Randall T. Deviney v. State of Florida

Supreme Court of Florida
____________

No. SC17-2231
____________

RANDALL T. DEVINEY,
Appellant,

v.

STATE OF FLORIDA,
Appellee.

May 6, 2021

PER CURIAM.

Randall T. Deviney appeals the sentence of death imposed on

him after a new penalty phase ordered by this Court in Deviney v.

State, 213 So. 3d 794 (Fla. 2017). We have jurisdiction. See art. V,

§ 3(b)(1), Fla. Const. For the reasons explained below, we affirm the

sentence of death.
A. BACKGROUND

Deviney was convicted 1 by a jury of the August 5, 2008, first-

degree murder of Dolores Futrell at her home in Jacksonville,

Florida. Deviney, 213 So. 3d at 798. The jury found that the

murder was both premeditated and “committed during the

commission of a felony, with burglary or attempted burglary and

attempted sexual battery as the underlying felonies.” Id. The trial

court sentenced Deviney to death following an eight-to-four jury

vote recommending a sentence of death during the penalty phase.

Id. On direct appeal, we found no error in the guilt phase of trial

and affirmed Deviney’s conviction. Id. at 800. However, we

remanded for a new penalty phase pursuant to Hurst v. State, 202

So. 3d 40 (Fla. 2016), receded from in part by State v. Poole, 297 So.

3d 487 (Fla. 2020). Deviney, 213 So. 3d at 799.

1. Before this conviction, Deviney was previously convicted
and sentenced to death for the same offense. Deviney v. State, 112
So. 3d 57, 60 (Fla. 2013). We reversed the conviction and sentence,
however, and remanded for a new trial due to Miranda v. Arizona,
384 U.S. 436 (1966), violations that occurred during the police
interrogation of Deviney prior to his arrest. Deviney, 112 So. 3d at
79.

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On October 11, 2017, the trial court conducted the new

penalty phase. As the new penalty-phase jury did not hear the

evidence that was presented during the guilt phase of Deviney’s

trial, the State presented virtually the same evidence and witness

testimony introduced in the guilt phase during the new penalty

proceedings. We previously described the guilt phase evidence as

follows:

[A]t 10:01 p.m., a Jacksonville police dispatcher received
an unverified 911 call from Futrell’s residence. Along
with another officer, Officer Milowicki of the Jacksonville
Sheriff’s Office responded to the call.
....
Milowicki found Futrell lying on the carpet in front of
her television. She recalled:

It was a petite, elderly female. She was cut
ear-to-ear and the cut was so deep that it was
hanging by just skin on the back of her neck.
Her shirt was pulled over her torso exposing
her torso. And her underwear, she just had
underwear on and the underwear was sliced at
the crotch area and pulled up by her hips. So
she was nude from the waist down. And her
legs had appeared to be posed in a sexual
manner showing her genitalia.

Strangely, there was little blood inside the home.
Milowicki observed a small table in the dining room with
objects knocked over beside a cordless phone base. The
phone was on the dining room table and, based on the
call log, the police determined that it had been previously
used to dial 911. The contents of a purse were emptied

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onto Futrell’s couch; however, Futrell’s wallet was across
the room on an ironing board. Credit cards laid scattered
beside the wallet, which contained a total of fifty-six
cents. Behind the ironing board, near the back door,
Milowicki saw a pair of bloody blue jeans.
While walking in the backyard, Milowicki heard
“what sounded like a squeegee noise around [her] feet.”
Her flashlight confirmed that she was standing in a pool
of blood that engulfed her shoes. From that vantage, in
the center of the backyard, Milowicki noticed blood stains
on and near a koi pond in the corner along the fence.
Further, she noted that although the pond was lit by a
white light, the water was “bright red.” . . .
The crime scene unit, including Detective Gray,
arrived around midnight. While examining the backyard,
Gray identified the blood on the ledge and side of the koi
pond as transfer blood. . . .
Inside the home, Gray examined Futrell’s body . . . .
Gray opined that, based on the evidence, Futrell was
killed in the backyard, dragged inside her home, and—
possibly—posed in an explicit position to resemble a
sexual battery. . . .
Dr. Giles, M.D., a forensic pathologist, conducted an
autopsy on Futrell’s body. Futrell was sixty-five inches
tall (5’5’)[sic], 138 pounds, and sixty-five years old. Dr.
Giles determined that the cause of death was
hypovolemic shock with asphyxiation due to an incised
wound of the neck, laryngeal transection: “In layman’s
terms, she received a large cut across her neck [that]
went right through her voice-box and she bled and
couldn’t breathe.” Futrell suffered both blunt- and
sharp-force injuries. Based on his examination, Dr. Giles
believed that “there definitely was a struggle involved in
this death.” The manner of death was determined as
homicide.
On the left side of Futrell’s head were various blunt-
force injuries: contusions and abrasions around her eye,
forehead, and temple, plus abrasions around the nose
and mouth. On the right side of Futrell’s head, near her

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mouth and eye, were different types of abrasions than
those on the left. Dr. Giles opined that these particular
abrasions occurred later in the course of events, either
when Futrell was nearly or already dead, because they
were yellow.
According to Dr. Giles, the large cut across Futrell’s
neck went from right to left. It sliced through Futrell’s
veins, but not her deeper arteries. However, it partially
severed the jugular vein, the major vein on the right side
of the neck, which meant that it could not snap shut and
continued to bleed. Dr. Giles noted that the incision
“completely separated” the upper and lower larynx
between the vocal cords. Behind that, the esophagus
was partially cut. Taking these together, Dr. Giles opined
that Futrell was pulling blood into her lungs as she
struggled to breathe. Dr. Giles testified that this sharp-
force injury was a straight, clean cut, indicating that it
was delivered with a non-serrated blade. When asked
how long Futrell lived after her throat was cut, Dr. Giles
testified that he could not give a definite answer.
However, Futrell lived for only “a short time” due to her
neck wound, anywhere from seconds to a few minutes.
Coupled with that injury, Dr. Giles found a major
blunt-force injury to Futrell’s neck. Specifically, Dr. Giles
observed evidence of crushing blunt force applied to
Futrell’s upper neck, fracturing her hyoid bone. The
larynx was fractured above the cut as well. Because
these fractures stopped at the cut, and there was little
hemorrhaging in the fractures, this injury likely occurred
after Futrell’s neck was cut. In Dr. Giles’ opinion, the
crushing-type force was applied on both sides of Futrell’s
neck, consistent with strangulation or a choke hold. Dr.
Giles testified that this injury occurred prior to Futrell’s
death; however, it was late in the process.
Aside from the fatal neck injuries, on Futrell’s chest
were various blunt- and sharp-force injuries. There were
superficial incisions. Further, small pricks indicated
where Futrell was poked with a sharp object. Some of
the injuries on her chest were consistent with dragging a

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sharp object against it. One injury on her chest was a
pattern injury, an abrasion with an unusual outline. Dr.
Giles testified that this pattern was consistent with a
serrated knife, but it could have been made by a broken
knife blade. Dr. Giles could not definitively testify as to
the sequencing of the injuries on Futrell’s chest in
relation to the fatal neck wound. However, he opined
that the superficial cuts and pricks must have occurred
at or about the same time due to bruising.
On Futrell’s left arm were abrasions and sharp-force
injuries. Various contusions and bruises on Futrell’s
hands and arms appeared to be defensive wounds.
However, there was little to no blood on Futrell’s hands.
Futrell’s lower back had a large abrasion, which
indicated that she had been dragged. Another abrasion
on her lower back suggested that Futrell had a garment
on when the injury occurred.
When Dr. Giles conducted the autopsy, Futrell’s
shirt was still rolled up. There were cuts on the shirt,
but when the shirt was rolled down one cut did not align
with the injuries on her body; thus, Dr. Giles concluded
that the particular injury occurred when Futrell’s shirt
was rolled up. A sexual battery kit was used to test
Futrell’s oral, vaginal, anal, and breast areas. There were
no injuries to Futrell’s sexual organs. This led Dr. Giles
to the conclusion that no sexual activity occurred;
however, he could not rule out the possibility that
attempted sexual activity occurred. Finally, Dr. Giles
took Futrell’s fingernail clippings for DNA testing.
Evidence was sent to the Florida Department of Law
Enforcement (FDLE) for DNA testing. . . . Preliminary
DNA testing of Futrell’s right fingernail clippings matched
Deviney. When the DNA profiles of Deviney and Futrell
were analyzed, FDLE concluded that there was a 1 in 40
billion chance that anyone other than Deviney left the
DNA sample.
These results were forwarded to the Jacksonville
Sheriff’s Office, which necessitated a confirmation
sample. So, detectives brought Deviney to the police

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station to be questioned, tested, and subsequently
arrested. In the days following his arrest, Deviney placed
two calls to his father, Michael Deviney. The State
introduced recordings of these calls into evidence. In one
call, Deviney confessed to the murder, saying, “I lost it.
It wasn’t me. It was another person inside me.”
The State called other witnesses during the guilt
phase. Through that testimony, the State elicited
evidence that Futrell had multiple sclerosis (MS), which
prevented her from walking her large dog or doing yard
work. Although she could walk up the stairs in her
townhome, she had become very frail over the years.
Further, Futrell was a grandmother-type figure for
Deviney during his childhood; she cared for him from the
time he was seven and she would bake cookies for him.
One neighbor testified that, following the murder,
Deviney told her that “he heard [Futrell] had been
violated.” However, the lead detective testified that
specific crime scene information was not released prior to
Deviney’s arrest. Also, Deviney’s mother, Nancy Mullins,
testified that Deviney had asked her for scissors or a
knife on the night of the murder. Mullins told him that
there was a straight-blade fish fillet knife in their tackle
box, which she never saw again.
After the State completed the presentation of its
case, Deviney waived his right to remain silent and
testified. During his testimony,[2] Deviney admitted to
killing Futrell.

Id. at 795-98 (footnotes omitted).

2. During his testimony, Deviney presented his version of the
events concerning the murder of Futrell. In reviewing Deviney’s
testimony, however, we explained that “[t]here were various
inconsistencies that the State raised surrounding Deviney’s story.”
See Deviney, 213 So. 3d at 798.

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Deviney then presented his case for mitigation. Michael

Deviney, Deviney’s father, testified as to events concerning

Deviney’s family environment and upbringing. Debra Jackson, a

voluntary jail chaplain, testified as to Deviney’s faith and remorse

over the murder. Deviney also presented the testimony of two

psychologists, Dr. Steven Bloomfield and Dr. Steven Gold, both of

whom evaluated Deviney on several occasions.

At the end of the new penalty phase, the jury returned a

unanimous verdict recommending that Deviney be sentenced to

death. The jury unanimously found three aggravators beyond a

reasonable doubt—(1) the murder was committed while Deviney

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

a burglary, or an attempt to commit a sexual battery; (2) the

murder was especially heinous, atrocious, or cruel (HAC); and (3)

Futrell was a particularly vulnerable victim due to advanced age or

disability (PVV)—unanimously found the aggravators were sufficient

to impose the death penalty, and unanimously found those

aggravators outweighed the mitigation it found. 3 On October 25,

3. By a ten-to-two vote, the jury found the statutory mitigator
that the murder was committed while Deviney was under the

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2017, the trial court held a Spencer 4 hearing, at which Deviney

presented the testimony of his stepmother given at his previous

penalty-phase trial.

On December 11, 2017, the trial court sentenced Deviney to

death. The trial court agreed with the jury’s findings on the

aggravators (assigning each great weight) and certain mitigators,

and found further mitigation that was rejected by the jury. In

analyzing the mitigation in the case, the trial court consolidated

some of the mitigation and then assigned varying degrees of weight

to each mitigator. 5 Deviney now appeals his new sentence of death.

influence of extreme mental or emotional disturbance. The jury
also found fourteen nonstatutory mitigators.

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

5. The trial court assigned minimal weight to the statutory
mitigator that Deviney committed the murder while being under the
influence of extreme mental or emotional disturbance. While the
jury rejected the statutory mitigator of Deviney’s age of eighteen at
the time of the murder, the trial court disagreed, finding it was
established and assigning it some weight.

In considering the nonstatutory mitigation, the trial court
found the following mitigators after consolidation and assigned each
degrees of weight: (1) Deviney’s parents were convicted of killing his
brother before Deviney was born and were still allowed to have
custody of him and his younger brother (little weight); (2) Deviney’s
brother stabbed him, and when taken to the hospital, foreign

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B. ANALYSIS

On appeal, Deviney raises the following five claims: (1) the trial

court erroneously denied his cause challenges against two

prospective jurors; (2) the trial court committed fundamental error

by failing to instruct the jury that it must determine beyond a

reasonable doubt whether the aggravators were sufficient and

outweighed the mitigators to impose death; (3) the trial court erred

objects were found in his body (slight weight); (3) Deviney bounced
between parents, which created a very unstable upbringing
(minimal weight); (4) Deviney was involved in Child Find and
awarded a special diploma (minimal weight); (5) Deviney is a
Christian (minimal weight); (6) while pregnant with Deviney, his
mother smoked tobacco (no weight); (7) Deviney was physically
abused by his father (slight weight); (8) Deviney was physically
abused by his mother (slight weight); (9) Deviney was verbally
abused by his mother (minimal weight); (10) Deviney was sexually
abused by his mother (minimal weight); (11) Deviney was sexually
abused by his mother’s drug dealer (minimal weight); (12) Deviney
was verbally abused by his father (minimal weight); (13) Deviney
was neglected by his mother as far as supervision, his health, and
his educational upbringing (slight weight); (14) Deviney’s parents
both engaged in and were arrested for domestic battery against
each other (some weight); (15) Deviney is close with his father (some
weight); (16) Deviney is close with his stepmother (some weight);
(17) Deviney was prescribed medication for behavior and learning
disabilities as a child and his parents refused to administer the
medication (no weight); (18) Deviney was hit in the head with a
baseball bat (no weight); (19) Deviney suffers from exposure to
abuse and emotional deprivation (some weight); and (20) Deviney
witnessed violence and was exposed to a great deal of trauma (some
weight).

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by denying Deviney’s motion to bar the death penalty because he

was under the age of twenty-one at the time he committed the

murder; (4) error occurred when the trial court instructed the jury

on the PVV aggravator and both the jury and the trial court found

that aggravator; and (5) error occurred when the trial court

instructed the jury on the HAC aggravator and both the jury and

the trial court found that aggravator. 6 We address each claim in

turn.

1. Cause Challenges Against Prospective Jurors

Deviney first argues that the trial court erroneously denied his

cause challenges against prospective jurors Sutherland and

Henderson. “The validity of a cause challenge is a mixed question

of law and fact, on which a trial court’s ruling will be overturned

only for ‘manifest error,’ ” which “is tantamount to an abuse of

discretion.” Johnson v. State, 969 So. 2d 938, 946 (Fla. 2007)

6. Deviney also argues that his sentence of death is not
proportionate. However, after oral argument in this case, in
Lawrence v. State, 308 So. 3d 544, 552 (Fla. 2020), we receded from
the judge-made requirement to review the comparative
proportionality of death sentences as contrary to the conformity
clause of the Florida Constitution. Accordingly, we do not review
the proportionality of Deviney’s sentence of death.

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(quoting Fernandez v. State, 730 So. 2d 277, 281 (Fla. 1999)). In

reviewing a trial court’s denial of a cause challenge against a

prospective juror, we have “recognized that the trial court has a

unique vantage point in the determination of juror bias . . . [and] is

able to see the jurors’ voir dire responses and make observations

which simply cannot be discerned from an appellate record.” Ault v.

State, 866 So. 2d 674, 683-84 (Fla. 2003) (quoting Smith v. State,

699 So. 2d 629, 635-36 (Fla. 1997)). Therefore, “[t]he decision to

deny a challenge for cause will be upheld on appeal if there is

competent record support for the decision.” Barnhill v. State, 834

So. 2d 836, 844 (Fla. 2002).

For a prospective juror to be excused “for cause,” that juror

must possess “a state of mind regarding the case ‘that will prevent

the juror from acting with impartiality.’ ” Johnson, 969 So. 2d at

946 (quoting § 913.03(10), Fla. Stat. (2006)); accord Ault, 866 So. 2d

at 683 (“The test for determining juror competency is whether a

juror can lay aside any bias or prejudice and render a verdict solely

on the evidence presented and the instructions on the law given by

the court.”). In the context of a capital case, “this standard is met if

a juror’s views on the death penalty ‘prevent or substantially impair

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the performance of his or her duties as a juror in accordance with

the juror’s instructions or oath.’ ” Johnson, 969 So. 2d at 946

(quoting Fernandez, 730 So. 2d at 281). “[I]f any reasonable doubt

exists as to whether the juror possesses an impartial state of mind,”

the trial court must excuse that juror for cause. Ault, 866 So. 2d at

683; accord Hill v. State, 477 So. 2d 553, 555 (Fla. 1985).

Deviney asserts that a reasonable doubt existed as to whether

the views of prospective jurors Sutherland and Henderson would

substantially impair either’s ability to vote to impose any sentence

other than death for a premeditated, first-degree murder, regardless

of the balance of aggravators and mitigators in the case. On this

basis, Deviney claims that the trial court abused its discretion in

denying his two cause challenges to Sutherland and Henderson.

We disagree.

As to Sutherland, evidence in the record supports the trial

court’s denial of the cause challenge. During voir dire, the State

prosecutor asked Sutherland if she understood that the death

penalty was “not automatic, that you’ve got to consider the

aggravators and . . . mitigators,” to which Sutherland responded,

“Absolutely.” While some of Sutherland’s responses to defense

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counsel’s initial questioning indicated she had a predisposition to

imposing death on a defendant who committed premeditated

murder, the parties were permitted to further question Sutherland.

The State prosecutor asked Sutherland whether she could “follow

the instructions or the law . . . about the death penalty,” to which

she replied, “Yes.” Sutherland also confirmed that she understood

she was never compelled to vote for death because a person was

convicted of first-degree murder, that she could weigh the

aggravators and mitigators, and that the death penalty was not

automatic. Defense counsel subsequently asked Sutherland if

there would be “any way that [she] could vote for life without parole

if a person was convicted of premeditated first[-]degree murder.”

Sutherland initially replied, “Yes, there could be depending on the

facts,” before explaining:

[SUTHERLAND]: Well, . . . if this person went in and
deliberately without a second thought about murdering
somebody, okay, if he did that I feel that there’s no
rehabilitation for that and if he deliberately went in and
knew that he was going to do harm and take a life then
that’s the choice he made, so if it was all the facts laid
out and I saw that there was . . . no other alternative for
this individual then, yes, it would be death but I can’t
honestly sit here and say that, no, I won’t say that he
couldn’t be in prison for life without parole if I get all the
facts.

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Defense counsel then sought further clarification from Sutherland:

[DEFENSE]: Thank you, Your Honor. The conviction
itself says it was premeditated with a specific intent or
done while going and doing one of the felonies that I’ve
gone over, the conviction itself. Knowing that someone
committed a first[-]degree murder with premeditation and
specific intent or while in the commission of a burglary,
robbery, kidnapping or aggravated assault or murder of
another individual, would you automatically vote for the
death penalty?
[SUTHERLAND]: No.

Given the “great discretion” given to a trial court in “deciding

whether a challenge for cause based on juror incompetency is

proper,” Ault, 866 So. 2d at 684, we find that the trial court did not

abuse its discretion in denying Deviney’s cause challenge against

Sutherland.

Likewise, a plurality of this Court concludes that the trial

court did not abuse its discretion in denying Deviney’s cause

challenge against Henderson, as there is evidence to support the

trial court’s denial. While Henderson initially expressed a

disposition to automatically imposing the death penalty where the

first-degree murder was premeditated, the trial court permitted

further questioning of Henderson by both parties. During this

subsequent questioning, the State prosecutor asked whether

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Henderson could “follow the law” to impose the death penalty “in an

appropriate case,” to which he replied, “Yes, I can.” Henderson also

stated that he understood the death penalty was not automatic and

that he could listen to and consider the mitigation presented and

make his decision after weighing the aggravators and mitigators in

the case. Although some of Henderson’s answers to defense

counsel’s subsequent questioning again indicated a predisposition

to imposing death if the murder was premeditated, we emphasize

our “deference to the trial judge who sees and hears the juror and

often has to make credibility findings that cannot be easily

discerned from an appellate record.” Ault, 866 So. 2d at 684; see

also Barnhill, 834 So. 2d at 845 (“[T]he trial court is given broad

discretion to determine whether a prospective juror is qualified to

serve based on the juror’s demeanor and attitude about whether he

or she will follow the law.”). Accordingly, given our deferential

review, a plurality of the Court finds that the trial court did not

abuse its discretion in denying the cause challenge to Henderson.

As demonstrated by Justice Lawson’s concurring in part and

concurring in result opinion, although the Court is split as to

whether the trial court abused its discretion, a majority

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nevertheless agrees that Deviney is not entitled to a new trial.

Therefore, we deny relief as to this claim.

2. Sufficiency of the Jury Instructions

Deviney next argues that the trial court erred by failing to

instruct the jury that it must determine beyond a reasonable doubt

whether the aggravators were sufficient to impose death and

whether those aggravators outweighed the mitigators in his case.

Although Deviney concedes that he failed to request the beyond-a-

reasonable-doubt instruction and to object to the actual

instructions read to the jury, he claims this failure to instruct

constitutes fundamental error.

We reject Deviney’s argument. We have repeatedly held that

“these determinations are not subject to the beyond a reasonable

doubt standard of proof,” Newberry v. State, 288 So. 3d 1040, 1047

(Fla. 2019) (citing Rogers v. State, 285 So. 3d 872, 878-79 (Fla.

2019), receded from on other grounds by Lawrence, 308 So. 3d at

548); see also Rogers, 285 So. 3d at 886 (holding that “the

sufficiency and weight of the aggravating factors and the final

recommendation of death” are not elements and “are not subject to

the beyond a reasonable doubt standard of proof”), and none of

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Deviney’s arguments warrants reconsidering our precedent.

Accordingly, because the trial court did not err, let alone

fundamentally so, in instructing the penalty-phase jury, we deny

relief as to this claim.

3. Roper Claim

Deviney, who was almost nineteen years old at the time of the

murder, asserts that the trial court erred by denying his motion to

bar the imposition of the death penalty, as his sentence of death is

unconstitutional. He contends that the United States Supreme

Court’s decision in Roper v. Simmons, 543 U.S. 551, 567-68 (2005),

which held the imposition of the death penalty on individuals under

the age of eighteen at the time they committed their murders to be

unconstitutional based on the “objective indicia” of society’s

standards, should be expanded to individuals under the age of

twenty-one at the time they committed their murders. In support of

this argument, Deviney claims that there is an emerging national

consensus against imposing death on individuals under the age of

twenty-one at the time of their offenses, based on recent legislation

and sentencing practices in other states, nationwide execution

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statistics for late adolescents, and the different treatment of late

adolescents from adults in other facets of society.

We decline Deviney’s invitation to expand Roper. This Court

has repeatedly rejected defendants’ Roper claims where the

defendant was not under the age of eighteen at the time of his or

her capital offense. See, e.g., Branch v. State, 236 So. 3d 981, 986-

87 (Fla. 2018); Barwick v. State, 88 So. 3d 85, 106 (Fla. 2011);

Schoenwetter v. State, 46 So. 3d 535, 561 (Fla. 2010); Hill v. State,

921 So. 2d 579, 584 (Fla. 2006). As we recently stated in Branch:

[T]he United States Supreme Court has continued to
identify eighteen as the critical age for purposes of Eighth
Amendment jurisprudence. See Miller v. Alabama, 567
U.S. 460, 465 (2012) (prohibiting mandatory sentences of
life without parole for homicide offenders who committed
their crimes before the age of eighteen); Graham v.
Florida, 560 U.S. 48, 74-75 (2010) (prohibiting sentences
of life without parole for nonhomicide offenders who
committed their crimes before the age of eighteen).
Therefore, unless the United States Supreme Court
determines that the age of ineligibility for the death
penalty should be extended, we will continue to adhere to
Roper.

236 So. 3d at 987. Therefore, because Deviney was eighteen years

old at the time he committed the murder, he is not entitled to relief

under Roper.

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4. PVV Aggravator

Deviney also claims that error occurred when the trial court

instructed the jury on the PVV aggravator and when both the jury

and the trial court found the PVV aggravator. This claim lacks

merit.

First, Deviney never objected to the jury being instructed on

the PVV aggravator. In fact, Deviney included the PVV aggravator

in his proposed jury instructions and affirmatively agreed at trial to

the inclusion of the PVV aggravator in the final jury instructions

before they were read to the jury. Therefore, Deviney did not

properly preserve this claim attacking the PVV instruction to the

jury for appellate review. See Universal Ins. Co. of N. Am. v. Warfel,

82 So. 3d 47, 65 (Fla. 2012) (“Fundamental error is waived where

defense counsel requests an erroneous instruction . . . [or] where

defense counsel affirmatively agrees to an improper instruction.”);

see also Rogers, 285 So. 3d at 887; Boyd v. State, 200 So. 3d 685,

702 (Fla. 2015).

Additionally, the finding of the PVV aggravator was not in

error. In reviewing the finding of an aggravator, this Court

“review[s] the record to determine whether the trial court applied

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the right rule of law for each aggravating circumstance and, if so,

whether competent, substantial evidence supports its finding.”

Boyd v. State, 910 So. 2d 167, 191 (Fla. 2005). To establish the

PVV aggravator, the State must prove beyond a reasonable doubt

that the victim was “particularly vulnerable due to advanced age or

disability.” § 921.141(2)(a), (6)(m), Fla. Stat. (2017). “[T]he finding

of this aggravator is not dependent on the defendant targeting his

or her victim on account of the victim’s age or disability.” Woodel v.

State, 804 So. 2d 316, 325 (Fla. 2001); accord Caylor v. State, 78

So. 3d 482, 496 (Fla. 2011). Additionally, a “significant disparity in

age between the victim[] and [the] attacker is a proper consideration

for this aggravator.” Woodel, 804 So. 2d at 325.

Based upon our review of the record, we find that there is

competent, substantial evidence to support the finding of the PVV

aggravator. Futrell was sixty-five years old at the time of her

murder. She was diagnosed with MS, which caused her to have

balance and coordination problems. Due to her MS, Futrell’s

condition had progressively deteriorated over the last five to six

years of her life, causing her to have further weakness, difficulty

performing certain tasks such as caring for her dog, and trouble

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with walking. Furthermore, there was a significant age disparity of

forty-seven years between Futrell and Deviney. Finally, as the trial

court explained in its sentencing order, while the PVV aggravator is

not dependent on a defendant targeting a victim due to the victim’s

age or disability, Deviney “knew Ms. Futrell suffered from MS and

that it made her weak. Such circumstances illustrate the outward

and apparent nature of Ms. Futrell’s condition. Her vulnerability

was palpable.”

Accordingly, because there is competent, substantial evidence

to support the PVV aggravator, Deviney is not entitled to relief on

this claim.

5. HAC Aggravator

Finally, Deviney challenges the trial court’s instruction on the

HAC aggravator and the jury’s and trial court’s subsequent finding

of that aggravator. As Deviney agreed to the HAC instruction before

it was given to the jury, this claim is not properly preserved for our

review. See Warfel, 82 So. 3d at 65. Moreover, there is no merit to

Deviney’s claim that the finding of the HAC aggravator was in error.

To establish the HAC aggravator, the State must prove beyond

a reasonable doubt that “[t]he capital felony was especially heinous,

- 22 -
atrocious, or cruel.” § 921.141(2)(a), (6)(h), Fla. Stat. (2017). In

analyzing the HAC aggravator, we have explained:

It is our interpretation that heinous means extremely
wicked or shockingly evil; that atrocious means
outrageously wicked and vile; and, that cruel means
designed to inflict a high degree of pain with utter
indifference to, or even enjoyment of, the suffering of
others. What is intended to be included are those capital
crimes where the actual commission of the capital felony
was accompanied by such additional acts as to set the
crime apart from the norm of capital felonies—the
conscienceless or pitiless crime which is unnecessarily
torturous to the victim.

Williams v. State, 37 So. 3d 187, 198 (Fla. 2010) (quoting

Hernandez v. State, 4 So. 3d 642, 668-69 (Fla. 2009)); accord Buzia

v. State, 926 So. 2d 1203, 1211 (Fla. 2006) (“To qualify for this

aggravator, ‘the crime must be both conscienceless or pitiless and

unnecessarily torturous to the victim.’ ” (quoting Hertz v. State, 803

So. 2d 629, 651 (Fla. 2001))). The focus of the HAC aggravator is

“on the means and manner in which death is inflicted and the

immediate circumstances surrounding the death.” Pham v. State,

70 So. 3d 485, 497 (Fla. 2011) (quoting Brown v. State, 721 So. 2d

274, 277 (Fla. 1998)). “[T]o support a finding of this aggravator, ‘the

evidence must show that the victim was conscious and aware of

impending death.’ ” Williams, 37 So. 3d at 199 (quoting Douglas v.

- 23 -
State, 878 So. 2d 1246, 1261 (Fla. 2004)). “[N]othing done to the

victim after the victim is dead or unconscious can support this

aggravator.” Buzia, 926 So. 2d at 1212. Therefore, a victim’s

suffering and “awareness of impending death is critical in

determining whether [an attack] unnecessarily tortured the victim.”

Id.; accord Cox v. State, 819 So. 2d 705, 720 (Fla. 2002) (“Obviously,

a victim’s suffering and awareness of his or her impending death

certainly supports the finding of the heinous, atrocious, or cruel

aggravating circumstance where there is a merciless attack and

beating as occurred here.”).

In the instant case, the trial court made the following findings

when analyzing the HAC aggravator:

Ms. Futrell sustained a large, deep slash completely
across the front of her neck. The incision went through
Ms. Futrell’s skin, small veins, the jugular vein, voice
box, larynx, and the front half of her esophagus. The
dark red color of the injury and aspirated blood indicate
Ms. Futrell was alive when this wound was inflicted. As
a result of the deep neck incision, Ms. Futrell died of
hypovolemic shock with asphyxia. In other words, she
bled to death while suffocating from a severed breathing
tube. After sustaining this injury, it could have taken
seconds to minutes for Ms. Futrell to die.
Absent her deep neck wound, Ms. Futrell had
various blunt-force and sharp-force injuries. She had
scrapes on the left side of her head, including her face,
lip, and nose, as well as a black eye. These injuries likely

- 24 -
resulted from separate blows to Ms. Futrell’s body and
because of the hemorrhage present with these injuries,
Dr. Giles determined Ms. Futrell was alive when they
were sustained. She had superficial incisions and sharp-
force injuries around her collarbone and the inside of her
arm. On her back, Ms. Futrell had bruises and sliding-
type abrasions. Ms. Futrell had various defensive
wounds such as bruises on her hands, wrists, and
forearms. While some were fresher than others, the
multiple injuries to Ms. Futrell’s face, torso, and upper
extremities were consistent with a struggle.
Dr. Giles also noted Ms. Futrell had a blunt-force,
crushing injury to both sides of her neck indicative of
manual strangulation. Due to the nature of this fracture,
it is clear Ms. Futrell sustained this crushing force after
her neck was slit and was likely inflicted after death or
late in the process of dying. This Court notes events
occurring after the victim loses consciousness are not
relevant to the HAC determination and, thus, declines to
consider this strangulation-type injury to Ms. Futrell’s
neck.
While the instant penalty phase jury was not privy
to Defendant’s testimony during the guilt phase portion
of the instant proceedings, this Court finds it relevant to
note Defendant’s version of events when analyzing this
aggravating factor. Defendant admitted to slicing Ms.
Futrell’s throat and stabbing her three times in the chest.
He acknowledged Ms. Futrell suffered and knew she was
going to die when he cut her throat, explaining it took
thirty to forty-five seconds for Ms. Futrell to die and she
was aware she was dying the entire time. Defendant’s
attack on Ms. Futrell was merciless and the force behind
Defendant’s blows was evidenced by his broken knife
blade. While receiving these blows, Ms. Futrell was
aware of her imminent passing, gasping for air and
bleeding to death. Her attempt to fight off Defendant was
futile as her carved body was left lifeless on her living
room floor.

- 25 -
(citations omitted.)

We agree with the trial court’s characterization of the evidence

supporting its finding of the HAC aggravator. Dr. Giles testified

that Futrell was alive when Deviney inflicted the fatal slash wound

on her neck and lived up to two minutes before her death. Dr. Giles

explained that there were defensive wounds on both of Futrell’s

arms, consistent with a struggle between her and Deviney prior to

her death, and noted that Futrell had suffered further sharp- and

blunt-force wounds while she was still alive due to the

hemorrhaging present. Additionally, we note that Futrell knew the

identity of her murderer, as she had known Deviney as a child,

often had him over to her house, and treated him as a grandson.

Cf. Barnhill, 834 So. 2d at 850 (upholding the finding of an HAC

aggravator where the victim was of advanced age, struggled with his

murderer before being strangled, knew who his murderer was, and

“had always shown [his murderer] kindness and generosity”).

Deviney’s reliance on Campbell v. State, 159 So. 3d 814 (Fla.

2015), and Elam v. State, 636 So. 2d 1312 (Fla. 1994), two cases in

which this Court found that the HAC aggravator was improperly

found by the trial court, is misplaced. In Campbell, the defendant

- 26 -
challenged the trial court’s finding of the HAC aggravator where it

was undisputed that the victim was asleep when he was first struck

on his head by the defendant with a hatchet, but briefly awakened

before the defendant struck him again. 159 So. 3d at 832. At trial,

the medical examiner testified that the victim’s “wounds were ‘very

severe’ and ‘potentially could cause instant death or near instant

death,’ but could have taken ‘[a]nywhere from an instant or a few

seconds to minutes or possibly even hours,’ ” that the victim had no

defensive wounds, and that it was unlikely the victim remained

conscious until his death. See id. at 819, 833. This Court found

the medical examiner’s testimony to be ambiguous and uncertain

and, therefore, determined that the State failed to meet its burden

of proving the HAC aggravator beyond a reasonable doubt. Id. at

834.

However, as we noted in Campbell, “an important factor in

determining if the victim was conscious and aware of impending

death [is] the presence of defensive wounds.” Id. at 833; see also

King v. State, 130 So. 3d 676, 684 (Fla. 2013) (“This Court has

‘affirmed findings of HAC where defensive wounds revealed

awareness of impending death.’ ” (quoting Guardado v. State, 965

- 27 -
So. 2d 108, 116 (Fla. 2007))). Unlike Campbell, there was no

testimony by the medical examiner at trial suggesting that Futrell’s

death was instantaneous. Rather, Dr. Giles testified that after

Futrell suffered the fatal neck wound, she would have lived for a

period between thirty seconds and two minutes as she suffocated

and bled to death. Additionally, Dr. Giles explained that the

defensive wounds on Futrell’s arms, as well as the other wounds

present on her face and body that occurred while she was still

living, indicated that Futrell struggled with Deviney before he

inflicted the fatal wound. And, as the trial court noted, Deviney

himself admitted that Futrell suffered and was aware that she was

dying. Therefore, Campbell is distinguishable from the instant case.

We also find Elam distinguishable. In Elam, the defendant

struck the victim “with his fist, knocking him to the floor, then

picked up a brick and struck him several times on the head, killing

him.” 636 So. 2d at 1312. This Court disagreed with the trial

court’s finding of the HAC aggravator in the case, stating:

Although the defendant was bludgeoned and had
defensive wounds, the medical examiner testified that the
attack took place in a very short period of time (“could
have been less than a minute, maybe even half a
minute”), the defendant was unconscious at the end of

- 28 -
this period, and never regained consciousness. There
was no prolonged suffering or anticipation of death.

Id. at 1314. Unlike Elam, the evidence in the instant case

establishes that Deviney and Futrell engaged in a struggle before

Deviney inflicted the fatal wound to Futrell’s neck and that Futrell

was alive for a period of thirty seconds to two minutes after that

wound occurred. Cf. Perez v. State, 919 So. 2d 347, 355, 379 (Fla.

2005) (upholding the finding of an HAC aggravator where the victim

was stabbed numerous times and suffered defensive wounds and

the medical examiner’s testimony as to “the outer bounds of

consciousness”—“within seconds to a minute or two” as a result of

neck wounds and “ten to fifteen minutes” for torso wounds—

“exceeded that established in Elam”). Additionally, following our

decision in Elam, we have repeatedly upheld a trial court’s finding

of an HAC aggravator where the victim suffered defensive wounds,

even though there was evidence suggesting that the victim may

have lost consciousness or died soon after those defensive wounds

occurred. See, e.g., King, 130 So. 3d at 685 (finding HAC

aggravator supported by competent, substantial evidence where the

victim suffered head wounds, which would have caused her to lose

- 29 -
consciousness “very quickly,” but also defensive wounds on her

hand and arm, which demonstrated she was “conscious and aware

of her impending death”); Barnhill, 834 So. 2d at 850 (upholding

HAC aggravator where it was unclear when the victim lost

consciousness after an initial attempt at manual strangulation

other than the medical examiner’s testimony that it would be

“within one to two minutes”); Guzman v. State, 721 So. 2d 1155,

1157, 1160 (Fla. 1998) (finding HAC aggravator to be clearly

supported by the evidence where an intoxicated victim was

conscious for at least the onset of the defendant’s attack and had a

defensive wound on his left hand).

Because there is competent, substantial evidence in the record

demonstrating that Futrell suffered before she died and was aware

of her impending death, no error occurred when both the jury and

trial court found the HAC aggravator. Therefore, we deny this

claim.

C. CONCLUSION

Based on the foregoing analysis, we affirm Deviney’s sentence

of death.

It is so ordered.

- 30 -
POLSTON, MUÑIZ, and COURIEL, JJ., concur.
LAWSON, J., concurs in part and concurs in result with an opinion,
in which CANADY, C.J., and GROSSHANS, J., concur.
LABARGA, J., dissents with an opinion.

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

LAWSON, J., concurring in part and concurring in result.

I agree that Deviney’s sentence of death should be affirmed

and concur in the per curiam opinion’s analysis of all issues except

Deviney’s for-cause challenge to prospective juror Henderson based

upon Henderson’s repeated statements indicating an unyielding

predisposition to vote for death in any case of premeditated murder.

As discussed below, the per curiam opinion’s conclusion that the

trial court did not abuse its discretion in denying the cause

challenge—which has garnered only a plurality vote—is based on a

piecemeal review of the record that cannot be squared with

precedent requiring us to review the voir dire transcript in its

entirety. See, e.g., Overton v. State, 801 So. 2d 877, 892 (Fla. 2001)

(“It is difficult, if not impossible, to understand the reasoning which

leads to the conclusion that a person stands free of bias [or]

prejudice who having voluntarily and emphatically asserted its

existence in his mind, in the next moment under skillful

- 31 -
questioning declares his freedom from its influence.” (quoting

Johnson v. Reynolds, 121 So. 793, 796 (Fla. 1929))). Although

Deviney was able to remove Henderson using one of the ten

peremptory challenges provided for by section 913.08, Florida

Statutes (2017), so that the trial court’s error did not prejudice

Deviney’s constitutional right to a fair and impartial jury, the trial

court’s error in denying the cause challenge constitutes per se

reversible error under this Court’s decision in Trotter v. State, 576

So. 2d 691, 693 (Fla. 1990) (holding that the erroneous denial of a

cause challenge is per se reversible error even under circumstances

where the juror is stricken using a peremptory challenge and no

biased juror is seated).

I would nonetheless affirm on this issue because “peremptory

challenges are not of constitutional dimension.” Ross v. Oklahoma,

487 U.S. 81, 88 (1988); see also United States v. Martinez-Salazar,

528 U.S. 304, 311, 313-14 (2000); Jefferson v. State, 595 So. 2d 38,

41 (Fla. 1992). Thus, Trotter’s per se rule is clearly erroneous, as

there is no constitutional rationale for this Court to disregard the

Florida Legislature’s mandate to apply the harmless error standard.

Moreover, there is no valid reason, such as reliance interests, to

- 32 -
justify our continued adherence to Trotter. See State v. Poole, 297

So. 3d 487, 507 (Fla. 2020). I would therefore recede from Trotter

and replace its per se rule with the harmless error standard set

forth in section 924.33, Florida Statutes (2017), which was

thoroughly examined by this Court in State v. DiGuilio, 491 So. 2d

1129 (Fla. 1986). Because the record in this case establishes that

the erroneously denied cause challenge to Henderson was harmless

and that Deviney received a fair and impartial jury, Deviney’s claim

is without merit and I therefore concur in the plurality’s result on

this issue.

I. The trial court erred in denying the cause challenge to
prospective juror Henderson.

At the trial court level, “[t]he test for determining juror

competency is whether a juror can lay aside any bias or prejudice

and render a verdict solely on the evidence presented and the

instructions on the law given by the court.” Ault v. State, 866 So.

2d 674, 683 (Fla. 2003). Where “any reasonable doubt exists as to

whether the juror possesses an impartial state of mind,” the trial

court must excuse that juror for cause. Id. In a capital case, “this

standard is met if a juror’s views on the death penalty ‘prevent or

- 33 -
substantially impair the performance of his or her duties as a juror

in accordance with the juror’s instructions or oath.’ ” Johnson v.

State, 969 So. 2d 938, 946 (Fla. 2007) (quoting Fernandez v. State,

730 So. 2d 277, 281 (Fla. 1999)). On appeal, we do not substitute

our judgment for that of the trial court by conducting a de novo

review as to the impartiality of the challenged juror. See Ault, 866

So. 2d at 683-84. Rather, to decide whether the trial court abused

its discretion in denying the cause challenge, we review the record

in its entirety to determine whether no reasonable jurist would have

failed to find a reasonable doubt as to the challenged juror’s

impartiality. See Overton, 801 So. 2d at 892-93; see also Canakaris

v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) (“[D]iscretion is

abused only where no reasonable man would take the view adopted

by the trial court. If reasonable men could differ as to the propriety

of the action taken by the trial court, then it cannot be said that the

trial court abused its discretion.”) (quoting Delno v. Mkt. St. Ry. Co.,

124 F.2d 965, 967 (9th Cir. 1942)).

At issue in this case is Henderson’s view that a death sentence

is always warranted for any person who commits premeditated

murder. The law does not authorize imposition of a sentence of

- 34 -
death for premeditated murder standing alone. Rather, death is

only lawfully considered based upon the existence of certain

statutorily defined “aggravating circumstances” and a weighing of

any aggravating circumstance proved by the State (beyond a

reasonable doubt) against mitigating circumstances presented at

trial. Therefore, if there is any reasonable doubt that the juror

would vote for death based solely upon the defendant’s conscious

decision to kill the victim before doing so, the juror must be

stricken for cause. Cf. Floyd v. State, 569 So. 2d 1225, 1230 (Fla.

1990) (holding trial court erred in failing to excuse for cause a

prospective juror who held an “unqualified predisposition to impose

the death penalty for all premeditated murders”). Additionally, we

have explained that a juror is “unqualified” to serve as a juror in a

death penalty case “based on his or her views on capital

punishment, if he or she expresses an unyielding conviction and

rigidity toward the death penalty.” Barnhill v. State, 834 So. 2d

836, 844 (Fla. 2002).

In analyzing this issue, the plurality cites the applicable

standard of review, namely that this Court reviews the validity of a

trial court’s denial of a cause challenge against a prospective juror

- 35 -
for “manifest error,” which “is tantamount to an abuse of

discretion.” Johnson, 969 So. 2d at 946; accord Ault, 866 So. 2d at

684; Kimbrough v. State, 700 So. 2d 634, 639 (Fla. 1997). And, the

plurality likewise correctly recognizes that while appellate courts

give deference to a trial court’s rulings on cause challenges to

prospective jurors, see Johnson, 969 So. 2d at 946; Castro v. State,

644 So. 2d 987, 989 (Fla. 1994), there must be “competent record

support for the decision,” Barnhill, 834 So. 2d at 844; see also, e.g.,

Ault, 866 So. 2d at 684 (“While we give deference to the trial judge

who sees and hears the juror and often has to make credibility

findings based on information that cannot be easily discerned from

an appellate record, the record in the instant case directly

contradicts the judge’s ruling.” (citation omitted)).

Because “the trial court must allow the strike when ‘there is

basis for any reasonable doubt’ that the juror had ‘that state of

mind which would enable him to render an impartial verdict based

solely on the evidence submitted and the law announced at the

trial,’ ” Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007) (quoting

Singer v. State, 109 So. 2d 7, 23-24 (Fla. 1959)), and because

“ambiguities or uncertainties about a juror’s impartiality” are to be

- 36 -
resolved “in favor of excusing the juror,” id., our precedent also

requires that appellate courts must consider a prospective juror’s

statements “in their totality,” Johnson, 969 So. 2d at 946, and

cannot affirm a trial court’s denial of a challenge for cause based

upon some statements indicating that the juror would be impartial

or could set aside a disqualifying view where the record as a whole

precludes any reasonable jurist from concluding beyond a

reasonable doubt that the juror is impartial. Overton, 801 So. 2d at

892-93; see also Canakaris, 382 So. 2d at 1203; Hamilton v. State,

547 So. 2d 630, 633 (Fla. 1989) (finding the trial court abused its

discretion in denying a cause challenge even though “the juror in

this case stated in response to questions from the bench that she

could hear the case with an open mind,” where “her other

responses raised doubt as to whether she could be unbiased”).

Considering Henderson’s responses “in their totality,” Johnson,

969 So. 2d at 946, this case presents a clear case for finding an

abuse of discretion, especially because Henderson’s final position

was a statement of disqualifying bias.

During the State’s initial questioning of Henderson, Henderson

stated that he would “[a]bsolutely” consider the death penalty and

- 37 -
vote for it in an “appropriate case.” The State then asked

Henderson to rate himself on a scale of zero to five, with a zero

indicating he “could never impose” the death penalty and a five

indicating he “firmly believe[d] in the death penalty,” and

Henderson rated himself as a five. Defense counsel later engaged

with Henderson as follows:

[DEFENSE]: . . . Basically someone’s been found guilty of
first degree murder, premeditated, specific intent and
they killed someone or they killed someone during . . .
the commission of a certain felony or attempted felony.
Felonies can be burglary, home invasion, sexual battery.
Let me make sure I capture them all, robbery,
kidnapping, the murder of another individual. There’s no
defense of others. The person is not insane. It’s not self-
defense. They were able to form a specific intent.
Sir, do you believe that that person who has been
found guilty should automatically -- . . . the death
penalty should automatically be imposed?
[HENDERSON]: I would say, no. There are going to
be other circumstances that I’d like to have full
knowledge of.
[DEFENSE]: Okay. And what are those
circumstances, sir?
[HENDERSON]: State of mind at the time of the
crime.
[DEFENSE]: Okay. If the person’s been found guilty
of first degree murder then . . . they’re able to form the
specific intent because there’s premeditation.
[HENDERSON]: Uh-huh.
[DEFENSE]: Is there another state of mind that you
would like to know?
[HENDERSON]: Not really.
[DEFENSE]: Okay.

- 38 -
[HENDERSON]: If it’s premeditated it’s
premeditated.
[DEFENSE]: Yes, sir. And in that case would the
death penalty -- would you automatically impose the
death penalty?
[HENDERSON]: I would.

Although Henderson responded affirmatively to the State’s

subsequent questioning regarding whether he could “follow the

law,” whether he understood the death penalty was not automatic,

and whether he could listen to and weigh the aggravators and

mitigators, Henderson’s answers to defense counsel’s follow-up

questioning clearly demonstrated a reasonable doubt as to

Henderson’s impartiality. Specifically, even after Henderson made

statements indicating that he would be able to follow the law and

would not automatically vote to impose the death penalty based

upon premeditation alone, defense counsel asked Henderson if he

could ever “vote for life without the possibility of parole” where “a

person has a specific intent and has committed the murder in a

premeditated fashion.” Henderson responded, “The premeditation

is the biggest factor for me. If the thought has been involved prior to

the actual act then I could not vote for a life sentence. It would be

death.” Defense counsel again asked Henderson if his “sentence on

- 39 -
first degree premeditated murder where a person had a specific

intent to kill” would be death, to which he replied, “That is correct.”

The State made no attempt to further rehabilitate Henderson after

he firmly, finally, and unequivocally stated that he would vote to

impose the death penalty based solely upon the defendant’s pre-

formed intent to kill, i.e., premeditation. This firmly held view is

disqualifying in a death penalty case, see Floyd, 569 So. 2d at

1230, and our precedent clearly dictates that we find an abuse of

discretion in denying the cause challenge under these

circumstances, see Overton, 801 So. 2d at 892-93; Hamilton, 547

So. 2d at 633.7

Bryant v. State, 656 So. 2d 426 (Fla. 1995), is also on point

and requires the same result. In that case, six jurors were

challenged for cause on grounds that they “expressed strong

support of the death penalty and a predisposition to impose the

7. The instant case is distinguishable from this Court’s
decision in Barnhill, where the relevant jurors did not express an
unyielding conviction or rigidity toward the death penalty and were
adequately rehabilitated by the State and the trial court. See 834
So. 2d at 844-45. Unlike the jurors in Barnhill, following the State’s
attempt at rehabilitation, Henderson again expressed his view that
he would automatically impose the death penalty in the case of a
premeditated murder.

- 40 -
death penalty if the defendant was convicted of first-degree

murder.” Id. at 428. All cause challenges were denied, and this

Court found no abuse of discretion with respect to five of the

challenged jurors, who upon questioning by the state attorney

“stated either that they would follow the court’s instructions or that

they would weigh the aggravating and mitigating factors to

determine whether death was the appropriate sentence.” Id. at 428.

With respect to the final prospective juror, however, we did find an

abuse of discretion, reasoning that even though the prospective

juror “stated that he could follow the court’s instructions, his other

responses were sufficiently equivocal to cast doubt on this.” Id.

(emphasis added). This is a clearer case for finding an abuse of

discretion than Bryant because even after the State’s attempted

rehabilitation, Henderson unequivocally stated that he “could not

vote for a life sentence” if the killing was premeditated and that his

“sentence on first degree premeditated murder where a person had

a specific intent to kill” would be death.

Recently, in Martin v. State, No. SC18-896, slip op. at 23-24

(Fla. May 6, 2021), we explained:

- 41 -
Under our case law, a trial court must grant a cause
challenge if there is any reasonable doubt that the juror
possessed the state of mind that would have enabled the
juror to render an impartial verdict. Cozzie v. State, 225
So. 3d 717, 727 (Fla. 2017). That generous, prophylactic
standard excludes many potential jurors whose presence
would not have violated the defendant’s constitutional
right to an impartial trial if they had served on the jury.

If we were to uphold the trial court’s denial of a cause

challenge under these circumstances, the import would be

breathtaking. Had Deviney exercised all peremptory challenges on

other potential jurors, Henderson would have been seated as a juror

and there would be no recourse on appeal. The same would be true

for any other juror who repeatedly expressed a disqualifying view,

even after attempted rehabilitation, but also said something that

could be read as meaning that the juror would be impartial. This

result would be untenable because it would effectively mean that

there is no appellate recourse for the denial of a cause challenge

when the appellate record manifestly demonstrates “reasonable

doubt” as to the juror’s impartiality and objectively demonstrates

that the trial judge failed to resolve “ambiguities or uncertainties

about a juror’s impartiality . . . in favor of excusing the juror.”

Carratelli, 961 So. 2d at 318. Furthermore, this result could not be

- 42 -
explained away as an appellate court deferring to the credibility

determination of a trial judge. It would defy all reason to conclude

that the trial court “believed” Henderson when he said that he could

follow the law but found his repeated and unambiguous statements

that he could not vote for life in any case of premeditated murder

unworthy of belief. For one thing, there is no such finding in the

record, and for another, we know what the trial judge heard

because Henderson’s words are memorialized in the record. And

those words would have led any reasonable jurist to strike

Henderson for cause.

Applying our precedent, and mindful that a prospective juror’s

statements must be considered “in their totality,” Johnson, 969 So.

2d at 946, and that the trial court must grant the strike “when

there is basis for any reasonable doubt” that the juror is impartial,

Carratelli, 961 So. 2d at 318 (quoting Singer, 109 So, 2d at 23)—

here, because of an unyielding predisposition to death, see Floyd,

569 So. 2d at 1230—I conclude that the trial court abused its

discretion in denying the cause challenge to Henderson. Cf.

- 43 -
Overton, 801 So. 2d at 892-93; Hamilton, 547 So. 2d at 633. 8

Although the abuse-of-discretion standard of review is highly

deferential, it is not a license to rubber-stamp the trial court

through the type of piecemeal review on which the plurality’s

decision rests. Rather, to be entitled to deference, the trial court’s

ruling must be reasonable. See Canakaris, 382 So. 2d at 1203. In

8. Our district courts have likewise refused to substitute a
rubber stamp for the required ruling of error where the record
demonstrates a reasonable doubt as to a prospective juror’s
impartiality. See, e.g., Lowe v. State, 718 So. 2d 920, 922-23 (Fla.
4th DCA 1998) (“[The] juror’s single statement that he would acquit
if the state presented insufficient evidence was tortuously teased
from him only by the most pointed of leading questions. Even if it
had been spontaneous, after his repeated assertions imposing on
the defendant some burden to erase any idea of guilt, this single
statement could not possibly evidence the correction or elimination
of a view so resolutely held and repeatedly stated.”); Huber v. State,
669 So. 2d 1079, 1082 (Fla. 4th DCA 1996) (“Even though [the]
prospective juror . . . eventually said he would be able to follow the
law and require the state to prove its case beyond a reasonable
doubt, his original expression of doubt about his ability to presume
the defendant innocent because he believes that police don’t arrest
innocent people is a basis for reasonable doubt that he might not be
able to render an impartial verdict.”); Gibson v. State, 534 So. 2d
1231, 1231-33 (Fla. 3d DCA 1988) (holding the trial court erred by
failing to excuse for cause a prospective juror who, despite
ultimately indicating that if she had a reasonable doubt she would
find the defendant not guilty, also stated that she would “like to
hear the whole story” and that “if they are innocent, they can tell
their side of the story to the judge” because her answers “gave rise
to a reasonable doubt as to whether she could set aside her bias,
follow the court’s instructions, and render an impartial verdict”).

- 44 -
this case, there is simply no way for any reasonable jurist to read

the voir dire transcript in its entirety, see Overton, 801 So. 2d at

892-93, and come to any conclusion other than a reasonable doubt

exists as to Henderson’s impartiality.

II. The trial court’s error would be reversible error under
Trotter.

Although it was error for the trial court to deny the cause

challenge to Henderson, the analysis does not end there. In Trotter,

this Court explained that where a trial court erroneously denies a

cause challenge, “[t]o show reversible error, a defendant must show

that all peremptories had been exhausted and that an objectionable

juror had to be accepted.” 576 So. 2d at 693 (alteration in original)

(quoting Pentecost v. State, 545 So. 2d 861, 863 n.1 (Fla. 1989)).

The defendant “must identify a specific juror whom he otherwise

would have struck peremptorily,” and “[t]his juror must be an

individual who actually sat on the jury and whom the defendant

either challenged for cause or attempted to challenge peremptorily

or otherwise objected to after his peremptory challenges had been

exhausted.” Id.

- 45 -
Turning to the record here, after the trial court denied the

cause challenge to Henderson, Deviney exercised a peremptory

challenge and struck Henderson from the jury. After exhausting

his remaining peremptories on other potential jurors, Deviney

asserted cause challenges to three prospective jurors—Swanstrom,

Parrott, and Pompey. The trial court denied those cause challenges

and also denied Deviney additional peremptory challenges to strike

them. Swanstrom, Parrott, and Pompey each sat on the jury.

Thus, it is undisputed that after Deviney’s cause challenge to

Henderson was denied, (1) Deviney exhausted his peremptories, (2)

Deviney was denied additional peremptories to strike three

prospective jurors he had already attempted to strike for cause, and

(3) the three “objectionable” prospective jurors actually sat on the

jury. Under Trotter, Deviney has demonstrated reversible error and

would be entitled to a new penalty-phase trial.

III. We should recede from Trotter and adopt the harmless
error standard in reviewing trial court rulings on cause
challenges.

Despite the foregoing analysis, however, I reach the same

result as the plurality in its analysis of the denied cause challenge

to Henderson. As the State correctly argues in its brief, the Trotter

- 46 -
error standard acts as a per se error rule that requires reversal of

cases even where there is no prejudice to a defendant’s right to a

fair and impartial jury. Trotter disregards the longstanding

requirement that Florida courts apply the legislatively mandated

harmless error standard unless constitutional reasons dictate

otherwise. As discussed below, I would recede from Trotter and

adopt the harmless error standard when considering an erroneously

denied cause challenge.

Section 924.33, which sets forth the harmless error standard

in Florida, provides that “[n]o judgment shall be reversed unless the

appellate court is of the opinion, after an examination of all the

appeal papers, that error was committed that injuriously affected

the substantial rights of the appellant. It shall not be presumed

that error injuriously affected the substantial rights of the

appellant.” In DiGuilio, this Court considered the harmless error

standard, which places the burden on the beneficiary of the error

“to prove beyond a reasonable doubt that the error complained of

did not contribute to the verdict or, alternatively stated, that there

is no reasonable possibility that the error contributed to the

conviction.” 491 So. 2d at 1135. This Court explained:

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Section 924.33 respects the constitutional right to
a fair trial free of harmful error but directs appellate
courts not to apply a standard of review which requires
that trials be free of harmless errors. . . . Contraposed
to this legislative authority, the courts may establish the
rule that certain errors always violate the right to a fair
trial and are, thus, per se reversible. To do so, however,
we are obligated to perform a reasoned analysis which
shows that this is true, and that, for constitutional
reasons, we must override the legislative decision.

Id. at 1134. This Court described “[p]er se reversible errors” as

errors “which are ‘so basic to a fair trial that their infraction can

never be treated as harmless error.’ ” Id. at 1135 (quoting Chapman

v. California, 386 U.S. 18, 23 (1967)).

Significantly, United States Supreme Court precedent does not

treat the loss of a peremptory challenge because of an erroneously

denied cause challenge to a prospective juror as per se reversible

error. In Ross, the United States Supreme Court, in reviewing a

state court proceeding, “reject[ed] the notion that the loss of a

peremptory challenge constitutes a violation of the constitutional

right to an impartial jury,” as “peremptory challenges are not of

constitutional dimension.” 487 U.S. at 88. Rather, “[s]o long as the

jury that sits is impartial, the fact that the defendant had to use a

peremptory challenge to achieve that result does not mean the Sixth

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Amendment was violated.” Id.; see also Martinez-Salazar, 528 U.S.

at 311, 313-14 (reaffirming this principle in the context of a federal

trial). 9

9. In Martinez-Salazar, the United States Supreme Court
rejected the government’s argument that “under federal law, a
defendant is obliged to use a peremptory challenge to cure the
judge’s erro[neous]” denial of a cause challenge, and further held
“that if the defendant elects to cure such an error by exercising a
peremptory challenge, and is subsequently convicted by a jury on
which no biased juror sat, he has not been deprived of any rule-
based or constitutional right.” 528 U.S. at 307. Martinez-Salazar
may have left open the issue of whether, under federal law, “normal
principles of waiver . . . disable a defendant from objecting on
appeal to the seating of a juror he was entirely able to prevent”
through the use of a peremptory challenge. Id. at 318 (Scalia, J.,
concurring in the judgment). However, subject to the possible
exception—which was not at issue in Martinez-Salazar and is
likewise not argued in Deviney’s case—that the right to due process
may be violated where the trial court “deliberately misapplied the
law in order to force the defendant[] to use a peremptory challenge,”
see id. at 316 (citing Ross, 487 U.S. at 91 n.5), the United States
Supreme Court in Martinez-Salazar solidified that federal law
affords no relief for the curative use of a peremptory challenge
unless an actually biased juror sits on the jury, id. at 307, 316; see
also id. at 315-16 (explaining that using a peremptory challenge to
cure the wrongful denial of a cause challenge does not constitute
the loss of a peremptory challenge but rather the use of a
peremptory challenge “in line with a principal reason for
peremptories: to help secure the constitutional guarantee of trial by
an impartial jury”).

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Additionally, in Florida, the use of peremptory challenges in

criminal trials is a statutory creation, 10 as the Florida Constitution

does not establish a defendant’s right to peremptories. Notably,

subsequent to Trotter, this Court recognized that “[i]t is the right to

an impartial jury, not the right to peremptory challenges, that is

constitutionally protected,” as peremptories “merely are a ‘means of

assuring the selection of a qualified and unbiased jury.’ ” Jefferson,

595 So. 2d at 41 (footnote omitted) (quoting Batson v. Kentucky,

476 U.S. 79, 91 (1986)); see also Meade v. State, 85 So. 2d 613, 615

(Fla. 1956) (characterizing peremptory challenges as a tool for “the

effectuation of the constitutional guaranty of trial by an impartial

jury”). Accordingly, there is no federal or state constitutional right

to peremptory challenges.

In light of these principles, it is clear that Trotter’s focus on

peremptories—regardless of whether a defendant was able to seat a

qualified and unbiased jury—erroneously disregards the legislative

mandate for appellate courts to apply harmless error review in

Florida. Trotter fails to give a “reasoned analysis” to explain why an

10. See § 913.08, Fla. Stat. (2017).

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erroneously denied cause challenge always violates the right to a

fair and impartial jury and why, “for constitutional reasons,”

DiGuilio, 491 So. 2d at 1134, this Court is required to override the

legislative decision to apply harmless error review. Indeed, the rule

established in Trotter cannot satisfy the requirements established

by this Court in DiGuilio for disregarding the legislative mandate.

As already discussed, both federal and Florida law clearly establish

that peremptories are not of constitutional dimension, but instead

are tools provided by statute to effectuate the right to a fair trial. To

fall within Trotter’s per se rule, a party must identify an

“objectionable” juror. 576 So. 2d at 693. Under Trotter, however,

“objectionable” does not mean legally objectionable—a juror who is

biased or partial. Instead, “objectionable” under Trotter simply

means a juror against whom the party asserted an unsuccessful

cause challenge and who ended up on the jury because the party

had exhausted his or her peremptories. Id. If a juror is not actually

biased, however, the objecting party has not suffered harm to his or

her constitutional right to a fair and impartial jury. Thus, the error

identified in Trotter does not fall within the category of per se

reversible error as described by this Court in DiGuilio, as there is

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not a legitimate constitutional reason for this Court to override the

legislative mandate to apply the harmless error standard of review

when considering an erroneously denied cause challenge. Trotter

was wrongly decided, and appellate courts using the harmless error

standard remain fully competent to protect a party’s

constitutionally guaranteed right to a fair and impartial jury.

As Deviney notes, this Court rejected a previous challenge to

Trotter in Busby v. State, 894 So. 2d 88 (Fla. 2004). In Busby, this

Court concluded that it was reversible error under Trotter for the

trial court to deny a cause challenge to a prospective juror. Id. at

93-97. In explaining its continued adherence to Trotter, this Court

found that “the Trotter test [was] necessary to properly protect the

right to trial by an impartial jury . . . and to effectuate the statutory

scheme granting peremptory challenges.” Id. at 97. Despite

recognizing that “peremptory challenges are not themselves

constitutionally guaranteed at either the state or federal level,” the

Busby majority found that “such challenges are nonetheless ‘one of

the most important of the rights secured to the accused.’ ” Id. at 98

(quoting Swain v. Alabama, 380 U.S. 202, 219 (1965), overruled by

Batson, 476 U.S. 79). The majority believed that “[r]equiring the

- 52 -
defendant to show actual bias . . . for the forced expenditure of a

peremptory challenge renders the separate statutory grant of

peremptory challenges totally meaningless” and that “[t]he Trotter

standard . . . properly preserves the distinctions between cause and

peremptory challenges,” as “a defendant can obtain relief for the

erroneously forced expenditure of a peremptory by showing the

same type of harm such challenges are intended to cure,” i.e., “the

seating of a juror whom the defendant suspects, but cannot prove,

is biased.” Id. at 100-01.

The analysis in Busby justifying the Trotter error standard is

flawed for several reasons. Although acknowledging that

peremptory challenges are not constitutionally guaranteed, the

Busby majority tacitly equates the use of peremptories to a

constitutional right, rejecting United States Supreme Court

precedent on the issue. As discussed above, there is no federal or

state constitutional right to peremptory challenges. Furthermore,

Busby mischaracterizes the potential harmful error that occurs

when a defendant is forced to use a peremptory challenge to cure

an erroneous denial of a cause challenge. While the Busby majority

found the potential harm to be a defendant’s “depriv[ation] of the

- 53 -
entitlement to challenge those jurors whose voir dire answers reveal

a real potential for bias, but who would otherwise not be subject to

a challenge for cause,” id. at 100, the purpose of peremptory

challenges is to effectuate the defendant’s right to a fair and

impartial jury. See Jefferson, 595 So. 2d at 41. Therefore, the

actual harm this Court must consider is whether a biased or legally

objectionable juror sat on the jury after an erroneously denied

cause challenge and the defendant exhausted his or her peremptory

challenges. As Justice Bell succinctly explained in his concurring

in part and dissenting in part opinion in Busby:

As we acknowledged in DiGuilio, absent a legitimate
constitutional reason to override the legislative
codification of the harmless error rule in section 924.33,
we must require that a defendant show actual harm in
order for a conviction to be reversed. In other words, the
defendant must meet the Trotter standards and must
show that the juror identified as being “objectionable”
was indeed a legally objectionable juror, i.e., a biased or
partial juror. If the defendant makes such a showing,
then harm has been proven and a violation of the
defendant’s constitutional right to a fair trial has been
established. In such a case, the defendant would be
entitled to a new trial. If the juror identified by the
defendant as being objectionable is in actuality not
legally objectionable, the defendant has suffered no harm
and is not entitled to a new trial because any error in
denying the challenge for cause was rendered harmless.

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Busby, 894 So. 2d at 114 (Bell, J., concurring in part and

dissenting in part) (citation omitted).

When considering whether to recede from erroneous

precedent, this Court must consider the doctrine of stare decisis.

Poole, 297 So. 3d at 506. In Poole, we explained “the proper

approach to stare decisis” as follows:

In a case where we are bound by a higher legal
authority—whether it be a constitutional provision, a
statute, or a decision of the Supreme Court—our job is to
apply that law correctly to the case before us. When we
are convinced that a precedent clearly conflicts with the
law we are sworn to uphold, precedent normally must
yield.
We say normally because “stare decisis means
sticking to some wrong decisions.” Kimble v. Marvel
Entertainment, LLC, 576 U.S. 446, 135 S. Ct. 2401, 2409,
192 L. Ed. 2d 463 (2015). “Indeed, stare decisis has
consequence only to the extent it sustains incorrect
decisions; correct judgments have no need for that
principle to prop them up.” Id. But once we have chosen
to reassess a precedent and have come to the conclusion
that it is clearly erroneous, the proper question becomes
whether there is a valid reason why not to recede from
that precedent.
The critical consideration ordinarily will be reliance.
It is generally accepted that reliance interests are “at
their acme in cases involving property and contract
rights.” Payne v. Tennessee, 501 U.S. 808, 828, 111 S.
Ct. 2597, 115 L. Ed. 2d 720 (1991). And reliance
interests are lowest in cases—like this one—“involving
procedural and evidentiary rules.” Id.; see also Alleyne,
570 U.S. at 119, 133 S. Ct. 2151 (Sotomayor, J.,
concurring) (“[W]hen procedural rules are at issue that do

- 55 -
not govern primary conduct and do not implicate the
reliance interests of private parties, the force of stare
decisis is reduced.”).

Id. at 507.

Viewing our decision in Trotter through this lens, I fail to find a

“valid reason why not to recede from” it. Id. Trotter is clearly

erroneous. It would require reversal in this and other similar cases

in direct contravention of the mandate of section 924.33 that “[n]o

judgment shall be reversed unless the appellate court is of the

opinion, after an examination of all the appeal papers, that error

was committed that injuriously affected the substantial rights of the

appellant.” Trotter’s continued application in this and other similar

cases would also violate the legislative mandate that “[i]t shall not

be presumed that error injuriously affected the substantial rights of

the appellant.” § 924.33, Fla. Stat. And, as this Court stated in

DiGuilio, “[t]he test of whether a given type of error can be properly

categorized as per se reversible is the harmless error test itself.”

491 So. 2d at 1135. Pursuant to DiGuilio, only “[i]f application of

the [harmless error] test to the type of error involved will always

result in a finding that the error is harmful . . . [is it] proper to

categorize the error as per se reversible.” Id. (emphasis added).

- 56 -
Yet, in Trotter, this Court did not analyze how an erroneously

denied cause challenge is always harmful error. Nor could such

error qualify as per se reversible error. As discussed above,

peremptory challenges are not of constitutional dimension, and

there are cases where the identified “objectionable” jurors are

neither legally objectionable nor biased. The error, in that

circumstance, does not prejudice a defendant’s right to a fair and

impartial jury. Thus, the per se reversible error standard in Trotter

lacks any constitutional rationale to override the Legislature’s

mandate that the harmless error rule should be applied and is,

therefore, clearly erroneous. Moreover, there are no reliance

interests that mitigate toward continued adherence to Trotter’s

erroneous per se rule, and receding from Trotter and applying the

harmless error standard will promote uniformity in the standard

used by federal and state courts when reviewing trials held in

Florida. Accordingly, I would recede from Trotter and apply

harmless error review in determining whether reversible error

occurred when a trial court erroneously denies a cause challenge.

IV. The error in denying the cause challenge to prospective
juror Henderson was harmless.

- 57 -
Under the harmless error standard, the State, as the

beneficiary of the error, must “prove beyond a reasonable doubt

that the error complained of did not contribute to the verdict,” i.e.,

“that there is no reasonable possibility that the error contributed to

the conviction.” DiGuilio, 491 So. 2d at 1135. Because the record

establishes that there is no reasonable possibility that the trial

court’s error in denying Deviney’s cause challenge to Henderson

contributed to his conviction, I would affirm as to this claim.

To determine whether harmful error occurred when the trial

court denied Deviney’s challenge against Henderson and his request

for additional peremptories to strike jurors Swanstrom, Parrott, and

Pompey—the identified “objectionable” jurors who sat on Deviney’s

jury—it must be determined whether any of those jurors were in

fact “legally objectionable.” See Busby, 894 So. 2d at 114 (Bell, J.,

concurring in part and dissenting in part); see also Barnhill, 834 So.

2d at 844. As stated above, for a juror to be excused for cause in a

capital case, that juror’s views on the death penalty must either

prevent or substantially impair his or her duties as a juror.

Johnson, 969 So. 2d at 946. If there is a reasonable doubt as to

- 58 -
that juror’s impartiality, the juror must be excused, and this Court

reviews the juror’s responses in their totality. Id.

Reviewing the record, there was no reasonable doubt as to

juror Swanstrom’s impartiality. During voir dire, Swanstrom stated

that he agreed the death penalty was not automatic and that he

would balance aggravators and mitigators in making his decision.

Similarly, there was no reasonable doubt as to juror Pompey’s

impartiality. Although Pompey did state he would not consider

certain circumstances to be mitigating when Deviney’s counsel

asked him about a series of hypothetical situations, Pompey also

stated he would not automatically impose death, would consider

mitigating circumstances in the case, and would follow the law and

keep an open mind throughout the process. Finally, a review of

juror Parrott’s responses in their totality demonstrates there was no

reasonable doubt as to his impartiality. While Parrott initially

expressed that he would automatically impose death for

premeditated murder where a defendant was found competent, “[a]

potential juror’s initial response to questioning about the death

penalty alone will not automatically provide good cause for excusal

if subsequent responses alleviate doubt on the juror’s ability to

- 59 -
impartially render an advisory verdict.” Id. at 947. Rather, the

juror must express “an unyielding conviction and rigidity toward

the death penalty.” Barnhill, 834 So. 2d at 844. During

subsequent questioning, Parrott stated that he would consider

mitigation even if the murder was premeditated, that he would

weigh any mitigation against the aggravators, and that there were

several types of mitigation he would consider when prompted by

Deviney’s counsel. This Court has found similar juror responses to

be competent, substantial evidence to support a trial court’s denial

of two cause challenges in a capital case. See id. at 844-45 (noting

for one juror, “there was no wavering and no indication from his

statements that he was equivocating,” and noting for a second

juror, “despite her feelings [about the death penalty], she was more

than willing to listen to the evidence and would consider life

imprisonment based on what she heard”).

Because the record establishes that no reasonable doubt

exists as to the impartiality of any of the jurors who sat on the jury

and whom Deviney identified as “objectionable,” there is no

reasonable possibility that the erroneous denial of the cause

challenge to Henderson contributed to the jury’s verdict, as Deviney

- 60 -
suffered no prejudice to his right to a fair and impartial jury.

Accordingly, as the error was indeed harmless in this case,

Deviney’s claim lacks merit, and I agree with the per curiam

opinion’s result on this issue and would deny this claim.

CANADY, C.J., and GROSSHANS, J., concur.

LABARGA, J., dissenting.

Justice Lawson’s concurring in part and concurring in result

opinion correctly observes that during voir dire, venire member

Henderson displayed “an unyielding predisposition to vote for [a

sentence of] death in any case of premeditated murder.”

Concurring in part and concurring in result op. at 31.

Consequently, the trial court abused its discretion by denying

Deviney’s cause challenge to Henderson. Because the failure to

grant Deviney’s cause challenge is reversible error under Trotter v.

State, 576 So. 2d 691 (Fla. 1990), the only appropriate relief is to

reverse and remand for a new penalty phase. Respectfully, I

dissent.

An Appeal from the Circuit Court in and for Duval County,
Mark J. Borello, Judge – 162008CF012641AXXXMA

- 61 -
Jessica J. Yeary, Public Defender, and Barbara J. Busharis,
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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