          Supreme Court of Florida
                                  ____________

                                  No. SC12-2469
                                  ____________

                         DALE GLENN MIDDLETON,
                                Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                [March 9, 2017]
                              REVISED OPINION

PER CURIAM.

      Middleton’s motion for rehearing is hereby granted. We substitute the

following revised opinion for our previous opinion issued October 22, 2015.

      On August 6, 2012, a jury found Dale Middleton guilty of first-degree

premeditated murder for the killing of Roberta Christensen, first-degree felony

murder with a weapon, burglary of an occupied dwelling while armed, and dealing

in stolen property.1 The jury voted 12-0 to impose the death penalty. The trial

court followed the jury’s recommendation and sentenced Middleton to death.




      1. The State nolle prossed the third-degree grand theft charge of the
indictment.
Middleton now appeals his convictions and sentence of death. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth in this

opinion, we affirm Middleton’s conviction of first-degree murder and uphold his

death sentence.

                       I. Statement of the Case and Facts

      Roberta Christensen, as well as her husband of thirty-one years, lived in a

trailer across the street from Middleton. On July 1, 2009, Mr. Christensen went to

New Jersey to visit the couple’s son. Before her husband left, they bought mobile

phones that allowed them to use a walkie-talkie mechanism to communicate while

they were apart.

      Middleton lived in a trailer with Garrett Wade Fowler, Kenneth Wade

Sullivan and Sullivan’s girlfriend, Haleigh Zinker. On occasion, Middleton would

visit the victim at her home and would sometimes borrow money and cigarettes

from her. On the morning of July 27, 2009, Middleton went over to the victim’s

trailer while she was preparing to go to the bank. After he left, she realized that

she had left approximately $400 in tip money out, and suspected that Middleton

had seen it. She deposited the money into the bank that afternoon. When the

victim returned from the bank she noticed that someone had attempted to remove

the screen from the window by her front door.




                                         -2-
      On the morning of July 28, 2009, Middleton rode around with his

girlfriend’s roommate, Steve Britnell, for a period of time looking for drugs. The

two eventually found methamphetamine around twelve or one o’clock that

afternoon. They returned to Middleton’s trailer and shared the methamphetamine.

At this time, Garrett Wade Fowler and his girlfriend were also at the trailer. At

approximately 4:30 p.m., Fowler and Britnell decided to go to Walmart to “boost.”

Middleton declined to go, stating that he had business to take care of, that someone

owed him some money, and that he needed to take a shower.

      While Britnell and Fowler were gone, Middleton took a knife from the sink

of his trailer and went over to the victim’s home. While in the victim’s kitchen, he

asked her for money. When she refused and attempted to push him out of the

trailer, he attacked her with the knife. Christensen was alive and moving

erratically as she was dragged from the kitchen area to the bedroom. Once in the

bedroom, Middleton cut Christensen’s throat. Before leaving her home, Middleton

stole her flat-screen television and power cord and carried the television across the

street to his trailer. There, he washed his hands in the kitchen sink, changed his

clothes, but kept his boots on. He placed the bloody clothes in a bag with the

murder weapon.

      When Fowler and Britnell returned to Middleton’s trailer, Middleton was

there with Chris Jenkins, Kenneth Wade Sullivan and Sullivan’s girlfriend. There


                                        -3-
was a flat screen television in the kitchen with a blanket covering it. At this time,

Middleton had already showered and his hair was still wet. He stated that the

person that owed him money had given him the television as payment.

      After Jenkins and Sullivan left, Fowler was sitting on the porch as Middleton

stood at the door. Fowler noticed that Middleton had a red substance on his boots,

which Middleton claimed happened because he got something out of the dumpster.

Later, Britnell and Middleton drove around in Britnell’s black Pontiac to two

different pawn shops trying to sell the victim’s television; both pawn shops were

closed. They both then got on the phone and began to call around to see if they

could find someone who wanted to purchase the television.

      At approximately 5:30 p.m., Middleton called Christopher Jenkins to his

home. Middleton asked Jenkins to bring drugs with him. When Jenkins arrived at

Middleton’s trailer, Middleton asked Jenkins for assistance in selling the

television. After Jenkins took a photo of the television, he and Middleton went

into the bedroom where Middleton crushed and consumed two Roxicodone pills,

saving one pill for later.

      Mrs. Christensen’s husband had last spoken to her on July 28, 2009, around

2:50 p.m. He watched a movie and fell asleep from approximately 4 p.m. to 6:40

p.m. When he woke up he was surprised that his wife had not called him; he

repeatedly attempted to contact his wife on the walkie-talkie phone, to no avail.


                                         -4-
He also left a message on the home’s voicemail. Mr. Christensen called the

couple’s other son who lived near the victim’s home and asked him to check on his

mother.

      When the Christensen’s son and his wife arrived at his parents’ home, he

noticed Mrs. Christensen’s car parked in its usual spot. The trailer door was

unlocked and the son went inside. When the son walked into the kitchen, he saw a

big puddle of blood on the kitchen floor. Next to the puddle of blood he saw a

yellow broom with a sharp edge. He followed the path of blood to a closed

bedroom door. He opened the door and saw his mother’s dead body on the floor.

He heard his father on the walkie-talkie calling out for him and his mother. He

went outside to call the police. He stopped his wife from entering the trailer.

While on the phone with the 911 dispatcher, he went back into the trailer to

confirm that his mother was not breathing.

      Randy Ammons helped Middleton sell the television to his brother, Rolland

Ammons. When Middleton went to Randy Ammons’ house, he said that he had

just taken a shower and did not want the dog to jump on him. A little after 7 p.m.,

Middleton, in a vehicle driven by Wade Fowler, followed Randy Ammons to

Ronnie Ammons’ house to sell the television. Fowler stayed outside by his car

while Middleton took the television, covered with a comforter, inside and sold it to

Rolland for $200. At some point earlier, while riding around trying to sell the


                                        -5-
television, Middleton placed the bag with the bloody clothes and the murder

weapon inside of a dumpster.

      After selling the television, Britnell drove Middleton to a gas station, where

Middleton purchased cocaine from someone in a truck. They consumed some of

the drugs while in the car. Soon thereafter, the serpentine belt on the car broke and

Britnell drove to a relative’s house to have it fixed. While the car was being fixed,

Middleton walked a few hundred yards to a local bar, Brewskis, and called Britnell

to pick him up once the car was fixed. When Middleton got back to the car, he

was really upset and was crying while he was on the phone with his girlfriend and

said, “I’m sorry.” The two drove back to the trailer park where Middleton lived.

When they arrived, there were police cars in the area. Not wanting to get too close

to the police officers, the two turned off at someone else’s house, where they got

out of the car and stood in the yard.

      Later that evening, officers found Middleton at the residence of Darrell

Dubel. When the officers arrived, Britnell’s car was there. At this time, Middleton

was barefoot and had placed his boots and socks in Britnell’s trunk. Officer John

Rhoden asked Brandon Jenkins, Britnell and Middleton to come to the Sheriff’s

Office for questioning. Middleton’s boots were later recovered from the trunk and

were found to have the victim’s blood on them. While in custody, Middleton

confessed. The bloody clothes and the murder weapon were never discovered.


                                        -6-
                           A. Middleton’s Confession

      During the trial, the State played Middleton’s interview videos for the jury,

including the fifth and final video where Middleton ultimately confessed to the

murder. Detective Faulkner and Assistant State Attorney Ashley Albright were

present during Detective Maerki’s questioning of Middleton. The recording of the

first interview, which was conducted in Detective Maerki’s office, could not

subsequently be retrieved. As a precautionary measure, the second and third

interviews were conducted using the computer equipment located in Detective

Faulkner’s office. Maerki read Middleton his rights, as detailed on a Miranda2

card. Maerki detected an odor of alcohol on Middleton, and also noticed that his

eyes were bloodshot and watery. He was surprised that Middleton did not have

slurred speech and that his coordination was fine. He stated that Middleton

seemed to be fully aware of everything that was happening during the

interrogation.

      Middleton told Maerki that everything happened so fast that he never

checked to see if the victim had any money. He stated that he thought that the

victim ended up in the hallway, and that he did not remember cutting her throat.

He stated that after the murder, he did not bathe, and only washed his hands. He

admitted that he acted alone. He told the police the location of the dumpster where


      2. Miranda v. Arizona, 384 U.S. 436 (1966).

                                        -7-
he threw the bag with his clothes and the murder weapon. He stated that he kept

his boots on and put them in the trunk of Steve Britnell’s small black car. He

admitted to selling the television later that night to Rolland Ammons for $200. He

additionally admitted that he used the same $200 to purchase more drugs.

                              B. Forensic Testimony

      Crime scene technician Jackie Moore assisted Detective Bradley at the crime

scene. She testified that there was no evidence of a struggle in the living room

area. She recalled that there was a void in the dust on a television stand in the

living room indicating that there was previously a television and remote there. She

testified that there were bloodstains on the dining room table and chairs that led

toward the master bedroom. The bloodstains on the wall of the bedroom indicated

that at some point the victim had been standing and had stepped in blood. On the

floor near the wall next to the refrigerator and the dining room table, there was

blood with drag marks and some pooling of blood. The drag marks indicated that

the victim was alive and moving erratically as she was dragged from the kitchen

area to the bedroom. There was blood with drag marks in the doorway of the

master bedroom. There were bloody shoe impressions from the master bedroom to

the kitchen.

      The victim had a gaping wound in her throat. The medical examiner

testified that there were several passes like a sawing motion with a sharp


                                         -8-
instrument to create the margin of the wound. The blood stains indicated that the

victim’s carotid artery was not cut until she got into the bedroom. Her hands and

shirt were saturated with blood. She also had blood running down her abdomen

that soaked into the waistband of her pants. The amount and pattern of blood on

the victim’s waistband indicated that she may have been sitting up slightly or

halfway when she received the neck injury. The victim’s shirt was pulled upwards

toward her neck, which is consistent with being dragged.

      The laceration to the victim’s throat produced significantly more blood than

was seen in the blood trail through the kitchen. The victim had a bruise on her

cheek that was consistent with the tread and design of Middleton’s boots. The

victim had bruises and a cut to her face, a puncture and stab wounds on her chest,

neck, ear, and arms. The bloody shoeprints were well defined closer to the

bedroom and became faint as they continued down the hall. The victim’s son’s

shoes were tested and eliminated as the shoes that caused the bloody shoe

impressions. Moore testified that this indicated that the blood was likely dried by

the time the victim’s son found her. There were various items located close to the

victim’s body, which indicated that she was grabbing for things during the

struggle. The victim had bloody injuries to her arms and wrists. She had defensive

wounds that indicated that she was trying to get away from someone who had a

knife. None of the injuries to the victim’s extremities would have killed or


                                        -9-
incapacitated her. The autopsy revealed that the neck injury occurred toward the

end of the attack. Following the neck injury, the victim could have been conscious

for ten to twenty seconds, and alive for minutes after losing consciousness.

      On the kitchen floor of Middleton’s residence, there was a washed-out shoe

impression that was similar to those found inside the victim’s residence. This print

tested positive for blood, but no DNA profile could be obtained. The medical

examiner found blood on the sink of the only bathroom in Middleton’s trailer, but

no DNA profile could be obtained. There was blood beside the dresser in

Middleton’s bedroom, but the DNA profile was determined to be inconclusive. A

different bloodstain in Middleton’s room matched the victim’s DNA on four of

thirteen points. The probability that a randomly selected Caucasian person could

match the same DNA profile at these four locations is one in 41,680.

      Donna Lee and Rolland Ammons’ fingerprints were the only prints found on

the victim’s television. Middleton’s fingerprints were not found inside the victim’s

residence. There was no evidence that the trailer had been ransacked or that the

victim’s things had been rifled through. Moore explained that the vanity in the

victim’s bedroom had blood spatter on the outside, but not the inside, indicating

that the door to the cabinet of the vanity was closed during the attack. Inside the

cabinet, there was a purse that appeared to have been thrown in there. There was




                                        - 10 -
evidence of blood spatter on the purse and also blood inside of the purse. The

purse was empty, and there were no fingerprints found on the purse.3

                                   C. Penalty Phase

         During the penalty phase, the defense presented testimony from Dr. James

D. Barnard, and the State presented testimony from Dr. Deborah Leporowski.4

The defense’s court-appointed mitigation investigator, Joe Parish, also testified, as

did Middleton’s sisters.

                        1. Psychological Witnesses Testimony

         Dr. Barnard assisted the defense in formulating mitigating evidence and

conducted a mental health evaluation of Middleton. His findings indicated that

Middleton underreported the type of drugs he abused and the frequency of their

use. Dr. Barnard determined that Middleton began abusing painkillers after being

prescribed the medications following an accidental fall. He also determined that

Middleton began smoking marijuana between the ages of ten and thirteen. He

described the onset of cocaine use at age twenty-five, ceasing at age thirty.

Additionally, Middleton told Dr. Barnard that he had used methamphetamine once

a year since he was twenty-eight years old. This statement conflicted with his


         3. During the guilt phase, the defense rested without presenting a case-in-
chief.

      4. They testified consistently with their respective testimony provided at the
hearing on Middleton’s pretrial motion to suppress his confession.

                                          - 11 -
assertion during his police interview that the day of the murder was the first time

he had ever used methamphetamine. Dr. Barnard testified that Middleton reported

briefly being medically treated for attention deficit hyperactivity disorder (ADHD).

Dr. Barnard characterized ADHD as symptomatic of difficulty with impulse

control, difficulty regulating behavior to standards or norms, high-rate motor

activity, and difficulty focusing attention.

      Dr. Barnard also found that Middleton was possibly exaggerating his

symptoms, which may sometimes be viewed as a cry for help. Dr. Barnard found

it quite significant that Middleton’s personality type is known to have problems

with repressed anger and hostility and that persons with this condition are

sometimes able to control their anger but sometimes have anger outbursts that are

difficult or impossible for them to control. Equally significant, opined Dr.

Barnard, is that individuals with this personality type have real problems

responding to authority and taking direction and often accept little or no

responsibility for their behavior. Dr. Barnard concluded that Middleton could not

conform his conduct to the requirements of the law on the day in question and that

his substance abuse on the date of the murder would have likely impaired anyone’s

psychological controls, even someone who had no difficulty with impulse control.

      On cross-examination, Dr. Barnard admitted that he did not review all of the

records in this case, i.e., the depositions of people close to Middleton, his arrest


                                         - 12 -
and jail records, and his confession to the murder. Dr. Barnard conceded that

Middleton is not mentally retarded. The State questioned Dr. Barnard about the

report that was conducted by Dr. Landrum in August 2009 which found

Middleton’s IQ to be 72. Dr. Barnard testified that Middleton informed him that

he did not give his best effort on the IQ test conducted by Dr. Landrum. When Dr.

Barnard administered the Wechsler Adult Intelligence Scale-IV (WAIS-IV) test in

September 2011, he determined that Middleton’s full scale IQ was 83. Dr. Barnard

determined that Middleton was not malingering during the exam he administered.

He stated that he was aware that Middleton was administered the WAIS-IV test for

a third time in this case by Dr. Riordan in March 2012.

      Dr. Riordan’s March 2012, evaluation indicated that Middleton’s IQ score

was 75. Dr. Barnard would have expected Middleton’s IQ score to be higher if all

other factors were stable. This lower score could be an indication of various

factors including Middleton being under the weather or malingering. There were

no indications that Middleton was ever separated from the general population in

prison due to any mental health issues. Dr. Barnard admitted that Middleton slit

his wrists in a holding cell and did so in an attempt not to be extradited back to a

facility in Georgia.

      Dr. Deborah Leporowski testified for the State. She stated that in order to

prepare for her testimony, she reviewed the reports, previous testimony, and


                                        - 13 -
depositions of Doctors Barnard and Riordan and the report of Dr. Landrum. She

also reviewed the police reports in this case, transcripts, witness interviews, letters

that Middleton wrote while he was in jail, and Department of Corrections records.

She also interviewed Middleton. Dr. Leporowski maintained that Middleton’s IQ

scores are illogical with an initial score of 72, a score of 83 two years later and

then months later receiving a score of 75. Dr. Leporowski opined that a score of

83 is likely Middleton’s actual IQ score. Dr. Leporowski diagnosed Middleton

with antisocial personality disorder, as did Dr. Barnard.

      Dr. Leporowski determined that Middleton was malingering “or at least

exaggerating” when taking his personality tests. Dr. Leporowski found no history

of mental illness in Middleton’s records or in her interview with him. She rejected

any assertion that Middleton’s capacity to appreciate the criminality of his conduct

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

impaired. She opined that Middleton’s upbringing did not in any way lead him to

believe that those actions involving this crime were okay or were warranted in any

way based on the victim’s behavior. She testified that everything he told her about

the day of the crimes was logical, made sense, and indicated that he was able to

make decisions and choices. Dr. Leporowski further noted that Middleton

appeared to remember what he did throughout the day, where he did drugs and

with whom. On cross-examination, she stated that Middleton’s jail records


                                         - 14 -
indicated that his detox from drugs while in jail was typical and did not evidence

drug dependence, but that he used them intermittently when he had access to them.

                           2. Family History Testimony

      The trial court appointed Joe Parrish, a licensed private investigator, to assist

the defense in developing mitigation for the penalty phase. Mr. Parrish determined

that Middleton’s mother abused drugs and his older siblings acted as parents to

him. Middleton expressed to Parrish some depression concerning the death of his

father figure, a former employer, who had died. Mr. Parrish found that Middleton

was employed at a welding company for a period of time and was described by the

owner as being a hard worker and very dependable. Parrish also found that

marijuana use at an early age led Middleton to abuse heavier drugs. Mr. Parrish

spoke with Middleton’s eldest daughter, who lived in the same mobile park with

her mother and younger sister. She explained that in the days leading up to the

murder, she noticed that her father’s physical appearance had changed and that he

was abusing drugs. Parrish also described a history of domestic violence between

Middleton and his girlfriend, Sabrina Jones.

      Devenna Pearson, Middleton’s older sister, testified on his behalf. She

described their childhood as physically and emotionally painful. She explained

that their mother provided for the necessities of life, such as food, clothing, shelter

and basic hygiene through social security benefits that she received following the


                                         - 15 -
death of her husband. She explained that she and Middleton were never required

to go to school. Pearson additionally explained that she was sexually molested by

her stepfather for approximately three and a half years, and that her mother was

aware of the abuse but did not stop it. Her older sister found out and stopped the

abuse by cutting their abusive stepfather. She recalled that she was sent away for a

few months and Middleton remained in the house with their mother. She described

her brother, as she knew him growing up, as outgoing, fun and someone who

always tried to make everyone laugh.

      Dewanna Sprowse, Middleton’s eldest sister, also testified on his behalf.

She explained that their mother would sell her food stamps for beer and drugs.

Sprowse recalled that Middleton did not have clean clothes and fitted shoes, and

that if she was not home to get her siblings up and ready for school then their

mother would just tell them to go outside and play. She explained that one of her

stepfathers was physically abusive to her younger siblings, including Middleton.

She testified that their mother had always placed men before her children, and that

she did not spend any money on holidays, birthdays, or books. She recalled

Middleton being about age twelve or thirteen when he finally quit going to school.




                                       - 16 -
She described Middleton, as she remembered him growing up, as a sweetheart,

talented, with a good heart.5

          D. Middleton’s Pretrial Motion to Suppress His Confession

      The defense filed a motion to suppress the defendant’s confession, claiming

that Middleton was too intoxicated to waive his Miranda rights. The motion

additionally alleged that Middleton did not possess the intellectual ability to

comprehend his Miranda rights and that Middleton’s final interview was conducted

after Middleton’s attorney provided the Sheriff’s Office with a form invoking

Middleton’s constitutional right to remain silent. The hearing on the motion took

place on April 10, 2012, and June 29, 2012.

                                 1. Lay Witnesses

      At the hearing on the motion to suppress, Christopher Jenkins testified for

the defense. He testified that he was disabled and was prescribed Roxicodone and

Xanax. He testified that since 2007 he would either sell or give Middleton his

prescription medications. On the day of the murder, he went to Middleton’s trailer

to give him some drugs and to look at the television that Middleton wanted to sell.

He gave Middleton three Roxicodone pills. Middleton snorted two of the pills

while Jenkins was there.


       5. The trial court held a Spencer hearing on August 24, 2012. See Spencer
v. State, 615 So. 2d 688 (Fla. 1993). Neither the State nor the defense presented
any additional evidence.

                                        - 17 -
      The State called Steve Britnell to testify at the suppression hearing. He

testified consistently with his guilt phase testimony. Britnell recalled he and

Middleton each taking one Xanax pill on the morning of the murder. He further

recalled that in the early afternoon, the two shared $20 worth of methamphetamine,

which Britnell described as “a little bit.” He indicated that immediately following

the sale of the television, he drove Middleton to a Circle K to purchase cocaine.

They each consumed “a line or two” of cocaine in the Circle K parking lot. Later,

Captain John Rhoden and Lieutenant Brad Stark approached them and asked them

to come to the police station to give a statement. They drove to the station

voluntarily.

      Captain Rhoden testified that Middleton had no trouble standing or keeping

his posture, did not appear to be under the influence of drugs or alcohol, spoke

clearly, and did not appear to have any problems understanding what was being

said to him. Lieutenant Stark testified that none of the men appeared to be off-

balance. Nothing indicated that the defendant was under the influence of alcohol.

On cross-examination, he stated that it would surprise him to hear that Middleton

had done crystal meth, cocaine and Xanax during that day.

      Detective Marty Faulkner testified regarding his interviews of Middleton.

The first interview occurred on July 28, 2009, at 11:56 p.m., in his office, with

another detective and Assistant State Attorney Ashley Albright present. He read


                                        - 18 -
the Miranda card verbatim to Middleton, who signed, dated and time stamped it.

Middleton agreed to speak with detectives, but seemed nervous. He stated that

Middleton appeared to be coherent and not under the influence of any drugs;

Middleton was responsive to questions and his memory appeared to be fine. The

interview lasted approximately one hour. Middleton made no admissions during

this interview.

      Faulkner interviewed Middleton a second time, again in his office, in the

early morning hours of July 29, 2009. Middleton made no admissions. The third

interview lasted three minutes, and at that time Middleton claimed that Garrett

Wade Fowler had committed the murder. Middleton was placed under arrest at the

end of the third interview. When Faulkner returned to work, at approximately 11

a.m., Sergeant Coleman informed him that Middleton wanted to speak with him.

Coleman testified and corroborated that Middleton made this request and that he

relayed the request to Faulkner. This interview lasted for approximately twenty-

three minutes before Middleton asked to go back to his cell. The officers then

immediately concluded the interview and returned Middleton to his cell.

      Faulkner further testified that on July 30, he felt obligated to check on

Middleton, based on Middleton’s state of mind during the interview conducted the

previous day. When Faulkner arrived, Middleton was in segregation and standing

at the gate of his cell. Middleton asked to speak to him, and Faulkner had


                                        - 19 -
Middleton escorted to his office, where the final interview took place. During this

final interview, after repeatedly being advised of his Miranda rights, Middleton

confessed to murdering Roberta Christensen. On cross-examination, Faulkner

acknowledged that he informed Middleton that he would have to waive his right to

counsel to speak with him, and it was on the final (approximately seventh) time

that Faulkner told Middleton what he would have to say in order to waive his

rights, which Middleton had in fact done.

      Assistant Public Defender Stanley Glenn testified that he was initially

appointed to represent Middleton. He stated that on the morning of July 30, 2009,

he filed an invocation of rights form with the clerk’s office and that afternoon he

personally delivered it to the Sheriff’s Office front desk, instructing them that it be

given to the lead detective investigating Christensen’s death. Glenn first met with

Middleton the next day and reviewed the form with him. Middleton was very

depressed at this time. Glenn was concerned that Middleton needed someone to

talk to and might make incriminating statements. He repeatedly informed

Middleton not to make any statements without him being present. On cross-

examination, Glenn acknowledged that unbeknown to him, when he filed the

invocation of rights form at 11:28 a.m. and delivered it to the Sheriff’s Office that

afternoon on July 30, 2009, the defendant had already confessed at approximately

9:24 a.m. that morning.


                                         - 20 -
                          2. Psychological Testimony

       Forensic psychologist Dr. Gregory Landrum testified for the defense at the

suppression hearing. He testified that he met with Middleton on two occasions in

August 2009. He indicated that Middleton was competent to proceed and assist in

his own defense. He determined that Middleton’s IQ was 72, which is in the

borderline mental retardation range. He additionally determined that Middleton

reads on a fifth-grade level. Dr. Landrum was not asked to do an evaluation

regarding Miranda competency.

       On cross-examination, Dr. Landrum stated emphatically that Middleton is

not mentally retarded. Dr. Landrum stated that it is possible that Middleton was

faking when he was examined by Dr. Riordan, who determined that his IQ was 75,

months after being examined by Dr. Barnard, who determined that it was 83.

According to Dr. Landrum, administering the same tests within a year may result

in a false positive.

       Dr. James Barnard also testified for the defense. He prepared two reports,

one of which was a psychological evaluation and the other an examination of

Middleton’s competency to waive his Miranda rights. He determined that

Middleton’s full scale IQ was 83. He additionally found that Middleton was not

malingering. Dr. Barnard indicated that Middleton’s chronic use of drugs resulted

in an increased tolerance for the substances and the need for more of the


                                       - 21 -
substances to get high. This factor and other factors indicate dependence on a

substance as distinguished from abuse. He reported Middleton’s statement that

drugs make him “go, go, go” and less able to control his impulses and that

Middleton told him that before he went to jail he had not slept for two nights. Dr.

Barnard opined that Middleton should have been placed in a private detox facility

when he was arrested. Dr. Barnard determined that at the time of Middleton’s

confession, he was likely withdrawing from substances and may have been under

the effects of substances, at least during the time of his initial interrogation.

      Dr. Barnard administered an instrument entitled “Dr. Thomas Grisso’s

Understanding and Appreciating Miranda Rights.” Dr. Barnard testified that

Middleton’s total score was 13 out of 30, more than two standard deviations below

the mean. He testified that although Middleton could paraphrase portions of

Miranda, he “showed a very significant weakness in terms of his ability to

intelligently apply knowledge of Miranda, to novel situations.” Dr. Barnard stated

that it was difficult to reconcile his findings during the testing with what he saw on

the confession video. He explained that there is no correlation between having had

Miranda warnings administered in the past and actually understanding them. He

also stated that there are no validity scales for Grisso’s Miranda test.

      On cross-examination, Dr. Barnard stated that Middleton made general

remarks indicating that he may have been malingering during the testing with Dr.


                                         - 22 -
Landrum, but he did not specifically mention whether he was referring to the IQ

test. Dr. Barnard’s testing also indicated that Middleton may have exaggerated

some of his answers to appear more maladjusted than he actually was on the date

of the testing. Dr. Barnard diagnosed Middleton with antisocial personality

disorder; he explained that one major feature of this disorder is that the person has

a tendency to be untruthful.

      Dr. Barnard further testified that before the Grisso test was administered,

Middleton stated he had been advised of his rights at least five times. However,

after the Grisso test, Middleton claimed that he had never been read Miranda

rights, despite his extensive criminal history. After the Grisso test, Middleton told

Dr. Barnard that the confession tapes had been altered. Middleton also told the

doctor that methamphetamines make him think better. Middleton made comments

to Dr. Barnard indicating that the police in Okeechobee violated his rights, which

Dr. Barnard opined indicates that he knew what his rights were.

      On redirect, Dr. Barnard stated that the conditions that Middleton was under

at the time of the interrogation, plus the interrogation procedures themselves, made

it more likely that he would acquiesce to the police. He also opined that Middleton

did not fully comprehend his Miranda rights when he waived them.

      Dr. Michael Riordan testified for the defense. Dr. Riordan was ordered to

conduct a neuropsychological evaluation on Middleton. Dr. Riordan prepared a


                                        - 23 -
written report, which he subsequently modified or redacted. He modified his

original finding that Middleton had brain damage, and in the subsequent report he

indicated that Middleton suffers from a cognitive disorder. He explained that “the

cognitive disorder was the more appropriate term as a neuropsychologist to

report.” Dr. Riordan reviewed the reports prepared by Dr. Barnard. He agreed

with Dr. Barnard’s finding that Middleton was incompetent to waive his Miranda

rights at the time of his interrogation, based on his borderline intellectual

functioning, his cognitive disorder, and his drug use, which would have caused

withdrawal at the time of the interrogation. Dr. Riordan also found that Middleton

had polysubstance dependence disorder. He indicated that Middleton was not

malingering. Dr. Riordan did not have Middleton perform the Grisso test, but did

not disagree with Dr. Barnard’s findings.

      Dr. Riordan did not diagnose an antisocial personality disorder. His report

indicated that Middleton had a tendency to exaggerate his problems. Dr. Riordan

had previously indicated in a February 11, 2012, letter to the defense that

Middleton was not initially incompetent to waive his Miranda rights, but as the

interrogation progressed, he became incompetent to proceed. Dr. Riordan wrote a

letter to the defense in April 2012 indicating that Middleton’s drug withdrawal

would have furthered his incompetence, but Dr. Riordan did not review jail records

to determine whether Middleton was suffering from withdrawal symptoms. And


                                         - 24 -
Middleton did not state that he was suffering from withdrawal symptoms during

the interrogation. Instead, he told Dr. Riordan that the police harassed him and

tampered with the confession tapes. Dr. Riordan was not aware that Middleton

signed a Miranda waiver.

      Dr. Deborah Leporowski testified for the State. She testified that she

reviewed Dr. Landrum’s report, along with the deposition reports and in-court

testimony of Dr. Riordan. She also reviewed Dr. Barnard’s raw data and his

deposition and was present for his testimony. Additionally, she reviewed

Middleton’s videotaped confessions, witness statements, drug treatment records,

and Department of Corrections and jail records; she also interviewed Middleton at

the county jail on May 10, 2012. She did not administer the WAIS test because it

had already been administered three times. She testified that the discrepancy in the

scores may be due to poor motivation or deliberately underperforming on the test

with Dr. Riordan. Dr. Leporowski reviewed Dr. Riordan’s testing, his raw data,

and his report and determined that Middleton performed in the average or above-

average range on most instruments. She opined that “[t]he only areas where he

demonstrated anything really in an impaired range were instruments that I felt

could be accounted for by his lack of education.” She observed that his scores

varied on the memory tests, with delayed recall being in the impaired range and




                                       - 25 -
stated, “Those are essentially the only two areas where there’s anything that’s not

perfectly intact in the overall neuropsychological functioning area.”

          Dr. Leporowski stated that she would not diagnose the defendant with brain

damage or a cognitive disorder. She stated there was nothing in the testing that

would indicate that Middleton had trouble comprehending the Miranda warnings.

Additionally, she said Middleton was candid with her about his drug use on the day

of the murder and even told her that there was another drug that he used that day

that Britnell did not report. He did not have difficulty reporting the information in

a logical order.

          In addition to not administering another WAIS-IV, Dr. Leporowski did not

administer another Grisso test. She explained that one shortcoming of the exam is

that it was developed for a certain jurisdiction, in 1980, and the language that the

exam tests for has not been updated, despite the change in the administration of the

warnings across jurisdictions. Middleton told Dr. Leporowski that he was

threatened and that the confession tapes had been altered. She concluded that

Middleton had the capacity to knowingly and intelligently waive his Miranda

rights.

          Dr. Leporowski disagreed with Dr. Riordan’s testimony indicating that

Middleton was suffering from withdrawal. She opined that withdrawal typically

occurs seventy-two hours after consuming drugs and alcohol. She explained that


                                         - 26 -
on his jail medical records, he is described as cool, cooperative, coherent, and not

agitated. Dr. Leporowski spoke with the jail nurse, who indicated that they never

had to use detox protocols for Middleton and that he did not need any medical

attention at all. She opined that this is indicative of his intermittent, rather than his

continuous, use of the substances. Dr. Leporowski found that Middleton was

malingering during her evaluations of him.

      On cross-examination, Dr. Leporowski acknowledged that Middleton

reported doing methamphetamine before lunch, followed by eighty milligrams of

OxyContin, then Roxicodone that afternoon at his trailer, and Xanax and cocaine

later that evening. He also indicated that he walked down to Brewskis and

consumed a couple of beers and three lines of cocaine.

      The trial court denied the defense’s motion to suppress Middleton’s

confession.

                                  II. ANALYSIS

                            A. Avoid Arrest Aggravator

      Middleton first argues that the trial court erred in finding the avoid arrest

aggravator. We agree that the record does not support this aggravator as

Middleton’s sole or dominant motivation for the murder. This Court has

consistently held that where the victim is not a law enforcement officer, “the State

must show that the sole or dominant motive for the murder was the elimination of


                                          - 27 -
the witness” in order to prove this aggravator. Davis v. State, 604 So. 2d 794, 798

(Fla. 1992); see also Green v. State, 583 So. 2d 647 (Fla. 1991); Perry v. State, 522

So. 2d 817 (Fla. 1988). The trial court’s order on this issue lists eight facts that

support this aggravator:

      (1) the defendant personally knew the victim, and went to her home
      without any type of disguise; (2) the defendant told Garret Wade
      Fowler that he was going to rob Roberta Christensen, after seeing a
      large amount of money inside her home the day before; (3) the
      defendant walked 130 feet to the victim’s home in broad daylight;
      (4) the defendant knew that the victim was home because he could see
      her red car from his own home, and the car was parked directly in
      front of the entrance to her home; (5) the defendant knew that the
      victim’s husband was out of town and she was home alone; (6) the
      victim did not pose any physical threat to the defendant; (7) the
      defendant armed himself with a knife from his residence, before going
      over to the victim’s home; and (8) the victim was the defendant’s
      neighbor, who lived almost directly across the street.

In addition, the trial court indicated that the main object of the criminal endeavor

was the tip money, not the television. Finally, the trial judge said that if the victim

was left alive the defendant would have been quickly arrested.

      Notably, only a few of these factors have a direct bearing on or support the

avoid arrest aggravator (i.e., the defendant knew the victim and did not wear a

disguise and the defendant would have been promptly arrested had the victim lived

and identified him). Many of the other factors listed by the trial court for this

aggravator either supported Middleton’s statement that he went to the victim’s

home to borrow money, or that he went there only intending to rob her, before


                                         - 28 -
things became “crazy.” This Court has determined that the eighth factor listed is

not enough to prove this aggravator. See Foster v. State, 778 So. 2d 906 (Fla.

2000); Consalvo v. State, 697 So. 2d 805 (Fla. 1996). Additionally, the trial

court’s determination that Middleton’s primary objective was to obtain the “easily

concealable tip money,” implies that pecuniary gain was a dominant motive for the

killing.

       In Davis, Green, and Perry, the defendants raised similar issues involving

the avoid arrest aggravator. In each of these cases, this Court struck the avoid

arrest aggravator even though the defendants were acquainted with the victims. In

Davis, the defendant stabbed an elderly female acquaintance inside her home and

stole some of the victim’s belongings before exiting the residence. Davis, 604 So.

2d at 795. In Green, the defendant and his girlfriend went to the home of their

landlords, a married couple, and paid them $250, under the threat of an impending

eviction. Green, 583 So. 2d at 648. Green went home, changed his shirt, grabbed

the largest butcher knife from his kitchen and went back to his landlord’s house.

When he arrived at the house, his landlord let him into the house, but was adamant

about keeping Green’s check. Green stabbed the husband and wife. Green

returned the knife to his home and, later that night, hitched a ride from

Hillsborough County to St. Petersburg and then to Ft. Lauderdale. In Perry, the

defendant killed his neighbor during a robbery attempt. 522 So. 2d at 819. The


                                        - 29 -
fact that the victims could have identified the defendants was not enough to

demonstrate beyond a reasonable doubt that the sole or dominant motive for the

murders was witness elimination.

      Although the trial judge correctly stated that the avoid arrest aggravator can

be supported by circumstantial evidence through inferences from the facts in the

record, his reliance on cases such as Jennings v. State, 718 So. 2d 144 (Fla. 1998),

and Riley v. State, 366 So. 2d 19, 22 (Fla. 1978), is not well-founded. In Jennings

we upheld the finding of this aggravator based on the fact that the defendant knew

the victim, used gloves, and stated that if he ever committed a robbery he would

not leave any witnesses. And in Riley, we affirmed the finding of this aggravator

based on the defendant knowing the victim coupled with the fact that the victim

was “executed after one of the perpetrators expressed a concern for subsequent

identification.”

        Although the trial court infers that Middleton killed the victim because he

would have been arrested quickly if he had left her alive, there are no other facts

that indicate that this was his sole or dominant reason for killing her, especially in

the absence of other evidence indicating that Middleton was specifically concerned

about eliminating the victim as a witness. Therefore, we strike this aggravating

circumstance.

                                B. CCP Aggravator


                                         - 30 -
      Middleton next challenges the trial court’s finding of the cold, calculated

and premeditated aggravator (CCP). On appeal, it is this Court’s task to review the

record to ensure that the trial court applied the correct rule of law for each

aggravating circumstance, and if so, determine whether there is competent

substantial evidence in the record to support the finding. Willacy v. State, 696 So.

2d 695 (Fla. 1997). We agree with Middleton that there was not competent,

substantial evidence in the record to support this aggravator.

      In order to establish the CCP aggravator, it is the State’s burden to prove

beyond a reasonable doubt that: (1) “the killing was the product of cool and calm

reflection and not an act prompted by emotional frenzy, panic, or a fit of rage

(cold)”; (2) “the defendant had a careful plan or prearranged design to commit

murder before the fatal incident (calculated)”; (3) “the defendant exhibited

heightened premeditation (premeditated)”; and (4) “the defendant had no pretense

of moral or legal justification.” Franklin v. State, 965 So. 2d 79, 98 (Fla. 2007).

“ ‘CCP involves a much higher degree of premeditation’ than is required to prove

first-degree murder.” Deparvine v. State, 995 So. 2d 351, 381-82 (Fla. 2008)

(quoting Foster v. State, 778 So. 2d 906, 921 (Fla. 2000)). “Premeditation can be

established by examining the circumstances of the killing and the conduct of the

accused.” Franklin, 965 So. 2d at 98. Further, “the evidence must prove beyond a

reasonable doubt that the defendant planned or prearranged to commit murder


                                         - 31 -
before the crime began.” Thompson v. State, 565 So. 2d 1311, 1318 (Fla. 1990).

“The CCP aggravator can ‘be indicated by circumstances showing such facts as

advance procurement of a weapon, lack of resistance or provocation, and the

appearance of a killing carried out as a matter of course.’ ” Franklin, 965 So. 2d at

98 (quoting Swafford v. State, 533 So. 2d 270, 277 (Fla. 1988)).

      In this case, the evidence is inconsistent with the murder being a product of

cool and calm reflection. Although Middleton procured a knife prior to entering

the victim’s residence, there is no evidence that he possessed the weapon for the

purpose of attacking the victim. Rather, Middleton planned to commit a robbery.

In walking over to the victim’s residence, Middleton did not conceal his identity.

The evidence suggests that while inside the victim’s residence, the victim refused

Middleton’s request for money. After a struggle ensued, Middleton fatally stabbed

the victim. It was during the course of this struggle when Middleton formulated

his intent to kill her. Middleton’s behavior at the time of the murder can be aptly

described as murder committed in a frenzied rage or during a heated struggle

following the victim’s refusal to give him money. Following this spontaneous

murder—which was not carried out as a matter of course—the victim’s body

remained in her residence; Middleton left her home with the victim’s property, to

wit, her television.




                                        - 32 -
      Based on this evidence, we conclude that the State did not prove beyond a

reasonable doubt that Middleton had a careful prearranged plan or design to

murder the victim before he entered the victim’s residence. Thus, we disagree with

the trial court’s finding that the murder was a planned event, not a sudden,

impulsive act. Although following the murder Middleton washed his hands in his

kitchen sink, changed his clothes, and placed his bloody clothes in a bag with the

murder weapon—as noted by the trial court—these actions do not prove that he

planned the murder beforehand.

       We conclude that the evidence is not indicative of a heightened

premeditated intent to murder. The facts in this case are similar to Castro v. State,

644 So. 2d 987, 991 (Fla. 1994), which did not involve a careful design and

heightened premeditation necessary for CCP when “the record reflect[ed] that

Castro planned to rob Scott.” In addition, we did not find the murder in

Hansbrough v. State, 509 So. 2d 1081, 1086 (Fla. 1987), to show the cold and

calculated premeditation necessary for CCP where there “appear[ed] to be a

robbery that got out of hand,” resulting in a “frenzied stabbing.” Accordingly, we

conclude that there is no competent, substantial evidence to support the finding of

the CCP aggravator. Therefore, we strike the finding of this aggravator.

      “When this Court strikes an aggravating factor on appeal, ‘the harmless error

test is applied to determine whether there is no reasonable possibility that the error


                                        - 33 -
affected the sentence.’ ” Williams v. State, 967 So. 2d 735, 765 (Fla. 2007)

(quoting Jennings v. State, 782 So. 2d 853, 863 n.9 (Fla. 2001)); see also Diaz v.

State, 860 So. 2d 960, 968 (Fla. 2003) (“We find this error harmless, however,

after consideration of the two remaining aggravating circumstances and the five

mitigating circumstances in this case.”). Despite striking the avoid arrest and CCP

aggravators, two valid aggravators remain in this unanimous death-

recommendation case. The two aggravators which remain are that the murder was

especially heinous, atrocious, or cruel (HAC) and that is was committed during the

commission of a burglary and for pecuniary gain, which were each given “great

weight” by the trial court. The trial court did not find any statutory mitigation

applicable in this case.

      In its sentencing order, the trial court expressly stated that any of the

considered aggravating circumstances found in this case, standing alone, would be

sufficient to outweigh the mitigation in total presented regarding the Christensen

murder. In Smith v. State, 28 So. 3d 838, 868 (Fla. 2009), this Court held that the

trial court’s erroneous finding of the CCP aggravator was harmless because the

sentencing order provided that “any one of the aggravators found (except the

felony probation aggravator) was sufficient to outweigh the mitigating

circumstances found in this case and due to the other applicable aggravating

factors.” Therefore, it is clear that the trial court would have imposed a death


                                        - 34 -
sentence for Middleton absent the avoid arrest and CCP aggravators. Because we

conclude that there is no reasonable possibility that the erroneous findings of the

avoid arrest and CCP aggravators contributed to Middleton’s death sentence, the

errors were harmless.

                                  C. Proportionality

      Middleton argues that without the avoid arrest and CCP aggravators, his

death sentence is disproportionate as compared to cases such as Perry and Davis.

After striking the two aggravators in this case, we find that the sentence of death is

still proportional to similar cases.

      In order to ensure uniformity in death penalty proceedings, this Court

undertakes a comprehensive analysis of the aggravating and mitigating

circumstances to determine whether the case falls within the category of the most

aggravated and least mitigated. See Floyd v. State, 913 So. 2d 564, 578 (Fla.

2005) (quoting Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003)). This

analysis involves a thoughtful and deliberate proportionality review considering

the totality of circumstances of the case and then comparing it with other capital

cases with similar aggravating and mitigating circumstances. It is not a

comparison between the number of aggravating and mitigating circumstances.

Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991) (quoting Porter v. State, 564 So.

2d 1060, 1064 (Fla. 1990)).


                                        - 35 -
      In this case, the jury voted twelve to zero in favor of the death penalty. The

trial court weighed four aggravators against eleven nonstatutory mitigators.6 The

aggravators found are: (1) the capital felony was committed while the defendant

was engaged in the commission of a burglary or an attempt to commit a burglary

and the capital felony was committed for pecuniary gain; (2) the capital felony was

committed for the purpose of avoiding or preventing a lawful arrest or effecting

escape from custody; (3) the capital felony was HAC; and (4) the capital felony

was CCP. The court gave all of these aggravators great weight. The eleven

nonstatutory mitigators found are: (a) the defendant has below-average or

borderline intelligence (little weight); (b) the defendant suffers from attention

deficit hyperactivity disorder (ADHD) (little weight); (c) the defendant has a long

history of chronic substance abuse (some weight); (d) the defendant had no adult

role models to guide him as a child (little weight); (e) the defendant’s mother was

not involved in child-rearing or supervision and was unavailable emotionally for

her children (little weight); (f) the defendant had a steady history of employment

until his chronic substance abuse and incarcerations made it difficult to maintain

such employment (little weight); (g) the defendant had little, if any, formal

education (little weight); (h) the defendant has two children (little weight); (i) the


       6. The trial court determined that the proposed mitigator that Middleton’s
capacity to appreciate the criminality of his conduct or to conform his conduct to
the requirements of the law was substantially impaired was not proven.

                                         - 36 -
defendant was subjected to chronic neglect, as well as made aware of sexual abuse

that was inflicted by his stepfather upon his sister (little weight); (j) the defendant

expressed remorse for his crime (little weight); and (k) the defendant exhibited

appropriate courtroom behavior (little weight).

      Having stricken two of the aggravators, this Court must analyze the two

appropriately found aggravators of HAC and during the commission of a

burglary/pecuniary gain with the nonstatutory mitigators outlined above. We begin

this analysis with the trial court’s weighing of both the aggravators and mitigators.

Each of the aggravators was given great weight. We have in a long line of cases

found the HAC aggravator to be one of the most serious in our limited statutory

aggravating circumstances. See, e.g., Larkins v. State, 739 So. 2d 90 (Fla. 1999).

Significantly, the trial court only gave one of the nonstatutory mitigators “some

weight” and the other eleven were given “little weight.” Additionally, because

some of the mitigators were similar, the trial court analyzed them together.

Namely, the trial court combined the analysis for the defendant’s proposed

mitigator of low IQ with his diagnoses of ADHD. The trial court also combined

the analysis for the defendant’s proposed mitigators of no adult role models, his

mother being emotionally unavailable, the defendant being chronically neglected,

and his sister being molested by his stepfather.




                                         - 37 -
      The defense argues that this case is similar to Davis v. State, 604 So. 2d 794

(Fla. 1992), and Perry v. State, 522 So. 2d 817 (Fla. 1988). However, both are

distinguishable from this case. In Davis this Court, after striking two aggravators,

did not impose a life sentence. Rather we remanded the matter to the trial judge

for reconsideration of the sentence because we could not determine beyond a

reasonable doubt that the trial judge would have imposed a death sentence in the

absence of the two aggravators that were stricken. The trial judge ultimately

determined that the remaining aggravating circumstances outweighed the

mitigating circumstances and reimposed a sentence of death. We affirmed. The

fact that Davis ultimately received a life sentence was not based on the elimination

of aggravating circumstances but was the result of postconviction relief for

ineffective assistance of counsel regarding racial comments.

      This Court in Perry had to address a situation involving a judge’s override of

a jury recommendation of life. In order to uphold the imposition of a death

sentence under those circumstances, we must find that no reasonable person could

differ with the sentence of death. See Tedder v. State, 322 So. 2d 908 (Fla. 1975).

While Perry also involved the striking of two aggravating circumstances, that

factor was not the basis for the imposition of a sentence of life imprisonment. This

Court made it clear that there were mitigating circumstances presented to the jury

that the jury could have considered in reaching its determination of a life sentence.


                                        - 38 -
Thus, we said the Tedder standard had not been met, and the case was remanded

for imposition of a life sentence without parole for twenty five years.

      This case is, however, more similar to Geralds v. State, 674 So. 2d 96 (Fla.

1996), where this Court found the defendant’s death sentence to be proportionate

under circumstances much like the ones presented here. In Geralds the jury

unanimously voted for a death sentence, the same aggravators were proven beyond

a reasonable doubt, and the trial court gave minimal weight to the defendant’s

mitigation. Geralds was a carpenter who worked remodeling the victim’s trailer.

Knowing that the victim’s husband was out of town, he attacked her, beating her,

stabbing her in the neck and stealing various items from the home. At his original

sentencing, the trial court found the same four aggravators that were found in this

case. We struck the CCP and witness elimination aggravators, and remanded for a

new penalty phase. On appeal from the subsequent sentencing, we again struck the

CCP aggravator, but found there was no reasonable likelihood of a life sentence

under the circumstance of that case. 674 So. 2d at 104-05.

      In both this case and Geralds, the juries unanimously recommended

sentences of death. Both cases ultimately have the aggravators of heinous,

atrocious, and cruel murder during the course of a felony/pecuniary gain, and the

aggravators were given great weight. The mitigators in each case were

nonstatutory, with exception of the age mitigator found in Geralds, and in each


                                        - 39 -
instance they were given little or very little weight. We conclude here, as we did

in Geralds, that even without the aggravators that were stricken, the trial court

would have found the aggravating factors substantially outweighed the mitigating

evidence. We, therefore, find that Middleton’s death sentence is proportional.

               D. Order of Penalty Phase Witnesses/Continuance

      Middleton argues that the trial court abused its discretion in denying his

motion to continue the penalty phase to allow the family to travel to the trial and

present mitigation testimony prior to the expert testimony. The defense argues that

this ruling prohibited the defense from setting the predicate for the expert

testimony through the lay witness testimony. The decision of whether to grant a

motion for continuance is in the sound discretion of the trial court. In re Gregory,

313 So. 2d 735, 737 (Fla. 1975). This Court has made clear that it will cautiously

review the trial court’s decision to deny such a motion and will not reverse the

decision unless there has been a palpable abuse of this judicial discretion which

clearly and affirmatively appears in the record. Magill v. State, 386 So. 2d 1188,

1188 (Fla. 1980); Cooper v. State, 336 So. 2d 1133, 1138 (Fla. 1976).

      To prevail on his motion for continuance, the defendant was required to

show: (1) prior due diligence to obtain the witness’s presence; (2) that substantially

favorable testimony would have been forthcoming; (3) that the witness was

available and willing to testify; and (4) that the denial of the continuance caused


                                        - 40 -
material prejudice. Geralds v. State, 674 So. 2d at 99 (citing United States v.

O’Neill, 767 F.2d 780, 784 (11th Cir. 1985)).

      On the requirement of prior due diligence, the defense admitted that it did

not use the proper subpoena to ensure that the witnesses traveled from Georgia to

provide testimony on the date scheduled for their testimony. The trial court gave a

full day in between the guilt and the penalty phase to allow both sides to resolve

any issues with witness availability. Despite this, the defense witnesses were not

available to testify. In rejecting the defense’s motion for a continuance, the trial

court offered the defense an opportunity to allow its investigator to travel to

Georgia to pick up the witnesses and bring them to court or, alternatively, to live

stream their testimony from a facility in Georgia. Had the defense done its due

diligence, the trial court could have been made aware of the possibility that

Middleton’s relatives could not travel, and these same arrangements could have

been made a day prior, without the need for a continuance.

      As to the second, third, and fourth requirements, the denial of the motion did

not prevent the jury from hearing the testimony of the relatives, and there is no

indication that the defense was materially prejudiced. It only required the jury to

hear this evidence after the expert witness testimony. Additionally, the expert

witness essentially provided general details about the defendant’s childhood, which

were corroborated by the relatives’ testimony. Although the defense may have


                                        - 41 -
been inconvenienced by the denial of the motion because it preferred for the

relatives to testify before the experts, the denial of the continuance did not prevent

the jury from hearing the testimony. Therefore, the trial court did not abuse its

discretion in denying Middleton’s motion for a continuance.

           E. Denial of Defense’s Request for a Mitigation Specialist

      Middleton argues that the trial court abused its discretion in denying the

defense funds to appoint a mitigation specialist. The appointment of experts is

within the trial court’s discretion. San Martin v. State, 705 So. 2d 1337, 1347 (Fla.

1997). A trial court’s denial of funds to an indigent defendant for appointment of

an expert will not be disturbed unless there has been an abuse of discretion. Id.

Florida appellate courts use a two-part test to evaluate an alleged abuse of

discretion: (1) whether the defendant made a particularized showing of need; and

(2) whether the defendant was prejudiced by the court’s denial of the motion

requesting the expert assistance. Id. If such a request is denied, and not later

renewed by the party asserting the need, it is waived. Id.

      On October 28, 2010, the parties attended a hearing where the trial court

granted the defense’s motions to appoint co-counsel and a fact investigator. In

appointing the investigator, the trial court stated that “in a death penalty case with

issues of mitigation, it’s almost self-evident” why the defense would need an

investigator. The very next motion that the trial judge heard in that proceeding was


                                         - 42 -
the defendant’s motion to appoint a mitigation specialist. The State objected to the

motion, stating that an expert was not needed to do the type of investigations that a

mitigation specialist is expected to do.

      The trial court denied the motion pursuant to Leon Shaffer Golnick Adver.,

Inc. v. Cedar, 423 So. 2d 1015 (Fla. 4th DCA 1982), stating that the defense was

asking him to disregard an administrative order from the chief judge of the circuit,

which set a maximum hourly rate for specialists on the case, “based on nothing

other than representations of counsel” that the mitigation specialist’s work would

not be “duplicative of [the investigator just appointed].” The trial court refused to

appoint a mitigation specialist because the defense did not demonstrate a

particularized need or showing for one. Therefore, the trial court denied the

motion without prejudice and invited the defense to set a hearing on the motion in

the future when it could demonstrate a particularized need.

      The trial court did not abuse its discretion in denying the defense’s motion to

appoint a mitigation specialist. The defense did not demonstrate a particularized

need for the mitigation specialist, in light of its having been granted the

appointment of an experienced investigator. The defense claims that only the

mitigation specialist can explain how his or her responsibilities are different from

those of a fact investigator. This argument is not persuasive. Although a

mitigation specialist can best explain his or her capabilities and strategy, the


                                           - 43 -
attorney requesting the services should at the very least be able to provide the court

with an explanation of what the mitigation specialist is expected to provide that the

fact investigator may not. Without this explanation, the defense is requesting for

the court to provide state funds for the defense to conduct what may very well be

the gathering of information cumulative to that gathered by the court-appointed

fact investigator.

      Middleton’s reliance on Ake v. Oklahoma, 470 U.S. 68 (1985), is misplaced.

In Ake, the Supreme Court reversed because the state court did not provide the

defendant expenses for a psychiatric evaluation to assess his sanity at the time of

the crime. Id. Importantly, in that case, the defendant was initially declared

incompetent to stand trial. Id. Therefore, the Supreme Court determined that the

defendant was entitled to a psychiatrist once he made a preliminary showing that

his sanity at the time of the offense was likely to be a significant factor at trial. Id.

       In this case, Middleton was evaluated by four different doctors and was also

appointed a fact investigator. Additionally, during the hearing on Middleton’s

motion to appoint a mitigation specialist, the defense told the court that it would

come back a few months before the trial to request the appointment of a mitigation

expert, and the court invited the defense to do so. The defense never renewed the

motion. If at any point the defense could specifically demonstrate how a

mitigation specialist was imperative to its case, in addition to the other previously


                                          - 44 -
provided experts, the defense could have set a hearing on the motion that had

already been filed. Because error has not been demonstrated, we deny relief on

this claim. Although we find no abuse of discretion in this case, we note that it

may be appropriate in other cases for a trial court to grant the defense’s request to

appoint a mitigation specialist.

                    F. Individualized Sentencing Requirement

      Middleton raises numerous claims to support his argument that the trial court

did not perform the individualized sentencing required for death penalty cases. He

first claims the trial court improperly and arbitrarily rejected findings of medical

experts, and cites Nowitzke v. State, 572 So. 2d 1346 (Fla. 1990), for support. In

Nowitzke, however, this Court reiterated that it is improper for the prosecution to

discredit the insanity defense, as a legal defense, in front of the jury. Id. at 1355.

No defense of insanity was made in this case, and no argument based on Nowitzke

was made. Instead the defense argues for a new penalty phase claiming the trial

judge denigrated the field of psychology and rejected the findings of the experts.

This argument is based on the trial court’s agreement with and citation to the

dissent in United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1984), where the

dissenting judge commented on the imprecision of the science of psychiatry.

Despite this agreement, the trial court evaluated the testimony of all of the experts




                                         - 45 -
who testified about the defendant’s mental status and determined that Dr.

Leporowski was more credible. Relief on this issue is not warranted.

      Middleton additionally claims that the trial court used a strawman argument

to denigrate the defense’s mitigation. See Consalvo v. State, 697 So. 2d 805, 814-

15 (Fla. 1996) (explaining that a strawman argument is one where the prosecutor

creates an issue not raised by the defense then proceeds to knock it down). In this

case, the trial court did not manufacture an argument for the purpose of using the

testimony regarding Middleton’s psychological state. The defense argued and the

trial court considered the mitigating factor of substantial impairment. The

psychological data the trial court used to find that Middleton was not impaired was

previously presented to assess Middleton’s mental state, and the two experts that

testified during the penalty phase were repeatedly questioned about those reports

and asked to compare their findings to the reports of the nontestifying doctors. The

trial court considered the entire record of proceedings where Middleton’s

psychological capacity was concerned. This strawman argument has no merit. See

Perez v. State, 919 So. 2d 347, 374 (Fla. 2005) (determining that the trial court was

allowed to use in-court testimony and an expert’s report, which was admitted into

evidence during the Spencer hearing, to conclude that the mitigator of inability to

conform conduct to the requirements of the law was not established).




                                       - 46 -
      Middleton next claims that the trial court improperly rejected mitigating

evidence of impaired capacity. The trial court provided a thorough explanation of

why it was rejecting the statutory mitigator that defendant’s ability to conform his

conduct to the requirements of the law was substantially impaired.7 The trial court

compared the testimony of Dr. Barnard, who determined that the defendant was

not “substantially impaired,” to the testimony of Dr. Leporowski, who stated that

she saw no evidence that the defendant was suffering from a mental disorder and

noted that the defendant made rational decisions on the night of the murder. After

considering the record, the trial court determined that the statutory mitigator did

not exist. See Walker v. State, 707 So. 2d 300, 318 (Fla. 1997) (contradictory

evidence on mitigating factor supports trial court’s conclusion that factor did not

exist). Relief on this claim is denied.

      Middleton further claims the trial court used the wrong standard in

evaluating his abusive childhood and abused its discretion in assigning weight to

this mitigation, citing Mines v. State, 390 So. 2d 332 (Fla. 1980), and Campbell v.

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



       7. Middleton also argues the trial court should have evaluated the evidence
as nonstatutory mitigation. It is clear from the trial court’s discussion that
consideration was given to substantial impairment, significant impairment, and
impairment, and the court found none had been demonstrated. It should also be
noted that the trial court used the mental health and drug use evidence to support
other nonstatutory mitigation.


                                          - 47 -
State, 768 So. 2d 1050 (Fla. 2000), as support. Both Mines and Campbell stand for

the proposition that once a trial court determines that a defendant is not insane, it

must still consider the statutory mental mitigating factors. Campbell, 571 So. 2d at

418-19; Mines, 390 So. 2d at 337. The trial court below did not reject the statutory

mental mitigators after finding Middleton to be sane; it rejected them after a

reasoned analysis comparing the findings of the mental health experts who

evaluated him. To the extent that Middleton argues that the trial court erred in

using the sanity standard to reject the nonstatutory mental mitigation and assigned

it improper weight, this Court addressed this issue in Consalvo. In that case, this

Court found that where the trial court would have likely accorded a mitigating

circumstance the same amount of weight had it used a different standard, the

defendant’s claim should be denied. 697 So. 2d at 818-19. The trial court

incorporated its analysis from the order on Middleton’s motion to suppress his

confession and additionally referred to Dr. Leporowski’s finding that the defendant

was thinking rationally on the night of the murder. Therefore, it is not likely that a

different standard of review would have changed the trial court’s ruling on this

issue.

                  G. Admission of Middleton’s Confession Video

         Middleton’s motion to suppress his confession contained three general

allegations: (1) that the defendant’s statements were illegally obtained because the


                                         - 48 -
consumption of drugs and alcohol caused him to become incompetent to proceed

with the interview process, invalidating his waiver of his rights; (2) that the

defendant does not have the intellectual ability to adequately comprehend his

Miranda rights in order to knowingly and intelligently waive them; and (3) that the

final interview was conducted after the defendant was represented by counsel and

after his court-appointed counsel filed his Invocation of Constitutional Rights form

with the clerk on July 30, 2009, at 11:28 a.m. The trial court in the order on the

motion specifically addressed each allegation, and denied the motion. Middleton

now claims that the admission of this evidence into his trial was error, based on the

same claims raised in his pretrial motion.8 We conclude that the motion to

suppress was properly denied.

      A trial court’s decision to deny a motion to suppress comes to this Court

cloaked with a presumption that its factual findings are correct, but we

apply a de novo standard of review to legal issues and mixed questions of law and

fact which ultimately determine constitutional issues. Smithers v. State, 826 So.

2d 916, 924-25 (Fla. 2002). When considering the validity of a confession, this



       8. Defense counsel raised a standing objection to anything that would
involve the motion to suppress the confession, including but not limited to
interviews of the defendant. The jury was provided with an edited transcript that
had been approved by both parties to refer to as they watched the interviews.
Jurors were notified that the transcripts were not evidence and would be collected
once the video was over.

                                         - 49 -
Court considers the totality of the circumstances surrounding the defendant’s

confession. Lukehart v. State, 776 So. 2d 906, 920 (Fla. 2000).

      In Traylor v. State, 596 So. 2d 957 (Fla. 1992), this Court stated that under

the Florida Constitution,

      if the suspect indicates in any manner that he or she does not want to
      be interrogated, interrogation must not begin or, if it has already
      begun, must immediately stop. If the suspect indicates in any manner
      that he or she wants the help of a lawyer, interrogation must not begin
      until a lawyer has been appointed and is present or, if it has already
      begun, must immediately stop until a lawyer is present. Once a
      suspect has requested the help of a lawyer, no state agent can reinitiate
      interrogation on any offense throughout the period of custody unless
      the lawyer is present, although the suspect is free to volunteer a
      statement to police on his or her own initiative at any time on any
      subject in the absence of counsel.

            A waiver of a suspect’s constitutional rights must be voluntary,
      knowing, and intelligent, and, where reasonably practical, prudence
      suggests it should be in writing. . . . [A]ny statement obtained in
      contravention of these guidelines violates the Florida Constitution and
      may not be used by the State.

Id. at 966 (footnotes omitted).
      A defendant who has “expressed his desire to deal with the police only

through counsel is not subject to further interrogation until counsel has been made

available to him, unless the accused has himself initiated further communication,

exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477,

484-85 (1981). It does not appear that the trial court abused its discretion in

denying Middleton’s motion to suppress his confession. The trial court determined



                                        - 50 -
that the office where the confession occurred was a standard office, and not an

interrogation room or any other

      particularly threatening or intimidating venue. The defendant did not
      appear to be under the influence of drugs or alcohol. His speech was
      clear and coherent. His answers are fairly responsive to the questions
      asked. He was capable of articulating thoughts, giving directions and
      describing events. More importantly, the video tape confirms and
      corroborates fully the testimony of Captain John Rhoden, Lieutenant
      Brad Stark, Detective Marty Faulkner and Dr. Deborah Lep[o]rowski.
      It is more difficult to reconcile the videotape with the testimony of
      Drs. James B[a]rnard and Michael Riordan.

These findings are supported by the record.

      The trial court also determined that, based on the testimony of Middleton’s

friend, Britnell, and the officers who encountered Middleton on the night of the

murder, he did not appear to be so influenced by drugs and alcohol as to be

incoherent or not understand that he was waiving his right to remain silent. The

trial court also observed that of the four psychologists who evaluated Middleton,

Dr. Leporowski appeared to have been the most thorough; she reviewed all of the

records and gave the most reasonable explanation for the discrepancies between

the doctors on the issue of Middleton’s capacity to knowingly and voluntarily

waive his right.

      As to the defendant’s claim regarding the invocation of rights form filed by

the attorney, the trial court observed that it is clear from the record that

Middleton’s invocation of rights form had not been executed or served on law


                                         - 51 -
enforcement prior to the defendant’s last interview. The written invocation of

rights was filed in the court file at 11:28 a.m. on July 30, 2009, and served on the

Sheriff’s Office that afternoon after the defendant’s last interview, which was

conducted that morning at approximately 9:24 a.m.

      The trial court’s finding that Middleton initiated contact with Detective

Faulkner is also supported by the record. It is clear from the record that Middleton

initiated the final interview with Detective Faulkner, understood that he had the

right to remain silent, and voluntarily chose to waive it. At the beginning of the

fourth interview, the defendant was reminded of his Miranda rights. He continued

to blame Wade Fowler; he was arrested minutes later. When Detective Faulkner

arrived at the Sheriff’s Office on July 29, 2009, at approximately 11 a.m., he was

notified that Middleton was requesting to speak to him again. The recording began

at 12:35 p.m. On the recording, Detective Faulkner confirmed that Middleton had

in fact requested to speak to him and that Middleton had not yet been to first

appearance. Detective Faulkner read Middleton his Miranda rights and Middleton

waived his right to remain silent. After initially asking why a different man was

not in jail, Middleton began to ramble about clearing his conscience and getting his

life together. The detectives repeatedly asked him not to waste their time.

Middleton began to explain the events of the day, including drug use. He

explained that he and Steve Britnell went to someone’s house and did OxyContin


                                        - 52 -
and smoked methamphetamine. He did not remember what time he went to the

victim’s trailer, only that it was less than twenty minutes after Fowler and Britnell

went to Walmart. He stated that he knocked on the victim’s door and things just

went “crazy.” He described the events as “foggy.” When Detective Faulkner

followed up with a question about how long Middleton was at the victim’s trailer

before the altercation occurred, Middleton stated that he did not want to talk

anymore and requested to go back to his cell. Detective Faulkner immediately

states, “The time is now 12:58 P.M., concluding the interview with Dale.”

      Faulkner testified that he went over to the jail the next day, July 30, to check

on Middleton because he was so distraught the night before. He stated that upon

seeing him at the jail, Middleton requested to speak to him again. Detective

Faulkner immediately had one of the corrections officers escort Middleton to his

office. The Sheriff’s Office and the jail are connected, with the distance from

Faulkner’s office and the jail being approximately fifty yards. The jury reviewed

the January 30, 2009, recording of Middleton’s interview, along with a transcript.

The video begins with Detective Faulkner confirming that it was Middleton who

initiated the interview. Middleton informs Faulkner during the interview that he

had been to first appearance that morning and was told not to talk to anyone.

Faulkner told him that they could not speak unless he specifically decided to speak

without his attorney being present. Faulkner repeatedly asked Middleton if he was


                                        - 53 -
sure that he wanted to talk without his attorney present; Middleton responded that

he did. Faulkner read Middleton his Miranda rights again. Middleton again

waived his right to remain silent. Middleton insisted on speaking with Faulkner to

clear his head and get past what happened. Thereafter, Middleton confessed to the

murder of the victim and the theft of her television.

      When Detective Maerki entered the room, he inquired whether Middleton

had been to first appearance, to which Middleton replied that he had. He also

inquired whether Middleton had requested to speak to him and Faulkner, to which

Middleton also replied in the affirmative. Throughout the entire interview,

Middleton repeatedly offered information, stating that he wanted everything to be

over with because the murder that he committed was out of character; he resisted

the offer to have counsel present, and he agreed to assist in the investigation.

      It is clear from the record that Middleton initiated contact with Detective

Faulkner, rendering his subsequent interview valid under Edwards v. Arizona.

Additionally, the requirements of Traylor have been met in this case where the

detectives immediately stopped the interview at Middleton’s request, and only

resumed their conversation with him on his prompting. The trial court properly

denied the defendant’s motion to suppress the videotaped confession.

                          H. Sufficiency of the Evidence




                                        - 54 -
       Middleton argues that the trial court erred in denying his motion for

judgment of acquittal, claiming that the State failed to present sufficient evidence

to support Middleton’s convictions for first-degree premeditated murder and first-

degree felony murder. After the State rested in the guilt phase, the defense moved

for a judgment of acquittal, claiming that the State had not proven that the murder

was premeditated in nature, only that it was committed during a robbery. The

State responded by pointing out that Middleton stabbed the victim thirty-five

times. The trial court denied the motion finding the threshold for submission of the

case to the jury had been surpassed because of the totality of the evidence,

including DNA evidence, blood spatter evidence, the number of stab wounds, the

nature of the wounds, and Middleton’s arming of himself prior to going to the

victim’s trailer.

       The defense also moved for a judgment of acquittal as to the burglary count,

claiming that Middleton was invited into the trailer and stating that the State did

not prove that Middleton intended to commit the theft of the television before he

entered the trailer. The State responded that Middleton said the victim told him to

leave and attempted to remove him from the trailer, thus withdrawing any consent

to enter that was initially given. The State also argued that it did not have to prove

intent to commit theft because it could proceed on the theory that the defendant

remained in the home with the intent to commit murder, which he ultimately


                                        - 55 -
committed. The trial court denied the motion for acquittal on these grounds. The

defense then notified the court that, based on the court’s decision on the motion for

judgment of acquittal on the burglary charge, the defense had no argument as to the

motion for judgment of acquittal on felony murder, which was predicated on the

burglary. We affirm the denial of the defendant’s motion for judgment of

acquittal.

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

competent and substantial. See Phillips v. State, 39 So. 3d 296, 308 (Fla.), cert.

denied, 562 U.S. 1010 (2010). This Court has an obligation to independently

review the record to determine whether sufficient evidence exists to support

Middleton’s convictions. Id. This Court must “view the evidence in the light most

favorable to the State to determine whether a rational trier of fact could have found

the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v.

State, 948 So. 2d 655, 674 (Fla. 2006) (citing Bradley v. State, 787 So. 2d 732, 738

(Fla. 2001)). Further, “[a] general guilty verdict rendered by a jury instructed on

both first-degree murder alternatives may be upheld on appeal where the evidence

is sufficient to establish either felony murder or premeditation.” Crain v. State,

894 So. 2d 59, 73 (Fla. 2004).




                                        - 56 -
      The jury was instructed on both premeditated and felony murder, and the

jury found Middleton guilty on a special verdict form listing both felony murder

and premeditated murder; the jury found him guilty of both.

      “Premeditation is defined as more than a mere intent to kill; it is a
      fully formed conscious purpose to kill. The purpose may be formed a
      moment before the act but must exist for a sufficient length of time
      to permit reflection as to the nature of the act to be committed and
      the probable result of the act.” Premeditation may be inferred from
      such facts as “the nature of the weapon used, the presence or absence
      of adequate provocation, previous difficulties between the parties,
      the manner in which the homicide was committed, and the nature
      and manner of the wounds inflicted.”

Hall v. State, 107 So. 3d 262, 281 (Fla. 2012) (emphasis added) (footnotes

omitted) (quoting Bradley, 787 So. 2d at 738; Norton v. State, 709 So. 2d 87, 92

(Fla. 1997)), cert. denied 134 S. Ct. 203 (2013).

      Here, sufficient evidence exists to support a conviction for premeditated

first-degree murder and first-degree felony murder. The defendant went to his

neighbor’s trailer armed with a knife. When she would not give him money and

attempted to get him out of her trailer, the defendant attacked her with the knife.

The medical examiner testified that the forensic evidence indicated a struggle

between the victim and the defendant that began in the kitchen, and that drag

marks indicated that the victim was alive and moving erratically as she was

dragged from the kitchen area to the bedroom. The medical examiner also said

there were several passes of a sharp instrument to create the margin of the wound,



                                        - 57 -
such as a sawing motion. The blood stains indicated that her carotid artery was not

cut until she got into the bedroom. The amount and pattern of blood on the

victim’s waistband indicates that she may have been sitting up slightly or halfway

when she received the neck injury. The victim’s shirt was pulled upwards toward

her neck, which is consistent with being dragged. The victim had a bruise on her

cheek that was consistent with the tread and design of Middleton’s boots. The

victim had bruises and a cut to her face, a puncture and stab wounds on her chest,

neck, ear, and arms. The victim had defensive wounds that indicated that she was

trying to get away from someone who had a knife. The autopsy revealed that the

neck injury occurred toward the end of the attack. There was sufficient evidence

that the defendant committed the homicide with a premeditated design to effect the

death of Mrs. Christensen. See Hall, 107 So. 3d at 281.

      There is also sufficient evidence of felony murder. In Bradley v. State, 33

So. 3d 664 (Fla. 2010), this Court determined that a conviction for felony murder

will stand where the State can show that, even if the defendant was invited into the

home by an occupant, the consent was expressly revoked prior to the defendant’s

opportunity to begin the attack on the victim. Id. at 683. In this case, Middleton

explained that he and Wade Fowler had been discussing the crime for a few days

because they were experiencing “hard times.” Middleton asked the victim to loan

him money, but she said she did not have any money because she paid the bills.


                                       - 58 -
He stated the victim got scared and tried to push him out of her trailer. Middleton

pulled out the knife he brought with him, and the attack ensued. Thereafter,

Middleton took the victim’s television, which he later sold for $200. Under these

facts, even if the victim invited Middleton into her kitchen, as he claimed, that

consent was clearly revoked when the victim attempted to get Middleton out of her

home, and when she struggled with him down the hallway before he ultimately cut

her throat in the bedroom.

                 I. Section 921.141(5)(i), Florida Statutes (2009)

      Middleton claims that the CCP aggravator is unconstitutionally vague and

overbroad, is incapable of a constitutionally narrow construction and has been and

is being applied in an arbitrary and inconsistent manner. He also claims that the

standard jury instruction administered in this case did not require that the State

prove beyond a reasonable doubt an intent to kill before the crime began, and is

therefore unconstitutional. We deny relief as this Court has on numerous

occasions upheld the constitutionality of this aggravating factor and the standard

jury instruction against similar claims. See, e.g., McWatters v. State, 36 So. 3d

613, 643 (Fla. 2010); Donaldson v. State, 722 So. 2d 177 (Fla. 1998); Hunter v.

State, 660 So. 2d 244 (Fla. 1995).

                                J. Jury Instructions




                                        - 59 -
      Middleton claims that the jury instruction stating that the jury must only

consider mitigation after it is “reasonably convinced” of its existence is improper.

More specifically, he claims that it violates separation of powers for the judiciary

to place a limitation on the consideration of mitigation that the legislature has not

specifically placed in the statute. We deny relief because these specific challenges

have been raised and rejected by this Court in a number of cases. See Salazar v.

State, 991 So. 2d 364 (Fla. 2008); Johnson v. State, 969 So. 2d 938 (Fla. 2007);

Bogle v. State, 655 So. 2d 1103 (Fla. 1995); Walls v. State, 641 So. 2d 381 (Fla.

1994).

                K. Section 921.141 (5)(d), Florida Statutes (2009)

      Middleton argues that the felony murder aggravator is facially

unconstitutional because (1) it does not genuinely narrow the class of persons

eligible for the death penalty, and (2) it does not reasonably justify the imposition

of a more severe sentence compared to others found guilty of murder. As support

for his argument, Middleton cites the decisions of three other state supreme courts

that have declared this aggravator to be improper, and urges this Court to follow

those courts, and do the same. We again reject Middleton’s argument on this issue.

      In Mills v. State, 476 So. 2d 172 (Fla. 1985), this Court rejected the

argument that Middleton makes here, stating that “[t]he legislative determination

that a first-degree murder that occurs in the course of another dangerous felony is


                                        - 60 -
an aggravated capital felony is reasonable.” Id. at 178 (citing State v. Dixon, 283

So. 2d 1, 9 (Fla. 1973)); see also Blanco v. State, 706 So. 2d 7, 11 (Fla. 1997)

(“Eligibility for this aggravating circumstance is not automatic: The list of

enumerated felonies in the provision defining felony murder is larger than the list

of enumerated felonies in the provision defining the aggravating circumstance of

commission during the course of an enumerated felony. . . . This scheme thus

narrows the class of death-eligible defendants. We find no error.” (citations

omitted) (footnotes omitted)); see also Blanco v. McNeil, No. 07-61249-CIV, 2010

WL 9098788 at *9 (S.D. Fla. Dec. 7, 2010) (rejecting Blanco’s claim that felony

murder aggravator was unconstitutional (citing Blystone v. Pennsylvania, 494 U.S.

299 (1990))).

                                L. Hurst v. Florida

      During the pendency of this case, the United States Supreme Court found

Florida’s death penalty scheme unconstitutional in Hurst v. Florida, 136 S. Ct. 616

(2016). We granted supplemental briefing in which Middleton argued that he is

entitled to a new penalty phase. On remand from the United States Supreme

Court, we determined that “before a sentence of death may be considered by the

trial court in Florida, the jury must find the existence of the aggravating factors

proven beyond a reasonable doubt, that the aggravating factors are sufficient to

impose death, and that the aggravating factors outweigh the mitigating


                                         - 61 -
circumstances.” Hurst v. State, 202 So. 3d 40, 53 (Fla. 2016). We further held that

a unanimous jury recommendation is necessary for the imposition of death and

determined that Hurst error is capable of harmless error review. Id. at 68.

      We reject Middleton’s argument that he is entitled to a life sentence under

section 775.082(2), Florida Statutes (2012). See Hurst, 202 So. 3d at 63-66. Thus,

the issue before us is whether any Hurst error during Middleton’s penalty phase

proceedings was harmless beyond a reasonable doubt. This Court has determined

that Hurst error is evaluated by the following harmless error standard:

      Where the error concerns sentencing, the error is harmless only if
      there is no reasonable possibility that the error contributed to the
      sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).
      Although the harmless error test applies to both constitutional errors
      and errors not based on constitutional grounds, “the harmless error
      test is to be rigorously applied,” [State v.] DiGuilio, 491 So. 2d
      [1129,] 1137 [Fla. 1986], and the State bears an extremely heavy
      burden in cases involving constitutional error. Therefore, in the
      context of a Hurst v. Florida error, the burden is on the State, as the
      beneficiary of the error, to prove beyond a reasonable doubt that the
      jury’s failure to unanimously find all the facts necessary for
      imposition of the death penalty did not contribute to Hurst’s death
      sentence in this case. We reiterate:

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

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

                                       - 62 -
Id. at 68 (last alteration in original). For the error to be harmless, this Court must

determine that a rational jury would have unanimously found that there were

sufficient aggravating factors that outweighed the mitigating circumstances.

      We emphasize the unanimous jury recommendation of death in this case.

This unanimous recommendation allows us to determine that, beyond a reasonable

doubt, a rational jury would have unanimously found that sufficient aggravating

factors outweighed the mitigation. See Davis v. State, 41 Fla. L. Weekly S528,

S539-40 (Fla. Nov. 10, 2016). Jurors in Middleton’s case heard standard jury

instructions informing them that they were to determine sufficient aggravators

existed and that aggravation outweighed mitigation before recommending death.

See Fla. Std. Jury Instr. (Crim.) 7.11. Jurors were presented with mitigation and

informed that they could consider mitigating circumstances of which they were

reasonably convinced.

      Although the jurors were not informed that they were required to find

unanimously that sufficient aggravating circumstances outweighed the mitigation,

the jury did recommend death unanimously in this case. We conclude that the jury

would have unanimously made the findings necessary to impose death. See Davis,

41 Fla. L. Weekly at S539-40. The extreme aggravation in this case further

bolsters our determination that any Hurst error is harmless beyond a reasonable

doubt: the trial court found both HAC and during the commission of a burglary

                                         - 63 -
aggravators supported by competent, substantial evidence. These are among the

most serious aggravating factors.

      We find that the State can sustain its burden of showing that any Hurst error

in this case was harmless beyond a reasonable doubt. Although the jury in this

case was informed that it was not required to recommend death unanimously, it did

so. The unanimous recommendation of death in this case is the sort of

recommendation we have determined is constitutionally sufficient to impose a

sentence of death. Cf. Davis, 41 Fla. L. Weekly at S539-40. Based on the

foregoing, Middleton is not entitled to a new penalty phase.

                             III. CONCLUSION

      For the reasons stated in this opinion, we affirm Middleton’s conviction for

first-degree murder and his death sentence.

      It is so ordered.

LABARGA, C.J., and PARIENTE, and LEWIS, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
QUINCE, J., concurs in part and dissents in part with an opinion.
LAWSON, J., did not participate.

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

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

      I concur with the majority’s findings that the evidence here is sufficient to

sustain Middleton’s convictions. I disagree with the majority’s finding that the


                                       - 64 -
Hurst error was harmless beyond a reasonable doubt for the same reasons set forth

in Justice Perry’s partial concurrence in Davis v. State, 41 Fla. L. Weekly S528,

S540-41 (Fla. Nov. 10, 2016) (Perry, J., concurring in part and dissenting in part).

The jury’s unanimous recommendation of death in this case does not enable this

Court to conclude beyond a reasonable doubt that the jurors would have made all

the findings necessary for the imposition of death unanimously. Just as this Court

declined to speculate as to how the jurors would have voted in Hurst v. State, 202

So. 3d 40, 69 (Fla. 2016), so too should we decline to speculate in this case. I

conclude that the error here was harmful.

An Appeal from the Circuit Court in and for Okeechobee County,
     Robert Eugene Belanger, Judge - Case No. 472009CF000448CFAXMX

Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public
Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Lisa-Marie Lerner,
Assistant Attorney General, West Palm Beach, Florida,

      for Appellee




                                        - 65 -
