          Supreme Court of Florida
                                   ____________

                                  No. SC15-1364
                                  ____________

                         RICHARD TODD ROBARDS,
                                Appellant,

                                         vs.

                              STATE OF FLORIDA,
                                   Appellee.

                                   [April 6, 2017]

PER CURIAM.

      Richard Todd Robards, also known as Damien Robards, appeals an order of

the circuit court denying his motion to vacate judgment of two first-degree murder

convictions and sentences of death filed under Florida Rule of Criminal Procedure

3.851. Because the order concerns postconviction relief from sentences of death,

we have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained

below, we affirm the postconviction court’s order to the extent that it denies

Robards relief based upon his claim of ineffective assistance of guilt phase

counsel, but grant Robards a new penalty phase proceeding pursuant to Hurst v.
State (Hurst), 202 So. 3d 40 (Fla. 2016), petition for cert. filed, No. 16-998 (U.S.

Feb. 13, 2017).

                  FACTS AND PROCEDURAL BACKGROUND

                       Trial and Direct Appeal Proceedings

      Robards was found guilty of two counts of first-degree murder for the 2006

deaths of Frank and Linda Deluca. Robards, the couple’s personal trainer,

murdered them during the course of a robbery in which he stole personal

belongings of the Delucas, including a safe containing more than $88,000. The

Delucas died of multiple sharp force wounds, and their home was set on fire after

they were murdered. The facts of the offenses are set forth in detail in this Court’s

opinion affirming Robards’ convictions and sentences on direct appeal. See

Robards v. State, 112 So. 3d 1256 (Fla. 2013).

      The guilt phase of the trial took place from May 18 to May 21, 2010. The

guilt phase was followed by a brief penalty phase on May 25, 2010, during which

the State presented testimony from Linda Deluca’s sister, and the defense

presented character evidence about Robards’ personal and professional life using

testimony from family members, friends, fellow inmates, and former clients. Id. at

1263. The jury recommended the death penalty for each murder by a vote of seven




                                         -2-
to five. After three Spencer1 hearings, during which mental health mitigation was

offered, the trial court sentenced Robards to death. The facts revealed during the

Spencer hearings were explained at length on direct appeal, and the sentencing

proceeded as follows:

      In its sentencing order, the court found that four aggravating
      circumstances were proven by the State beyond a reasonable doubt
      and assigned each one of them great weight: (1) Robards was
      convicted of a prior capital felony (based on the contemporaneous
      murder of the second victim); (2) Robards committed each murder for
      pecuniary gain; (3) Robards committed each murder while engaged in
      a commission of a robbery (merged with pecuniary gain); and (4) each
      murder was especially heinous, atrocious, or cruel (HAC).
              Although the jury did not receive evidence of mental health
      mitigation, the trial court weighed the evidence that was presented at
      the Spencer hearing and considered as statutory mitigation the
      following: (1) whether Robards suffered from an extreme mental or
      emotional disturbance; and (2) whether Robards suffered from an
      impaired capacity to appreciate the criminality of his conduct or to
      conform his conduct to the requirements of law. The court rejected
      both of these statutory mitigating circumstances and explained its
      rationale in its sentencing order. The trial court did weigh Robards’
      mental health as a nonstatutory mitigating circumstance.
              The trial court considered a total of twelve nonstatutory
      mitigating circumstances. The trial court rejected Robards’ argument
      that Florida’s budgetary crisis was a reason for not imposing the death
      penalty and his argument that the closeness of the jury’s vote was a
      reason for not imposing the death penalty. Of the remaining ten
      mitigating circumstances, the trial court gave each one some weight:
      (1) family history; (2) no plan to murder; (3) good general conduct
      while in custody; (4) capacity to form positive relationships; (5)
      remorse and potential for rehabilitation; (6) traumatic injury based on
      PET scan and PET scan brain image comparison; (7) effect of steroids
      on brain injury and effect of steroids generally; (8) use of prescribed

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


                                        -3-
      steroids, interactions with other prescribed drugs, and withdrawal;
      (9) mental health issues; and (10) history of steady employment. All
      of the trial court’s findings were as to each murder.

Id. at 1264-66.

      On direct appeal, Robards raised four issues: (1) whether penalty phase

counsel provided ineffective assistance; (2) whether a seven-to-five vote

recommending death was unconstitutional; (3) whether the trial judge departed

from judicial neutrality in suggesting that the State pursue the prior capital felony

aggravating circumstance; and (4) whether improper comments by the prosecutor

during closing argument warranted a new trial. Ultimately, this Court rejected all

claims raised and affirmed Robards’ convictions and sentences of death. See

Robards, 112 So. 3d at 1273.

                            Postconviction Proceedings

      Robards filed a timely motion for postconviction relief raising six claims:

(1) trial counsel was ineffective in failing to object to or attempt to suppress

testimony, evidence, or prosecutorial argument regarding his offer to “make a

deal” with Detective Anthony Monte and any statements related to that offer;

(2) trial counsel failed to diligently, timely, and reasonably investigate mitigation

evidence; (3) trial counsel’s failure to object to prejudicial remarks during the

prosecutor’s closing argument constituted ineffective assistance of counsel; (4) the

combination of the procedural and substantive errors during the guilt and penalty


                                         -4-
phases deprived Robards of a fair trial; (5) section 945.10, Florida Statutes (2006),

which prohibits a defendant from knowing the identity of the execution team

members, is unconstitutional; and (6) Robards may be incompetent at the time of

execution. Following a Huff2 hearing, the circuit court granted an evidentiary

hearing on claims one and two. During the evidentiary hearing, the court heard

testimony from guilt phase counsel, Larry Hoffman; penalty phase counsel,

Richard Watts; two medical experts who testified during the Spencer hearings,

Dr. Joseph Wu and Dr. Robert Berland; former assistant public defender, Ronald

Eide; and two of Robards’ acquaintances.

      Following the evidentiary hearing, the circuit court denied Robards’ motion

for postconviction relief in its entirety. Robards appeals the denial of his motion

raising three issues: (1) trial counsel was ineffective for failing to object to or

attempt to suppress the testimony, evidence, or prosecutorial argument regarding

Robards’ offer to make a deal; (2) trial counsel failed to diligently, timely, and

reasonably investigate the mitigation evidence and make an adequate penalty phase

presentation to the jury; and (3) cumulative error deprived Robards of a fair trial.

Additionally, Robards claims that he is entitled to relief based on the United States

Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), as well as this

Court’s decisions in Hurst and related cases.


      2. Huff v. State, 622 So. 2d 982 (Fla. 1993).

                                          -5-
      We affirm the denial of relief as to Robards’ ineffective assistance of guilt

phase counsel claim, but because we conclude that Robards is entitled to a new

penalty phase proceeding under Hurst, we decline to address his claims regarding

the ineffective assistance of penalty phase counsel and cumulative error.

                                     ANALYSIS

                  Ineffective Assistance of Guilt Phase Counsel

      To prevail on a claim of ineffective assistance of counsel, the defendant

must demonstrate that counsel’s performance fell below an objective standard of

reasonableness, and the defendant was prejudiced by counsel’s deficiency such that

there is a reasonable probability the result of the proceeding would have been

different absent the error. Strickland v. Washington, 466 U.S. 668, 694 (1984).

Both prongs of the Strickland test present mixed questions of law and fact. Thus,

we employ a mixed standard of review, deferring to the trial court’s factual

findings that are supported by competent, substantial evidence, and reviewing the

trial court’s legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-

72 (Fla. 2004).

      “Judicial scrutiny of counsel’s performance must be highly deferential.”

Strickland, 466 U.S. at 689. Further, “[a] fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the


                                         -6-
conduct from counsel’s perspective at the time.” Id. The defendant carries the

burden to “overcome the presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). Moreover, a court “need not make a specific

ruling on the performance component of the test when it is clear that the prejudice

component is not satisfied.” Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla.

1986).

         Robards argues that guilt phase trial counsel rendered deficient performance

for failing to object to or attempt to suppress testimony, evidence, and

prosecutorial argument regarding Robards’ offer to make a deal with Detective

Monte. The record reflects that Robards made a phone call from the Pinellas

County Jail to Detective Monte on August 15, 2006, and left him the following

voicemail message, which was introduced into evidence during the State’s case-in-

chief:

         Detective Monte, this is Damien Robards. I’m down here at the
         Pinellas County Jail. It’s about two o’clock. Listen, if you can come
         here and talk to me, and you guys are ready to make a deal, come in
         and talk to me, all right? Thanks.

During trial, Detective Monte testified that he went to see Robards in response to

the voicemail message and that Robards said he wanted to make a deal. However,

when Detective Monte informed Robards that he was not in a position to offer him



                                          -7-
a deal, Robards spoke no further of it. At the time of the call, Robards was

incarcerated for possession of marijuana, yet Detective Monte testified he believed

that Robards’ comments related to the homicide case involving the Delucas. The

State referenced this statement during opening and closing arguments.

      Robards argues that the voicemail message and conversation with Detective

Monte constitute inadmissible plea negotiations under section 90.410, Florida

Statutes (2014),3 and Florida Rule of Criminal Procedure 3.172(i).4 Robards

asserts that guilt phase counsel’s performance was deficient because he failed to

object to the State’s introduction of inadmissible plea negotiations. Consequently,

we examine whether the communications between Robards and Detective Monte

amounted to plea negotiations and, if so, whether counsel’s failure to object was

deficient.




      3. Section 90.410, Florida Statutes, declares:
      Evidence of a plea of guilty, later withdrawn; a plea of nolo
      contendere; or an offer to plead guilty or nolo contendere to the crime
      charged or any other crime is inadmissible in any civil or criminal
      proceeding. Evidence of statements made in connection with any of
      the pleas or offers is inadmissible, except when such statements are
      offered in a prosecution under chapter 837.
      4. Florida Rule of Criminal Procedure 3.172(i) provides, “Except as
otherwise provided in this rule, evidence of an offer or a plea of guilty or nolo
contendere, later withdrawn, or of statements made in connection therewith, is not
admissible in any civil or criminal proceeding against the person who made the
plea or offer.”

                                        -8-
      “Where a party admission is not clearly part of an attempt to negotiate a plea

bargain, this Court has adopted a two-tier analysis for determining whether a

statement falls within the exclusion under rule 3.172(i).” Schoenwetter v. State, 46

So. 3d 535, 546-47 (Fla. 2010) (citing Calabro v. State, 995 So. 2d 307, 313-14

(Fla. 2008)). A court must first determine “whether the accused exhibited an

actual subjective expectation to negotiate a plea at the time of the discussion.” Id.

(quoting Richardson v. State, 706 So. 2d 1349, 1353 (Fla. 1998)). Second, the

court must discern “whether the accused’s expectation was reasonable given the

totality of the circumstances.” Id. (quoting Richardson, 706 So. 2d at 1353)

(internal quotation marks omitted). Unsolicited, unilateral statements do not create

a reasonable expectation of involvement in plea negotiations. See Bottoson v.

State, 443 So. 2d 962, 965 (Fla. 1983).

      Robards contends that his statement exhibited a subjective expectation to

negotiate a plea deal because the conversation ended after Detective Monte

informed Robards that he did not have the power to make a deal. Robards further

asserts that his expectation was reasonable because he had previously spoken with

Detective Monte about the murder of the Delucas. Furthermore, Robards argues

he was prejudiced because it is a fundamental duty of counsel to preserve

conceivable errors for appeal.




                                          -9-
        During the postconviction evidentiary hearing, guilt phase counsel Hoffman

testified regarding the voicemail recording, saying he thought it was related to the

drug case for which Robards was incarcerated at the time. Hoffman attested that

he did not object to the evidence or argument about the voicemail because he did

not believe the statement was objectionable. In lieu of objecting, he decided to

attack the evidence on cross-examination of Detective Monte by attempting to

show that the detective had no idea which case Robards was referring to during the

call.

        The postconviction court found that any subjective expectation by Robards

about entering into a plea negotiation was not reasonable considering the totality of

the circumstances. First, the call was made while Robards was under arrest for a

drug incident; and second, the message was an unsolicited voicemail from a

monitored jail line offering to make a deal to an unspecified crime. The court thus

determined that the communication was simply an unsolicited, unilateral offer

from which Robards could have had no reasonable expectation of negotiating a

plea.

        Because the voicemail and resulting conversation did not amount to a plea

negotiation, the postconviction court observed that the statement could be offered

against Robards as a party admission. See § 90.803(18)(a), Fla. Stat. (2014).

Therefore, the court found counsel’s conclusion that the statement was not


                                        - 10 -
objectionable to be legally correct. Given the totality of the circumstances, and

especially the fact that Robards had not even been arrested in connection with the

murders, we conclude that Robards’ expectation about entering into a plea

negotiation was not reasonable. Furthermore, we agree that Hoffman’s decision

not to object did not constitute deficient performance because the statement was

admissible. See Hitchcock v. State, 991 So. 2d 337, 361 (Fla. 2008) (“Counsel

cannot be deemed ineffective for failing to make a meritless objection.”).

      Further, even if counsel should have objected to the introduction of the

voicemail or attempted to suppress the evidence, we conclude that Robards cannot

demonstrate prejudice under Strickland. The presence or absence of the voicemail

is minimal considering the overwhelming evidence linking Robards to the

Delucas’ murders. Therefore, there is no reasonable probability that the outcome

of the guilt phase would have been different had counsel’s objection been

sustained or had counsel obtained a trial court ruling suppressing the voicemail.

We set forth the compelling evidence of Robards’ guilt on direct appeal, stating:

      Among the more substantial evidence is that Robards’ fingerprints
      were found at the crime scene on a piece of newspaper dated within
      one day of the murders. What is more, Frank Deluca tried to fight his
      attacker, and Robards’ DNA was found underneath his fingernails.
      The only other DNA that was identified during the fingernail analysis
      of Frank Deluca was that of the other murder victim, Frank Deluca’s
      wife. Additionally, Robards talked about the Delucas’ safe for weeks
      before the murders, told many people that he had access to it, and
      tried to recruit help from Shane Harper to steal it. Then, after Robards
      murdered the Delucas, he made Robert Kenney an unwitting partner

                                       - 11 -
       in removing the safe from the Delucas’ home. In light of such
       compelling evidence of guilt, Robards is not entitled to relief.

Robards, 112 So. 2d at 1271. Thus, even if counsel’s performance had been

deficient, Robards was not prejudiced. Accordingly, we affirm the postconviction

court’s denial of relief as to this claim.

                                      Hurst Relief

       In Hurst v. Florida, the United States Supreme Court held that Florida’s

capital sentencing scheme is unconstitutional because “[t]he Sixth Amendment

requires a jury, not a judge, to find each fact necessary to impose a sentence of

death. A jury’s mere recommendation is not enough.” 136 S. Ct. at 619. On

remand, we held that “in addition to unanimously finding the existence of any

aggravating factor, the jury must also unanimously find that the aggravating factors

are sufficient for the imposition of death and unanimously find that the aggravating

factors outweigh the mitigation before a sentence of death may be considered by

the judge.” Hurst, 202 So. 3d at 54. Moreover, we concluded that “in order for a

death sentence to be imposed, the jury’s recommendation for death must be

unanimous.” Id. Further, we determined that Hurst error is capable of harmless

error review. Id. at 68. In Mosley v. State, 41 Fla. L. Weekly S629 (Fla. Dec. 22,

2016), we held that Hurst applies retroactively to defendants whose sentences

became final after the United States Supreme Court issued its opinion in Ring v.




                                             - 12 -
Arizona, 536 U.S. 584 (2002). Robards’ convictions and sentences became final

after Ring, thus Hurst is applicable to him.

      On direct appeal, Robards challenged the constitutionality of the jury’s bare

majority recommendation of death, but based on existing precedent at the time, we

concluded that the claim was without merit. See Robards, 112 So. 3d at 1267. In

his postconviction appeal, Robards again claims he is entitled to relief from his

death sentences based upon the seven-to-five jury recommendation of death.

Therefore, as Hurst requires, we consider whether the error during Robards’

penalty phase proceeding was harmless.

      “[I]n the context of a Hurst 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 [the] death sentence.” Hurst, 202 So. 3d at 68. As applied to the

right to a jury trial with regard to the facts necessary to impose the death penalty, it

must be clear beyond a reasonable doubt that a rational jury would have

unanimously found that there were sufficient aggravating factors and that the

aggravating factors outweighed the mitigating circumstances.

      We conclude that the State cannot establish that the error in Robards’ case

was harmless beyond a reasonable doubt. The jury in this case did not make any of

the requisite factual findings, and the vote to impose a sentence of death was seven


                                         - 13 -
to five, the bare minimum to recommend death prior to Hurst. The jury was

instructed to consider four aggravating circumstances and two nonstatutory

mitigating circumstances. Although the prior violent felony aggravating

circumstance was found unanimously by virtue of Robards’ conviction for the

first-degree murder of the second victim, and while the jury may have found this

aggravator to be sufficient to qualify Robards for the death penalty, it is impossible

to determine whether the jury unanimously found it to be sufficient. Similarly,

there is no way of knowing if the jury found any of the other aggravating

circumstances unanimously, or if the jury unanimously found such aggravators to

be sufficient to qualify for the death penalty. Further, we cannot determine

whether the jury unanimously concluded that there were sufficient aggravating

factors to outweigh the mitigating circumstances. Given the seven-to-five

recommendation for death, it is impossible for us to conclude that the Hurst error

in this case was harmless beyond a reasonable doubt.

                                  CONCLUSION

      For the foregoing reasons, we affirm the denial of postconviction relief as to

Robards’ claim alleging that counsel was ineffective during the guilt phase of the

trial. However, we must vacate Robards’ sentences of death and remand for a new

penalty phase proceeding under Hurst.

      It is so ordered.


                                        - 14 -
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
PARIENTE, J., concurs with an opinion.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY and LAWSON, JJ., concur.

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

PARIENTE, J., concurring.

      I agree that Robards is entitled to Hurst relief and should, therefore, receive

a new penalty phase. I write to emphasize the woeful inadequacy of Robards’

penalty phase counsel who failed to present the jury with evidence of substantial

mental health mitigation, which reinforces the necessity for a new penalty phase in

this case. As I explained in my concurring opinion in Robards’ direct appeal, “the

record before this Court raise[d] questions about” whether Robards’ penalty phase

counsel was ineffective in presenting mental health mitigation, but “further factual

development [was] necessary in order for this claim to be fairly and properly

adjudicated.” Robards, 112 So. 3d at 1274 (Pariente, J., concurring). The

postconviction proceedings below have now revealed the breadth of mitigation

evidence that penalty phase counsel failed to reasonably investigate.

Consequently, the jury in Robards’ case—which recommended his two death

sentences by narrow votes of seven to five—was not presented with the full picture

of Robards’ life when it made its recommendations. See id. at 1263.




                                        - 15 -
      What we now know as a result of the postconviction proceedings is that at

the time Robards’ penalty phase began, penalty phase counsel had access to

Robards’ medical and psychiatric records, competency records, and the results of

an initial Positron Emission Tomography (PET) scan showing brain abnormalities.

Additionally, penalty phase counsel was aware of records regarding motorcycle

accidents in which Robards had sustained injuries. Penalty phase counsel also

knew from the appointed mitigation specialist that there was evidence Robards

suffered sexual and physical abuse during his childhood. Despite this knowledge

of substantial mitigation, penalty phase counsel did not further investigate

Robards’ background and proceeded to the penalty phase.

      Penalty phase counsel acknowledged in his testimony during the evidentiary

hearing that the full extent of mental health mitigation was not known until

“months after” the penalty phase jury recommended that Robards be sentenced to

death. In this regard, penalty phase counsel did not have a full picture of Robards’

background before he decided against presenting mental health mitigation to the

penalty phase jury. Consequently, the penalty phase jury was similarly denied the

full picture of the mitigating circumstances in Robards’ life that may have affected

its weighing of the aggravation and mitigation when deciding whether Robards

was deserving of the ultimate punishment.




                                        - 16 -
      Instead, the mental health mitigation was developed during three hearings

held before the trial judge over a period of months after the penalty phase jury

made its recommendations. The investigation of Robards’ mental health

mitigation during these months revealed that Robards suffered from traumatic

brain injury and toxic brain exposure. Moreover, testimony by a PET specialist

revealed that Robards began using steroids at age fifteen and used them

continuously for decades. A psychopharmacologist testified that Robards may

have been suffering from steroid withdrawal during the time of the murders, and

evidence was presented demonstrating Robards’ paranoia, violent behavior,

delusions, and psychotic disturbances. Robards’ sister’s testimony during one of

the hearings also revealed that Robards’ brothers physically and emotionally

tormented him growing up, and that Robards was sexually abused in a neighbor’s

home as a child.

      Thus, as penalty phase counsel acknowledged during the postconviction

proceedings, the picture of Robards’ childhood that the penalty phase jury was

presented with was incomplete. The penalty phase jury was not afforded the

opportunity to evaluate this testimony against other testimony that depicted

Robards as a happy child. “The jury vote in this case was seven to five in favor of

a death recommendation. The swaying of the vote of only one juror would have

made a critical difference here.” Phillips v. State, 608 So. 2d 778, 783 (Fla. 1992).


                                        - 17 -
For all these reasons, it is clear that a new penalty phase is mandated not only on

the basis of the harmful Hurst error in this case, but also as a result of the

ineffective assistance of Robards’ penalty phase counsel.

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

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

sentence pursuant to Hurst.

CANADY and LAWSON, JJ., concur.

An Appeal from the Circuit Court in and for Pinellas County,
     Joseph Anthony Bulone, Judge - Case No. 522006CF018453XXXXNO

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Raheela
Ahmed, Maria Christine Perinetti, and Donna Ellen Venable, Assistant Capital
Collateral Regional Counsel, Middle Region, Temple Terrace, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stephen D. Ake,
Assistant Attorney General, Tampa, Florida,

      for Appellee




                                         - 18 -
