court’s refusal to consider the relative culpability of Jeffries and Challender.

Proportionality Review

The death penalty is reserved for the most aggravated and least mitigated

murders to ensure its uniform application. E.g., McCray v. State, 71 So. 3d 848,

880 (Fla. 2011). This evaluation requires that we do more than just simply weigh

the aggravating and mitigating circumstances; instead, we must qualitatively

review the basis for each established aggravating and mitigating circumstance.

Brown, 143 So. 3d at 405; Muehleman v. State, 3 So. 3d 1149, 1166 (Fla. 2009).

When reviewing the proportionality of a death sentence imposed by the trial court,

2. Jeffries does not claim that his sentence is disproportionate relative to
Griffin, who pleaded guilty to second-degree murder.

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we accept the recommendation of the jury and the weight assigned by the trial

court to aggravation and mitigation. E.g., Guardado v. State, 965 So. 2d 108, 119

(Fla. 2007) (citing Bates v. State, 750 So. 2d 6, 12 (Fla. 1999)). Further, we will

not disturb the weight assigned to a particular mitigating circumstance absent an

abuse of discretion by the trial court. E.g., Russ v. State, 73 So. 3d 178, 199 (Fla.

2011).

The trial court found that the State had proven the existence of the following

four aggravating circumstances beyond a reasonable doubt: (1) the capital felony

was committed during the commission of a burglary and/or robbery (great weight);

(2) HAC (great weight); (3) CCP (great weight); and (4) Scott was a particularly

vulnerable victim (some weight). The court also found that Jeffries had proven

three statutory mitigating circumstances: (1) Jeffries suffered an abusive childhood

(little weight); (2) he acted under the influence of an extreme mental or emotional

disturbance because Jeffries and the other defendants had consumed

methamphetamines before the murder (little weight); and (3) he acted under the

extreme duress or substantial domination of codefendant Challender (little weight).

The court found that Jeffries had also proven three nonstatutory mitigating

circumstances—(1) he has been a model prisoner, (2) he cooperated with the

investigation, and (3) Challender’s life sentence—and assigned each little weight.

The trial court found that two of the aggravating circumstances, HAC and capital

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felony committed during the course of a burglary and/or robbery, alone,

outweighed the established mitigation.

Jeffries cites to several cases to support his argument on the

disproportionality of his sentence, but we find these cases to be distinguishable.

Rather, we conclude that the aggravation and mitigation presented in this case is

more similar to cases where we have concluded that death was a proportional

punishment. For example, in Lawrence v. State, 698 So. 2d 1219, 1220-21 (Fla.

1997), the defendant and codefendant both participated in a murder in which the

medical examiner determined that the cause of death was blunt trauma and

possible asphyxia.3 We considered death to be proportionate after a trial court

found three aggravating circumstances (murder committed under a sentence of

imprisonment, HAC, and CCP), no statutory mitigation, and five nonstatutory

mitigating circumstances (the defendant cooperated with law enforcement; he

suffered from a learning disability and had a low IQ; he had a deprived childhood;

he acted under the influence of alcohol; and he had no prior criminal history). Id.

at 1221 nn.1-2; see also Spencer v. State, 691 So. 2d 1062, 1063, 1065-66 (Fla.

1996) (finding death sentence proportionate in light of prior violent felony and

3. The codefendant was tried separately and sentenced to life imprisonment;
we summarily denied Lawrence’s claim of disparate sentence, which was raised as
an improperly rejected mitigating circumstance. Lawrence, 698 So. 2d at 1222.

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HAC as aggravation, statutory mitigation that Spencer acted under the influence of

an extreme mental or emotional disturbance and his capacity to appreciate the

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

substantially impaired, and nonstatutory mitigation that included a history of

substance abuse, paranoid personality disorder, sexual abuse by his father, an

honorable military record, positive employment history, and the “ability to

function in a structured environment that does not include women”).

Indeed, we have affirmed the death penalty in cases with less aggravation

and/or more mitigation. See Brant v. State, 21 So. 3d 1276, 1284-88 (Fla. 2009)

(affirming death sentence where trial court found two aggravating factors,

including HAC and murder committed during the course of a sexual battery, three

statutory mitigating factors, and ten nonstatutory mitigating factors); Johnston v.

State, 863 So. 2d 271, 286 (Fla. 2003) (concluding that death was appropriate

punishment where two aggravating factors, namely prior violent felony and HAC,

one statutory mitigating circumstance, and twenty-six nonstatutory mitigating

circumstances applied). Notably, in Ocha v. State, 826 So. 2d 956, 966 (Fla.

2002), we held that death was a proportionate punishment for a defendant who had

strangled the victim multiple times. The State had presented evidence of three

aggravating circumstances, including prior violent felony, HAC, and CCP;

however, the trial court concluded that CCP had not been established beyond a

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reasonable doubt. Id. at 960. When the trial court compared the two aggravating

factors against fifteen mitigating circumstances,4 it concluded that the aggravation

outweighed the mitigation and sentenced Ocha to death, with which we agreed. Id.

at 960, 966.

Accordingly, we disagree with Jeffries’s assertion that the aggravation in

this case is minimal and the mitigation is substantial. The trial court found four

valid aggravating circumstances that were assigned moderate to great weight. One

of the unchallenged aggravating circumstances, HAC, has been held to be one of

the weightiest aggravating circumstances in Florida. See, e.g., Jackson v. State, 18

So. 3d 1016, 1035 (Fla. 2009). Further, Jeffries presented relatively little

mitigating evidence, all of which the trial court assigned little weight. Finally, we

hold that the trial court did not abuse its discretion regarding the weight assigned to

the aggravation and mitigation because we conclude that a reasonable person could

reach the same conclusion as the trial court. See, e.g., Knight v. State, 76 So. 3d

879, 886 (Fla. 2011); Russ, 73 So. 3d at 198 (finding no abuse of discretion

4. The mitigation included Ocha’s: (1) good behavioral record during prior
incarceration; (2) suicidal thoughts; (3) artistic ability; (4) prior head injuries; (5)
extensive history of substance abuse; (6) learning disability; (7) ability to form
positive relationships; (8) ex-wife, who encouraged him to seek a more
professional career; (9) military service; (10) post-traumatic stress disorder; (11)
violent childhood; (12) remorse; (13) intoxication with alcohol and ecstasy when
he committed the murder; (14) psychiatric disturbance; and (15) being a hard
worker during his prior incarceration. Ocha, 826 So. 2d at 960.

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regarding the weight assigned to mitigation). We therefore conclude that death is a

proportionate punishment in this case.

Hurst v. Florida and Hurst

Jeffries contends that Florida’s capital sentencing scheme is unconstitutional

in light of Ring v. Arizona, 536 U.S. 584 (2002), and Hurst v. Florida, 136 S. Ct.

616 (2016) (Hurst v. Florida), because the jury, which recommended death, failed

to find the facts necessary to impose that sentence. We agree. See Hurst v. State,

202 So. 3d 40, 43-44 (Fla. 2016), cert. denied, No. 16-998, 2017 WL 635999 (May

22, 2017).

New rules of law set down by this Court, or the United States Supreme

Court, apply to cases on direct review or those not otherwise finalized. State v.

Johnson, 122 So. 3d 856, 861 (Fla. 2013) (citing Griffith v. Kentucky, 479 U.S.

314, 328 (1987)). This case is before us on direct appeal; therefore, Jeffries’s

appeal is subject to Hurst. The jury below recommended death by a ten to two

vote. Thus, Jeffries’s death sentence violated the central holding of Hurst: all

critical findings for the imposition of death must be found unanimously by the

jury. See Hurst, 202 So. 3d at 53-54.

As this Court held in Hurst, such a sentencing error is capable of harmless

error review. Id. at 67. Therefore, “[i]n the context of a sentencing error, the

relevant question is whether ‘there is [a] reasonable possibility that the error

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contributed to the sentence.’ ” Johnson v. State, 205 So. 3d 1285, 1290 (Fla. 2016)

(quoting Zack v. State, 753 So. 2d 9, 20 (Fla. 2000)), petition for cert. filed, No.

16-1252 (U.S. Apr. 17, 2017). Considering the nonunanimous jury

recommendation and reasoning below, we reject the State’s contention that any

Hurst v. Florida error was harmless.

To be sure, Jeffries’s actions were substantially aggravated. In addition to

being committed during the course of a robbery, Jeffries and his codefendants

drove from Atlanta, Georgia, broke into a 90-year-old man’s home, armed

themselves, tied Scott up so that he could not defend himself, tortured him,

mutilated him, beat him, and strangled him. Further, the aggravators of HAC and

CCP are two of the weightiest aggravators in Florida. See Butler v. State, 842 So.

2d 817 (Fla. 2003); Guardado v. State, 965 So. 2d 108, 119 (Fla. 2007).

However, as in Hurst, the record here demonstrates that there was mitigation

to be considered. See Hurst, 202 So. 3d at 69. In fact, along with the statutory

mitigators of Jeffries’s (1) suffering an abusive childhood; (2) acting under the

influence of an extreme mental or emotional disturbance; and (3) acting under

extreme duress or under the substantial domination of another person, the trial

court also assigned weight to three nonstatutory mitigating circumstances. These

included circumstances that could have influenced the jury, including that: (1)

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Jeffries was a model prisoner during his incarceration; and (2) he cooperated with

law enforcement during the investigation.

As in Hurst and Johnson, we cannot conclude—beyond a reasonable

doubt—that a Hurst v. Florida error did not contribute to Jeffries’s sentence. See

Hurst, 202 So. 3d at 69; Johnson, 205 So. 3d at 1290. This Court explained in

Hurst,

[b]ecause there was no interrogatory verdict, we cannot determine
what aggravators, if any, the jury unanimously found proven beyond a
reasonable doubt. We cannot determine how many jurors may have
found the aggravation sufficient for death. We cannot determine if the
jury unanimously concluded that there were sufficient aggravating
factors to outweigh the mitigating circumstances.

202 So. 3d at 68. Such concerns apply with equal force here. We can merely

conclude that two jurors, for whatever reason, determined that a life sentence was

appropriate. This record, coupled with a ten-to-two jury recommendation and the

mitigation presented, simply presents too many unanswered questions. Therefore,

we must find reversible error and remand the case for a new penalty phase.

Moreover, we reject the State’s assertion that Jeffries’s simultaneous felony

convictions are sufficient to insulate his death sentence from Hurst error. See

Hurst, 202 So. 3d at 53 n.7. Likewise, in Hurst, this Court rejected Jeffries’s

argument that section 775.082(2), Florida Statutes (2015), requires a remand to the

trial court for the imposition of a life sentence. See id. at 63-66.

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 Accordingly, we affirm Jeffries’s conviction, vacate his death sentence, and

remand for a new penalty phase.

CONCLUSION

We conclude that there is sufficient evidence to support Jeffries’s

convictions. However, we hold that, under Hurst, Jeffries is entitled to a new

penalty phase. Therefore, we affirm his convictions, vacate his death sentence, and

remand for a new penalty phase.

It is so ordered.

LABARGA, C.J., and LEWIS, J., concur.
LAWSON, J., concurs specially with an opinion.
PARIENTE, J., concurs in part and dissents in part with an opinion, in which
QUINCE, J., concurs.
CANADY, J., concurs in part and dissents in part with an opinion, in which
POLSTON, J., concurs.

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

LAWSON, J., concurring specially.

See Okafor v. State, 42 Fla. L. Weekly S639, S641, 2017 WL 2481266, at

*6 (Fla. June 8, 2017) (Lawson, J., concurring specially).

PARIENTE, J., concurring in part and dissenting in part.

I concur in part because Jeffries is entitled, at the very least, to a new penalty

phase pursuant to Hurst v. State, 202 So. 3d 40 (Fla. 2016), cert. denied, No. 16-

998, 2017 WL 635999 (U.S. May 22, 2017). However, I dissent in part because I

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conclude that under our precedent, Jeffries’s death sentence should be reduced to

life imprisonment because an equal or more culpable defendant, Challender,

received a life sentence based on a conviction for first-degree murder.

Testimony adduced at trial indicates that Challender was the “prime

instigator” of the burglary and armed robbery, Hazen v. State, 700 So. 2d 1207,

1214 (Fla. 1997), had greater motive to commit the murder, and spent more time

alone with the victim before the murder. According to Griffin, a third codefendant

who was Jeffries’s girlfriend at the time of the murder and assisted law

enforcement in apprehending Challender and Jeffries, Challender suggested

targeting the victim in Panama City when the three codefendants needed money.

Challender also knew that a window in the victim’s house would be open.5

According to evidence presented at trial, including Griffin’s testimony, the victim

died in his bathroom after Challender struck him with a toilet plunger and tortured

him by threatening to mutilate his genitals if he did not disclose his debit card’s

PIN. For most of the time that Challender was in the bathroom with the victim,

Jeffries was elsewhere in the house searching for valuables to steal. Moreover, the

evidence indicates that Challender’s motive to torture and kill the victim was much

stronger than Jeffries’s. The record reflected that all three defendants knew the

5. Officers found no sign of forced entry.

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victim, but Challender had actually stayed in the victim’s home with the victim,

and Mercer, Challender’s mother, had a romantic relationship with the victim.

Although the extent of the relationship between the victim and Mercer is unclear, it

strains logic to accept that Mercer’s nephew, Jeffries, rather than her son,

Challender, had an equal or greater motive to rob, kill, and mutilate the victim’s

genitals following the end of Mercer’s relationship with the victim. In fact, before

the murder, Challender told Jeffries that he wanted to drown the victim in his pool.

Further, on the way to the victim’s house, Challender also indicated he wanted to

“whip” the victim.

Despite this evidence, the plurality disregards Challender’s equal or greater

culpability simply because the prosecutor offered Challender a plea deal. See

majority op. at 20. The plurality’s failure to conduct a relative culpability analysis

contradicts our decision in McCloud v. State, 208 So. 3d 668 (Fla. 2016), and our

other precedent on relative culpability. Either the plurality has receded sub silentio

from McCloud and our precedent requiring a relative culpability review between

codefendants or has chosen to, without explanation, confuse this Court’s relative

culpability jurisprudence in cases where the record establishes that a codefendant,

who accepted a plea to first-degree murder in exchange for a life sentence, is

equally, if not more culpable, than the defendant.

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 In McCloud, we “reject[ed] any principle of law that hamstrings this Court’s

ability to conduct a full proportionality review, including a relative culpability

analysis, simply because the State allowed a codefendant to enter a plea to murder

that resulted in a life sentence.” Id. at 688. To ensure that the death penalty is not

imposed arbitrarily or capriciously, this Court must determine whether legitimate

reasons exist why one defendant is sentenced to death and another equally culpable

or more culpable defendant receives life imprisonment for first-degree murder

based on a guilty plea. See id. at 689 (explaining that the fact that the

codefendants “were convicted of a lesser degree of murder is not dispositive of

their relative culpabilities”). While I appreciate that there is prosecutorial

discretion involved in the decision whether to offer one defendant a plea deal while

seeking the death penalty against the other defendant, I disagree that this

discretionary decision renders the relative culpability of the death-sentenced

defendant unreviewable in all cases. See id. at 688. In fact, this Court has

conducted a relative culpability analysis even when a prosecutor had made “the

strategic decision to give [the codefendant] a life sentence in exchange for

testimony putting [the defendant] at the scene of the crime,” without which the

State would only have had circumstantial evidence against the defendant. Hazen,

700 So. 2d at 1211-12.

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 Our obligation to review the sentences of similarly situated individuals has

been part of our proportionality review since we upheld the death penalty in State

v. Dixon, 283 So. 2d 1, 7 (Fla. 1973). See also Fitzpatrick v. State, 527 So. 2d

809, 811 (Fla. 1988); Slater v. State, 316 So. 2d 539, 542 (Fla. 1975). As this

Court explained in Scott v. Dugger, 604 So. 2d 465, 468 (Fla. 1992), “Even when a

codefendant has been sentenced subsequent to the sentencing of the defendant

seeking review on direct appeal, it is proper for this Court to consider the propriety

of the disparate sentences in order to determine whether a death sentence is

appropriate given the conduct of all participants in committing the crime.”

I acknowledge, as the plurality explains, that there may be cases where a

defendant’s relative culpability cannot be assessed from the face of the record. See

majority op. at 19. This is not such a case, where the evidence adduced at trial

indicates that Challender had greater motive to commit the murder, spent more

time alone with the victim before the murder, and was the prime instigator of the

burglary and armed robbery. At the very least, we should remand for an

evidentiary hearing on the issue of Jeffries’s culpability relative to Challender’s so

that the trial court can conduct a proper assessment.

Thus, consistent with our precedent that has “long recognized” that a less

culpable defendant cannot receive a death sentence when an equal or more

culpable codefendant receives a lesser sentence, McCloud, 208 So. 3d at 688

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(citing Hazen, 700 So. 2d at 1214), Jeffries’s sentence of death must be vacated

and his sentence reduced to life imprisonment without the possibility of parole.

Accordingly, I dissent as to the plurality’s refusal to consider the life sentence of

the codefendant. I can only hope that in a new sentencing hearing, the jury will be

able to review the relative culpability of Challender and Jeffries as a basis for

rendering a verdict for life imprisonment rather than death for Jeffries. In my

view, any other result in this case would be an injustice.

QUINCE, J., concurs.

CANADY, J., concurring in part and dissenting in part.

I concur with the majority’s decision except its vacating of the death

sentence based on Hurst v. Florida, 136 S. Ct. 616 (2016). As I explained in my

dissent in Hurst v. State, the only flaw identified by the Supreme Court that

rendered Florida’s former death penalty statute unconstitutional was its failure to

require a jury finding of an aggravating circumstance. See Hurst v. State, 202 So.

3d 40, 77 (Fla. 2016) (Canady, J., dissenting) (noting “the Hurst v. Florida Court’s

repeated identification of Florida’s failure to require a jury finding of an aggravator

as the flaw that renders Florida’s death penalty law unconstitutional”), cert. denied,

No. 16-998, 2017 WL 635999 (U.S. May 22, 2017); see also Hurst v. Florida, 136

S. Ct. at 624 (“Florida’s sentencing scheme, which required the judge alone to find

the existence of an aggravating circumstance, is therefore unconstitutional.”). But

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Jeffries’s jury did make a finding as to the existence of an aggravating

circumstance—that the murder was committed while Jeffries was engaged in the

commission of a burglary and/or a robbery. The jury unanimously determined that

this aggravating circumstance was proven beyond a reasonable doubt as reflected

in its separate, contemporaneous verdicts finding Jeffries guilty of armed burglary

of a dwelling and armed robbery. Thus, Jeffries is not entitled to relief under

Hurst. The other penalty phase issues raised by Jeffries are without merit.

Accordingly, I would affirm Jeffries’s death sentence.

POLSTON, J., concurs.

An Appeal from the Circuit Court in and for Bay County,
Brantley Scott Clark, Jr., Judge - Case No. 032013CF001138XXCXMX

Andy Thomas, Public Defender, and Nada M. Carey, Assistant Public Defender,
Second Judicial Circuit, Tallahassee, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, and Lisa A. Hopkins, Assistant Attorney
General, Tallahassee, Florida,

for Appellee

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