Rodney Renard Newberry v. State of Florida

Supreme Court of Florida
____________

No. SC18-1133
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RODNEY RENARD NEWBERRY,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

December 12, 2019

PER CURIAM.

This case is before the Court on direct appeal from a resentencing.1 Rodney

Newberry appeals his sentence of death for the 2009 first-degree murder of Terrese

Pernell Stevens. For the reasons we explain, we affirm Newberry’s death sentence.

I. BACKGROUND

We set forth the following facts in Newberry’s first direct appeal:

On December 28, 2009, Defendant [Newberry] set
out to commit an armed robbery of a to-be-determined
member of the Jacksonville community who happened to
be located in whatever vulnerable circumstance provided
Defendant the most advantageous opportunity for gain.
Defendant was joined by James Phillips, who is

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
approximately eighteen (18) years Defendant’s junior,
and Robert Anderson, who is approximately seventeen
(17) years Defendant’s junior. Both Phillips and
Anderson claim to have participated in the scheme
because each feared Defendant. Further, each testified
that neither had any intention of joining Defendant in the
shooting and killing of any human being.
When the Defendant and his accomplices
assembled, Phillips had two firearms, an AK–47 and a
MAC–11. Defendant had his own gun, a .357 magnum.
Once in the car together, Defendant took possession of
the AK–47, along with his .357 magnum. Anderson had
the MAC–11. The three men proceeded to drive to the
desired location to begin their search. Phillips apparently
drove because he had a valid driver’s license.
Defendant, Phillips[,] and Anderson began
prowling Duval County in the area surrounding Myrtle
Avenue. After some time, and unable to find a suitable
victim to rob, Defendant suggested, and the others
agreed, to move their hunt to the region around Pearl
Street.
Tragically, at approximately 7:20 p.m. on that
fateful day, Terrese Pernell Stevens was spotted at Club
Steppin’ Out. When Defendant spotted Mr. Stevens’s car
in the parking lot, he told Phillips to stop the car.
Defendant directed Phillips to go inside the club, locate
Mr. Stevens, and “chirp” Defendant to let him know
when Mr. Stevens was leaving the club.
While Phillips was in the club, and before he
alerted Defendant, Defendant had Anderson move the
car. Anderson was in the driver’s seat when Defendant’s
phone chirped. He started the car and Defendant, sitting
in the front passenger seat and stretching his foot across
the car, pressed Anderson’s foot down on the gas pedal to
make the car go faster. Anderson stopped the car a few
feet from Mr. Stevens’s car. After [Anderson] parked the
car, Defendant got out of the car with the AK–47 and ran
to the driver’s side of Mr. Stevens’s car. Defendant
yelled at Mr. Stevens to “give it up, and if you make one
{explicative} move I’ll put it on my daddy that I’m going

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to kill you.” At that time, Anderson got out of the car
with the MAC–11 and stayed by the driver’s side, never
firing the gun. Without warning, and leaving Mr.
Stevens little or no time to comply with Defendant’s
demands, Defendant fired twelve shots from the AK–47
[after, as Anderson testified at trial, Mr. Stevens said
“please don’t, don’t, don’t, don’t kill me”]. Mr. Stevens
was killed.
Defendant got back in the car, and before Phillips
returned to the car, Anderson and Defendant drove
[away]. As they drove, Defendant offered Anderson
money that he took from Mr. Stevens. At first, Anderson
refused the money because it had blood on it, but
eventually he took $75.00 from Defendant. Phillips, who
stayed in the club when he heard the gunshots, left the
club after the police arrived. [After the shooting,
Phillips] called a friend for a ride, and [later met up with
Newberry and Anderson]. Both men gave Phillips
$20.00 of the money Defendant took from Mr. Stevens.
The owner of Club Steppin’ Out testified that she was inside the
club at the time of the shooting and, although she did not see the
shooting, she heard the gunshots and called the police. Law
enforcement officers who responded to the scene testified that the
victim was lying across the front seat of his vehicle and that they
recovered twelve 7.62 x 39 mm rifle casings from the scene. No
weapons were recovered by law enforcement.
In the months following the crime, Michelle Massey, who saw
Newberry, Phillips, and Anderson with guns earlier in the day on the
day of the murder and whose phone Newberry was using on the day
of the murder, assisted police with obtaining information that led to
Newberry being charged with the victim’s murder. Prior to
Newberry’s trial, Anderson and Phillips both pled guilty to second-
degree murder and armed robbery for their roles in the crime.
Anderson also pled guilty to possession of a firearm by a convicted
felon. Neither had been sentenced at the time of Newberry’s trial, at
which they both testified that Newberry shot the victim.

Newberry v. State, 214 So. 3d 562, 563-65 (Fla. 2017) (alterations in original)

(footnotes omitted) (quoting trial court’s order).

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The jury found Newberry “guilty of first-degree premeditated and felony

murder and armed robbery and further found that Newberry ‘discharged a firearm

causing death or great bodily harm during the commission of the offense.’ ” Id. at

565. This Court “affirm[ed] the conviction but vacate[d] the death sentence and

remand[ed] for a new penalty phase,” concluding that “Newberry’s [first] death

sentence violate[d] Hurst[2].” Id. at 563, 567.

During the second penalty phase proceeding, the State presented the

testimony of thirteen witnesses in addition to four victim impact witnesses. Four

of the witnesses presented were the victims of Newberry’s four prior violent

felonies. 3 Further, the State presented certified copies of Newberry’s prior

convictions. The State also presented photographs of Mr. Stevens, the victim in

this case, as a child and as an adult with his family.

2. Hurst v. Florida, 136 S. Ct. 616 (2016); Hurst v. State, 202 So. 3d 40
(Fla. 2016).

3. Newberry’s four prior violent felony convictions stem from three
different incidents. First, Newberry pled nolo contendere to the aggravated battery
of a victim he shot six times. Second, Newberry pled nolo contendere to the
aggravated assault of his former girlfriend and mother of his four children. Third,
Newberry was convicted of the attempted first-degree murder of two police
officers, both of whom Newberry shot. Newberry’s crimes against the police
officers occurred after Newberry murdered Mr. Stevens, the victim in this case,
when the officers attempted to approach Newberry on the street for a purpose
unrelated to Mr. Stevens’s murder. Newberry was tried and convicted for the
crimes against the police officers before he was tried for Mr. Stevens’s murder.

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The defense presented the testimony of six witnesses, including Newberry’s

former girlfriend and mother of his four children (and also the victim of one of

Newberry’s prior violent felonies), Newberry’s cousin, Newberry’s daughters, and

two expert witnesses. In addition, the defense introduced photos of Newberry with

his family, as well as cards he sent to family members while he was incarcerated,

and Newberry’s school records. Further, the defense presented the judgment and

sentence forms for the convictions of Robert Anderson and James Phillips for their

roles in Mr. Stevens’s murder.

The defense presented the expert testimony of Dr. Stephen Bloomfield. Dr.

Bloomfield, an expert in forensic and clinical psychology, testified that

Newberry’s capacity to appreciate the criminality of his conduct or to conform his

conduct to the requirements of the law was substantially impaired. Dr. Bloomfield

also testified that Newberry achieved full-scale IQ scores of 66 and 65. Dr.

Bloomfield further testified that he reviewed Newberry’s school records, which

revealed that Newberry had achieved a full-scale IQ score of 81 when he was eight

years old. Dr. Bloomfield explained that he “wasn’t able to diagnose [Newberry]

as intellectually disabled because he had an 81 IQ as a child, and the criteria for

intellectual disability requires an IQ “less than 71 or 72, has to have low adaptive

behaviors and it has to all be before the age of 18.” Dr. Bloomfield acknowledged

that Newberry is able to function in society, including maintaining a job. He also

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testified that Newberry was competent at the time of the crime but “is still

intellectually impaired.”

The defense also presented the expert testimony of Dr. Steven Gold, a

psychologist who specializes in trauma psychology. Dr. Gold testified that he had

no reason to believe that Newberry was not able to appreciate the criminality of his

conduct. Dr. Gold also testified that Newberry was able to conform his conduct to

the requirements of the law. When asked if he was aware of Dr. Bloomfield’s

opinion that Newberry is not able to appreciate the criminality of his conduct or

conform his conduct to the requirements of the law, Dr. Gold responded that he did

not share that opinion in terms of Newberry’s traumatization.

The State presented rebuttal evidence through the testimony of a former

homicide detective who interviewed Newberry related to the investigation of

Newberry’s prior violent felonies involving the attempted first-degree murder of

two police officers.

At the conclusion of the second penalty phase, the jury unanimously found

the State proved the following aggravating circumstances beyond a reasonable

doubt: (1) Newberry was previously convicted of a felony involving the use or

threat of violence to the person; (2) Newberry committed the capital felony while

he was engaged in the commission of, or an attempt to commit, a robbery; and (3)

Newberry committed the capital felony for pecuniary gain. The jury unanimously

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found that the aggravating factors were sufficient to warrant a death sentence.

Following the interim standard jury instructions at the time of the second penalty

phase proceeding set forth in In re Standard Criminal Jury Instructions in Capital

Cases, 214 So. 3d 1236, 1239-40 (Fla. 2017) 4 (authorizing proposed jury

instructions for publication on an interim basis in light of Hurst), Newberry’s jury

also made specific findings as to each of the proposed mitigating circumstances in

the verdict form. The jury unanimously found Newberry failed to establish by the

greater weight of the evidence any of his argued mitigating circumstances. The

jury also unanimously concluded the aggravating factors outweighed the mitigating

circumstances argued by Newberry. The jury ultimately and unanimously

concluded that Newberry should be sentenced to death.

At the subsequent Spencer5 hearing, no additional witnesses testified, but the

defense presented Newberry’s medical records pertinent to Dr. Gold’s testimony.

In its sentencing order, the trial court made its own findings with respect to the

aggravation and mitigation. Specifically, the trial court assigned the following

statutory aggravating circumstances great weight: (1) prior violent felony based on

4. Subsequently, in In re Standard Criminal Jury Instructions in Capital
Cases, 244 So. 3d 172, 174 (Fla. 2018), this Court removed the requirement of the
jury to list the mitigating circumstances found or to provide the jury vote as to the
existence of mitigating circumstances.

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

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Newberry’s prior violent felony convictions, and (2) in the course of a robbery

merged with pecuniary gain. The trial court found that “the aggravating factors are

sufficient to warrant the death penalty.”

The trial court further considered the two statutory mitigating circumstances:

(1) the capacity of Newberry to appreciate the criminality of his conduct or to

conform his conduct to the requirements of the law, and (2) the existence of any

other factors in Newberry’s background that would mitigate against imposition of

the death penalty. As to the first, the trial court found that Newberry failed to

establish this mitigating circumstance. The second “catch all” statutory mitigating

circumstance contained thirty-six proposed mitigating circumstances with the trial

court’s conclusions relevant to each detailed parenthetically: (1) Newberry was

raised by both his mother and his father (established but not mitigating); (2)

Newberry’s mother and father believed in discipline but not abuse (established but

not mitigating); (3) Newberry’s father and mother were married until the day his

father died in 1999 (established but not mitigating); (4) Newberry’s father’s death

had a great impact on Newberry (established but not mitigating); (5) Newberry’s

mother was a housewife and raised all eight Newberry children (established but not

mitigating); (6) Newberry is the youngest of eight children born to his parents

(established but not mitigating); (7) Newberry was polite to his teachers (not

established); (8) Newberry loves his family (established but not mitigating); (9)

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Newberry’s family loves him (established but not mitigating); (10) Newberry had

trouble in school (established but not mitigating); (11) Newberry and his siblings

were allowed to stay in the family home until they were ready to leave (not

established); (12) Newberry left the family home at twenty years old (established

but not mitigating); (13) Newberry will never be released from prison if he is

sentenced to life without the possibility of parole (accurate but not mitigating);

(14) Newberry is immature mentally and emotionally (established, slight weight);

(15) Newberry participated in an Exceptional Student Program, required an

Individualized Education Program in grade school, and was placed in special

classes for students with behavioral problems (established but not mitigating); (16)

Newberry took special education classes in high school (not established); (17)

Newberry is kind to his elders (established but not mitigating); (18) Newberry is

very giving of what he has (not established); (19) Newberry is protective of his

family and friends (established but not mitigating); (20) Newberry is depressed

(established but not mitigating); (21) Newberry has children and grandchildren

(established but not mitigating); (22) Newberry has four children with the same

woman and loves his children, and his children love him (established but not

mitigating); (23) Newberry has poor impulse control, and this was exacerbated by

alcohol and drug use (established but not mitigating); (24) Newberry, in the past,

has demonstrated concern for others and is not selfish (established but not

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mitigating); (25) Newberry is respectful (not established); (26) Newberry believes

in God, is a Christian, and considers himself to be devoutly religious (established

but not mitigating); (27) Newberry was short-tempered before age thirteen

(established but not mitigating); (28) Newberry had difficulty completing tasks that

require concentration (not established); (29) Newberry had repeated trouble with

school authorities during his elementary school years (established but not

mitigating); (30) Newberry is a loyal friend (established but not mitigating); (31)

Newberry was the victim of violence (established but not mitigating); (32)

Newberry suffers from post-traumatic stress disorder (established but not

mitigating); (33) Newberry suffers from a low IQ (established, slight weight); (34)

Newberry is intellectually impaired (established, moderate weight); (35)

codefendants Robert Anderson and James Phillips received sentences of twenty-

five years in prison following entering pleas of guilty to second-degree murder for

the murder of Mr. Stevens (established but not mitigating); and (36) Newberry

acted under the direction of James Phillips who coordinated the armed robbery of

Mr. Stevens (not established). The trial court also reviewed each remaining

statutory mitigating circumstance and found that Newberry “did not present any

evidence to support these other statutory mitigating circumstances.”

Ultimately, the trial court sentenced Newberry to death, finding that the

aggravating circumstances heavily outweighed the mitigating circumstances. The

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trial court stated that “the jury’s recommendation for the death penalty is consistent

with its verdict and based on the evidence presented is well-reasoned.” The trial

court “wholly agree[d] with the jury’s unanimous recommendation based on an

assessment of the aggravating circumstances and mitigating circumstances

presented.”

II. ANALYSIS

Now on appeal from the second penalty phase, Newberry raises the

following claims: (A) the trial court committed fundamental error by failing to

instruct the jury that it must determine beyond a reasonable doubt the sufficiency

of the aggravating factors and whether they outweighed the mitigating

circumstances; (B) the trial court erred in determining that the impaired capacity

mitigating circumstance had not been proven; (C) the trial court failed to give

sufficient consideration to Newberry’s proposed mitigating circumstances; (D) the

trial court erred in ruling that five mitigators were proven but “not mitigating”; (E)

Newberry’s death sentence is not proportionate; and (F) the trial court erred in

denying Newberry’s motion to bar imposition of the death penalty due to

intellectual impairment. We address each claim in turn.

A. Sufficiency of the Jury Instructions During the Penalty Phase

Newberry first argues that the trial court erred in failing to instruct the jury

that it must determine beyond a reasonable doubt whether the aggravating factors

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were sufficient to justify the death penalty and whether those factors outweighed

the mitigating circumstances. Newberry concedes that he failed to request the jury

instruction but claims that the trial court’s failure to instruct on the beyond a

reasonable doubt standard of proof constitutes fundamental error. However, we

have held that these determinations are not subject to the beyond a reasonable

doubt standard of proof. See Rogers v. State, 44 Fla. L. Weekly S208, S212 (Fla.

Sept. 5, 2019) (“[T]hese determinations are not subject to the beyond a reasonable

doubt standard of proof, and the trial court did not err in instructing the jury.”).

Accordingly, we conclude that the trial court did not err in instructing the jury.

B. Impaired Capacity Mitigating Circumstance

Next, Newberry argues that the trial court erred in concluding that the

impaired capacity mitigating circumstance had not been proven. Specifically,

Newberry argues that no competent, substantial evidence refuted Dr. Bloomfield’s

testimony that Newberry’s capacity to appreciate the criminality of his conduct or

to conform his conduct to the requirements of law was substantially impaired. We

disagree.

Here, the trial court’s rejection of the impaired capacity mitigating

circumstance is supported by competent, substantial evidence. During the second

penalty phase proceeding, two experts, Dr. Bloomfield and Dr. Gold, testified on

behalf of the defense. First, Dr. Bloomfield testified that the capacity of Newberry

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to appreciate the criminality of his conduct or to conform his conduct to the

requirements of law was substantially impaired. To the contrary, Dr. Gold testified

that he found no reason to believe Newberry could not appreciate the criminality of

his conduct at the time of Mr. Stevens’s murder or conform his conduct to the

requirements of law. Accordingly, the trial court’s finding that the impaired

capacity mitigating circumstance had not been proven was supported by Dr. Gold’s

expert witness testimony and therefore was supported by competent, substantial

evidence.

Further, this Court has upheld a trial court’s rejection of a mental health

mitigating circumstance when a defendant’s purposeful actions during and after the

crime indicated that he was aware of the criminality of his conduct. See Hoskins v.

State, 965 So. 2d 1, 18 (Fla. 2007) (concluding that the trial court properly rejected

the defendant’s inability “to appreciate the criminality of his or her conduct” as

mitigation where, after raping the victim, “Hoskins’s purposeful actions in binding

and gagging [the victim] before placing her in the trunk, driving to his parents’

home six hours away, borrowing a shovel, driving to a remote area where he killed

[the victim], and then telling his brother he hit a possum when blood was noticed

dripping from the rear wheel well [were] indicative of someone who knows his

conduct is wrong”); Nelson v. State, 850 So. 2d 514, 531 (Fla. 2003) (concluding

that the defendant’s “purposeful actions [were] indicative of someone who knew

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those acts were wrong and who could conform his conduct to the law if he so

desired”).

Here, the trial court’s finding regarding the impaired capacity mitigating

circumstance is supported by evidence related to the purposefulness of Newberry’s

actions. Specifically, as the trial court explained:

The jury heard testimony from Robert Anderson who
participated along with James Phillips in Mr. Steven’s murder.
According to Anderson, Defendant asked and paid Anderson’s mother
to use her car the night of the murder. Anderson testified Defendant
was the leader that night as they drove around looking for someone to
rob. Anderson further testified the men were only going to rob
someone without any “murder or shooting.” Anderson explained
Defendant directed them to go to Club Steppin’ Out where Stevens
would be. When they got there, according to Anderson who was
behind the wheel, Phillips, went in the club to alert the others when
Stevens was leaving. Anderson said that when the alert came that
Stevens was exiting the club, Defendant told Anderson to “crank up
the car.” Anderson recounted that as he drove across the street to the
club at a slow pace, Defendant put his foot on top of Anderson’s foot
that was on the gas pedal and pushed Anderson’s foot down to speed
up the car. When the car stopped, Defendant “hopped out of the car
with an AK-47,” demanded Stevens give it up, and then shot Stevens
multiple times.

Accordingly, we reject this argument.

C. Sufficiency of the Sentencing Order

Newberry generally claims that the trial court failed to thoughtfully and

comprehensively analyze twenty-five proposed mitigating circumstances in

accordance with this Court’s decision in Campbell v. State, 571 So. 2d 415, 419-20

(Fla. 1990), receded from on other grounds by Trease v. State, 768 So. 2d 1050,

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1055 (Fla. 2000), failed to articulate why those mitigating circumstances were “not

mitigating,” and instead summarily disposed of them.

Contrary to Newberry’s argument, the sentencing order here does expressly

evaluate each proposed mitigating circumstance. Further, in our recent decision in

Rogers, 44 Fla. L. Weekly at S213-14, we clarified that our decision in Campbell

did not impose a requirement that a trial court expressly and specifically articulate

why the evidence presented warranted only the allocation of a certain weight to a

mitigating circumstance. We receded from Oyola v. State, 99 So. 3d 431 (Fla.

2012), “to the extent that it employed a requirement that a trial court expressly

articulate why the evidence presented warranted the allocation of a certain weight

to a mitigating circumstance.” Rogers, 44 Fla. L. Weekly at S214. Accordingly,

Newberry’s claim is without merit.

D. Consideration of Five Mitigating Circumstances

Next, Newberry argues the trial court erred when it found five mitigating

circumstances were established but “not mitigating.” Specifically, Newberry

contends the trial court considered five mitigating circumstances not mitigating as

a matter of law. We reject this argument.

In the present case, the jury unanimously found Newberry failed to establish

by the greater weight of the evidence any of his argued mitigating circumstances.

Further, the trial court found the following proposed mitigating circumstances to

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be established but “not mitigating”: (1) Newberry struggles with depression; (2)

Newberry’s ineligibility for parole if sentenced to life in prison; (3) Newberry’s

placement in special education classes as a child; (4) Newberry’s loving

relationship with his family; and (5) Newberry’s poor impulse control.

Accordingly, it is apparent that the trial court considered each of the mitigating

circumstances proposed by Newberry and determined that such circumstances

were in fact not mitigating and assigned them no weight. There is no indication

that the trial court abused its discretion. See Hoskins, 965 So. 2d at 18-19

(concluding that the trial court did not abuse its discretion in failing to attach “real

weight” to the mitigating evidence); see also Coday v. State, 946 So. 2d 988, 1003

(Fla. 2006) (“[E]ven where a mitigating circumstance is found a trial court may

give it no weight when that circumstance is not mitigating based on the unique

facts of the case.”). Therefore, we reject Newberry’s argument.

E. Proportionality

Newberry also argues that his death sentence is disproportionate because his

case is among neither the most aggravated nor the least mitigated of first-degree

murder cases. To ensure uniformity of sentencing in death penalty proceedings,

this Court considers the totality of circumstances and compares each case with

other capital cases; we do not simply compare the number of aggravating and

mitigating circumstances. Taylor v. State, 937 So. 2d 590, 601 (Fla. 2006).

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“Further, in a proportionality analysis, this Court will accept the weight assigned

by the trial court to the aggravating and mitigating factors.” Hayward v. State, 24

So. 3d 17, 46 (Fla. 2009). “In performing a proportionality review, a reviewing

court must never lose sight of the fact that the death penalty has long been reserved

for only the most aggravated and least mitigated of first-degree murders.” Urbin v.

State, 714 So. 2d 411, 416 (Fla. 1998).

Here, the trial court assigned the following statutory aggravating

circumstances great weight: (1) prior violent felony based on Newberry’s prior

violent felony convictions, and (2) in the course of a robbery merged with

pecuniary gain. While the jury unanimously found Newberry failed to establish by

the greater weight of the evidence any of his argued mitigating circumstances, the

trial court found that twenty-six of the mitigating circumstances were established

but not mitigating, found that Newberry failed to establish seven of the mitigating

circumstances, and assigned slight weight to two mitigating circumstances

(Newberry suffers from a low IQ and Newberry is immature mentally and

emotionally) and moderate weight to one mitigating circumstance (Newberry is

intellectually impaired).

We have found the death sentence proportionate in other robbery-murder

cases with similar aggravation and mitigation. See, e.g., McLean v. State, 29 So.

3d 1045, 1052 (Fla. 2010) (death penalty proportionate in shooting robbery-murder

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where the trial court found the aggravators of felony probation, prior violent felony

(including a prior armed robbery conviction), and during the course of a robbery;

the two statutory mental health mitigating circumstances; and several nonstatutory

mitigating circumstances, including brain injury, poor grades in school, family

problems, and substance abuse); Hayward, 24 So. 3d at 46-47 (death penalty

proportionate in shooting robbery-murder where the trial court found the

aggravators of prior violent felony (based on three prior violent felonies, including

second-degree murder) and in the course of a robbery merged with pecuniary gain;

no statutory mitigators; and several nonstatutory mitigators, including that the

defendant had academic problems, grew up without a father, was loved by his

family, would make a good adjustment in prison, and had some capacity for

rehabilitation); Blake v. State, 972 So. 2d 839, 846-50 (Fla. 2007) (death penalty

proportionate in attempted-robbery and shooting murder where the trial court

found aggravators of prior violent felony, felony probation, and in the course of

attempted armed robbery merged with pecuniary gain; statutory age mitigator; and

several nonstatutory mitigators, including never displayed violence in the presence

of his family, was a good son, and formed a loving relationship with his family;

was remorseful for his conduct; cooperated with deputies at the time of his arrest;

and adjustment to confinement and institutional living and no danger to the

community at large if incarcerated for life); Pope v. State, 679 So. 2d 710, 716

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(Fla. 1996) (death penalty proportionate in robbery-murder where the trial court

found aggravators of prior violent felony and pecuniary gain; two statutory mental

health mitigating circumstances; and three nonstatutory mitigating circumstances,

including the defendant was intoxicated at the time of the offense).

Therefore, we conclude that Newberry’s death sentence is proportionate.

F. Intellectual Impairment Claim

As his final claim, Newberry argues that we should extend the application of

Atkins v. Virginia, 536 U.S. 304 (2002), to individuals who are not intellectually

disabled but are intellectually impaired. However, this Court has consistently

rejected claims to extend Atkins beyond intellectual disability. See, e.g., McCoy v.

State, 132 So. 3d 756, 775 (Fla. 2013) (rejecting claim that mental illness bars

execution under Atkins); Simmons v. State, 105 So. 3d 475, 510-11 (Fla. 2012)

(rejecting claim that persons with mental illness must be treated similarly to those

with an intellectual disability due to reduced culpability); Lawrence v. State, 969

So. 2d 294, 300 n.9 (Fla. 2007) (rejecting claim that “the Equal Protection Clause

requires this Court to extend Atkins to the mentally ill”). Accordingly, we

conclude that the trial court did not err in denying Newberry’s motion to bar

imposition of the death penalty due to intellectual impairment.

III. CONCLUSION

Based upon the reasons stated above, we affirm Newberry’s death sentence.

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It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,
concur.

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

An Appeal from the Circuit Court in and for Duval County,
Adrian G. Soud, Judge - Case No. 162012CF009296AXXXMA

Andy Thomas, Public Defender, and Richard M. Bracey, III, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,

for Appellant

Ashley Moody, Attorney General, and Michael T. Kennett, Assistant Attorney
General, Tallahassee, Florida,

for Appellee

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