Supreme Court of Florida

____________

No. SC13-1550

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DELMER SMITH,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[July 9, 2015]

PER CURIAM.

Delmer Smith, who was thirty-eight years old at the time of the crime, was 

convicted of the August 3, 2009, first-degree murder of Kathleen Briles, which 

occurred during a home invasion and robbery. In this proceeding, Smith appeals 

his conviction and the sentence of death that the trial court imposed for this 

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

that follow, we affirm Smith’s conviction for first-degree murder and his sentence 

of death.

FACTS
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On the afternoon of August 3, 2009, Kathleen Briles was accosted outside of 

her home in Manatee County, after returning from grocery shopping. Briles was 

then dragged inside her home, where she was bound, gagged, and beaten to death 

with her own antique twenty-three-pound cast iron sewing machine. Numerous 

items were stolen from the home.

The victim’s husband, Dr. James Briles, returned home at about 7:30 p.m.,

after completing his rounds at the hospital, and found his deceased wife. When he 

first arrived, he noticed that his wife’s car was not parked in its usual spot closest 

to their home and that all of the lights inside the home were off. After turning on 

the lights, he saw his wife lying facedown on the floor in front of the love seat, her 

ankles and hands bound with duct tape. The victim had a duct tape gag around her 

mouth, and she was lying in a pool of blood. Her left jaw and head were 

deformed, and the antique cast iron sewing machine was on the ground behind her 

head.

According to Dr. Briles, it appeared as if somebody had gone through their 

belongings and had closed the window blinds, which were usually open. The 

furniture was moved around, drawers and doors had been opened, and even their 

outdoor shed had been breached. Approximately $30,000-$40,000 worth of 

jewelry was missing, including the victim’s wedding band and a diamond baguette 

necklace that Dr. Briles had purchased for his wife years before. Further, while the 
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victim had been seen wearing a watch earlier that day, she was not wearing a 

watch when she was discovered. Dr. Briles identified many unique items that were 

missing from the house, including a rare set of nickels a patient had given him, an 

old medical encyclopedia that the victim purchased at a yard sale, and a pewter 

Minnie Mouse keychain produced by Hudson Creek—a company that went out of 

business years ago. 

The victim’s purse was found on the front seat of her car, along with a 

Publix supermarket receipt that indicated the victim had purchased groceries that 

afternoon. Her groceries, which included frozen and refrigerated items, were still 

in the trunk of her car. Video surveillance from the Publix store showed the victim 

leaving the store with a cart full of groceries at 3:36 p.m. that afternoon and her car 

leaving the parking lot a couple of minutes later. Her house was located only 

minutes away from the store.

Dr. Wilson Broussard, the medical examiner, performed an autopsy on the 

victim, which established that she was killed between noon and 8:00 p.m. on 

August 3. She was bound with duct tape before she was killed and had sustained 

numerous blows to the back of her head that were consistent with being hit by the 

antique sewing machine. In particular, she had sustained a significant blow 

consisting of a single impact on one part of her head, in addition to a minimum of 

four to five blows to the right side of her head and another four to five blows to 
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another portion of her head. In fact, the victim’s skull was so damaged by these 

blows that brain matter was visible. Further, she had an eyebrow injury and a 

fractured jaw that could have been caused indirectly when blows to the back of her 

head caused the front of her head to impact the floor. 

In addition to the injuries to her head, the victim had a few abrasions around 

her shoulders, a bruised elbow that could have been caused by a direct blow or 

rolling on top of her elbows, and a lacerated liver that was likely caused by a kick 

or blow to her abdomen. Dr. Broussard testified that based on his review of the 

victim and the crime scene, the victim was lying facedown on the floor while she 

was hit multiple times with the sewing machine. The blows caused numerous 

lacerations to her scalp, resulting in a large volume of blood found at the crime 

scene. Dr. Broussard believed that most of the injuries occurred while the victim 

was alive. However, he was unable to determine how long the victim remained 

conscious after the first blow to her head. Richard Talbot, the crime scene unit 

manager with the Manatee County Sheriff’s Office, also testified that the blood 

stains found at the crime scene were consistent with the victim being close to the 

ground when she was struck. 

On the day after the murder, Smith picked up a friend, James Cellecz, in his 

Chevy Blazer, and the two ran some errands together. Afterwards, they stopped at 

Pawn Stars, a pawn shop. Smith told Cellecz that he wanted to pawn some jewelry 
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he had purchased from a friend but had forgotten his identification, so Smith asked 

Cellecz if Cellecz could pawn the items for him. One of the items was the 

diamond baguette necklace that was later identified as belonging to the victim. 

Cellecz agreed to pawn the items, and they both went into the store together. 

Cellecz obtained Smith’s permission to accept the price he was offered by the 

pawn store clerk for the necklace. During this trip, Cellecz noticed that Smith had 

a medical encyclopedia on the floor of his vehicle, which Cellecz thought was odd 

because Smith did not have any knowledge of medicine. 

At trial, Cellecz testified that Smith usually carried a black backpack that 

contained a ski mask, gloves, and a roll of gray duct tape in it. Cellecz expressly 

denied breaking into the Briles’s home and killing the victim. He further denied 

collaborating with anybody to frame Smith for the crime. 

Smith was arrested on February 11, 2010. Following his arrest, he called 

Martha Tejeda on multiple occasions, asking her to pick up two duffle bags that 

were in storage. Tejeda went to the storage shed and retrieved some of Smith’s 

belongings, including a red duffle bag that Smith requested. Before she hid the 

bag in her attic, she noticed that there was a lock box inside the bag. She also 

retrieved Smith’s vehicle. When the police arrived at her home, she gave them 

Smith’s vehicle, and the next day, she gave them the duffle bag. Inside the bag 

was a lock box that contained a coin collection in a plastic container, a Minnie 
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Mouse keychain, a gold-colored lock, and a watch—all items that had been stolen 

from the Briles’s home. 

At trial, Dr. Briles identified the items from the duffle bag, including the 

unique coin collection and the uncommon pewter Minnie Mouse keychain, even 

producing a receipt for the keychain. Attached to the Minnie Mouse keychain 

were keys to a vehicle that Smith owned. The medical encyclopedia was also 

recovered, and a fingerprint within the book was matched to Smith. None of the 

prints within the book matched the Briles or Cellecz. Both Dr. Briles and his son, 

Dr. Calvin Briles, identified the medical encyclopedia found with Smith’s 

belongings as the one that the Briles had owned. 

Michelle Quinones was Smith’s girlfriend, and they lived together at the 

time of the crime. At some point, Smith gave Quinones a set of his vehicle’s keys, 

which were on a Minnie Mouse keychain. Smith also showed Quinones a his-andher watch set, and she put one of the watches in her jewelry box. Smith moved out 

in August 2009 and took many of his possessions with him, including a backpack

that contained a black hoodie, a black ski mask, screwdrivers, and pliers. 

Quinones later placed the watch that Smith gave her in a trash bag and called the 

police to come and pick it up, which an officer did. At trial, she identified the 

watch that Smith gave her.
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The State presented evidence to establish that on 3:44 p.m. on the day of the 

murder, Smith’s cell phone was at a location close to where the murder took 

place—a fact that was established when Smith’s cell phone received a call that 

went unanswered and records indicated that his cell phone used a cell tower that 

was 1.24 miles away from the victim’s home. This timing was particularly striking 

because the victim had left Publix at 3:38 p.m. and lived only a few minutes away 

from the store. Cell phone records further demonstrated that both before and after 

this time, Smith’s cell phone was located close to where Smith lived in Sarasota 

County. The State also called numerous people who had called Smith’s cell phone 

number or had received a phone call from Smith’s cell phone number on the day of 

the murder. While none of the witnesses could recall specific telephone calls they 

made on August 3, nobody reported receiving a call from Smith’s number from a 

person other than Smith. Similarly, nobody recalled calling Smith and having

anyone other than Smith answer the call. 

Finally, the State presented evidence demonstrating that, after both Smith 

and Cellecz were in jail, Smith met another inmate, Joshua Hull, and learned that 

Hull was housed near Cellecz and knew him. Smith asked Hull to pass along a 

message to Cellecz that Smith had “something for his ass” and that he knew where 

Cellecz’s wife and child were and had “something for them,” as well. When 

questioned why Smith was asking Hull to pass along the messages, Hull testified 
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that Smith was upset at Cellecz because Smith had given Cellecz some “jewelry 

and stuff” to pawn and Cellecz was “snitching” on Smith. 

The jury convicted Smith of first-degree murder.

At the penalty phase, the State presented evidence that Smith had prior 

violent felony convictions (a 1991 state robbery conviction and 1995 federal 

convictions for armed bank robbery and carrying a firearm during a crime of 

violence). The State then established that Smith was on felony probation at the 

time of the murder based on his 1995 federal convictions. Further, the State 

presented evidence that on March 14, 2009, Smith committed a home invasion in 

Sarasota where he entered the home of a different victim at approximately 10 p.m., 

wearing a mask and gloves, and threatened to kill the victim. After he forced her 

through the house in a search for valuables to steal, Smith bound her hands behind 

her back, bound her ankles, and wrapped the binding around her neck so she would 

strangle herself if she moved her legs. The State also presented victim impact 

statements from two of the victim’s family members: Diane Brinker (the victim’s 

sister) and Dr. James Briles (the victim’s husband).

Smith presented testimony from two of his nieces, who are close to Smith 

and testified how Smith provided guidance and helped them. Smith also presented 

testimony from a psychologist, Dr. Hyman Eisenstein. Dr. Eisenstein reviewed 

Smith’s background and various records and testified about Smith’s dismal 
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progress in school, including the fact that he repeated grades so often in elementary 

school that he was fourteen years old when he was in the fifth grade and was then 

promoted to the ninth grade for special education. A report indicated that, during 

his childhood, Smith had been physically and emotionally abused by both of his 

parents and suffered sexual abuse by his father. 

Dr. Eisenstein noted that Smith was in a motorcycle crash that caused some 

head trauma. Dr. Eisenstein opined that Smith has attention deficient disorder 

(hyperactivity), academic failure, and unequivocal brain damage. While Dr. 

Eisenstein recognized that Smith could have met the definition of antisocial 

personality disorder, he believed Smith had intermittent explosive disorder instead. 

Further, Dr. Eisenstein testified that Smith’s decision-making ability was 

profoundly impaired and his judgment, reasoning, executive functioning, and 

higher critical processing of information were three to four standard deviations 

below the norm. Dr. Eisenstein stressed that Smith had excellent behavior in 

prison—a controlled environment where self-control is not as necessary. Dr. 

Eisenstein concluded that Smith committed the murder while under the influence 

of an extreme mental or emotional disturbance and that Smith’s ability to 

appreciate the criminality of his conduct or conform to the requirements of law was 

impaired. 
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In rebuttal, the State called Dr. Wade Myers, a medical doctor and professor 

in the psychiatry department at Brown University. Dr. Myers reviewed Smith’s 

records and Dr. Eisenstein’s report, including the raw data underlying that report. 

Dr. Myers disagreed that Smith had impulse problems, noting that Smith did not 

have any records of being in fights while he was in prison and that Smith exercised 

self-control during the prior Sarasota home invasion. However, Dr. Myers 

diagnosed Smith with antisocial personality disorder.

The jury unanimously recommended that Smith be sentenced to death. The 

trial court conducted a Spencer1 hearing, during which Smith presented the 

testimony of Dr. Ruben Gur, a psychologist who specialized in neuroimaging. Dr. 

Gur reviewed Smith’s MRI and asserted that Smith’s brain had tissue loss and 

opined that Smith had brain damage on the right side and in the orbital frontal area

of his brain. In reviewing Smith’s PET scan, Dr. Gur testified that some areas 

showed hyper-metabolism, which can cause brain damage because toxic chemicals 

are released, while other portions of Smith’s brain showed decreased metabolism. 

These abnormalities would cause deficits in the ability to experience normal 

emotions and affect his self-control. Dr. Gur concluded that based on these issues, 

 

1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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Smith’s “thinking brain” was hyperactive at the resting state and that if Smith felt 

threatened, his “thinking brain [would] become deactivated.” 

Smith also recalled Dr. Eisenstein, who reaffirmed his conclusion that Smith 

has brain damage. He also stated that Smith had a “very primitive amygdala meltdown response,” which hindered his ability to modulate emotional responses and

respond appropriately in high stress situations, including the ability to walk away 

from difficult situations. 

The State then called Dr. Helen Mayberg, a board certified neurologist with 

a strong background in neuroimaging. Dr. Mayberg disagreed that a PET scan 

could be used as a “general screening test,” testifying that a PET scan can be 

influenced by the level of anxiety present at the time of testing and noting that 

Smith had complained of anxiety shortly before the testing. Dr. Mayberg further 

emphasized that she was unaware of any medical professional who used Dr. Gur’s 

method of analysis to reach a medical diagnosis. According to Dr. Mayberg, 

Smith’s PET scan was “very normal looking” and showed no areas of brain 

damage. She further disagreed that Smith had a demonstrated impulse control 

problem, testifying that brain damage to the frontal lobe affects all aspects of a 

person’s life, as opposed to the very narrow circumstances present in Smith’s 

record. 
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After considering the evidence presented during the penalty phase and the 

Spencer hearing, the trial court found that the aggravating circumstances

“overwhelme[d]” the mitigating factors. The trial court found that five aggravating 

circumstances applied and assigned each the following weight: (1) Smith was on 

felony probation (moderate weight even though the murder occurred less than a 

year from the date of Smith’s release from prison); (2) Smith had prior violent 

felony convictions (great weight as to the 1991 state robbery conviction and the 

1995 federal armed bank robbery convictions and noting that the court would also 

assign great weight to the Sarasota home invasion armed robbery conviction if that 

conviction was upheld on appeal2); (3) the murder was committed in the course of 

a burglary (moderate weight); (4) the murder was committed for pecuniary gain 

(no weight because it merged with the committed-in-the-course-of-a-burglary 

aggravator); and (5) the murder was especially heinous, atrocious, or cruel (HAC) 

(great weight). 

The trial court, however, rejected both of Smith’s proposed statutory

mitigators: (1) Smith committed the murder while under the influence of an 

extreme mental or emotional disturbance; and (2) Smith’s capacity to appreciate 

 

2. The Sarasota home invasion armed robbery conviction has since been 

upheld on appeal. See Smith v. State, 147 So. 3d 997 (Fla. 2d DCA 2014) (table 

decision).
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the criminality of his conduct or conform his conduct to the requirements of law 

was substantially impaired. In making this finding, the trial court recognized that 

the State’s expert witness testimony “conflicted radically” with the defendant’s 

expert witness testimony and found the State witnesses to be “more persuasive and 

convincing.” The trial court did find that five nonstatutory mitigating factors 

applied and assigned each the following weight: (1) intermittent explosive disorder 

(moderate weight); (2) loving relationship with nieces (little weight); (3) physical, 

emotional, and sexual abuse as a child (little weight); (4) acute academic failure 

and attention deficit disorder (significant weight); and (5) good conduct while in 

custody (moderate weight). 

Based on these findings, and in accordance with the jury’s unanimous 

recommendation, the trial court sentenced Smith to death. This direct appeal 

follows.

ANALYSIS

Smith asserts that he is entitled to relief because: (1) the trial court erred in 

denying his motion for judgment of acquittal; (2) the trial court erred in denying a 

motion for mistrial; (3) the trial court erred in permitting inmate Hull to testify as 

to the threat that Smith made to a witness, Cellecz, through Hull; (4) the trial court 

erred in denying a continuance; (5) the trial court erred in finding HAC; (6) the 

trial court erred in rejecting the two proposed statutory mitigators; and (7) 
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Florida’s death penalty scheme is unconstitutional. We address each of these

claims in turn, and in addition, we review whether the sentence of death is 

proportional in this case.

I. Denial of Motion for Judgment of Acquittal

In his first challenge, Smith asserts that the trial court erred in denying his 

motion for judgment of acquittal because the State presented insufficient evidence 

to establish his guilt. “A trial court should not grant a motion for judgment of 

acquittal ‘unless there is no view of the evidence which the jury might take 

favorable to the opposite party that can be sustained under the law.’ ” Jackson v. 

State, 25 So. 3d 518, 531 (Fla. 2009) (quoting Coday v. State, 946 So. 2d 988, 996 

(Fla. 2006)). “In reviewing the denial of a motion for judgment of acquittal, 

appellate courts apply a de novo standard of review and do not reverse a conviction 

where the conviction is supported by competent, substantial evidence.” Id. “In 

determining the sufficiency of the evidence, the question is whether, after viewing 

the evidence in the light most favorable to the State, a rational trier of fact could 

have found the existence of the elements of the crime beyond a reasonable doubt.” 

Simmons v. State, 934 So. 2d 1100, 1111 (Fla. 2006) (quoting Bradley v. State, 

787 So. 2d 732, 738 (Fla. 2001)).

As the conviction in this case is based wholly upon circumstantial evidence, 

a special standard of review applies. “Where the only proof of guilt is 
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circumstantial, no matter how strongly the evidence may suggest guilt, a 

conviction cannot be sustained unless the evidence is inconsistent with any 

reasonable hypothesis of innocence.” Gosciminski v. State, 132 So. 3d 678, 710 

(Fla. 2013) (quoting State v. Law, 559 So. 2d 187 (Fla. 1989)), cert. denied, 135 S. 

Ct. 57 (2014). The State need not “ ‘rebut conclusively every possible variation’

of events which could be inferred from the evidence, but only to introduce 

competent evidence which is inconsistent with the defendant’s theory of events.” 

Id. (quoting Law, 559 So. 2d at 189). Once this requirement is met, “it becomes 

the jury’s duty to determine whether the evidence is sufficient to exclude every 

reasonable hypothesis of innocence beyond a reasonable doubt.” Id. Appellate 

courts will sustain a conviction based solely on circumstantial evidence so long as 

the evidence is “(1) ‘consistent with the defendant’s guilt’ and (2) ‘inconsistent 

with any reasonable hypothesis of innocence.’ ” Delgado v. State, 948 So. 2d 681, 

689-90 (Fla. 2006) (quoting Orme v. State, 677 So. 2d 258, 261 & n.1 (Fla. 1996)). 

We conclude that the record contains competent, substantial evidence to 

support Smith’s conviction for the first-degree murder of Kathleen Briles and that 

the trial court did not err in denying the motion for judgment of acquittal. Smith 

asserts that he is innocent of the crime and that either Cellecz or somebody else

committed the murder. However, the State presented evidence that contradicted 

Smith’s hypothesis of innocence. Specifically, the State presented evidence to 
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establish that on the day after the murder, Smith possessed a medical encyclopedia, 

which was seen on the floorboard of his vehicle. This book was later found with 

Smith’s possessions and had one of his fingerprints in it. The Briles were able to 

positively identify the book based on specific characteristics, including the location 

of a crease in the cover, and identified pictures of the book in their house before 

the murder, which permitted the jury to compare the book in the Briles’s home 

with the book found among Smith’s possessions. Moreover, the day after the 

murder, Cellecz testified that Smith asked him to pawn the victim’s necklace, 

claiming he bought it from a friend. Cellecz pawned the necklace, and the victim’s 

husband later positively identified it as belonging to the victim based on unique 

flaws in the necklace. 

Further, testimony was presented that Smith was in possession of other items 

stolen from the home. After Smith was arrested, he called a friend and asked her 

to remove several bags from his storage facility, which she did, but subsequently 

turned these items over to the police. One of the bags contained numerous items 

that had been stolen at the time of the crime, including a special set of coins and 

the Minnie Mouse keychain, which was connected to the keys for a vehicle that 

Smith owned. Each of these items was unique and specifically identified by Dr. 

Briles, the victim’s husband. 
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Regarding the timing of the murder and Smith’s whereabouts, the evidence 

established that the victim left Publix with frozen groceries in her trunk on 

August 3 at 3:38 p.m. and never removed the groceries. At 3:44 p.m. on the same 

day, Smith’s cell phone received a call that he never answered. The call was 

relayed through a cell tower that was approximately a mile from the victim’s home 

in Terra Ceia, a town in Manatee County. However, calls received prior to and 

after that time were relayed though cell towers in Sarasota County, close to where 

Smith lived. 

Smith’s theory of defense was that either Cellecz or another person had 

killed the victim. To rebut this theory, the State called Cellecz, who testified that 

he did not break into the victim’s home, but that he had received the stolen items 

he later pawned from Smith the day following the murder. Further, Hull testified 

that Smith was upset with Cellecz because Smith had given Cellecz some jewelry 

to pawn and Cellecz “snitched” on Smith. While Smith disputes the weight and 

credibility of this evidence, it nevertheless constitutes competent evidence that is 

inconsistent with Smith’s theory of events and it was up to the jury to resolve these 

inconsistencies. In addition, the State’s evidence that Smith provided the victim’s 

necklace to Cellecz to pawn the day after the murder, as well as evidence that 

Smith gave his girlfriend a unique Minnie Mouse keychain that had belonged to 
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the victim, likewise constitutes competent evidence that is inconsistent with 

Smith’s theory of events. 

In reviewing all the evidence presented in the light most favorable to the 

State, as well as Smith’s hypothesis of innocence, we conclude that competent, 

substantial evidence supports the jury’s finding of guilt and is inconsistent with 

any reasonable hypothesis of innocence. Accordingly, we conclude that the trial 

court did not err in denying the motion for judgment of acquittal. 

II. Denial of Motion for Mistrial

Smith next contends that the trial court erred in denying his motion for 

mistrial after a witness revealed another investigation that was occurring in a 

different jurisdiction. Specifically, Smith objected to the following testimony from 

Detective Linda Deniro, a police officer with the City of Sarasota, who participated 

in an investigation involving Smith:

Q. As part of that investigation did you speak to someone 

named Michele Quinones?

A. I did.

Q. And did she give you some of the defendant’s property?

A. Yes, she did.

Q. How did that exchange come about?

A. Regarding my investigation that I was doing for the City of 

Sarasota—

Q. Well let me stop you there. What I meant was, did she call 

you, did you call her, how did she give you the property?

A. Oh, I called her, we talked, and she said she had some 

property she would like to turn over to the Sarasota Police 

Department. At that time I—
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At that point, defense counsel objected and moved for a mistrial on the basis that 

the detective referred to an investigation for the City of Sarasota in an unrelated 

case. The trial court denied the motion, stating:

It was a very poor choice of words by the detective. After 23 

years in the force, she should have known better than to talk like that. 

I believe her exact words, we can look it up, but I believe her exact 

words was the investigation I was doing for the City of Sarasota. 

“Regarding my investigation that I was doing for the City of Sarasota” 

is exactly what she said.

All right, in light of the fact that investigations were being 

conducted in multiple cities, and by multiple agencies, I don’t think 

the jury would draw the inference that there was a separate 

investigation that this officer was working on behalf of the City of 

Sarasota for. While that is certainly a possible inference that could be 

drawn, in the context of this case I don’t find that it rises to the level 

that would require a mistrial. Motion is denied.

The trial court should grant a motion for mistrial only “when an error is so 

prejudicial as to vitiate the entire trial.” Jackson, 25 So. 3d at 528 (quoting Salazar 

v. State, 991 So. 2d 364, 372 (Fla. 2008)). “[T]his Court reviews a trial court’s 

ruling on a motion for mistrial under an abuse of discretion standard.” Id. (quoting 

Salazar, 991 So. 2d at 371).

Although Smith alleges that Detective Deniro informed the jury that Smith 

was being investigated for other crimes, we disagree that this marginal reference to 

an investigation for the City of Sarasota informed the jury about other crimes. 

Detective Deniro referenced only “an investigation” she was performing for the 

City of Sarasota. At that point, the prosecutor immediately stopped her and 
- 20 -

redirected the question, asking Detective Deniro how she received property from 

Michele Quinones. In response, Detective Deniro stated that she had called 

Quinones and Quinones said that she had property that she wanted to turn over to 

the Sarasota Police Department. 

While the trial court acknowledged that it was a “very poor choice of 

words,” the trial court also observed that it did not believe that the “jury would 

draw the inference that there was a separate investigation.” If, for some reason 

from this passing reference, the jury would have concluded there was a separate

investigation, nothing within the detective’s statement informed the jury about the 

nature of any investigation or implied that Smith was the focus of the investigation.

The State stopped the witness, and there was no further mention by the State or any 

other witnesses of multiple investigations. 

We conclude that the trial court did not abuse its discretion in denying the 

motion for mistrial on the basis of this isolated reference. Accordingly, we deny 

this claim.

III. Objections to Hull’s Testimony

In his third claim, Smith contends that the trial court erred in overruling his 

objections to testimony from Hull concerning threats that Smith asked Hull to relay 

to Cellecz. “This Court reviews evidentiary rulings for abuse of discretion.” 

Gregory v. State, 118 So. 3d 770, 780 (Fla. 2013). However, “[a] judge’s 
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discretion is limited by the rules of evidence and by the principles of stare decisis.” 

Id. (quoting Johnson v. State, 969 So. 2d 938, 949 (Fla. 2007) (citation omitted)). 

At trial, the trial court permitted the State to present Hull as a witness over 

defense objection. Hull testified that while he resided at the Manatee County Jail, 

he met Smith on the transportation bus when they were both returning to the 

county jail after a trip to the courthouse. Smith asked Hull where he was housed, 

and after learning that Hull was housed in the G2 West Unit, Smith then inquired 

whether Hull knew an inmate named James Cellecz. After Hull acknowledged that 

he knew Cellecz, Smith told Hull to relay a message to Cellecz that Smith had 

“something for his ass.” Smith then said that he knew where Cellecz’s wife and 

child were and that he had “something for them.” Hull explained that Smith 

wanted him to relay this message to Cellecz because Smith was upset at Cellecz

after Smith had given Cellecz some “jewelry and stuff” to pawn and Cellecz was 

“snitching” on Smith. 

Smith acknowledges that he presented only two arguments to the trial court: 

(1) the evidence was inadmissible because it was evidence pertaining to a 

collateral, uncharged crime; and (2) the prejudicial impact outweighed any 

probative value. However, Smith now asserts that the statements were too vague 

to be considered threats and nothing linked his statements to Hull with the murder. 
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We conclude that Smith has failed to properly preserve his objection to the 

trial court’s admission of Hull’s testimony. As this Court has held, “in order for an 

argument to be cognizable on appeal, it must be the specific contention asserted as 

legal ground for the objection, exception, or motion below.” Carmichael v. State, 

715 So. 2d 247, 248 (Fla. 1998) (quoting Steinhorst v. State, 412 So. 2d 332, 338 

(Fla. 1982)). As Smith failed to present this ground to the trial court, we conclude 

that this claim is waived. 

Even if this Court were to consider this claim on the merits, however, Smith 

has failed to show that the trial court abused its discretion in admitting the 

evidence. This Court has long recognized that “a defendant’s attempt to intimidate 

a state witness is relevant and admissible.” England v. State, 940 So. 2d 389, 401 

(Fla. 2006) (quoting Heath v. State, 648 So. 2d 660, 664 (Fla. 1994)). As this 

Court explained, “such evidence is based on consciousness of guilt inferred from 

such actions.” Id. In England, the defendant told a witness that if a codefendant 

“got me in trouble, I would kill him.” Id. That statement was held admissible. Id.; 

see also Anderson v. State, 574 So. 2d 87, 93 (Fla. 1991) (holding that a threat was 

relevant and admissible even though the defendant did not link his attempt to kill 

the witness to the possibility of the witness testifying in court against him). 

In this case, Hull’s testimony was relevant because it established that Smith 

was attempting to intimidate a State witness—evidence that could support 
- 23 -

consciousness of guilt. Moreover, Hull testified that Smith was upset at Cellecz 

because Cellecz was “snitching” on him after Smith gave Cellecz certain jewelry 

to pawn—relevant evidence that was also in dispute. While Smith asserts that the 

evidence was vague and unreliable, this goes to the weight that a jury might assign 

to such evidence and not to its admissibility. We thus reject this claim.

IV. Denial of a Continuance

In his next claim, Smith argues that the trial court erred in denying his July 

20, 2012, motion for continuance that was based on two factors: (1) defense 

counsel sought its own fingerprint expert to test the medical encyclopedia; and (2) 

defense counsel was considering calling Alex Ramos, a federal inmate who was 

allegedly important to Smith’s claim that the medical encyclopedia was from a 

federal prison. As this Court has stated, “[a] court’s ruling on a motion for 

continuance will only be reversed when an abuse of discretion is shown.” 

Snelgrove v. State, 107 So. 3d 242, 250 (Fla. 2012) (quoting Doorbal v. State, 983 

So. 2d 464, 486 (Fla. 2008)). This standard is generally not met “unless the court’s 

ruling on the continuance results in undue prejudice to the defendant.” Id. If the 

motion for continuance concerns the absence of a witness, “the defendant must 

show: (1) prior due diligence to obtain the witness’s presence; (2) substantially 

favorable testimony would have been forthcoming; (3) the witness was available 

and willing to testify; and (4) the denial of the continuance caused material 
- 24 -

prejudice.” Mosley v. State, 46 So. 3d 510, 525 (Fla. 2009). “While death penalty 

cases command our closest scrutiny, it is still the obligation of an appellate court to 

review with caution the exercise of experienced discretion by a trial judge in 

matters such as a motion for a continuance.” Doorbal, 983 So. 2d at 486 (quoting 

Hernandez-Alberto v. State, 889 So. 2d 721, 730 (Fla. 2004)).

In this case, defense counsel was appointed approximately twenty months 

prior to trial. Nearly six weeks before trial, defense counsel filed a motion to 

compel fingerprinting, asking the trial court to compel the State to inspect each 

page of the medical encyclopedia for fingerprints and alleging a good faith belief 

that this would produce exculpatory evidence by comparing any fingerprints found 

to known fingerprints in the federal fingerprinting database. The trial court granted 

this motion. 

On the eve of trial, defense counsel attempted to continue the case, after two 

continuances were previously granted. Initially, defense counsel asserted that this 

late request was necessary based on new cell phone records and witnesses recently 

disclosed by the State. The State clarified that the information it would be 

presenting at trial was not new evidence that was recently disclosed and explained

that the State would be inquiring only whether the witnesses knew if a person other 

than Smith used Smith’s cell phone on the day of the murder. At that point, 

defense counsel changed the underlying basis of the motion to continue, asserting 
- 25 -

that the defense should be able to obtain its own fingerprint expert. The trial court 

denied the motion, finding that the request seemed to be “simply a delay tactic.” 

The trial court also noted that to the extent defense counsel made a vague 

suggestion requesting its own fingerprint expert, such a motion was never reduced 

to writing.

Defense counsel subsequently amended his motion to continue, specifically 

requesting a fingerprint expert. When the trial court questioned the necessity of 

that request, defense counsel again attempted to modify the basis for the request 

for a continuance, suggesting that the defense needed time to secure Alex Ramos 

as a witness. Defense counsel, however, never proffered what testimony Ramos 

would have provided. Apparently, Ramos was previously in federal prison with 

Smith and presumably would have testified that the medical encyclopedia was 

obtained from the federal prison. But Smith has never pointed to any identifying 

information on the medical encyclopedia to support that it was the property of the

federal prison, while the medical encyclopedia was positively identified by the 

victim’s husband and son as belonging to the Briles. Further, the first time the 

medical encyclopedia was seen in Smith’s possession was the day after the murder. 

Based on this record, we hold that Smith has failed to show any abuse of 

discretion in the denial of the motion to continue or any specific prejudice as a 

result. As it pertains to the medical encyclopedia, based on a specific request from 
- 26 -

Smith’s attorney, the fingerprint expert retained by the State reviewed every page 

within the book for fingerprints and Smith fails to allege how another examination 

of the book would have assisted his defense. Defense counsel’s only objection is 

the fact that the State’s expert was unable to match the fingerprints to any 

exculpatory evidence and thus Smith wanted to hire his own expert in order to 

determine whether a different expert could obtain a different result. For all these 

reasons, we conclude that no abuse of discretion has been shown and reject this 

claim of error.

V. Finding of HAC

Smith’s first claim of penalty-phase error consists of a challenge to the trial 

court’s finding that the HAC aggravator applies. The State bears the burden to 

prove each aggravating circumstance beyond a reasonable doubt. Williams v. 

State, 37 So. 3d 187, 194-95 (Fla. 2010). “When reviewing a trial court’s finding 

of an aggravator, ‘it is not this Court’s function to reweigh the evidence to 

determine whether the State proved each aggravating circumstance beyond a 

reasonable doubt—that is the trial court’s job.’ ” Williams, 37 So. 3d at 195 

(quoting Aguirre-Jarquin v. State, 9 So. 3d 593, 608 (Fla. 2009)). Rather, on 

appeal, this Court must “review the record to determine whether the trial court 

applied the right rule of law for each aggravating circumstance and, if so, whether 
- 27 -

competent substantial evidence supports its finding.” Id. (quoting Aguirre-Jarquin, 

9 So. 3d at 608). 

This Court has defined the HAC aggravator as follows:

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.

Hernandez v. State, 4 So. 3d 642, 668-69 (Fla. 2009) (quoting State v. Dixon, 283 

So. 2d 1, 9 (Fla. 1973)). While this Court has upheld HAC in beating deaths such 

as this case, “the evidence must show that the victim was conscious and aware of 

impending death.” Douglas v. State, 878 So. 2d 1246, 1261 (Fla. 2004); see also

Zakrzewski v. State, 717 So. 2d 488, 493 (Fla. 1998) (holding that it was error for 

the trial court to find HAC because “[m]edical testimony was offered during the 

trial which established that [the victim] may have been rendered unconscious upon 

receiving the first blow from the crowbar, and as a result, she was unaware of her 

impending death”).

In this case, the trial court found HAC based on the following analysis:

The Court will begin its analysis by focusing on the experience 

of Ms. Briles. Arriving home from a routine visit to the grocery store 

the five-foot-three-inch, 142 pound housewife was accosted and 

incapacitated in her own home by the five-foot-eleven-inch, 260-
- 28 -

pound intruder Delmer Smith. Upon examination, the medical 

examiner found three areas of binding: around her neck and throat 

with duct tape, hands duct taped together and bound behind her back, 

and her legs around the ankles also bound. The medical examiner 

opined this took place while she was alive. Contusions found on the 

victim’s body were attributed to blunt trauma, most likely received by 

blows or kicks. The most significant nonlethal blow received by Ms. 

Briles was a fracture to the jaw bilaterally. The medical examiner 

concluded this was most likely caused by her head hitting the floor or 

some other blunt object striking the jaw directly. Displacement of 

furniture about the house evidenced at least some futile resistance put 

up by Ms. Briles.

Before addressing the manner by which death was inflicted, the 

Court notes that a significant abdominal injury was suffered by Ms. 

Briles. Ms. Briles’ liver suffered a 5-6 centimeter laceration spanning 

the two lobes of the liver. The liver injury was inflicted while Ms. 

Briles was still alive as established by the presence of 500 milliliters 

of unclotted blood in the abdomen. Since no external injury 

corresponded to the internal injury, the medical examiner concluded 

that blunt trauma (a kick or knee to the abdomen) caused this injury, 

which would have been fatal without medical attention.

As for the mechanism by which death actually resulted, the 

[medical] examiner concluded that multiple blows to Ms. Briles’ head 

with a 23-pound metal antique sewing machine created numerous 

skull fractures which compressed the bone into the brain causing 

massive hemorrhage and, ultimately, death.

From this outline of the sequalae leading to Ms. Briles’ death, it 

takes little effort to imagine the fear, terror, anxiety, and hopelessness 

that the victim experienced in the minutes before she died. From the 

evidence, we also know that the antique sewing machine used as the 

instrument of death was obtained by the defendant from a closet in 

which it was stored. Transporting it from that location, the Defendant 

(having previously subjected Ms. Briles to excruciating pain and 

discomfort) brought the instrument down with great force on Ms. 

Briles’ skull. From an objective standpoint, it is evident that this 

murder was shockingly evil and outrageously wicked, conscienceless, 

and pitiless.
- 29 -

Smith urges this Court to reject these findings, resting his argument 

primarily on two factors. First, he relies on the medical examiner’s testimony that 

the victim was lying facedown on her stomach when she was beaten to death, 

concluding that this means the victim did not see Smith strike her with the sewing 

machine. Second, he contends that the first blow to the victim’s head could have 

rendered the victim immediately unconscious. 

Upon a review of the record, we conclude that competent, substantial 

evidence supports the trial court’s findings. The testimony from trial, as recounted 

by the trial court in its sentencing order, supports the trial court’s conclusion that 

the crime began when the victim was “accosted” outside of her home and then 

“incapacitated in her own home.” She was bound with duct tape with “her hands 

. . . together and bound behind her back, and her legs around the ankles also 

bound.” Duct tape also covered her mouth so that not only was she rendered 

completely helpless but she could not cry out. As she was not blindfolded, she was 

able to see the events transpire around her. 

After conducting an autopsy, Dr. Broussard concluded that the victim 

sustained numerous injuries that were in addition to the fatal injuries caused by the 

significant blows to the back of the victim’s head. Many of the victim’s injuries 

could not have occurred while she was lying facedown. Specifically, the victim 

sustained a bruised elbow, even though her arms were bound behind her back. 
- 30 -

Further, her lacerated liver was caused by a serious kick or blow to the abdomen—

additional indication of the suffering the victim endured while bound and aware of 

her impending death. The injury to the victim’s liver caused significant bleeding—

500 milliliters of blood. This evidence established that the injury occurred long 

enough before her death to permit this significant amount of blood to accumulate

and that the injury did not occur after the fatal blows to the head. 

After causing a serious injury to the victim’s abdomen while she was 

helpless and confined, Smith then used his weapon of choice—a sewing machine 

from another room—to brutally beat the victim to death. Accordingly, all of these 

facts provide competent, substantial evidence to support the trial court’s finding of 

HAC.

However, even if this aggravator were struck, any error in finding HAC 

would be harmless beyond a reasonable doubt as it would not have affected the 

trial court’s weighing process in light of the other four significant aggravators that 

apply to the murder. See, e.g., Cole v. State, 36 So. 3d 597, 610 (Fla. 2010)

(holding that in light of the remaining aggravators, the erroneous consideration of 

HAC did not prejudicially affect the weighing process); Watts v. State, 593 So. 2d 

198, 204 (Fla. 1992). We therefore deny relief as to this claim. 

VI. Rejection of Two Statutory Mitigators
- 31 -

In Smith’s next penalty-phase claim, he asserts that the trial court erred in 

rejecting two statutory mitigators: (1) Smith committed the capital felony while he 

was under the influence of an extreme mental or emotional disturbance; and (2) 

Smith’s ability to appreciate the criminality of his conduct or to conform his 

conduct to the requirements of law was substantially impaired. 

When a trial court is considering whether a mitigating circumstance is 

established, this Court has described the applicable standard as follows:

Whenever a reasonable quantum of competent, uncontroverted 

evidence of mitigation has been presented, the trial court must find 

that the mitigating circumstance has been proved. A trial court may 

reject a defendant’s claim that a mitigating circumstance has been 

proved if the record contains substantial evidence to support the trial 

court’s rejection of the mitigating circumstance.

Hoskins v. State, 965 So. 2d 1, 16 (Fla. 2007) (quoting Nelson v. State, 850 So. 2d 

514, 529 (Fla. 2003)). However, with respect to expert psychological evaluations, 

“expert testimony alone does not require a finding of extreme mental or emotional 

disturbance.” Heyne v. State, 88 So. 3d 113, 125 (Fla. 2012) (quoting Foster v. 

State, 679 So. 2d 747, 755 (Fla. 1996)). “Instead, the trial court may disregard 

expert opinion where it determines that the opinion is unsupported by the facts or 

conflicts with other evidence.” Id. “A trial court has broad discretion in 

determining the applicability of a particular mitigating circumstance, and this 

Court will uphold the trial court’s determination of the applicability of a mitigator 
- 32 -

when supported by competent substantial evidence.” Hoskins, 965 So. 2d at 17

(quoting Philmore v. State, 820 So. 2d 919, 936 (Fla. 2002)).

The trial court’s sentencing order provided the following analysis regarding 

its rejection of the statutory mitigation at issue:

1. The capital felony was committed while the defendant was under 

the influence of extreme mental or emotional disturbance.

During the penalty stage, the defense called Dr. Hyman 

Eisenstein, a licensed psychologist, to testify about defendant’s mental 

health. Dr. Eisenstein performed neuropsychological testing and 

conducted a clinical interview. After his examination, Dr. Eisenstein 

concluded that Mr. Smith has “unequivocal brain damage” and “brain 

impairment,” and as a result of these deficits Mr. Smith’s decisionmaking ability is profoundly impaired. While Dr. Eisenstein also 

suggested Mr. Smith has an Antisocial Personality Disorder, he 

believes that “brain pathology” better explains Mr. Smith’s behavior. 

Ultimately Dr. Eisenstein testified that Mr. Smith was under the 

influence of extreme mental and emotional disturbance and that he 

lacked the capacity to appreciate the criminality of his conduct or to 

conform his conduct to the requirements of the law.

To bolster the testimony of Dr. Eisenstein, the defense 

requested that an MRI and a PET scan be performed. To interpret the 

results of these tests the defense asked the court to appoint Dr. Ruben 

Gur to analyze the results. . . . At the Spencer hearing, Dr. Gur 

testified that the brain testing revealed the existence of frontal lobe 

damage which has major behavioral consequences for Mr. Smith, and 

Dr. Eisenstein repeated his previous conclusion that Mr. Smith lacks 

the ability to control himself in high pressure situations through his 

inability to control his “amygdala response.” In fact, Dr. Eisenstein 

testified that Mr. Smith was subject to “amygdala meltdown” in 

highly stressful situations. Both doctors testified that Mr. Smith’s 

brain damage inevitably led to disinhibited behavior; nevertheless, 

both doctors conceded that there was no current scientific consensus 

on the existence or degree of frontal lobe damage and the 

corresponding “disinhibited” behavior one might expect to see.

To rebut the testimony of Eisenstein and Gur, the State called 

Dr. Wade Myers to testify at the penalty phase before the jury and Dr. 
- 33 -

Helen Mayberg at the Spencer hearing. In brief, Dr. Myers opined 

that Mr. Smith had Antisocial Personality Disorder, and Dr. Mayberg 

opined that her review of the MRI and PET scan showed no brain 

damage whatsoever.

This brief recitation reflects that the opinion of the experts 

conflicted radically. It is the burden of the defendant to establish the 

existence of mitigating factors; and it is within the discretion of the 

Court to reject a statutory mitigator where the defense expert’s 

testimony is rebutted by another expert. Since the Court finds the 

testimony of Dr. Myers and Dr. Mayberg more persuasive and 

convincing, the defendant failed to meet this burden. Even if frontal 

lobe damage exists (which the court does not find to be the case) there 

is simply no competent evidence to suggest that on August 3, 2009, 

Delmer Smith was under the influence of an extreme mental or 

emotional disturbance. All of his behavior on the day of the murder 

and the days after appears cold, calculated, rational, and goal-directed. 

Based on this evidence, the Court is not reasonably convinced of the 

existence of this factor.

2. The capacity of the defendant to appreciate the criminality of his 

conduct or to conform his conduct to the requirements of law was 

substantially impaired.

For the reasons discussed in the preceding section the Court 

finds that the defendant did not meet his burden and this mitigator has 

not been proved.

Smith asserts that the trial court erred in failing to find these two statutory 

mitigators based on the claim that “Dr. Eisenstein’s opinion was unequivocal and 

not refuted by another psychologist trained to interpret the neuropsychological 

testing.” Further, Smith criticizes the State’s expert, Dr. Myers, because Dr. Myers 

did not perform his own testing for brain damage. 

While Smith contends that a trial court cannot reject unrebutted mitigation, 

the cases upon which he relies are factually distinguishable because in those cases, 
- 34 -

unlike here, the mitigation was, in fact, unrebutted. See Coday v. State, 946 So. 2d 

988, 1004-05 (Fla. 2006) (holding that the trial court erred in rejecting the statutory 

mitigator because the defendant presented six defense mental health experts who

testified that the defendant was unable to conform his conduct to the requirements 

of the law at the time of the murder, particularly as the State did not offer any 

expert witnesses to refute such testimony and there was no other rational basis to 

reject the testimony); Nibert v. State, 574 So. 2d 1059, 1062 (Fla. 1990) (holding 

that the trial court erred in rejecting the statutory mitigators that the defendant 

committed the murder while under the influence of an extreme mental or emotional 

disturbance and that his capacity to control his behavior was substantially impaired 

because (1) the defendant presented an expert who supported those conclusions 

with a battery of tests and interviews with family members; (2) the record also 

supported those conclusions; and (3) this evidence was not refuted by the State).

In this case, Smith is merely attacking the appropriate weight of the experts’ 

testimony, and as the trial court recognized, the experts’ opinions varied wildly. In 

considering all of the evidence presented, the trial court found that the testimony of 

Dr. Myers and Dr. Mayberg was “more persuasive and convincing.” In addition, 

the trial court further noted that the evidence did not support that Smith committed 

the murder while under the influence of an extreme mental or emotional 

disturbance because “[a]ll of his behavior on the day of the murder and the days 
- 35 -

after appears cold, calculated, rational, and goal-directed.” As this Court has held, 

“[f]inding or not finding a specific mitigating circumstance applicable is within the 

trial court’s domain, and reversal is not warranted simply because an appellant 

draws a different conclusion.” Cook v. State, 542 So. 2d 964, 971 (Fla. 1989) 

(quoting Stano v. State, 460 So. 2d 890, 894 (Fla. 1984)). 

Because the record provides competent, substantial evidence to support the 

trial court’s findings and the trial court rejected these mitigators based on 

credibility determinations, we reject this claim.

VII. Constitutionality of Florida’s Death Penalty Scheme

In his last claim, Smith contends that his death sentence is unconstitutional 

in light of Ring. However, because the trial court found the prior-violent-felony 

aggravator and because the jury unanimously recommended the sentence of death, 

Ring is not implicated. See Gonzalez, 136 So. 3d at 1168; Crain v. State, 894 So.

2d 59, 78 (Fla. 2004). This claim is therefore without merit and does not implicate 

the issues raised in Hurst v. State, 147 So. 3d 435 (Fla. 2014), which the United 

States Supreme Court granted certiorari to review. Hurst v. Florida, 135 S. Ct. 

1531 (2015).

VIII. Proportionality of Sentence of Death

Although Smith does not raise proportionality on appeal, this Court has an 

independent obligation to review the proportionality of a sentence of death,
- 36 -

regardless of whether it is raised by a party. See England v. State, 940 So. 2d 389, 

407 (Fla. 2006); see also Fla. R. App. P. 9.142(a)(5). Because the death penalty is 

reserved for only those cases where the most aggravating and least mitigating 

circumstances exist, this Court must undertake a proportionality review “in order 

to determine whether the crime falls within the category of both the most 

aggravated and the least mitigated of murders, thereby assuring uniformity in the 

application of the sentence.” Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 

2003) (citation omitted). In performing this review, this Court considers the 

totality of the circumstances and compares the case with other similar capital cases. 

Duest v. State, 855 So. 2d 33, 47 (Fla. 2003). This Court does not simply compare 

the number of aggravating and mitigating circumstances, but rather performs a 

qualitative review of the underlying basis for each aggravator and mitigator. See

McCoy v. State, 132 So. 3d 756, 771 (Fla. 2013), cert. denied, 135 S. Ct. 90 

(2014); Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998). 

In this case, the jury unanimously recommended that Smith be sentenced to 

death. The trial court found five aggravators and assigned each the following 

weight: (1) Smith was on felony probation (moderate weight); (2) Smith had prior 

violent felony convictions (great weight as to the 1991 state robbery conviction 

and the 1995 federal armed bank robbery convictions); (3) the murder was 

committed in the course of a burglary (moderate weight); (4) the murder was 
- 37 -

committed for pecuniary gain (merged with the committed-in-the-course-of-aburglary aggravator); and (5) the murder was HAC (great weight). Against these 

aggravators, the trial court rejected Smith’s proposed statutory mitigation and 

found and weighed five nonstatutory mitigating factors: (1) intermittent explosive 

disorder (moderate weight); (2) a loving relationship with nieces (little weight); (3) 

physical, emotional, and sexual abuse as a child (little weight); (4) acute academic 

failure and attention deficit disorder (significant weight); and (5) good conduct 

while in custody (moderate weight). 

Given the extremely significant aggravation, including Smith’s history of 

violent crime and the fact that he was on felony probation at the time of the 

murder, together with the facts and circumstances of this crime, we conclude that 

death is a proportionate sentence. This is neither the least aggravated nor most 

mitigated of death cases. A review of other cases establishes that death is a 

proportionate punishment in this case. For example, in King v. State, 130 So. 3d 

676, 686-87 (Fla. 2013), cert. denied, 134 S. Ct. 1323 (2014), we held the sentence 

of death to be proportionate based on a murder in which the defendant bludgeoned 

the victim to death during a burglary. The trial court found two aggravators—

committed during a burglary (merged with pecuniary gain) and HAC—and 

weighed those against sixteen nonstatutory mitigators, including the lack of a 
- 38 -

violent history, and determined that death was a proportionate punishment. Id.

Here, instead of a nonviolent criminal history, Smith had a violent criminal history. 

We have also considered Banks v. State, 46 So. 3d 989, 1000-01 (Fla. 2010),

where we concluded that the death sentence was proportionate after the defendant 

stabbed the victim to death and then took her car. In that case, the trial court found 

three aggravators—prior violent felony convictions; HAC; and cold, calculated, 

and premeditated—which were weighed against low IQ, brain deficits, antisocial 

personality traits, and difficult youth. Id.; see also Gosciminski, 132 So. 3d at 716-

17 (holding that the death sentence was proportionate where the defendant fatally 

stabbed and bludgeoned the victim during a burglary; the trial court found three 

aggravators—CCP, HAC, and committed during a robbery or burglary—and then 

weighed those aggravators against the statutory mitigator of no significant history 

of criminal activity and thirteen nonstatutory mitigators, which were given little to 

moderate weight); Miller v. State, 42 So. 3d 204, 229-30 (Fla. 2010) (holding that 

the death sentence was proportionate where the defendant fatally stabbed a 

seventy-two-year-old victim; the trial court found five aggravators—prior violent 

felony conviction, HAC, committed while on parole, committed during a burglary, 

and victim was particularly vulnerable—which were weighed against six 

nonstatutory mitigating circumstances).
- 39 -

Examining the facts of this case, including the aggravators and mitigators 

found, and comparing it to other similar cases where this Court has upheld the 

death sentence as a proportionate penalty, we conclude that Smith’s death sentence 

is proportionate.

CONCLUSION

After a thorough review of all the issues raised by Smith, and after our own 

independent review of the proportionality of Smith’s sentence of death, we affirm 

Smith’s conviction for first-degree murder and sentence of death.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, 

and PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Manatee County, 

Peter A. Dubensky, Judge - Case No. 412010CF000479CFAXMA

Howard L. Dimmig, II, Public Defender, and Julius Joseph Aulisio, Assistant 

Public Defender, Tenth Judicial Circuit, Bartow, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Carol Marie 

Dittmar, Senior Assistant Attorney General, Tampa, Florida,

for Appellee