          Supreme Court of Florida
                                  ____________

                                  No. SC12-890
                                  ____________

                         BILLY JIM SHEPPARD, JR.,
                                 Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                               [September 4, 2014]

PER CURIAM.

      Billy Jim Sheppard, Jr., appeals from two judgments of conviction of first-

degree murder and a sentence of death. We have jurisdiction. See art. V,

§ 3(b)(1), Fla. Const. For the reasons set forth below, we affirm his convictions

and sentence of death.

                                 BACKGROUND

                                     Overview

      Billy Jim Sheppard, Jr., was convicted and sentenced to death for the

July 20, 2008, first-degree murder of Monquell Wimberly in Jacksonville, Florida.

Sheppard was also convicted of the first-degree felony murder of Patrick Stafford,
which occurred earlier on the same day, for which Sheppard was sentenced to life

imprisonment.1 As the discussion of the evidence will show, Patrick Stafford died

after being shot repeatedly by two different guns in the early morning hours of

July 20 after he was found in a car where he had been sleeping. Several hours

later, Sheppard and his codefendant Rashard Evans stole a car at gunpoint from

Dorsette James at a Prime Stop convenience store, with Sheppard driving it away

from the store.

      Shortly after 10 a.m., on that same day, Sheppard and an unidentified driver

went in the stolen car to the Hollybrook Apartments where they encountered

sixteen-year-old Monquell Wimberly, who was riding a bicycle. Sheppard was

identified by a security guard as the person she saw on the passenger side of the

stolen car who shot Wimberly multiple times from the window of the car.

Ballistics evidence showed that the gun that fired two of the three projectiles

recovered from Stafford’s body was the same gun that killed Wimberly. In his

statements to detectives, Sheppard admitted stealing Dorsette James’s car but

denied being armed, and he did not confess the murders to police. Evidence was

presented, however, that Sheppard confessed to a jail inmate that he and Evans

shot Stafford when he refused to cooperate with their attempt to steal the car in



       1. Sheppard was also convicted of attempted robbery and additional
firearms and theft offenses.


                                        -2-
which Stafford had been sleeping. The inmate also testified that Sheppard

confessed that he and Evans drove to the apartment complex where Sheppard shot

Wimberly from the window of the car.

      After the jury found Sheppard guilty of both murders, a penalty phase

proceeding was held at which the jury recommended a sentence of death by an

eight to four vote for the murder of Wimberly and a sentence of life in prison for

the murder of Stafford. The trial court found one aggravator comprising a prior

violent felony conviction for shooting and wounding a young man when Sheppard

was age 14, for which he was prosecuted and sentenced as an adult, and the

July 20, 2008, murder of Stafford. The court weighed this aggravator against the

statutory mitigator of Sheppard’s age of 21 and fifteen nonstatutory mitigators,

including his difficult childhood, his slow mental ability, and his generally good

character. After a Spencer2 hearing at which letters from Sheppard’s family

members were submitted in further mitigation, the court sentenced Sheppard to

death for the murder of Wimberly and imposed a sentence of life imprisonment for

the murder of Stafford.

      Sheppard raises five issues on appeal. However, before we discuss each

issue, we review the evidence presented in the guilt phase in greater detail.




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


                                        -3-
                                  The Guilt Phase

      Dtalya Barrett, a security guard at the Hollybrook Apartments on King

Street in Jacksonville, testified that on the morning of July 20, 2008, she was

working at the apartment’s entrance gate. When she heard gunshots shortly after

10 a.m., she ran to the end of the sidewalk where she saw a person holding a gun

out of the passenger side window of a passing car driving toward her. The person

holding the gun shot a teenage boy, later identified as sixteen-year-old Monquell

Wimberly, who was riding a bicycle. Barrett ran to call police and when she

returned, she saw the shooter leaning out of the car window and looking back

toward the boy on the ground. She could not see the driver but could see the

passenger quite well from about ten to twelve feet away, and she said the shooter

was a black male with “dreads.” When the police arrived, she was placed in the

police car to wait but “ran off” because, as she explained, the police put her where

everyone could see her and “they didn’t think about whether he can come kill us or

whatever. . . . I wanted to get out and get my kids and leave.” During a break, the

trial judge spoke to counsel and noted that no objection was lodged to this

testimony, “and it was probably not warranted,” but the judge did not want the




                                        -4-
attorneys to mention her comment in closing argument in any way to suggest a

“Golden Rule”3 violation or suggest the jurors had anything to fear.

      Barrett did meet with detectives the next day and was shown a series of

photographs on the computer. She initially picked out one person as “looking like”

the shooter, and although police investigated that person, he was not arrested.

When Barrett met again with detectives and was shown more photographs she

picked out Sheppard’s photograph, and she identified Sheppard in court as the man

she saw shoot Wimberly. She also identified Dorsette James’s stolen car as

matching the vehicle in which the shooter was riding.

      Khalilah Mejors, a resident at the Hollybrook Apartments, was standing on

the third-floor balcony on the morning of July 20, 2008, and saw the young man

riding the bicycle. She testified that as a dark gray Ford Crown Victoria or

Mercury vehicle approached the boy and slowed down, the boy put his hands in the

air and was immediately shot, and he was shot several more times while on the

ground. She could not see the shooter’s face or that of the driver but did see the

lower part of an arm sticking out of the passenger side window holding the gun.

She ran to the victim and found him still alive but not speaking.




       3. A “Golden Rule” violation occurs when arguments or comments invite
the jurors to imagine themselves in the victim’s position during the crime. See
Victorino v. State, 127 So. 3d 478, 492-93 (Fla. 2013).


                                        -5-
      Kieva Sherrod was also a resident at the Hollybrook Apartments on July 20,

2008, where she lived on the third floor facing King Street. She was standing on

the balcony with her cousin Khalilah Mejors that morning and also saw Wimberly

ride by on a bicycle toward the entrance to the apartment complex. She saw the

vehicle, which looked like a gray Ford Crown Victoria, drive up to the person on

the bicycle and slow down, and the boy on the bicycle stopped. She testified that

she sat down, but heard a gunshot and when she looked again, the boy on the

bicycle had his hands up in the air. She saw a gun pointed out of the window of

the car, but she could not see who was holding the gun, although she could see that

there were two people in the car. Sherrod testified that the boy was shot several

more times and fell off the bicycle. She ran inside to get her phone to call the

police and then ran down to the boy to see if he was still alive. She said he was

still alive but she did not hear him say anything. She identified a photograph of the

car, which witnesses later identified as one stolen from Dorsette James at the Prime

Stop convenience store, as the car she saw that morning.

      Approximately one and a half hours before Wimberly was shot, a car

matching the description of the Wimberly shooter’s car was stolen at gunpoint

from Dorsette James at the Prime Stop Food Store. Willie Lee Carter, Jr., testified

that he was at the store with James, who was since deceased. Carter, who was

outside but not in the vehicle, heard James exit the store and say, “Man, don’t do it


                                        -6-
like that.” When Carter looked, he saw two men getting into James’s car, a gray

Crown Victoria. One man, described as shorter and with light brown skin and

dreadlocks, got into the driver’s side of the car. The other person, a tall man with

darker skin, got in the passenger side and the car drove away. When Carter asked

James why he let them take his car, Carter testified that James told him one of the

men had a gun. James later picked Sheppard’s photograph out of a photographic

array as the driver and a photograph of Rashard Evans as the person who got into

the passenger side of the car. Photographs taken from inside the Prime Stop store

showed both Evans and Sheppard at the store that morning.

      The stolen car was recovered that evening near where the shooting occurred,

but no DNA was found for comparison purposes. Latent fingerprints and palm

prints taken from the stolen car were submitted for examination and comparison.

Fingerprint examiner Richard Kocik of the Jacksonville Sheriff’s Office testified

that some of the fingerprints taken from the stolen car were of no value and were

not compared to anyone. The only prints of value taken from the vehicle, palm

prints and some fingerprints, matched Rashard Evans.

      Detective Bobby Bowers, Sr., of the Jacksonville Sheriff’s Office, testified

that after learning of the identification of Evans in regard to the stolen car, an arrest

warrant was sought, and that when Carter identified Sheppard in connection with

the stolen car, Bowers also sought an arrest warrant for him. Sheppard was not


                                          -7-
immediately located and, after a special unit was contacted to apprehend him,

Sheppard was taken into custody in Winter Haven by United States Marshals on

August 8, 2008, and returned to Duval County.

      Before Detective Bowers arrived to investigate the Wimberly shooting scene

on King Street on July 20, 2008, he had been investigating the shooting of Patrick

Stafford, which occurred at 6 a.m. that same morning on Academy Street in

Jacksonville. Shamika Worthey lived on Academy Street and, in the early

morning hours of July 20, 2008, went out to her car to retrieve some diapers and

saw Patrick Stafford asleep in her brother’s car. She returned to the house and

went back to sleep but was awakened by the sound of gunshots at about 5:30 or

5:45 a.m. She could not see anything from the window and woke her uncle and

brother and asked if Stafford had a gun and was told he did not. She looked again

and could then see that Stafford was lying by a tree in the yard. He appeared to

have blood on his shirt.

      Leporyon Worthey, Shamika’s brother, testified that he and Patrick Stafford,

his cousin, arrived at the house on Academy Street after midnight and that he went

to bed around 3 a.m., leaving Stafford sitting on the hood of Leporyon’s car

waiting for a ride. When his sister woke him around 6 a.m., Leporyon found

Stafford on the ground, with the car door open and no one else present. Leporyon

said Stafford tried to speak but could not do so. Crime scene detective Howard


                                       -8-
Mac Smith was dispatched to the Academy Street scene and found a Ford LTD

parked in the yard with the door open and the passenger side window shattered.

Stafford’s body was near the car and shell casings found around the area were

collected for forensic examination.

      Dr. Valerie J. Rao, medical examiner for District 4, Duval County, testified

that she performed the autopsy on Patrick Stafford. He sustained multiple gunshot

wounds, including to his thigh, buttocks, back, shoulder, and arms. The bullets

that entered his back also went though his chest, left lung, esophagus, trachea, and

clavicle. The bullet that entered his left buttock also went through his left kidney,

stomach, liver and diaphragm. He suffered other gunshot wounds as well, and

Dr. Rao testified that, in her opinion, the cause of Stafford’s death was multiple

gunshot wounds.

      Dr. Rao also performed the autopsy on Monquell Wimberly. He sustained a

number of bullet wounds, including two on his back close to his head. One bullet

fractured his spine and then went through his abdominal aorta, liver, right hemi-

diaphragm and right lung, then through the intercostal space, lodging in the head of

his humerus on the right side. The other bullet traveled a very similar course. She

found another gunshot wound on his back where the bullet entered and then went

through his spleen, hemi-diaphragm, left lung, and right lung. Wimberly had

another gunshot wound to his back where the bullet entered and traveled through


                                         -9-
his left rib, left kidney, root of the mesentery, right hemi-diaphragm, and then

exited the right side of the chest wall. Wimberly also had a gunshot wound on his

left buttock in which the bullet crossed to the right side behind the prostate gland,

and lodged in his right thigh. Dr. Rao opined that the cause of Wimberly’s death

was multiple gunshot wounds.

      David Warniment, a Florida Department of Law Enforcement firearms

examiner, testified that although no firearms were ever discovered or tested, he did

examine and compare bullets and shell casings from both the Stafford and

Wimberly shootings. He testified that two bullets recovered from Stafford’s body

were fired from the same Smith and Wesson 9mm caliber pistol that fired three

bullets recovered from Wimberly’s body. Of the six shell casings found at the

scene of Stafford’s shooting on Academy Street, four of those shell casings

matched six shell casings found on King Street where Wimberly was shot, and

were therefore fired from the same gun. The other two shell casings recovered

from Academy Street where Stafford was shot were fired from a single gun, but it

was not the same gun that was fired at both crime scenes. Thus, two different

firearms were used to shoot Stafford on Academy Street and only one of those

firearms was used to shoot Wimberly on King Street.

      After Sheppard was taken into custody, he was interviewed by Detective

Bowers and Detective Glen Warkentien. The interview was videotaped and the


                                        - 10 -
tape was played for the jury after it was redacted, and admission of it in redacted

form was not objected to by Sheppard’s counsel. In the interview, Sheppard was

read his Miranda4 rights and waived them. He initially denied carjacking Dorsette

James’s car, which was later identified as the car from which Wimberly was shot.

However, later in the interview, Sheppard admitted that he and Evans took the car

for a “joyride,” that he got in the driver’s side, and that he got out of the car at

Acorn Street while Evans kept the car. Sheppard denied that they took the car by

force or with guns. Sheppard also denied any involvement in the Wimberly and

Stafford murders.

      Michael Roberts, who was currently incarcerated, testified concerning his

conversations with Sheppard while they shared a jail cell prior to Sheppard’s trial.

Roberts testified that in April 2009 he was incarcerated in the Duval County Jail

for about three months when he met Sheppard there. About two weeks after

Roberts began sharing the cell with Sheppard, an inmate named Danny “Dirt”

James was moved in. James knew Sheppard “from the streets” and, Roberts said,

the three of them became close and shared information about their cases.

      Roberts testified that at one point during their incarceration, Sheppard asked

him how much weight an eyewitness’s testimony would be given if that witness

identified Sheppard as the shooter, but there was no other evidence. Roberts

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


                                          - 11 -
testified that he told Sheppard the testimony would be crucial. Roberts testified

that Sheppard also asked how much weight it would carry if a codefendant related

facts of a crime to a third party when the other codefendant was not present.

Roberts said he asked about it and Sheppard told him Evans, his codefendant, was

housed on the other side of the jail and was bragging about a carjacking, saying

“the guy bucked and that they shot him,” referring to the Stafford murder. Roberts

said that when Sheppard was explaining why he was charged with murder,

Sheppard said his codefendant Evans had talked and it got back to the police, who

then matched the ballistics from the two shootings.

      Roberts testified, “Actually he said that - - he said that they were going hard

[apparently a reference to doing drugs] and they were trying to find a car and that

they went to rob a guy for his car and he bucked. They were trying to take a car

from him and he bucked,” which meant he was not giving up the car. “So he said

that him and Rashard shot him. . . . He said they both put fire on him,” which

meant shooting him. Roberts also testified that he overheard Sheppard telling

some other inmates that, later on the day of the carjacking attempt, they “shot that

fuck nigger from West Jax that was on his bike” and with whom Sheppard said he

had argued. Roberts explained that Sheppard said he had been in a big argument a

few days before with “some boys from West Jax because him and Dirt, they’re

from Paxon and PYC,” which are gang references.


                                        - 12 -
      Roberts testified that Sheppard later told him directly about shooting the boy

on the bicycle after he and Evans had shot the man who “bucked” in the attempted

carjacking earlier that morning. Roberts testified, “And he said that he pulled up to

him and he was on a bicycle. And they slowed down and he hung his arm out the

window and started shooting. And he said the dude looked at him and was, like - -

(demonstrating) - - and shot. And he said he went ahead and shot him. He didn’t

say how many times.” Roberts testified that Sheppard then described the woman

who could identify him:

      And then he said whenever they - - he shot the guy. He looked up
      when they were pulling away, and there was a lady looking right in
      his face. And he said it was just - - and I was like: Well, why didn’t
      you - - you know, why didn’t you shoot her? Basically I said that.
      And he was like: Oh, I wish I would have killed her. He said because
      it was - - I guess the way he put it was when they were pulling - -
      when he looked up - - after he shot the guy, he looked up and she was
      looking at him but Rashard was already pulling away.

Roberts testified that Sheppard told him Evans would not testify against him, but

Sheppard was worried about the woman who could identify him.

      Roberts also testified that at the point when his own charges were about to

be dropped, Sheppard asked him for a favor. When Roberts asked what the favor

was, Sheppard said, “Man, you know, if she don’t come and testify on me, they

ain’t got no case. You told me yourself. . . . [y]ou said, man, if she don’t come

testify, they ain’t got no case on me at all, other than what my codefendant told

that other guy.” Roberts said Sheppard told him he would get all the information

                                        - 13 -
to Roberts through Sheppard’s sister and could pay him with his income tax return.

Roberts said he did not want to look weak so he said he would think about it, but

never gave Sheppard an answer. Roberts said Sheppard asked him several times

after that what he was going to do, and then Sheppard was moved out of the jail

dorm. Roberts testified, “He wanted me to kill her.” Roberts further testified that

he never told law enforcement about this information while his own charges were

still pending in Duval County and that he was not promised anything for his

testimony, although he later divulged the information in hopes of a reduced

sentence on subsequent charges in Nassau County. He testified that he pled guilty

to those charges and, at the time of trial, was facing a possible sentence of thirty

years in prison.

      On January 12, 2012, the jury returned a verdict finding Sheppard guilty of

the first-degree murder of Monquell Wimberly as charged, and that Sheppard

actually possessed and discharged a firearm in the commission of the murder

causing great bodily harm or death. The jury also found Sheppard guilty of the

first-degree felony murder of Patrick Stafford in the commission of or attempt to

commit armed robbery, and that Sheppard actually possessed and discharged a




                                         - 14 -
firearm in the commission of the offense causing great bodily harm or death.5

Thus, the case proceeded to the penalty phase of trial.

                          Penalty Phase and Sentencing

      The penalty phase commenced on January 20, 2012, and the parties

stipulated that on June 22, 2001, Sheppard was convicted of the felony of

aggravated battery and shooting or throwing deadly missiles relating to the January

15, 2001, shooting of Christopher Wakefield in case number 16-2001-CF-1277-

AXXX-MA. The State also presented the testimony of Dwayne L. Crouch, a

deputy with the Jacksonville Sheriff’s Office in 2001, who investigated the

January 15, 2001, shooting of Wakefield. Wakefield was shot in the leg while

leaving a mall in a vehicle with five to seven other people. Sheppard was

prosecuted as an adult and received a sentence of four years in prison followed by

two years of probation, but he violated probation and was sentenced to five years

and six months in prison. The State also presented two victim impact witnesses.

Monique Hodge, Monquell Wimberly’s mother, read a statement to the jury about



       5. The jury also convicted Sheppard of attempted armed robbery from
Stafford, as charged, and possession and discharge of a firearm during commission
of the offense causing great bodily harm or death. The jury convicted Sheppard of
“grand theft auto” of Dorsette James’s vehicle as charged, and found that Sheppard
actually possessed a firearm during the commission of the offense. Finally, in a
separate deliberation after the first charges were decided by the jury, Sheppard was
convicted of possession of a firearm by a convicted felon and found to have
actually possessed the firearm during that offense.


                                        - 15 -
her son and Frankie Johnson, Sr., Patrick Stafford’s father, read a statement about

Stafford, after which the State rested.

      The defense presented a number of mitigation witnesses. Juwaun Newkirk,

Sheppard’s 13-year-old nephew, described Sheppard as very kind. Sheppard lived

with him for a while and would reward him for doing well in school. Sheppard

still writes to him. Alonzo Adams, Sheppard’s cousin, testified that Sheppard is a

happy, fun guy who is quick to joke. Chiquita Adams, Sheppard’s cousin and

sister to Alonzo, said Sheppard is like a brother to her and that she spent a lot of

time with him when she was little. She testified that he cleaned for her mother and

made sure she had her medications. They exchange letters and she hopes to

continue to have a relationship with him. Curtiayanna Tompkins, a friend of

Sheppard, met him in 2008 after Sheppard was arrested, and they have had a

relationship through letters and telephone calls.

      Bessie Walker, Sheppard’s grandmother, testified that she raised Sheppard

for some years because his mother suffered from drug and alcohol dependency.

Sheppard was always respectful, looking out for her and worrying about her health.

He would cook and clean willingly and was a great help around the house. She

testified that she warned Sheppard not to “hang around” some of the people he met

on the streets and not to give them money that he got from his deceased father’s

social security benefits. Sheppard’s father died of sickle cell disease when


                                          - 16 -
Sheppard was a young child, as did his two aunts and grandfather. Walker said it

was hard on the family when Sheppard went to prison at age 14 and that after he

got out, Sheppard would visit her and her daughter and would help her daughter,

who had medical problems.

      Kathryn Lunford-Walker, Sheppard’s mother, testified that she and

Sheppard have a good relationship and are close, although there was a period of

time when she had drug and alcohol dependency. When Sheppard was young, he

had to live with his grandmother because Lunford could not care for him and her

other children. She testified that shortly after Sheppard was sent to prison, he

became close to her new husband, who has since passed away. She testified that

Sheppard then “got himself shot” in a drive-by shooting in March 2008, and that

Sheppard’s best friend, Joshua Swann, was murdered in June 2008. She said she

loves Sheppard and wants to continue to have a relationship with him.

      Quintina Sheppard-Newkirk, Sheppard’s sister, testified that she and

Sheppard were always close and grew up in the same house. When their father

died, Sheppard was age eight and she was ten. They did not spend much time with

their mother for some years when they lived with their grandmother. She testified

that they saw their mother during that time and knew she loved them, but that

when she relapsed with drugs and alcohol she would become violent with her and

Sheppard. When they lived with their mother, they moved every couple of months


                                        - 17 -
because she would fail to pay the bills or there would be something wrong with the

residence. Sometimes there was no electricity and not enough food. Their

grandmother loved them and did provide stability.

      Newkirk testified that there was a lot of gunfire in their neighborhoods when

they were growing up and that they heard it on a daily basis. When Sheppard went

to prison at age 14, she kept in contact with him, and when he got out, he lived

with her for a while. She testified that when he was released from prison, he was

different and would barricade himself in the bedroom and sleep a lot, and that he

lost his easygoing spirit. He did not stay with her full time but was “kind of

floating.” When his good friend Joshua was shot and killed, Sheppard took it very

hard. She identified some photographs of Sheppard as a child, with their father

and grandmother, and with her and their cousin. She identified photographs of

Sheppard when he was age 14 and in prison, and other family photographs. She

said she loves her brother and hopes to maintain a relationship with him.

      The defense rested and Sheppard confirmed to the court that he chose not to

testify and that he agreed with the decision to call only the witnesses his lawyers

presented. The jury deliberated and recommended death for the murder of

Monquell Wimberly by a vote of eight to four. For the murder of Patrick Stafford,

the jury recommended life imprisonment without the possibility of parole. A




                                        - 18 -
Spencer6 hearing was held on March 8, 2012, at which the State presented three

additional victim impact statements from Patrick Stafford’s son, Monquell

Wimberly’s aunt, and Wimberly’s sister. The defense introduced letters of

mitigation authored by family members Quintina Sheppard-Newkirk, Bessie

Walker, Chiquita Adams, Kathryn Lunford-Walker, Margaret Cummings, Cheryl

Cummings, a cousin named Muffin, and by Marva Hendrix, a family friend. The

defense also submitted two certificates issued to Sheppard acknowledging his

achievements.

      The trial court followed the jury recommendations in sentencing Sheppard to

life for the first-degree felony murder of Patrick Stafford and death for the first-

degree murder of Monquell Wimberly. In the March 30, 2012, order sentencing

Sheppard to death for the murder of Wimberly, the trial court found one

aggravating factor, encompassing the Stafford murder conviction and two prior

violent felonies, and assigned it great weight. The court found one statutory

mitigating factor, Sheppard’s age of 21 at the time of the crime, and assigned it

little weight. The trial court also found fifteen “non-statutory” mitigating factors.7



      6. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
      7. The nonstatutory mitigators were: (1) Sheppard is a loving brother, son,
grandson, and friend (little weight); (2) he is capable of establishing and
maintaining bonds with others (little weight); (3) he is friendly/good with family
members, children, and animals (little weight); (4) he always has a desire to help
his family members especially when they are sick (little weight); (5) he has shown

                                         - 19 -
                                    ANALYSIS

                          A. Videotape of Interrogation

      The redacted version of the videotaped statement that Sheppard gave to

detectives after Sheppard was taken into custody was played for the jury.

Sheppard contends that admission of the videotape was fundamental error because

the jury heard Detective Bowers repeatedly accuse Sheppard of lying, and heard

Bowers say the detectives knew he was either the shooter or the driver of the car

from which Wimberly was shot. At the outset of the interview, Detective Bowers

advised Sheppard that he does not care for lying and was not going to lie to

Sheppard, but he expected the same from him. Bowers said, “You don’t have to



concern in regard to family members and how they have had to endure his arrest
and trial and the defendant can still continue to positively impact people close to
him (little weight); (6) his mother abused alcohol and drugs during his childhood,
forcing him to live with his grandmother who had responsibilities of her own
(some weight); (7) he was forced to witness frequent and ongoing violence as a
very young child (some weight); (8) he has a limited education (little weight);
(9) he suffered from poverty (slight weight); (10) he lost his father at a very young
age (some weight); (11) he entered the adult penal system at age 14 and spent what
should have been his high school years behind adult prison bars (some weight);
(12) he was intoxicated at the time of the offense (very slight weight); (13) he is
amenable to a productive life in prison (slight weight); (14) he suffered from
mental disabilities that caused him to develop at a slower pace than other children
his age and resulted in people taking advantage of him (slight weight); and (15) he
suffered the death of his stepfather in the months leading up to his arrest (little
weight).




                                       - 20 -
answer anything that you don’t want to” but he expected the truth when Sheppard

did answer.

      Sheppard was asked if he was with the PYC gang and Sheppard denied it.

Bowers then told Sheppard that he knew the answers to the questions he was

asking and said, “All I’m here to find out, is Billy that cold that he needs to be

locked up forever. Is everything that comes out of his mouth a lie? Because so far,

you’re batting a thousand. . . . All I’m trying to do, Billy, is find out are you a

stone-cold killer and a liar or is there goodness in you.” Sheppard then confirmed

he had a PYC tattoo on his arm, and later said that ‘it” was in his “file,” referring

to a PYC notation.

      Detective Bowers then confronted Sheppard with evidence of his presence at

the Prime Stop convenience store and witness statements that Sheppard and Evans

took Dorsette James’s car at gunpoint, which Sheppard denied. Then Bowers said,

“My main concern with you knowing is are you the trigger man, are you the

driver? Because you’re one or the other.” Bowers then said, “[Y]ou may have

been an unwilling participant. You may have been along for the ride. It may have

been an accident, the fact that he got shot. It may have been the intention you were

going to scare someone without the intent of killing them . . . .” Sheppard

continued to deny a carjacking, but then admitted to taking James’s car for a

“joyride.” Detective Bowers told Sheppard, “Tell me the whole truth or none of


                                         - 21 -
the truth. We’re trying to get on a (inaudible) where I can believe you because

that’s important to you, and you know that if I can’t make (inaudible) you know

you won’t be able to convince 12 people.” Sheppard ultimately admitted that he

and Evans took the car when James was in the store and that Sheppard got in the

driver’s side of the car, although Sheppard said he later got out of the car at Acorn

Street and Evans assumed the driver’s seat. Sheppard never admitted anything

concerning either of the murders. No objections were made to any portion of the

redacted videotaped statement that was presented to the jury.

      Sheppard contends that Bowers’ statements in this interview constituted

fundamental error because they accuse Sheppard of lying numerous times; tell him

that if he cannot make the detectives believe him, he will never convince a jury;

and say that the detectives know he is either the shooter or the driver. Sheppard

contends these statements were so prejudicial that his right to a fair trial was

violated. Error is fundamental if it “reach[es] down into the validity of the trial

itself to the extent that a verdict of guilty could not have been obtained without the

assistance of the alleged error.” Harrell v. State, 894 So. 2d 935, 941 (Fla. 2005)

(quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960)). It is error that goes to

the “foundation of the case.” Ray v. State, 403 So. 2d 956, 960 (Fla. 1981)

(quoting Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970)). The principle is

applied only in rare cases where the interests of justice present a compelling


                                        - 22 -
demand for its application. Id. As we explain, we conclude that fundamental error

did not occur in presentation of the edited videotape of Sheppard’s interview with

Detective Bowers.

      Sheppard relies primarily on our decision in Jackson v. State, 107 So. 3d 328

(Fla. 2012). In that case, prior to trial, Jackson filed a motion in limine objecting

to the prospective introduction of the videotaped interrogation on several grounds,

including that the tape contained numerous statements of the detective’s belief in

Jackson’s guilt. He also objected to the introduction of a redacted version of the

tape, and again objected at trial prior to the tape’s introduction. This Court in

Jackson found that the detectives made repeated expressions of their personal

beliefs and knowledge that Jackson committed the murder as well as statements

praising the victim and eliciting sympathy for the victim. We held that admission

of the videotape in Jackson was harmful error that was more prejudicial than

probative, and that the great majority of the detectives’ statements did not provoke

relevant responses from Jackson and did not set forth circumstances in which

Jackson admitted any culpability or involvement. See id. at 340-41.

      The present case is distinguishable from Jackson in several respects. First,

no motion in limine or objection to the videotaped interview was made in this case.

Thus, the threshold that Sheppard must meet is that of fundamental error, requiring

a showing that the alleged inadmissible statements reached down into the validity


                                         - 23 -
of the trial such that the guilty verdict could not have been obtained without that

evidence. This threshold has not been met. In Jackson, we identified “some of the

most problematic and prejudicial assertions” by the detectives as follows:

      (1) “the only question I have is: Why did you kill her”; (2) “I know
      you did it. You used a fire extinguisher. I know you did it”; (3) “No.
      I’m saying something that you did do and you know in your heart you
      did it”; (4) “There’s no doubt in my mind you did it, okay? There’s no
      doubt”; (5) “You have no explanation of how you could have come
      inside her other than being there raping her and then consequently she
      dies”; (6) “Well now we’re—you’re putting us—you in a position
      where we’re not—we don’t have any answers for anybody other than
      100 percent without a shadow of a doubt you killed Andrea Boyer and
      you raped her”; and (7) “Michael, you went to the clinic. You
      brutally raped this girl and you hit her multiple times in the head with
      a fire extinguisher. You left her there bleeding, half dressed for an
      employee to find her. . . .” Additionally, the detectives stated that
      Boyer “[wanted] to start a family,” “her parents were very well-to-
      do,” this is not the type of case where the victim “is a nobody,” and
      Boyer was a “rising star in the community.”

Jackson, 107 So. 3d at 341. Nothing said by Detective Bowers in the instant case

compares with these firm statements of opinion, assertions of guilt, and prejudicial

statements made in Jackson.

      In this case, Detective Bowers did not repeatedly state his personal opinion

that Sheppard was guilty of murder. He did accuse Sheppard of lying in several

respects, and warned Sheppard that he knew the answers to many of the questions

he was asking. Prior to any accusations of lying, Detective Bowers expressly

reminded Sheppard that he did not need to answer any questions, but if he did

answer, he should not lie. When Sheppard denied being in the PYC gang, Bowers

                                        - 24 -
warned him again about lying and pointed out the PYC tattoo on Sheppard’s arm.8

Sheppard also initially denied any knowledge of the carjacking of Dorsette James’s

car, which was later identified as the car from which Wimberly was shot.

However, Bowers confronted Sheppard with photographic evidence placing him

and Evans at the convenience store, evidence that the victim said he was carjacked

at gunpoint, and the statement that Evans told officers that he was not the killer.

Only after that did Sheppard admit to taking the car to “joyride.” Thus, this line of

questioning and the comments by Bowers successfully obtained Sheppard’s

confession that he did take the car, although Sheppard continued to maintain he

was not involved in the Wimberly shooting.

      When Sheppard kept insisting that he did not take James’s car by force,

Bowers did say, “Tell me the whole truth or none of the truth. We’re trying to get

on a (inaudible) where I can believe you because that’s important to you, and you

know that if I can’t make (inaudible) you know you won’t be able to convince 12

people.” Although this implication that Sheppard would bear any burden of proof

at a trial was improper, no further mention was made of whether Sheppard can or




       8. At the time of the investigation, the officers were attempting to establish
that the murder of Wimberly was the result of a gang disagreement, and there was
other evidence at trial about this gang-related motive. Ultimately, the State did not
pursue the gang affiliation as a motive or as an aggravator in the murder.


                                        - 25 -
cannot convince a jury in a criminal trial, and does not rise to the level of

fundamental error.

      As Sheppard also contends, Bowers said his main concern was knowing if

Sheppard was the triggerman or the driver, because he was one or the other. This

statement, although expressing the detective’s opinion or knowledge that Sheppard

was either the shooter or the driver, was logically based on evidence that Sheppard

had initially driven away in the stolen car with Evans and evidence that

codefendant Evans told officers that he was not the shooter. Bowers followed up

the comments with the statement that Sheppard may have only “been along for the

ride” without any intention to shoot anyone, and noting that such things can get out

of control. Sheppard’s response to this line of questioning was “I didn’t kill

nobody (inaudible) I don’t go that way, never seen that boy.” Later, Bowers again

suggested a scenario in which Sheppard was just the driver and someone else was

the shooter. Bowers told Sheppard that “[w]hen these things happen, it needs to

come out.”

      Rather than Bowers expressing a strong personal opinion that Sheppard shot

Wimberly, he is indicating that the evidence places Sheppard as either the shooter

or the driver, as it in fact does, and invites Sheppard to explain if he was not the

shooter. We conclude that although some of the comments by Detective Bowers

were improper statements of belief that Sheppard was lying and that he was either


                                         - 26 -
the shooter or the driver, the error was not fundamental. Eyewitness testimony

established that Sheppard was the person who shot Monquell Wimberly numerous

times from the window of the car Sheppard and Evans stole from Dorsette James.

Evidence was presented that Sheppard confessed his guilt to both murders to

Michael Roberts. The same gun that Sheppard used to kill Wimberly was also

used in the Stafford shooting. Thus, we conclude that the error does not “reach

down into the validity of the trial itself to the extent that a verdict of guilty could

not have been obtained without the assistance of the alleged error.” Harrell, 894

So. 2d at 941. It is not error that goes to the “foundation of the case.” Ray, 403

So. 2d at 960. This is not one of the rare cases in which the interests of justice

present a compelling demand for application of the principle of fundamental error.

See id.

      Even though we find no fundamental error in admission of the videotape, we

reiterate that a jury is inclined to give great weight to the statements made by law

enforcement officers by virtue of their position. See Tumblin v. State, 29 So. 3d

1093, 1101 (Fla. 2010). For this reason, great care should be taken by law

enforcement and by prosecutors that such statements expressing belief in the

defendant’s guilt or belief that the defendant is lying generally not be placed before

the jury. There is “increased danger of prejudice when the investigating officer is

allowed to express his or her opinion about the defendant’s guilt.” Martinez v.


                                          - 27 -
State, 761 So. 2d 1074, 1080 (Fla. 2000). As we cautioned in Jackson, “it is

especially troublesome when a jury is repeatedly exposed to an interrogating

officer’s opinion regarding the guilt or innocence of the accused.” Jackson, 107

So. 3d at 340. With this caveat, we find no merit in Sheppard’s claim of

fundamental error in this issue.

      B. Codefendant Evans’ Out-of-Court Statement to Chaeva Powell

      Chaeva Powell, Rashard Evans’ girlfriend, testified that when Evans was in

jail at a time before Sheppard was arrested, she spoke with Evans by telephone

while Sheppard was present with her. She was allowed to testify over objection

that Evans told her to tell Sheppard to “get rid of the package.” She did not know

what he was talking about but relayed the message to Sheppard, and when she

asked him about the package, Sheppard told her it was a gun. The State argued in

part that the testimony regarding Evans’ directive to Powell to tell Sheppard to “get

rid of the package” was not offered for the truth of the matter asserted and thus was

not inadmissible hearsay. The State contended that it was not important what the

package was, but what was important was the defendant’s response when the

message was relayed, which was an inculpatory statement by Sheppard.

      The defense countered that because the out-of-court statement concerning

the package came from codefendant Evans and was about Sheppard, it implied

Sheppard had knowledge of what was in the package, which turned out to be a gun.


                                       - 28 -
Thus, Sheppard contends, the codefendant’s statement was inculpatory as to

Sheppard, and violated Bruton v. United States, 391 U. S. 123 (1968), which

prohibits admission into evidence of a codefendant’s out of court confession or

statement that implicates the defendant. The trial court noted that Evans’ statement

to Powell “is not offered to prove the truth of any matter asserted. It barely asserts

any matter. But to the extent that it does, in an abundance of caution and in the

light most favorable to the defense, it still - - it’s irrelevant whether the statement

was true or not. What is relevant was the [defendant’s] response, and that’s the

only reason the statement’s coming in.”

       “The standard of review of a trial court’s evidentiary rulings is abuse of

discretion. Fitzpatrick v. State, 900 So. 2d 495, 514-15 (Fla. 2005). The trial

court’s discretion is limited, however, by the rules of evidence, Johnston [Johnston

v. State, 863 So. 2d 271, 278 (Fla. 2003)], and by the principles of stare decisis.”

McDuffie v. State, 970 So. 2d 312, 326 (Fla. 2007). With this standard in mind,

we first examine whether Evans’ statement to Powell was hearsay.

      Hearsay is defined as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” § 90.801(c), Florida Statutes (2013). Evans’ statement to Powell

was not a declarative one making a statement that was offered to prove its truth.

Rather, Evans’ statement to Powell was an imperative one expressing a demand


                                         - 29 -
that Powell convey a message to Sheppard. Only after Powell followed the

directive and conveyed the message to Sheppard, and only after she followed up

with a question about the package, did Sheppard make his own inculpatory

admission that the “package” referred to was a gun.

      Evans’ directive could be interpreted as implying that there was a package

that both Evans and Sheppard knew about and which Sheppard had the ability to

obtain and the need to dispose of. Sheppard contends that this makes Evans’

statement an incriminating one as to Sheppard and violates Bruton, which prohibits

admission of a non-testifying codefendant’s confession or statements incriminating

the defendant. However, Evans’ request to Powell was not a confession and, on its

face, is not expressly incriminating as to Sheppard. Evans did not describe the

package or explain what was in it. At the point that Evans made his command to

Powell to pass along the message, it was not clear what package was referred to or

what it contained. The only incriminating statement arising from the testimony

was Sheppard’s own response to the question by Powell when he said that the

package was a gun. Because the testimony about Evans’ statement to Powell is not

inadmissible hearsay and did not relate to any confession or inculpatory statements

by Evans about Sheppard, Bruton was not violated.

      Even if Evans’ statement was inadmissible hearsay, we conclude that it was

harmless beyond a reasonable doubt. Evans’ reference to a package was not


                                       - 30 -
necessary to prove that Sheppard stole the vehicle that was used in the shooting of

Wimberly, that he was the individual who shot Wimberly from the window of the

stolen car with a gun used in both murders, or that he confessed the details of both

murders to Michael Roberts. Even if the testimony concerning Evans’ request to

Powell implied that Sheppard had access to the gun used in the murder of Stafford

and Wimberly, that gun was already placed in Sheppard’s hand by the testimony of

Barrett and other witnesses. After considering both the permissible evidence on

which the jury could have legitimately relied, and the alleged impermissible

evidence in Powell’s testimony, we cannot conclude that the error, if any,

contributed to the verdict.9 See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.

2009). Accordingly, relief is denied on this claim.

           C. Dtalya Barrett’s Testimony of Her Fear of the Shooter

      Dtalya Barrett, the security guard who gave eyewitness testimony about the

murder of Monquell Wimberly, also testified that when the police came to

investigate, she was placed in a police car to wait. However, she said, she “ran

off” because the police put her where everyone could see her and “they didn’t

think about whether he can come kill us or whatever. . . . I wanted to get out and



       9. The State made only one brief reference to this testimony in closing
argument, noting Powell’s testimony that Evans told her to tell Sheppard to get rid
of the package and that, when she asked Sheppard about the package, he said it
was a gun.


                                       - 31 -
get my kids and leave.” No objection was lodged to this statement. On redirect

examination, Barrett testified that she was looking closely at the shooter’s face, not

his arms or hands at that point, and “was really looking at him, making sure he

wouldn’t come kill me, and I was really trying to get - - thinking that [the victim]

was my nephew.”

      During a break, the trial judge spoke to counsel and noted that no objection

was lodged “and it was probably not warranted,” but the judge cautioned the

attorneys not to mention her comment in closing argument in any way to suggest a

“Golden Rule” violation or to suggest the jurors had anything to fear. The State

explained that the witness made these statements in the course of explaining why

she left the scene and did not speak to police on the day of Wimberly’s shooting—

a matter possibly reflecting unfavorably on her credibility if left unexplained.

Later, Detective Bowers testified without objection that when he spoke to Barrett

at the scene, she was “panicky and very, very upset.” He said she was nervous

because the “individual had seen her” and that when he let her go to check on her

children that morning, she did not return to the scene. However, Barrett called him

the next day and explained she had been “terrified,” and she did submit to several

subsequent interviews.

      Sheppard now argues that this testimony concerning Barrett’s fear of the

shooter constituted fundamental error in that it inflamed the minds of the jurors,


                                        - 32 -
violated the prohibition against a “Golden Rule” argument, and was an improper

attack on Sheppard’s character by suggesting a propensity for violence. We

disagree. In this case, Barrett’s comments explained the reason she left the scene

without speaking with detectives. Without her explanation, her own credibility

would have been adversely affected. Moreover, Barrett did not know the identity

of the shooter at the time she expressed fear of the shooter’s possible return. Thus,

her fleeing the scene because of fear was not directed specifically and personally at

Sheppard, but simply at the person she saw shoot a young man for no apparent

reason—a man who clearly saw her face and knew she was a witness. Her

comments did not challenge Sheppard’s character but simply reflected that she was

reluctant to speak with police to identify the shooter because she did not want any

repercussions.

      This testimony did not “reach down into the validity of the trial” such that

the verdict of guilty could not have been obtained without the assistance of the

error. See, e.g., Harrell, 894 So. 2d at 941 (quoting Brown, 124 So. 2d at 484).

The evidence that convicted Sheppard was Barrett’s eyewitness testimony and

testimony of others linking Sheppard to the shooter’s car. In addition, jailhouse

informant Michael Roberts testified that Sheppard confessed the details of the

crime to him and that Sheppard tried to hire him to kill Barrett. Further, in closing




                                        - 33 -
argument, the State did not use Barrett’s testimony in any improper “Golden Rule”

argument or in any way that would inflame the passions of the jurors.

      Finally, even if objection to Barrett’s testimony had been preserved and

found to be error, we conclude it was harmless beyond a reasonable doubt. After

considering both the permissible evidence on which the jury could have

legitimately relied, and the alleged impermissible evidence, there is no basis to

conclude that the error, if any, contributed to the verdict. See DiGuilio, 491 So. 2d

at 1135. Thus, relief is denied on this claim.

                               D. Juror Impropriety

      Before closing arguments in the guilt phase, the bailiff brought to the trial

court’s attention the fact that two jurors wished to speak to the judge. Juror N was

brought in and told the judge, attorneys, and defendant outside the presence of the

other jurors that on the bus to the parking lot the night before, alternate Juror B told

her, “I’m an alternate” and “I find him - - and she gave me her verdict.” Juror N

said this statement by Juror B made her uncomfortable and was not right but, Juror

N said, “I’m not influenced by her.” She said, “Absolutely, Judge, I’m not

influenced.” When the judge asked Juror N what Juror B said about the verdict,

Juror N said the alternate told her she would find Sheppard guilty. Juror N did not

know if Juror B spoke with any other jurors. When given the opportunity to

question Juror N, defense counsel asked if the statement was loud enough for


                                         - 34 -
others to hear, and Juror N responded that “it was noisy on the bus shuttle. I turned

around to look at Bobby and it was just so noisy. Everybody was just chattering

away. . . .” “And she [Juror B] was just talking as fast as she could to me.” Juror

N said she had no idea if others could have overheard Juror B, but she did not see

Juror B talking to any other jurors around Juror N.

      Juror B was then brought in to discuss her comments on the jury bus. She

denied telling Juror N that she would find the defendant guilty, and said she had

not made up her mind and had sleepless nights worrying over the case. The

defense had no questions for alternate Juror B. The State objected to excusing

Juror B, but represented to the court that it would not object to both Juror N and

Juror B being excused. Defense counsel initially disagreed with dismissing Juror

B and said, “I just don’t see why we can’t put her on the end of the alternate list.”

As to Juror N, counsel said, “I don’t think there’s any grounds to dismiss [Juror N]

at all.” The defense did not ask to remove Juror B and did not ask to question the

whole panel.

      The judge stated that he believed it was likely that Juror B did say something

inappropriate and he was worried she would say something else to the jurors. Even

so, defense counsel said he was “not necessarily moving to have any of them

excluded. Miss [B] right now is an alternate juror, and I don’t know that I need to

even worry about that until - - .” Then, defense counsel said, “I don’t have any


                                        - 35 -
problem . . . if the court excuses her at all and that’s fine with me,” indicating Juror

B. Defense counsel again said there was no reason to remove Juror N. The trial

court did remove Juror B and allowed defense counsel to alter the order of the

remaining alternate jurors. When the court announced it was removing Juror B,

defense counsel said, “That’s fine with me.” Juror N was not removed.

      Sheppard now argues that Juror B’s statement to Juror N constituted juror

misconduct and premature deliberation that shifted the burden to the State to prove

he was not prejudiced. Sheppard contends that the prosecutor and the trial judge

had an independent obligation to conduct questioning of the other jurors as to the

alleged premature deliberation and because that was not done, a new trial is

required. We disagree. First, the claim of juror misconduct is not preserved. See

James v. State, 843 So. 2d 933, 936 (Fla. 4th DCA 2003) (holding that the

defendant failed to preserve for appellate review his claim that the trial court erred

in denying his motion for new trial based on juror misconduct where he failed to

raise such claim at trial); see also Hampton v. State, 103 So. 3d 98, 112-13 (Fla.

2012). In this case, defense counsel never asked the court to question the entire

panel, and he initially objected to even dismissing alternate Juror B. Thus, the

claim he now makes on appeal is not preserved and he accordingly argues that it

constituted fundamental error.




                                         - 36 -
      Although Sheppard is correct that where “premature deliberations” are

shown, the burden shifts to the State to show the defendant is not prejudiced, the

facts here do not establish that “premature deliberations” occurred. In a somewhat

analogous situation, we held in Reaves v. State, 826 So. 2d 932 (Fla. 2002), that

the contention that one juror attempted to discuss guilt prematurely did not require

interviews of the entire panel of jurors because there was no evidence that there

was any agreement among other jurors to disregard their oaths and ignore the law,

nor did the allegation imply that the jury was influenced by outside sources or

improper material. Id. at 943. In contrast, in Williams v. State, 793 So. 2d 1104,

1106 (Fla. 1st DCA 2001), the district court held that the allegation that “two

jurors discussed the case during trial and expressed an opinion as to guilt before

the close of the evidence” was sufficient to set forth a prima facie case of

premature jury deliberations by two members of the jury. The First District

followed Williams in Ramirez v. State, 922 So. 2d 386 (Fla. 1st DCA 2006), which

is relied on by Sheppard in this appeal. In Ramirez, the district court held that jury

interviews should have been allowed on the allegation of premature jury

deliberations where a juror told a bailiff that the jury was split as to the defendant’s

guilt until after the defendant testified. Id. at 390.

      The Fourth District Court of Appeal in Gray v. State, 72 So. 3d 336 (Fla. 4th

DCA 2011), recognized this Court’s holding in Reaves that a lone juror’s attempt


                                          - 37 -
to discuss the defendant’s guilt prematurely is insufficient to warrant juror

interviews, but found in Gray that the court abused its discretion in denying juror

interviews where the allegations suggested that “multiple jurors were improperly

discussing the case during trial and were expressing opinions as to the defendant’s

guilt before the close of the evidence” and it was not an “allegation of a lone juror

attempting to discuss the case prematurely.” Gray, 72 So. 3d at 338. These cases

make clear that a claim of premature jury deliberations sufficient to require

questioning of the entire jury panel requires that multiple jurors discuss the case

together and discuss their opinions as to the proper verdict.

      The facts in this case show that a premature discussion of the verdict by

multiple jurors did not occur. Juror N said alternate Juror B voiced her opinion of

what verdict she would reach, but there was no indication that Juror N reciprocated

and discussed her views of the evidence or her ideas concerning guilt. In fact,

Juror N said she knew Juror B’s comment was improper, reported it to the court,

and assured the court she was not influenced by it. There was also no indication

that any other juror heard Juror B’s comments. The trial judge asked Juror N

whether Juror B spoke to any other jurors and she replied that she did not know,

but that Juror B was just talking to her. Defense counsel asked if the comment was

loud enough for other jurors to hear, to which the judge added, “That’s a darn good

question. Thank you. Could anyone else overhear?” Juror N responded that Juror


                                        - 38 -
B was “talking as fast as she could to me” and that it was “just so noisy” on the bus

and everyone was “chattering away,” but she did not know if anyone else

overheard. Juror N also confirmed that she had not mentioned this incident to any

other jurors. Even if another juror might have overheard Juror B’s comment, such

would not constitute “premature deliberations” as described in the decisions cited

above.

      Sheppard supports his contention that fundamental error occurred requiring a

new trial by citing Fischer v. State, 429 So. 2d 1309 (Fla. 1st DCA 1983). That

case is distinguishable, however. In Fischer, the district court reversed a

conviction where an alternate juror was inadvertently allowed to deliberate with

the jury in violation of the requirement that alternate jurors are required to be

discharged prior to deliberations. When the jury returned the verdict, however, the

error was discovered and counsel objected and moved for a mistrial. Thus, the

issue on appeal in Fischer was not a claim of fundamental error but whether the

error was harmless. On appeal, the First District concluded that the presence and

participation of the alternate juror in the jury room during deliberations was not

harmless error and required a new trial because the sanctity of the jury and its

deliberations was violated. In so holding, the First District cited the Fourth

District’s decision in Berry v. State, 298 So. 2d 491 (Fla. 4th DCA 1974), in which

the court concluded fundamental error occurred when an alternate juror was


                                         - 39 -
allowed to sit in the jury room during deliberations and was a “stranger” to the

deliberations. The court in Berry found that this violated the rule that the alternate

juror must be discharged and “[t]he presence of [the alternate juror] in the jury

room could have operated as a restraint upon the jurors and their freedom of

expression” and “[t]he attitudes of [the alternate] conveyed by facial expressions,

gestures or the like may have had some effect upon the decision of one or more

juror.” Id. at 493. The court in Berry held that “[t]he deliberations of the jury

must be conducted in privacy and secrecy. Anything less infringes upon the

defendant’s constitutional right to trial by jury.” Id.

      In the present case, the alternate juror was not allowed in the jury room to

deliberate and did not in fact engage in any “deliberations” with other jurors. The

testimony of Juror N that alternate Juror B told her what her verdict would be does

not constitute a “discussion” or an agreement between multiple jurors concerning

the defendant’s guilt. The trial court questioned both Juror N and alternate Juror

B, and allowed defense counsel to question them. The court dismissed Juror B

from the panel even though defense counsel did not argue for that remedy. Juror N

also assured the court that Juror B’s improper comments would not affect her

consideration of the evidence. It has not been established that any error occurred

in the handling of Juror B’s statement, much less fundamental error vitiating the




                                         - 40 -
entire trial. Therefore, relief on this claim of juror misconduct or premature

deliberation is denied.

      E. Proportionality of the Sentence and Sufficiency of the Evidence

      Sheppard contends that a death sentence is not proportionate in this single-

aggravator case. In reviewing proportionality, the Court follows precedent that

requires that the death penalty be “reserved only for those cases where the most

aggravating and least mitigating circumstances exist.” Terry v. State, 668 So. 2d

954, 965 (Fla. 1996). In doing so, this Court “will not disturb the sentencing

judge’s determination as to ‘the relative weight to give to each established

mitigator’ where that ruling is ‘supported by competent substantial evidence.’ ”

Blackwood v. State, 777 So. 2d 399, 412-13 (Fla. 2000) (quoting Spencer v. State,

691 So. 2d 1062, 1064 (Fla. 1996)). The Court will “review the weight the trial

court ascribes to mitigating factors under the abuse of discretion standard.” Smith

v. State, 998 So. 2d 516, 527 (Fla. 2008). The Court will “affirm the weight given

an aggravator if based on competent substantial evidence.” Blake v. State, 972 So.

2d 839, 846 (Fla. 2007). “The weight to be given aggravating factors is within the

discretion of the trial court, and it is subject to the abuse of discretion standard.”

Buzia v. State, 926 So. 2d 1203, 1216 (Fla. 2006).

      Sheppard contends that this is a single-aggravator case with substantial

mitigation and, thus, the death sentence is disproportionate and should be reversed.


                                         - 41 -
He points out this Court’s precedent holding that “[a]s a general rule, ‘death is not

indicated in a single-aggravator case where there is substantial mitigation.’ ”

Almeida v. State, 748 So. 2d 922, 933 (Fla. 1999) (quoting Jones v. State, 705 So.

2d 1364, 1367 (Fla. 1998)). He contends that only in cases involving “nothing or

very little in mitigation” should death be affirmed in a case involving only one

aggravator, citing Songer v. State, 544 So. 2d 1010, 1011 (Fla. 1989). We

explained in Jones, “Under Florida’s capital sentencing scheme, death is not

indicated in a single-aggravator case where there is substantial mitigation.

Although this legal precept—and indeed the rule of objective, dispassionate law in

general—may sometimes be hard to abide, the alternative—a Court ruled by

emotion—is far worse.”). Jones, 705 So. 2d at 1367 (footnote omitted). For

example, in Nibert v. State, 574 So. 2d 1059 (Fla. 1990), we vacated a death

sentence and remanded for imposition of a life sentence where the single

aggravator was HAC and the trial court found no statutory mitigation, but found

“possible” nonstatutory mitigation involving Nibert’s childhood. See id. at 1061.

      However, we have previously affirmed the death penalty in single-

aggravator cases where the single aggravator is weighty and where the mitigation

is insubstantial. Bevel v. State, 983 So. 2d 505, 524 (Fla. 2008). The Court

affirmed the death sentence in Bevel where the single aggravator consisted of a

double homicide and a prior violent felony a year before the murders. Id. at 524.


                                        - 42 -
We explained in Bevel that the Court has previously held the death penalty to be

proportionate in cases involving multiple murders where the only aggravating

circumstance was a prior violent or contemporaneous felony and the mitigation

was minimal. See, e.g., Lindsey v. State, 636 So. 2d 1327, 1329 (Fla. 1994)

(finding death proportionate in a double homicide case, where the only aggravator

was based on prior violent felony convictions, including a prior second-degree

murder conviction for the first count and the contemporaneous first-degree murder

conviction for the second count, and minimal nonstatutory mitigation including the

defendant’s poor health).

      We have also held the death penalty to be proportionate in a single-

aggravator case involving two prior violent felony convictions, attempted sexual

battery and kidnapping, and minimal nonstatutory mitigation, including

appropriate courtroom behavior (very little weight) and mental disorders (very

little weight). LaMarca v. State, 785 So. 2d 1209, 1216-17 & n.4 (Fla. 2001)

(noting that proportionality was supported by the fact that LaMarca committed the

murder soon after being released from prison on the prior violent felony

convictions); see also Ferrell v. State, 680 So. 2d 390, 391 (Fla. 1996) (finding

death proportionate where the only aggravator was a prior violent felony

conviction for second-degree murder, and where a number of nonstatutory

mitigating circumstances were found and assigned little weight).


                                        - 43 -
      In this case, Sheppard was convicted of two homicides. The trial court

imposed a life sentence, as recommended, for the murder of Stafford and found

one aggravating circumstance supporting the death sentence for the murder of

Wimberly. That one aggravator, however, was based on the murder of Stafford

just hours earlier, as well as Sheppard’s prior conviction as a juvenile of two other

violent felonies—a 2001 aggravated battery, and shooting or throwing a deadly

missile, relating to the shooting of 15-year-old Christopher Wakefield when

Sheppard fired into a vehicle occupied by numerous teenagers. This single

aggravator was given great weight.

      In mitigation, the trial court found that Sheppard’s age of 21 at the time of

the crime was a statutory mitigating circumstance, but gave it only little weight.

The court also found nonstatutory mitigating circumstances, which were assigned

only little, slight or some weight, which can be summarized essentially as follows:

Sheppard’s role in his family, his helpfulness, and concern for his family and for

others; that his mother abused alcohol and drugs during his childhood; that he was

forced to witness violence as a child; that he lost his father at a young age and

spent his teen years in prison; his limited education and impoverished background;

his intoxication and drug use on the day of the crime; that he can have a productive

life in prison; his mental disabilities and slow development as a child, and the fact

that he was in special programs and on medication as a child; and that he suffered


                                        - 44 -
the death of his stepfather in the months before these crimes. After considering the

heavily weighted aggravator involving an almost contemporaneous murder and an

earlier violent felony, and after considering the mitigation set forth above, we

conclude that this case qualifies as an exception to the rule that the death sentence

is not generally appropriate in a single-aggravator case. Thus, we find the death

sentence to be proportionate in this case.

      Sheppard does not challenge the sufficiency of the evidence, but this Court

has an independent obligation to review the evidence for sufficiency in cases in

which a sentence of death has been imposed. See, e.g., Ferguson v. State, 417 So.

2d 639, 642 (Fla. 1982). We conclude that competent, substantial evidence was

presented in this case sufficient to support the verdict of guilt as to the first-degree

murder conviction for the killing of Wimberly and the felony murder conviction

for the killing of Stafford. The State presented direct evidence of Sheppard’s

confession to both murders by way of the testimony of Michael Roberts. Sheppard

told Roberts that he shot Stafford when he “bucked” as he and Evans tried to steal

the car in which Stafford had been sleeping. He also told Roberts that he shot the

boy on the bicycle. Sheppard confessed on videotape to taking Dorsette James’s

car, which was identified by several witnesses as the car from which Wimberly

was shot. Dtalya Barrett identified Sheppard as the person she saw shoot

Wimberly from the passenger side window of the gray Crown Victoria vehicle,


                                         - 45 -
which matched the description of James’s stolen car. Ballistic evidence tied the

gun used in the Wimberly murder to the gun used in the Stafford murder. The

evidence was therefore sufficient to convict Sheppard of all the offenses with

which he was charged.

                                 CONCLUSION

      For the reasons set forth above, we affirm Sheppard’s convictions and

sentence of death.

      It is so ordered.

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

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

PARIENTE, J., concurring in result.

      I join the majority in affirming the convictions and death sentence.

However, I disagree with the majority’s conclusion that the statement of

codefendant Evans, as testified to by witness Chaeva Powell, was not hearsay. I

also write to emphasize that, although we affirm the convictions in this case, we

strongly condemn the admission of police interrogation into evidence where the

detective expresses an opinion about the defendant’s guilt, which recently

compelled this Court to reverse a murder conviction and order a new trial in

Jackson v. State, 107 So. 3d 328 (Fla. 2012). I address each point in turn.

                                       - 46 -
      First, I respectfully disagree with the majority’s conclusion that codefendant

Evans’ statement to Powell, in which Evans told her to tell Sheppard to “get rid of

the package,” was not hearsay. The meaning of this out-of-court statement was

that Sheppard possessed the gun that was used in the murders and needed to get rid

of it, which is the essence of what the State wished to present to the jury. In my

view, the only possible relevance of this statement was to prove the truth of the

matter asserted, which was that the codefendant was directing Sheppard to get rid

of “the package,” and that Sheppard knew that “the package” was the gun. As this

Court has previously explained, “[w]hen the only possible relevance of an out-of-

court statement is directed to the truth of the matters stated by a declarant, the

subject matter is classic hearsay even though the proponent of such evidence seeks

to clothe such hearsay under a nonhearsay label.” Keen v. State, 775 So. 2d 263,

274 (Fla. 2000).

      The majority’s attempt to circumvent the hearsay restrictions by drawing a

distinction between “declarative” and “imperative” statements, without citing any

case or statute to support this distinction, is a distinction without a difference. See

majority op. at 29-30. Instead, regardless of whether the statement was

“declarative” or “imperative,” it was offered for its truth, and was therefore hearsay

that should have been excluded. See § 90.801(1)(c), Fla. Stat. (2013) (defining




                                         - 47 -
hearsay as an out-of-court statement offered in evidence to prove the truth of the

matter asserted).

      Nevertheless, I do agree with the majority that the admission of the

statement was harmless beyond a reasonable doubt. This conclusion is supported

by a close review of the impact on the jury of the impermissible admission of this

statement, which was referenced only briefly during the State’s closing argument,

and the permissible evidence on which the jury could have legitimately relied,

including the testimony of eyewitness Dtalya Barrett and jailhouse informant

Michael Roberts that placed a gun in Sheppard’s possession. See State v.

DiGuilio, 491 So. 2d 1129, 1139 (Fla. 1986).

      Second, while I agree with the majority’s legal analysis of the fundamental

error claim concerning the videotaped interrogation, I emphasize that our

affirmance is not an approval of questioning being admitted into evidence that

conveys the detective’s views as to the defendant’s guilt. As this Court has

previously stated, exposing the jury to an investigating officer’s opinion about the

defendant’s guilt is particularly troublesome because it “could convey the

impression that evidence not presented to the jury, but known to the investigating

officer, supports the charges against the defendant.” Martinez v. State, 761 So. 2d

1074, 1080 (Fla. 2000). For this reason, this Court’s determination that no

fundamental error occurred based on the particular circumstances of this case


                                        - 48 -
should not be construed as an endorsement of the admission of this type of

interrogation into evidence, and all parties should take great care to ensure that the

jury is not exposed to improper interrogation that could cast doubt on the validity

of the conviction.


An Appeal from the Circuit Court in and for Duval County,
     John Bradford Stetson, Jr., Judge - Case No. 162008CF011059BXXXMA

Richard Adam Sichta, Jacksonville, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, and Patrick M. Delaney, Assistant Attorney
General, Tallahassee, Florida,

      for Appellee




                                        - 49 -
