Allen Ward Cox v. State of Florida

Supreme Court of Florida
____________

No. SC2022-1553
____________

ALLEN WARD COX,
Appellant/Cross-Appellee,

vs.

STATE OF FLORIDA,
Appellee/Cross-Appellant.

July 11, 2024

SASSO, J.

Allen Ward Cox appeals a sentence of death imposed during a

resentencing that this Court ordered as a result of Hurst error. 1 For

the reasons that follow, we affirm.

I.

Cox, then an inmate in Lake Correctional Institute (“LCI”),

was indicted in 1999 for the premeditated murder of fellow inmate

Thomas Baker. The charges against Cox resulted from a chain of

events within LCI that culminated in the death of Baker and an

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
assault upon Lawrence Wood. We described the evidence presented

at Cox’s guilt phase trial in Cox v. State, 819 So. 2d 705 (Fla. 2002),

as follows:

At trial, the State presented the testimony of numerous
corrections officers and inmates regarding the
circumstances surrounding the murder of Baker, who
was also a LCI inmate. On December 20, 1998, the
appellant discovered that someone had broken into his
personal footlocker and stolen approximately $500.
Upon making this discovery, Cox walked out onto the
balcony of his dorm and announced that he would give
fifty dollars to anyone willing to identify the thief. He also
indicated that when he discovered who had stolen from
him, he would stab and kill that person, and that he did
not care about the consequences.
During the prison’s lunch period on December 21,
the appellant called Baker over to him, and then hit him
with his fists to knock him down. During the attack, the
victim continuously attempted to break free from Cox,
and also denied stealing from him multiple times. At a
lull in the beating, the appellant said, “This ain’t good
enough,” and stabbed Baker with an icepick-shaped
shank three times. After the stabbing, Appellant walked
away stating, “It ain’t over, I’ve got one more . . . to get.”
He then walked behind the prison pump house and hid
the shiv in a pipe. Cox proceeded from the pump house
to his dorm, where he encountered Donny Cox (unrelated
to the appellant). There, Appellant questioned him about
his stolen money and told him that if Cox had his money,
he would kill him also. Following this exchange, the
appellant returned to his cell, where he next attacked his
cellmate, Lawrence Wood, advising him that Wood was
“lucky I put it up, or I’d get [you].”
While the appellant was returning to his cell, the
stabbing victim fled the attack scene and ran to
corrections officers in a nearby building. The officers

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present at the time testified at trial that Baker had blood
coming from his mouth, and that he was hysterically
complaining that his lungs were filling with blood. Baker
also responded to the prison officials’ questions regarding
who had attacked him by saying, “Big Al, Echo dorm,
quad three.” Although the corrections officers attempted
to expedite emergency treatment of the victim by placing
him on a stretcher and carrying him on foot to the prison
medical center, Baker died before arriving at the hospital.
Doctor Janet Pillow testified that upon her autopsy
of the victim, she found that the victim had been stabbed
three times. Two of the wounds inflicted were shallow
punctures of the lower torso, but the fatal wound had
entered the victim’s back and traveled through the chest
cavity, between two ribs, and finally pierced the lungs
and aorta. She testified that a conscious person with
this wound would suffer from “air hunger,” and would be
aware of the “serious danger of dying.” She described the
wound as being approximately 17.5 centimeters deep,
although only two millimeters wide. Doctor Pillow
verified that the shank found by the pump house was
consistent with the victim’s injuries, despite the fact that
the wound was deeper than the length of the weapon.
She attributed the discrepancy between the length of the
weapon and the depth of the wound to the elasticity of
human tissue.
The appellant also testified, contending that all of
the previous witnesses were correct, except that they had
not seen what truly happened when he, Baker, and
Vincent Maynard, a third inmate, were close together.
According to Cox, it was he who had in fact dodged Baker
and Maynard’s attempts to stab him, and it was Maynard
who actually stabbed Baker in the back accidentally. In
Cox’s version of the events, he had only struck the victim
because he was defending himself from both of the other
attacking men.

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Id. at 709-10 (alteration in original) (footnote omitted). The jury

found Cox guilty of first-degree murder, and the trial court

sentenced him to death. Id. at 710. In 2002, we affirmed his

conviction and death sentence. Id. at 725.

After exhausting his initial state and federal postconviction

proceedings, Cox filed a second successive motion for

postconviction relief based on Hurst v. Florida. 2 In 2017, the circuit

court granted his motion, vacated his sentence, and ordered a new

penalty phase.

At the conclusion of his new penalty phase trial, the jury voted

unanimously to recommend that Cox be sentenced to death. In

doing so, the jury found the State proved two aggravators beyond a

reasonable doubt: imprisonment and a prior violent felony. The

jury further found that the aggravating circumstances outweighed

the mitigating circumstances.

Cox waived his right to a Spencer 3 hearing. On October 24,

2022, after reviewing both the State and defense sentencing

memorandums, the trial court sentenced Cox to death. The trial

2. Hurst v. Florida, 577 U.S. 92 (2016).

3. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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court contemporaneously issued a written sentencing order

detailing its consideration of both the aggravating and mitigating

factors at issue.

In its order, the trial court found that both aggravating factors

had been established beyond any doubt, and that 57 nonstatutory

mitigating factors had been established and were entitled to

weight. 4 However, because it determined the mitigating

4. As to nonstatutory factors, the trial court gave weight to
57, identified in its sentencing order by alphabetical markers: (b)
Cox has a genetic predisposition for substance abuse/addiction—
minimal weight; (c) Cox has suffered from substance
abuse/addiction throughout his life—minimal weight; (d) Cox
started drinking alcohol at age 13—some weight; (e) Cox started
smoking marijuana at age 13—some weight; (f) Cox started drinking
heavily at age 16—some weight; (h) Cox has consumed many
different drugs throughout his life—minimal weight; (i) Cox suffers
from a genetic mutation/abnormality—little weight due to the
uncertain significance of the genetic mutation; (k) Cox suffered
head injuries as a child—some weight; (l) Cox has brain damage—
very little weight; (m) Cox has suffered with emotional dysregulation
throughout his life—little weight; (n) Cox has suffered from
behavioral problems throughout his life—little weight; (o) Cox
suffers from Major Depressive Disorder—some weight; (p) Cox
suffers Dysthymia (Persistent Depressive Disorder)—little weight; (q)
Cox suffered from anxiety throughout his life—little weight; (u) Cox
has suffered from depression throughout his life—minimal weight;
(v) Cox suffers from impulse control deficits which have negatively
affected his behavior from childhood through adulthood—no weight;
(x) Cox had academic problems—no weight; (y) Cox was raised in
poverty—little weight; (z) Cox was raised in a log cabin with no
running water, electricity, or indoor plumbing—little weight; (bb)
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Cox suffered from lack of clothing, shoes, and poor hygiene while
growing up—little weight; (dd) Cox was physically abused by his
father, Ray Cox—slight weight; (ee) Cox was emotionally neglected
by his father—some weight; (ff) Cox’s father was an alcoholic—slight
weight; (gg) Cox’s father was violent throughout his childhood—little
weight; (hh) Cox was physically abused by his mother, Barbara
Jean Edelen—some weight; (ii) Cox was physically abused by his
mother the most out of all of his siblings because he reminded her
of his father—some weight; (kk) Cox was emotionally abused by his
mother—some weight; (ll) Cox was emotionally neglected by his
mother—some weight; (mm) Cox’s mother was very violent
throughout his childhood—some weight; (nn) Cox’s mother suffered
from depression—slight weight; (oo) Cox’s mother had a nervous
breakdown when he was a young child—little weight; (pp) Cox’s
parents are biologically related—no weight; (qq) Cox’s parents were
very young when he was born—minimal weight; (rr) Cox witnessed
his father abusing his mother—little weight; (tt) Cox witnessed
domestic violence in the household between his father and
stepmother, Betty Gilbert—little weight; (uu) Cox attempted to
protect his mother from his father—slight weight; (xx) Cox was
never taught right from wrong—no weight; (yy) Cox withdrew from
high school in the tenth grade—no weight; (zz) Cox was abandoned
by his mother at age 10 when she dropped him off at his father’s
house and threatened to kill him if he returned—some weight; (bbb)
Cox, though incarcerated, is a positive influence on his sister,
Cathy Null—slight weight; (ccc) Cox is a loving brother to his sister,
Elizabeth Veatch—slight weight; (ddd) Cox is a loving brother to his
sister, Cathy Null—slight weight; (eee) Cox’s life has a deep and
profound meaning to his sister, Elizabeth Veatch—slight weight; (fff)
Cox’s life has a deep and profound meaning to his sister, Cathy
Null—slight weight; (ggg) Cox has been suicidal from childhood
through adulthood—some weight; (iii) Cox has attempted suicide
many times throughout his life—some weight; (jjj) Cox’s first suicide
attempt was at age 16 by eating rat poison—little weight; (kkk) Cox
was hospitalized after his first suicide attempt—no weight; (lll) Cox
almost died from a suicide attempt in 2010—little weight; (ppp) Cox
suffers from a low average IQ and memory deficits—slight weight
because Cox conducted an elaborate marijuana and stamp
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circumstances were outweighed by the two significant aggravating

circumstances, the trial court sentenced Cox to death for the

murder of Baker.

Cox appeals that determination, raising seven issues: (1) the

trial court erred in rejecting the nonstatutory mitigating

circumstance that Cox suffers from the early signs of dementia, (2)

the trial court erred in rejecting two of the proposed nonstatutory

mitigators, (3) the cumulative effect of the prosecutor’s comments

during closing was so prejudicial as to taint the jury’s

recommended sentence, (4) the trial court erroneously placed the

burden of showing mitigating circumstances on the defendant, (5)

executing an offender with brain damage violates the Eighth

business while incarcerated; (rrr) Cox suffers from an array of
physical illnesses as a result of aging—little weight; (sss) Cox had
no protective factors growing up—some weight; (ttt) Cox’s parents
divorced twice while he was young—very little weight; (uuu) Cox has
suffered multiple Adverse Childhood Experiences based on the CDC
Adverse Childhood Experiences Study—slight weight; (vvv) Cox
suffers from impairments to his executive functioning—some
weight; (www) Cox’s genetic makeup has been changed due to the
toxic environment he grew up in (epigenetics)—slight weight
because Cox refused to take part in therapy to potentially overcome
his environmental history; and (xxx) Cox has never received the
type of treatment needed in order to address the ramifications of his
turbulent and traumatic childhood—no weight because Cox was
unwilling to take part in offered treatment.
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Amendment, (6) Florida’s capital punishment scheme violates the

Eighth Amendment, and (7) the death penalty itself violates the

Eighth Amendment. The State filed a cross-appeal, which presents

a single issue.

We address each issue raised by Cox in turn.

II.

A.

Cox’s first two arguments on appeal concern the trial court’s

rejection of certain nonstatutory mitigating factors proposed by Cox.

In evaluating mitigating circumstances, a trial court must find as

mitigating “each proposed factor that has been established by the

greater weight of the evidence and that is truly mitigating in

nature.” Ault v. State, 53 So. 3d 175, 186 (Fla. 2010) (quoting

Coday v. State, 946 So. 2d 988, 1003 (Fla. 2006)). And in its

written sentencing order, the trial court must expressly evaluate

each statutory and nonstatutory mitigating circumstance proposed

by the defendant. Id.; see also Smiley v. State, 295 So. 3d 156, 176-

77 (Fla. 2020) (providing that a “trial court may comply with this

requirement by bundling proposed mitigating circumstances into

categories of related conduct or issues and addressing them

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accordingly”). “However, a trial court may reject a proposed

mitigator if the mitigator is not proven or if there is competent,

substantial evidence to support its rejection.” Ault, 53 So. 3d at

186 (quoting Coday, 946 So. 2d at 1003). And “[e]ven expert

opinion evidence may be rejected if that evidence cannot be

reconciled with other evidence in the case.” Id. (quoting Coday, 946

So. 2d at 1003).

We review a court’s decision as to whether a mitigating

circumstance is established for abuse of discretion. See Foster v.

State, 679 So. 2d 747, 755 (Fla. 1996); Harris v. State, 843 So. 2d

856, 868 (Fla. 2003). In doing so, we will uphold the trial court’s

findings where there is competent, substantial evidence in the

record to support each finding. See Lebron v. State, 982 So. 2d 649,

660 (Fla. 2008).

1.

Cox first argues that the trial court erred in rejecting the

nonstatutory mitigating circumstance that Cox suffers from the

early signs of dementia. Specifically, Cox argues that the

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nonstatutory mitigator was definitively established by the expert

testimony of Dr. Mark Rubino. 5 We disagree.

At resentencing, Dr. Rubino testified that dementia is a term

for cognitive impairments that cause functional impairment, but

dementia can be static and/or progressive. He explained that static

dementia refers to severe brain damage, while progressive dementia

refers to progressive diseases like Alzheimer’s disease. Noting this

distinction in its sentencing order, the trial court explained that

Dr. Rubino recognized that Cox has dementia, but Dr. Rubino could

not say that Cox’s dementia is progressive in nature. As a result,

the trial court determined there was no evidence that Cox suffered

from the early signs of progressive, rather than static, dementia.

We conclude that the trial court acted within its discretion,

both in characterizing the proposed mitigator as one directed at

progressive versus static dementia, and in concluding that Cox did

5. To the extent Cox argues that the trial court did not
expressly evaluate whether static dementia is present, his argument
does not demonstrate error. In context, the sentencing order
conveys that the trial court considered Dr. Rubino’s opinion (that
Cox likely has static dementia caused by head trauma, consistent
with a decline in neurocognitive abilities). However, because the
testimony did not conclusively establish progressive dementia, the
trial court therefore rejected the nonstatutory mitigator of “early
signs of dementia,” which implies progressive dementia.
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not establish the mitigator by the greater weight of the evidence.

See, e.g., Ault, 53 So. 3d at 188 (affirming the trial court’s decision

to reject certain statutory mitigating circumstances where the trial

court considered all evidence relating to the proposed statutory

mitigating circumstances and properly exercised its discretion in

rejecting it). Indeed, Dr. Rubino’s testimony on this point was

equivocal at best, as he expressly stated that he “[did not] know if

it’s progressive or static.” As a result, we find no error in the trial

court’s rejection of this nonstatutory mitigator.

2.

Cox similarly argues that the trial court erred in rejecting the

proposed nonstatutory mitigators that (1) Cox suffers from impulse

control deficits which have negatively affected his behavior from

childhood through adulthood, and (2) Cox had stopped taking his

anti-depressant, Sinequan, 17 days before the murder, and the

withdrawal impacted his behavior at the time of the crime. As to

both of these proposed mitigating circumstances, Cox argues that

the trial court’s findings are not supported by competent,

substantial evidence. Again, we disagree.

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As to impulse control, the trial court addressed the various

expert testimony that linked Cox’s brain functionality to impulse

control deficits. However, the trial court then outlined Cox’s actions

leading up to the murder, concluding his actions demonstrated he

could control his impulses. The trial court therefore determined

that while Cox had established he suffered from impulse control

deficits throughout his life, the circumstance was not mitigating

under the facts of this case.

The trial court’s determination is supported by competent,

substantial evidence. 6 See Newberry v. State, 288 So. 3d 1040,

1049 (Fla. 2019) (holding that trial court did not err in determining

certain mitigating circumstances were established but not

mitigating based on defendant’s purposeful actions during and after

the crime); Gill v. State, 14 So. 3d 946, 964 (Fla. 2009) (trial court

did not abuse its discretion in giving little weight to impulse control

6. Because we agree that the trial court’s rejection of the
impulse control mitigator was primarily based on its conclusion
that the circumstances leading up to the murder demonstrated that
Cox did not suffer from lack of impulse control, we likewise reject
Cox’s arguments related to deficiencies in Dr. Emily Lazarou’s
testimony offered by the State. However, we also note that Cox did
not raise any objections to Dr. Lazarou’s testimony on this point,
and thus any argument related to her testimony is unpreserved for
appeal.
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as a mitigator when the murder was “neither impulsive nor due to

uncontrollable rage”). Cox made statements to others that he did

not care about the consequences for killing the person responsible

for stealing money from him. He obtained a shank and concealed

it. Cox also beat the victim before announcing “that’s not good

enough,” and stabbing him three times. After the murder, Cox hid

the shank and returned to his cell, where he attacked his cellmate

as well. The trial court therefore acted within its discretion when it

concluded that Cox’s impulse control deficits are not a mitigating

factor.

As to his proposed mitigator regarding the discontinuation of

Sinequan, Cox argues that the trial court erred in rejecting the

testimony presented by defense experts in favor of Dr. Lazarou, an

expert offered by the State. Specifically, Cox argues that Dr.

Lazarou’s testimony relating to Cox’s Sinequan use extended

beyond the scope of her expertise and therefore did not amount to

competent, substantial evidence.

We reject Cox’s argument. First, defense counsel raised no

objection that Dr. Lazarou’s opinions were outside her area of

expertise and therefore Cox’s arguments are unpreserved for

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appeal. And regardless, the trial court’s determination is supported

by competent, substantial evidence.

Testimony was presented by multiple experts: Dr. Rubino,

Dr. Susan Skolly-Danziger, Ms. Helen Zarvatski, and Dr. Lazarou.

Dr. Skolly-Danziger testified that discontinuation symptoms could

include agitation and that it would take 18 days for the drug to

leave someone’s system. Dr. Rubino testified that Cox could have

been “potentially like a powder keg.” But, in contrast, Dr. Lazarou

testified that Cox would not feel any impacts after five days of

terminating use of the drug, and Ms. Zarvatski (a psychological

specialist at LCI who met with inmates on her caseload for mental

health counseling) testified that she met with Cox three days before

the murder and saw no signs of mental health distress.

Additionally, Cox’s cellmate, Lawrence Wood, testified that in the

weeks leading up to the murder, he saw no indication that Cox was

using drugs, alcohol, or other substances, and that he had no mood

changes in the days leading up to the murder. From this

testimony, the trial court properly concluded that Cox was not

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suffering from withdrawal or discontinuation symptoms.7 See, e.g.,

Ault, 53 So. 3d at 187-88 (concluding trial court properly exercised

its discretion in evaluating the evidence relied upon by each expert

and determining that one expert’s opinion was more reliable and

credible).

Accordingly, the trial court did not err when it rejected Cox’s

proposed mitigating circumstances related to his impulse control

and Sinequan use.

B.

In his third point on appeal, Cox argues that the cumulative

effect of the prosecutor’s improper comments during the penalty

phase closing was so prejudicial as to taint the jury’s recommended

sentence. Because defense counsel did not object during the

closing argument, Cox argues fundamental error. Fundamental

error is error that reaches “down into the validity of the trial itself to

7. Cox alternatively argues that the trial court relied in error
on “the prosecutor’s confident assertion” regarding anti-depressant
discontinuation syndrome. However, the trial court’s discussion of
this issue analyzed the varying expert opinions and explained why
Dr. Skolly-Danziger’s opinion was inconsistent with observations of
Cox by both Ms. Zarvatski and his cellmate, and was likewise
inconsistent with Cox’s actions the day of the murder. Cox has not
demonstrated error on this point.
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the extent that a verdict of guilty could not have been obtained

without the assistance of the alleged error.” State v. Delva, 575 So.

2d 643, 644-45 (Fla. 1991) (quoting Brown v. State, 124 So. 2d 481,

484 (Fla. 1960)).

At closing, the prosecutor made the following comments:
When Mr. Lewis began his opening statement last
week, he did not start by saying good morning to you.
And he didn’t do that because it’s never a good morning
when the State has to stand in front of jurors and ask
those jurors to recommend to this Judge to sentence a
fellow citizen to death. Sometimes people are required to
make very difficult choices, and though a choice may be
hard, it’s still the right choice.

Continuing on, the prosecutor also said:
The easiest decision in this case to make would be,
let’s just give him life and let’s just go home. But ask
yourself, is that justice based on the facts and
circumstances of this case? Is that justice for Thomas
Baker? Is that justice for a man who has intentionally
hurt people over and over and over again throughout his
life? Sometimes the right decision is not the easy one.

Cox argues these comments rose to the level of fundamental

error for three reasons. First, he cites cases condemning

arguments that included demands for justice for victims. See, e.g.,

Cardona v. State, 185 So. 3d 514, 522 (Fla. 2016) (citing Davis v.

State, 136 So. 3d 1169, 1197 (Fla. 2014), which held that “the

argument that the victim’s siblings would want to know what
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justice was imposed for the victim’s murder was improper”).

Second, Cox argues it is improper to poison the well of deliberation

by suggesting that any juror who would vote for life is motivated by

a desire to make “the eas[y] decision” and to “just go home.” See

United States v. Young, 470 U.S. 1, 18 (1985) (holding that an

exhortation to the jury to “do its job” was not permitted, as “that

kind of pressure . . . has no place in the administration of criminal

justice”). Third, Cox argues these errors were compounded by the

prosecutor’s invocation of the theme presented in the first error

discussed.

We find that the authorities on which Cox bases his

arguments are either distinguishable or do not support his claim of

fundamental error. 8 Take, for example, Cardona. There, the

8. Neither United States v. Mandelbaum, 803 F.2d 42, 46 (1st
Cir. 1986); Young, 470 U.S. at 16; Shaara v. State, 581 So. 2d 1339,
1341 (Fla. 1st DCA 1991); nor Dorsey v. State, 942 So. 2d 983, 986
(Fla. 5th DCA 2006), support Cox’s argument. While those cases
recognized the impropriety of certain arguments, each of the courts
concluded any error presented by the prosecutor’s argument did
not constitute a basis for reversal. And Edwards v. State, 428 So.
2d 357, 359 (Fla. 3d DCA 1983), is distinguishable because the
defense counsel there made a timely objection to the argument that
was immediately overruled by the court without comment, which
ruling the Third District Court of Appeal concluded stamped
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prosecutor’s closing argument included recurring “justice for

Lazaro”9 comments, which were made repeatedly and despite a

sustained objection from defense counsel. On review, we noted that

the comments “pervaded the prosecutor’s closing argument” and

were “further buttresse[d]” by “[t]he existence of additional improper

remarks—most of which were also preserved but some of which

were not.” Cardona, 185 So. 3d at 523. To compound the problem,

the prosecutor “attempted to shift the burden of proof beyond a

reasonable doubt by urging the jury to convict Cardona based on

what was ‘true’ and linked ‘justice for Lazaro’ with the ‘truth.’ ” Id.

Finally, “no curative instruction was ever given as to the ‘justice for

Lazaro’ comments.” Id.

In this case, though, the focus of the prosecutor’s remarks was

on the responsibility of the jury to weigh the relevant factors, and

the prosecutor did not invoke a direct, unambiguous appeal for the

jurors to give weight to the fact that the State had decided to seek

approval on the argument, thereby aggravating the prejudicial
effect.

9. In that case, Lazaro was the deceased, a three-year-old
child whose death was the subject of the widely publicized “Baby
Lollipops” case. Cardona, 185 So. 3d at 517.
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the death penalty. No objections were made by defense counsel

during the comments. And the prosecutor’s entire closing

argument, again read in context, shows that the prosecutor did not

dwell on justice for the victim as a theme for the case.

As a result, this case is more like Williams v. State, 209 So. 3d

543 (Fla. 2017). In Williams, the defendant alleged two instances of

improper comments made by the prosecutor, one of which took

place during guilt phase closing arguments. Id. at 561. Williams,

appearing pro se, did not object to either set of comments. Id. We

therefore considered whether the comments constituted

fundamental error, either individually or cumulatively, and held

that they did not. We reasoned that the comments “were a small

number of improper remarks made during the course of the entire

guilt phase” and that, especially given the substantial evidence that

supported a conviction, “the cumulative effect of these improper

comments was not so prejudicial that it vitiated the entire trial.” Id.

at 563.

Here, as in Williams, the defense did not make any

contemporaneous objections to the prosecutor’s comments. And in

context, the small number of improper remarks made during the

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trial were not so prejudicial as to call into question the jury’s

verdict. We therefore conclude Cox has not demonstrated

fundamental error.

C.

Cox’s final four points on appeal constitute unpreserved and

purely legal arguments, primarily related to the constitutionality of

Florida’s death penalty scheme. We reject each argument based on

the application of established precedent. Our review of each issue

is de novo. State v. Floyd, 186 So. 3d 1013, 1019 (Fla. 2016).

First, Cox argues that the trial court erred in placing the

burden of demonstrating mitigating circumstances on the defense

when it presented to the jury the standard jury instruction relating

to mitigation. 10 However, as Cox recognizes, this argument is

10. The jury instruction at issue stated that:

A mitigating circumstance need not be proven
beyond a reasonable doubt by the defendant. A
mitigating circumstance need only be proven by the
greater weight of the evidence, which means evidence
that more likely than not tends to prove the existence of a
mitigating circumstance. If you determine by the greater
weight of the evidence that a mitigating circumstance
exists, you may consider it established and give that
evidence such weight as you determine it should receive
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foreclosed by Loyd v. State, 379 So. 3d 1080, 1092 (Fla. 2023), reh’g

denied, SC2022-0378 (Fla. Feb. 7, 2024). Like the argument

presented by Loyd, Cox’s argument in this regard is meritless, and

we reject the claim.

Next, Cox argues that the execution of certain defendants with

brain damage violates the Eighth Amendment to the Federal

Constitution. He contends that those with intellectual disabilities

are ineligible for the death penalty, as in Atkins v. Virginia, 536 U.S.

304 (2002), and that juveniles are ineligible for the death penalty,

as in Roper v. Simmons, 543 U.S. 551 (2005). Similarly, he argues,

offenders with brain damage should be ineligible as well.

However, we have consistently rejected these arguments. See

Carroll v. State, 114 So. 3d 883, 886-87 (Fla. 2013) (rejecting claim

that mental illness bars execution and citing numerous prior

cases); 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 mental retardation due to reduced

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

in reaching your conclusion as to the sentence to be
imposed.
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(rejecting “the argument that Roper extends beyond the Supreme

Court’s pronouncement that the execution of an individual who was

younger than eighteen at the time of the murder violates the eighth

amendment”); Johnston v. State, 27 So. 3d 11, 26 (Fla. 2010)

(rejecting claim that mentally ill persons are similar to and should

be treated the same as juvenile murderers who are exempt from

execution); 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”); Connor v. State, 979 So.

2d 852, 867 (Fla. 2007) (“To the extent that Connor is arguing that

he cannot be executed because of mental conditions that are not

insanity or mental retardation, the issue has been resolved

adversely to his position.”). Cox has not presented any reason for

this Court to reconsider its precedent on this issue. We therefore

reject Cox’s argument.

Third, Cox argues that Florida’s death penalty scheme risks

the arbitrary and capricious application of the death penalty in

violation of the Eighth and Fourteenth Amendments to the United

States Constitution. Again, Cox’s arguments on this point are well-

worn, and this Court has repeatedly rejected them. See Wells v.

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State, 364 So. 3d 1005, 1015-16 (Fla. 2023) (rejecting facial

overbreadth challenge due to alleged failure to narrow the class

eligible for the death penalty); Joseph v. State, 336 So. 3d 218, 227

n.5 (Fla. 2022) (rejecting arguments that there was insufficient

evidence to support the cold, calculated, and premeditated

aggravator); Colley v. State, 310 So. 3d 2, 15-16 (Fla. 2020)

(rejecting argument that Florida has an overprovision of aggravating

factors); Bush v. State, 295 So. 3d 179, 214 (Fla. 2020) (rejecting

argument that there was insufficient evidence to support the prior

violent felony aggravator and the CCP aggravator). Likewise, we

reject Cox’s argument on this point.

Finally, Cox argues that the death penalty categorically

violates the Eighth Amendment of the United States Constitution

given evolving standards of human decency. Specifically, he claims

that the death penalty (1) is no longer compatible with evolving

standards of decency, (2) is unreliable based on the number of

exonerations in capital cases, (3) is arbitrarily applied depending on

geography, and (4) is unconstitutionally cruel based on lengthy

delays between imposition and execution of the sentence.

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Each of these four sub-arguments was raised in Loyd, 379 So.

3d at 1096-97. This Court rejected all four. Id. (denying Loyd’s

four arguments as to why the death penalty violates the Eighth

Amendment after concluding that none are convincing). Again, Cox

has not presented any reason for this Court to reconsider its

established precedent on this issue. We therefore reject Cox’s

argument in this regard.

III.

In conclusion, Cox has not demonstrated reversible error. We

therefore affirm his death sentence. And because we affirm, we do

not address the issue raised by the State on cross-appeal. See, e.g.,

Deparvine v. State, 995 So. 2d 351, 361 n.4 (Fla. 2008) (“The State

raises two cross-appeal issues, which we will not address because

Deparvine’s convictions and sentences are affirmed.”); Hoskins v.

State, 965 So. 2d 1, 7 (Fla. 2007) (“Because we affirm, we do not

address the State’s cross-appeal.”).

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, and
FRANCIS, JJ., concur.
LABARGA, J., concurs in result with an opinion.

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

LABARGA, J., concurring in result.

For the reasons set forth in my dissenting opinion in Lawrence

v. State, 308 So. 3d 544 (Fla. 2020), wherein this Court abandoned

its decades-long practice of conducting comparative proportionality

review in death penalty direct appeal cases, I can only concur in the

result.

An Appeal from the Circuit Court in and for Lake County,
James R. Baxley, Judge
Case No. 351999CF000249AXXXXX

Matthew J. Metz, Public Defender, and Nancy Ryan and Robert J.
Pearce III, Assistant Public Defenders, Seventh Judicial Circuit,
Daytona Beach, Florida,

for Appellant/Cross-Appellee

Ashley Moody, Attorney General, Tallahassee, Florida, and Stephen
D. Ake, Senior Assistant Attorney General, Tampa, Florida,

for Appellee/Cross-Appellant

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