          Supreme Court of Florida
                                 ______________

                                  No. SC14-1175
                                 ______________

                         PAUL BEASLEY JOHNSON,
                                Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                               [December 1, 2016]

PER CURIAM.

      This case is before the Court on appeal from sentences of death. We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const. Because the jury that recommended

Johnson’s death sentences did not find the facts necessary to sentence him to death,

we vacate Johnson’s death sentences and remand this case to the circuit court for a

new penalty proceeding. See Hurst v. Florida, 136 S. Ct. 616, 624 (2016); Ring v.

Arizona, 536 U.S. 584, 609 (2002); Hurst v. State, 41 Fla. L. Weekly S431, S441

(Fla. Oct. 14, 2016).

                                     FACTS

      In 1981, Paul Beasley Johnson was convicted of, among other crimes, three

counts of first-degree murder in the deaths of William Evans, Daryl Ray Beasley,
Jr., and T.A. Burnham. Johnson v. State, 438 So. 2d 774, 775-76 (Fla. 1983). We

affirmed Johnson’s convictions and death sentences on direct appeal. Id. at 780.

After the Governor signed a death warrant for Johnson, we granted Johnson’s

petition for a writ of habeas corpus, holding that appellate counsel in Johnson’s

direct appeal was ineffective for failing to raise a claim related to the sequestration

of the jurors. Johnson v. Wainwright, 498 So. 2d 938, 939 (Fla. 1986).

      Following a 1987 mistrial, Johnson was retried and was again convicted and

sentenced to death. Johnson v. State, 608 So. 2d 4, 8 (Fla. 1992).

              The following evidence was presented at the new trial. The
      evening of January 8, 1981 Johnson and his wife visited their friends
      Shayne and Ricky Carter. During the evening they all took injections
      of crystal methedrine and smoked marijuana. Johnson left the
      Carters’ home later in the evening, and Ricky testified that Johnson
      said he was going to get more drugs and that he might steal something
      or rob something. Shayne testified that Johnson said that he was
      going to get money for more drugs and that “if he had to shoot
      someone, he would have to shoot someone.”
              A taxicab company dispatcher testified that driver William
      Evans went to pick up a fare at 11:15 p.m. on January 8 and called in
      to confirm the fare fifteen minutes later. Around 11:55 p.m. a
      stranger’s voice came over the radio. Among other things, the
      stranger said that Evans had been knocked out. He stayed in touch
      with the dispatcher off and on until about 2:00 a.m. The dispatcher
      did not hear Evans after 11:30 p.m., and workers in an orange grove
      found Evans’ body on January 14. Evans had been robbed and shot
      twice in the face. Searchers found his taxicab, which had been set on
      fire, in an orange grove about a mile from Evans’ body.
              When she got off work in the early hours of January 9, 1981,
      Amy Reid and her friend Ray Beasley went to a restaurant for
      breakfast. Johnson approached them in the parking lot and asked for a
      ride, claiming that his car had broken down. Beasley agreed to drive
      Johnson to a friend’s house. During the drive, Johnson asked Beasley

                                         -2-
to stop the car so that he could urinate. While out of the car, Johnson
asked Beasley to come to the rear of the car. When Reid looked back,
she saw Johnson holding a handgun pointed at Beasley. She then
locked the car’s doors, moved to the driver’s seat, and drove away to
look for help.
       Reid telephoned the sheriff’s department from a convenience
store, and deputies Clifford Darrington and Samuel Allison responded
to her call around 3:45 a.m. The deputies drove Reid back to where
she had left Johnson and Beasley, but found no one there. Back in the
patrol car they heard a radio call from another deputy, Theron
Burnham, advising that he had seen a possible suspect on the road.
When they arrived at Burnham’s location, they found his patrol car
parked with the motor running, the lights on, and a door open, but
could not see Burnham. Johnson, however, walked in front of their
car, spoke to them, and then began firing at them with a handgun.
The deputies returned Johnson’s shots, and he ran across a field and
disappeared among some trees. Allison then found Burnham’s body
in a roadside drainage ditch. He had been shot three times, and his
service revolver was missing.
       Later that day, Beasley’s body was found seven-tenths of a mile
from where Burnham was killed. He had been shot once in the head,
and his body was in a weedy area and could not be seen from the road.
Although there were some coins in his pockets, his wallet was gone.
The following afternoon Johnson’s wife was still at the Carters’ home.
They saw a police sketch of the suspect in the night’s events in a
newspaper and discussed whether it looked like Johnson. Johnson
telephoned the Carters’ home, and, after speaking with him, his wife
became very upset. Ricky Carter asked Johnson if he had done the
killings reported in the newspaper, and Johnson replied: “If that’s
what it says.” Carter went to pick up Johnson, taking a shirt that
Johnson changed into. Johnson threw the shirt he had been wearing,
which had been described in the newspaper, out the car’s window.
While driving home, Carter heard Johnson’s wife ask, “You killed
him, too?” to which Johnson replied, “I guess so.” At the Carters’
home Johnson told them that he hit the deputy with his handgun when
told to place his hands on the patrol car and then struggled with him,
during and after which he shot the deputy three times.
       The authorities arrested Johnson for the Beasley and Burnham
murders on January 10 and charged him with Evans’ murder the


                                 -3-
      following week. Reid, Allison, and Darrington identified him, and his
      fingerprints were found in Evans’ taxicab.
             While Johnson was in jail awaiting trial, inmate James Leon
      Smith was in a cell near him. At trial Smith testified that Johnson told
      him that he killed a taxicab driver and set the taxicab on fire to destroy
      his fingerprints, that he shot Beasley while Beasley was on his knees
      and stole one hundred dollars from Beasley, and that he shot the
      deputy.

We affirmed Johnson’s convictions and sentences. Id. at 13.

      Johnson filed an initial postconviction motion in 1994. Johnson v. State,

769 So. 2d 990, 992 (Fla. 2000). The postconviction court denied the motion, and

we affirmed. Id. at 1006. In 2002, we denied Johnson’s petition for a writ of

habeas corpus. Johnson v. Moore, 837 So. 2d 343, 348 (Fla. 2002). Johnson filed

a successive postconviction motion in 2003. The postconviction court denied

Johnson’s motion, and we affirmed. Johnson v. State, 993 So. 2d 1153 (Fla. 2006)

(table decision).

      In 2007, Johnson filed a second successive postconviction motion. Johnson

v. State, 44 So. 3d 51, 56 (Fla. 2010). The postconviction court denied Johnson’s

claim. Id. Shortly thereafter, the Governor signed a second death warrant. Id.

With both the appeal and death warrant pending, Johnson filed a third successive

postconviction motion. Id. We held that newly discovered evidence revealed that

the jailhouse informant, James Leon Smith, “was acting as a government agent,

and his testimony and notes concerning Johnson’s statements should have been

suppressed.” Id. at 64. We further held that “the misconduct of the original

                                        -4-
prosecutor in this case, Hardy Pickard, . . . tainted the State’s case at every stage of

the proceedings and irremediably compromised the integrity of the entire 1988

penalty phase proceeding.” Id. at 64, 73. While we found any problem harmless

as to Johnson’s convictions, we reversed the postconviction court’s denial of

Johnson’s second postconviction motion, vacated the sentences of death, and

ordered a new penalty phase proceeding before a new jury. Id. at 68-69, 73-74.

      Following a new penalty phase proceeding in 2013, the jury recommended

that Johnson be sentenced to death by votes of eleven to one for each of the three

murders. The sentencing court considered six statutory aggravating

circumstances,1 three statutory mitigating circumstances,2 and ten nonstatutory



       1. (1) The sentencing court found that Johnson had committed a prior
violent felony and gave that factor great weight as to all three murders. (2) The
sentencing court found that Johnson had murdered Evans during the commission of
a kidnapping or arson but gave it no weight because it may have constituted
improper doubling. Additionally, the sentencing court explicitly did not find that
Johnson had murdered Beasley during a kidnapping or arson. (3) The sentencing
court found that Johnson had murdered both Evans and Beasley for financial gain
and gave that factor great weight as to both murders. (4) The sentencing court
explicitly did not find that Johnson had murdered Burnham in order to avoid arrest
because this factor merged with the law enforcement victim aggravating factor. (5)
The sentencing court found that one of Johnson’s victim, T.A. Burnham, was a law
enforcement officer engaged in the performance of his official duties and gave that
factor extreme great weight. (6) The sentencing court found that Johnson had
murdered both Evans and Beasley in a cold, calculated, and premeditated manner,
and gave that factor very great weight as to both murders.

       2. The sentencing court found that: (1) Johnson committed the murder while
under the influence of extreme mental or emotional disturbance and gave that
factor slight weigh; (2) Johnson had an impaired capacity to appreciate the

                                          -5-
mitigating circumstances,3 and imposed the death sentences. Johnson now appeals

to this Court.

                                   ANALYSIS

      Johnson argues that his death sentences violate Ring and Hurst v. Florida

because his penalty phase jury did not find the facts necessary to sentence him to

death. We agree. See Hurst v. Florida, 136 S. Ct. at 624; Ring, 536 U.S. at 609;

Hurst, 41 Fla. L. Weekly at S438. We reject the State’s contention that Johnson’s

contemporaneous convictions for other violent felonies insulate Johnson’s death



criminality of his conduct or to conform his conduct to the requirements of law and
gave that factor slight weight; and (3) other factors in Johnson’s character,
background, or life mitigate against the imposition of the death penalty and gave
that factor moderate weight.

       3. The sentencing court found that: (1) Johnson suffered from brain damage
and drug use that may have impaired his ability to reflect on and consider his
actions and gave that factor moderate weight; (2) Johnson was the biological son
and grandson of violent alcoholics and gave that factor slight weight; (3) Johnson’s
mother was sick throughout her pregnancy and had a traumatic childbirth with him,
and gave that factor slight weight; (4) Johnson’s mother suffered physical abuse
from Johnson’s father while Johnson was developing in the womb and gave that
factor slight weight; (5) Johnson was abandoned by his biological father and
mother as a toddler and gave that factor very slight weight; (6) Johnson was raised
by his elderly paternal grandparents and gave that factor slight weight; (7) Johnson
had attempted to reunite with his son and wife, and gave that factor slight weight;
(8) Johnson began to abuse alcohol, drugs, and inhalants at a young age and gave
that factor slight weight; (9) Johnson could be punished by the imposition of three
consecutive life sentences and gave that factor very slight weight; and (10)
Johnson could be required to serve those three life sentences consecutively after he
has completed the other prison terms to which he had been sentenced, and gave
that factor very slight weight.


                                        -6-
sentences from Ring and Hurst v. Florida. See Hurst, 41 Fla. L. Weekly at S448

n.7. However, we also reject Johnson’s argument that section 775.082(2), Florida

Statutes (2015), requires that we remand Johnson’s case to the trial court for

imposition of a life sentence. See Hurst, 41 Fla. L. Weekly at S440.

      Because a sentencing error “in which the judge rather than the jury made all

the necessary findings to impose a death sentence[] is not structural error incapable

of harmless error review,” the only remaining question is whether the violation of

Hurst v. Florida in this case was harmless. Hurst, 41 Fla. L. Weekly at S442. We

conclude that the error was not harmless beyond a reasonable doubt.

      The harmless error test, as set forth in Chapman [v. California, 386
      U.S. 18 (1967),] and progeny, places the burden on the state, as the
      beneficiary of the error, to prove beyond a reasonable doubt that the
      error complained of did not contribute to the verdict or, alternatively
      stated, that there is no reasonable possibility that the error contributed
      to the conviction.

State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). In the context of a

sentencing error, the relevant question is whether “there is [a] reasonable

possibility that the error contributed to the sentence.” Zack v. State, 753 So. 2d 9,

20 (Fla. 2000).

      [I]n 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.

Hurst v. State, 41 Fla. L. Weekly at S442. We also clarify what the test is not:

                                         -7-
        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.

        After reviewing the evidence in this case, we cannot conclude beyond a

reasonable doubt that the Hurst v. Florida sentencing error in this case would have

been harmless beyond a reasonable doubt. Cf. Hurst v. State, 41 Fla. L. Weekly at

S443.

        The facts of this case obviously include substantial aggravation. Johnson set

out on a drug-fueled hunt for money to purchase more drugs, so determined to

succeed that “if he would have to shoot someone, he would have to shoot

someone.” Johnson murdered a taxi driver who had been dispatched to pick up a

fare, a Good Samaritan who Johnson tricked into believing that his car was broken

down, and a deputy sheriff who had stopped Johnson as part of the manhunt for the

perpetrator of Johnson’s two earlier murders.

        However, “[t]he record in this case demonstrated that the evidence of

mitigation was extensive and compelling.” Id. Johnson suffered brain damage,

making him more prone to drug dependency, and at the time of the murders was

under the influence of a form of drug-induced psychosis and delirium. Following a

lifetime of drug abuse that began at a very young age, Johnson had been ingesting

                                         -8-
marijuana and crystal methedrine on the night of the murders, which impacted his

ability to appreciate the criminality of his conduct. Johnson’s upbringing

contributed to his problems. He was abandoned by his parents to his elderly

grandparents after birth, and both Johnson’s biological father and biological

grandfather were violent alcoholics. Johnson was held back numerous times in

school and never progressed beyond the seventh grade. Even before his birth,

Johnson suffered: his mother was sick throughout the pregnancy and received little

or no prenatal care; and Johnson’s biological father regularly beat Johnson’s

mother while she was pregnant with Johnson. Over the past thirty years, Johnson

has been a good prisoner with few disciplinary reports and has been very

remorseful concerning the murders.

      We are unable to conclude “beyond a reasonable doubt [that] there is no

possibility that the Hurst v. Florida error in this case contributed to the sentence.”

Id. As in Hurst,

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

Id. On this record, with a nonunanimous jury recommendation and a substantial

volume of mitigation evidence, we simply cannot conclude, “beyond a reasonable

doubt, that no rational trier of fact would determine that the mitigating

                                         -9-
circumstances were sufficiently substantial to call for leniency.” State v. Ring, 65

P.3d 915, 946 (Ariz. 2003). Accordingly, “we must find reversible error and

remand the case for resentencing.” Id.

                                  CONCLUSION

      In light of the foregoing, we vacate Johnson’s death sentence and remand for

a new penalty phase proceeding.

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and PERRY, JJ., concur.
PERRY, J., concurs in part and dissents in part with an opinion.
POLSTON, J., dissents.
QUINCE and CANADY, JJ., recused.

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

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

      I concur in the majority’s decision to vacate Johnson’s death sentences

because they violate the Sixth Amendment. See majority op. at 1; see also Hurst v.

State, 441 Fla. L. Weekly S431, S441 (Fla. Oct. 24, 2016).

      However, I respectfully dissent from the majority’s decision not to apply the

plain text of section 775.082(2), Florida Statutes. Because his death sentences are

unconstitutional, Johnson is entitled to the remedy that the Legislature has

specified. The sentencing court must sentence him to life in prison. See §

775.082(2), Fla. Stat. (2015).


                                         - 10 -
      The statute’s language is clear and unambiguous.

             In the event the death penalty in a capital felony is held to be
      unconstitutional by the Florida Supreme Court or the United States
      Supreme Court, the court having jurisdiction over a person previously
      sentenced to death for a capital felony shall cause such person to be
      brought before the court, and the court shall sentence such person to
      life imprisonment as provided in subsection (1). No sentence of death
      shall be reduced as a result of a determination that a method of
      execution is held to be unconstitutional under the State Constitution or
      the Constitution of the United States.

Id. (emphasis added). We need engage in no further legal gymnastics to carry out

the will of the Legislature. See, e.g., English v. State, 191 So. 3d 448, 450 (Fla.

2016) (“When the statutory language is clear or unambiguous, this Court need not

look behind the statute’s plain language or employ principles of statutory

construction to determine legislative intent.”).

      Life in prison is the default position for a defendant convicted of capital

murder. In order to increase that default sentence to death, there must be a

constitutional means of imposing a death sentence. The majority and I agree that

Johnson was not sentenced to death in a manner compliant with the Constitution.

Accordingly, death is not an option: the sentencing court must impose life

sentences pursuant to section 775.082(2), Florida Statutes. For that reason, I

would remand this case to the trial court for the imposition of life sentences. See

Hurst v. State, 41 Fla. L. Weekly at S445 (Perry, J., dissenting).




                                        - 11 -
An Appeal from the Circuit Court in and for Polk County,
     Donald G. Jacobsen, Chief Judge – Case No. 531981CF000112A1XXXX

Howard L. Dimmig, II, Public Defender, and Steven L. Bolotin, Assistant Public
Defender, Tenth Judicial Circuit, Bartow, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Timothy Arthur
Freeland, Assistant Attorney General, Tampa, Florida,

      for Appellee




                                     - 12 -
