# Supreme Court of Florida

____________ No. SC12

- 2469

____________ DALE GLENN MIDDLETON ,

Appellant,

vs. STATE OF FLORIDA , Appellee. [ March 9 , 2017] REVISED OPINION PER CURIAM. Middleton’s motion for rehearing is hereby granted

. We substitut e the following revised opinion for our previous opinion issued October 22, 2015

. On August 6, 2012, a jury found Dale Middleton guilty of first

- degree premeditated murder for the killing of Roberta Christensen, first

- degree felony murder with a weapon , burglary of an occupied dwelling while armed , and dealing in stolen property. 1 The jury voted 12

- 0 to impose the death penalty. The trial court followed the jury’s recommen dation and sentenced Middleton to death

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1 . The State nolle prossed the third

- degree grand theft charge of the indictment.- 2

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Middleton now appeals his convictions and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth in t h is opinion, w e affirm Middleton’s conviction of first

- degree m urder and uphold his death sentence.
I. Statement of the Case and Facts Roberta Christensen , as well as her husband of thir t y - one years, lived in a trailer across the street from Middle ton . On Jul y 1, 2009, Mr. Christensen went to New Jersey to visit the cou ple’s son. Before her husband lef t, they bought mobile phones that allowed them to use a w alkie

- talkie mechanism to communicate while they were apart. Middleton lived in a trailer with Garrett Wade Fowler, Kenneth Wade Sullivan and Sullivan’s girlfriend , Haleigh Zinker. On occasion, Middleton would visit the victim at her home and would sometimes borrow money and cigarettes from her. On t he morning of July 27, 2009 , Mi ddleton went over to the victim’s
trailer while she was preparing to go to the bank. After he left, she realized that she had left approximately $400 in tip money out, and suspected that Middleton had seen it. She deposited the money into the bank that afternoon. When the victim returned from the bank she noticed that someone had attempted to remove the screen from the window by her front door.- 3

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On the morning of July 28, 2009, Middleton rode around with his girlfriend’s roommate, Steve Britnell, for a period of time looking for drugs . The

two eventually found methamphetamine around twelve or one o’clo ck that afternoon. They returned to Middleton’s trailer and shared the methamphetamine. At this time, Garrett Wade Fowler and his girlfr iend were also at the trailer

. At approximately 4:30 p.m., Fowler an d Britnell decided to go to Wal mart to “boost.” Middleton declined to go, stating that he had business to take care of , that someone owed him some money, and that he needed to take a shower. While Britnell and Fowler were gone, Middleton took a knife from the sink of his tra iler and went over to the victim ’s home. While in the victim’s kitchen, he
asked he r for money. When she refused and attempted to push him out of the trailer , he attacked her with the knife. Christensen was alive and moving erratically as she was dragge d from the kitchen area to the bedroom. Once in the bedroom, Middleton cut Christensen’s throa t. Before leaving her home, Mi ddleton stole her flat

- screen television and power cord and carried the television across the street to his trailer. There, he wa shed his hands in t he kitchen sink , changed his clothes, but kept his boot s on. He placed the bloody clothes in a bag wi th the murder weapon. When Fowler and Brit nell returned to Middleton’s trailer , Middleton was there with Chris Jenkins, Kenneth Wade Sullivan and Sullivan’s girl friend. There- 4

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was a flat screen television in the kitchen with a blanket covering it. At this time, Middleton had already showered and his hair was still wet. He stated that the person that owed him money had given him the t elevision as payment. After Jenkins and Sullivan left, Fow ler was sitting on the porch as Middleton stood at the door. Fowler noticed that Middleton had a red substance on his boots, which Middleton claimed happened because he got something out of th e dumpster. Later, Britnell and Middleton drove around in Britnell ’s black Pontiac to two different pawn shops trying to sell the victim’s t elevision ; both pawn shops were closed. They both then got on the phone and began to call around to see if they

cou ld find someone who wanted to purchase the t elevision

. At approximately 5:30 p.m., Middleton call ed Christopher Jenkins to his home. Middleton ask ed Jenkins to bring drugs with him. When Jenkins arrived at Middleton’s trailer, Middleton asked Jenkins f or assistance in selling the television. After Jenkins took a photo of the television , he and Middleton went into the bedroom where Middleton crushed and consumed two Roxicodone pills, saving one pill for later. Mrs. Christensen’s husband had last spoken to her on July 28, 2009 , around 2:50 p.m. He watched a movie and fell asleep from appro ximately 4 p.m. to 6:40 p.m. When he woke up he was surprised that his wife had not called him; he repeatedly attempted to contact his wife on the walkie

- talkie phone, to no avail.- 5

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He a lso left a message on the home’s voicemail. Mr. Christensen called the couple’s other son who lived near the victim’s home and asked him to ch eck on his mother. When t he Christensen’s son and his wife arrived at his parents ’ home , he noticed Mrs. Christensen’s car parked in its usual spot. The trailer door was unlocked a nd the son went inside. When the son walked into the kitchen, he saw a big puddle of blood on the kitchen floor. Next to the puddle of blood he saw a yellow bro om with a sharp edge. He followed the path of blood to a closed bedroom door. He opened the door and saw his mother’s dead body on the floor.
He heard his father on the walkie

- talkie calling out for him and his mother. He went outside to call the polic e. He stopped his wife from entering the trailer. While on the phone with the 911 dispatcher , he went back into the trailer to confirm that his mother was not breathing. Randy Ammon s helped Middleton sell the television to his brother, Rolland Ammons. When Middleton went to Randy Ammons’ house, he said that he had just taken a shower and did not want the dog to j ump on him. A little after 7 p.m., Middleton , in a vehicle driven by Wade Fowler, followed Randy Ammons to
R onn ie Ammons ’ house to sell the television

. Fowler stayed outside by his car while Middleton took the t elevision , covered with a comforter, inside and sold it to Rolland for $200

. At some point earlier , while riding around trying to sell the- 6

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t elevision, Middleton placed the bag with the bloody clothes and the murder weapon inside of a dumpster. After selling the television , Brit n ell drove Middleton to a gas station, where Middleton purchased cocaine fr om someone in a truck. They consumed some of the dru gs while in the car. Soon thereafter, t he serpentine belt on the car broke and Brit n ell drove to a relative’s house to have it fixed . While the car was being fixed, Middle ton walked a few hundred yards to a local bar, Br ewskis, and called Brit n ell to pic k him up once the car was fixed. When Middleton got back to the car, he was really upset and was crying while he was on the phone with his girlfriend and said, “I’m sorry.” The two drove back to the trailer park where Middleton lived. When they arrived, there were police cars in the area

. Not wanting to get too close to the police officers, the two turned off at someone else’s house, where they got out of the car and stood in the yard. Later that evening, officers found Middleton at th e residence of Darrell Dubel. Wh en the officers arrived, Brit n ell ’s car was there. At th is time, Middleton was barefoot and had plac ed his boots and socks in Brit n ell ’s trunk. Officer John
Rhod en asked Brandon Jenkins, Brit n ell and Middleton to come to the Sheriff ’ s Office for questioning. Middleton’s boots were later rec overed from the trunk and

w ere found to have the victim’s blood on them. While in custody, Middleton
confessed. T he bloody clothes and the murder weapon were never discovered.- 7

- A. Middleton’s Confession During the trial, the State played Middleton’s interview videos for the jury, including the fifth and final video where Middleton ultimately confessed to the murder. Detective Faulkner and Assistant State Attorney Ashley Albright w ere present during Detective Maerki’s questioning of Middleton. The recording of the first interview, which was conducted in Detective Maerki’s office , could not subseque ntly be retrieved. As a precautionary measure, the second and third interviews were conducted using the computer equipment located in Detective Faulkner’s office. Maerki read Middleto n his rights, as detailed on a Miranda 2
card. Maerki detect ed an odor of alcohol on Middleton, and also noticed that his eyes were bloodshot and watery. H e was surprised that Middleton did not have slurred speech and that his coordination was fine. He stated that Middleton seemed to be fully aware of everything tha t was happening during the interrogation. Middleton told Maerki that everything happened so fast that he never checked to see if t he victim had any money. He stated that he thought that the victim ended up in the hallway, and that he did not remember cutting her throat. He stated that after the murder, he did not bathe, and only washed his hand s. He admitted that he acted alone. He told the police the location of the dumpster where

2

. Miranda v. Arizona , 384 U.S. 436 (1966).- 8

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he threw the bag with his clothes and t he murder weapon. He stated that he kept his boots on and put them in the trunk of Steve Britnell’s small black car. He adm itted to selling the television later that night to Rolland Ammons for $200 . He additionally admitted that h e used the same $200 to purc hase more drugs.
B. Forensic Testimony Crime s cene t ec h nician Jackie Moore assisted Detective Bradley at the crime

scene. She testified that there was no evidence of a struggle in the living room

area. She recalled that there was a void in the dust on a television stand in the living room indicating that there was previously a t elevision and remote there. She testif ied that there were bloodstains on the dining room table and chairs that led toward the master bedroom. The bloodstains on the wall of the bedroom indicate d that at some point the victim had been standing and had stepped in blood. On the floor near the wall next to the refrigerator and the dining room table , there was blood with drag marks and some pooling of blood. The drag marks indicate d that the victim was alive and moving erratically as she was dragged from the kitchen area to the bedroom. There w as blood with drag marks in the doorway of the master bedroom. There were bloody shoe impressions from the master bedroom to the kitchen. The victim had a gaping wound in her throat. The medical examiner testified that there were several passes like a sawing motion with a sharp- 9

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instrument to create the margin of th e wound . The blood stains indicated that the victim’s carot id artery was not cut until she got into the bedroom. Her hands and shirt were saturated with blood. She also had blood running do wn her abdomen that soaked in to the waistband of her pants. The amount and pattern of blood on the victim’s waistband indicated that she may have been sitting up slightly or halfway when she received the neck injury. The victim’s sh i rt was pulled upwards toward her neck, which is consistent with being dragged. The laceration to the victim’s throat produced significantly more blood than was seen in the blood trail through the kitchen. The victim ha d a bruise on her che e k that was consistent with the tre ad and design of Middleton’s boots. The victim ha d bruises and a cut to her face, a puncture and stab wounds on her chest, neck, ear, and arms. T he bloody shoeprints were well defined closer to the bedroom and became faint as they continued down the hall . The victim’s son’s shoes were tested and eliminated as the shoes that caused the bloody shoe impressions. Moore testified that this indicate d that the blood was likely dried by the time the victim ’s son found her. There were various items located clos e to the victim’s body, which indicate d that she was grabbing for things dur ing the struggle. The victim had bloody injuries to her arm s and wrists. She had defensive wounds that indicated that she was trying to get away from someone who had a knife. None of the injuries to the victim’s extremities would have ki lled or- 10

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incapacitated her . The autopsy revealed that the neck injury occurred toward the end of the attack. Following the neck injury, the victim could have been conscious for ten to twenty se conds, and alive for minutes after losin g consciousness. On the kitchen floor of Middleton’s residence, there was a washed

- out shoe impression that was similar to those found inside the victim’s residence. This prin t tested positive for blood, but no DNA profile could be obtained

. The medical examiner found b lood on the sink of the only bathroom in Middleton’s trailer, but no DNA profile could be obtained . There was blood beside the dresser in Middleton’s bedroom, but the DNA profile was determined to be i nconclusive. A different bloodstain in Middleton’s room matched the victim’s DNA on four of thirteen points

. The probability that a randomly selected Caucasian person could match the same DNA profile at these four location s i s one in 41, 680.
Donna Lee and Rolland Ammons ’ fingerprints were the only prints found on the victim’s television . Middleton’s fingerprints were not found inside the victim’s
residence. There was no evidence that the trailer had been ransacked or that the victim’s t hings had been rifled through. Moore explained that the vanity in the victim’s bedroom had blood spatter on the outside, but not the inside, indicating that the door to the cabinet of the vanity was closed during the attack. Inside the cabinet, there was a purse that appeared to have been thrown in there. T here was- 11

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evidence of blood spatter on the purse and also blood inside of th e purse. The purse was empty, and t here were no fingerprints fou nd on the purse

. 3
C. Penalty Phase During the penalty phase, the defense presented testimony from Dr. James D. Barnard , and the State presented testimony from Dr. Deborah Lep o rowski. 4 The defense’s court

- appointed mitigation investigator, Joe Parish, also testified, as did Middleton’s sisters.

1. Psychological Witness es Testim ony Dr. Barnard assisted the defense in formulating mitigating evidence and conducted a mental health evaluation of Middleton

. His findings indicated that Middleton underreported the type of drugs he abused and the freq uency of their

use . Dr. Barnard determined that Middleton began abusing painkillers after being prescribed the medications following a n accidental fall . He also determined that Middleton began smoking marijuana between the ages of ten and thirteen . He described the onset of cocaine use at age twenty

- five, ceasing at age thirty

. Additionally, Middleton told Dr. Barnard that he had used methamphetamine once a year since he was twenty

- eight years old. This statement conflicted with his

3

. During the guilt phase, the defense rested without presenting a case - in

chief.
4

. They testified consistently with their respective testimony provided at the hearing on Middleton’s pre trial motion to suppress his confession.- 12

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assertion during his police interview that the da y of the murder was the first time he had ever used methamphetamine. Dr. Barnard testified that Middleton reported briefly being medically treated for attention deficit hyperactivity disorder ( ADHD )

. Dr. Barnard characterized ADHD as symptomatic of diffi culty with impulse control, difficulty regulating behav ior to standards or norms, high

- rate motor activity, and difficulty focusing attention. Dr. Barnard also found that Middleton was possibly exaggerating his symptoms, which may sometimes be viewed as a cry for help. Dr. Barn ard found it quite significant that Middleton’s personality type is known to have problems wit h repressed anger and hostility and that persons with this condition are sometimes able to control their anger but sometimes have anger ou tbursts that are difficult or impossible for them to control. Equally significant, opined Dr. Barnard, is that individuals with this personality type have real problems responding to authority and taking direction and often accept little or no responsibil ity for their behavior. Dr

. Barnard concluded that Middleton could not conform his conduct to the requirements of the law on the day in question and that his substance abuse on the date of the murder would have likely impaired anyone’s psychological contr ols, even someone who had no difficu lty with impulse control.
On cross

- examination, Dr. Barnard admitted that he did not review all of the records in this case, i.e., the depositions of people close to Middleton, his arrest- 13

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and jail records , and his conf ession to the murder. Dr. Barnard conceded that Middleton is not mentally retarded. The State questioned Dr. Barnard about the report that was conducted by Dr. Landrum in August 2009 which found Middleton’s IQ to be 72. Dr. Barnard testified that Middleton informed him that he did not give his best effort on the IQ test conducted by Dr. Landrum. When Dr. Barnard administered the Wechsler Adult Intelligence Scale

- IV (WAIS

- IV) test in September 2011 , he determined that Mid dleton’s full scale IQ was 83. Dr. Barnard determined that Middleton was not malingering during the exam he administered. He stated that he was aware that Middleton was administered the WAIS

- IV test for a third time in this case by Dr. Riordan in March 2 012. Dr. Riordan’s March 2012, evaluation indicated that Middleton’s IQ score was 75

. Dr. Barnard would hav e expected Middleton’s IQ score to be higher if a ll other factors were stable. This lower score could be an indication of various factor s includi ng Middleton being under the wea ther or malingering. There were no indications that Middleton was ever separated from the general population in prison due t o any mental health issues. Dr. Barnard admitted that Middleton sl it his wrists in a holding cell and did so in an attempt not to be extradited back to a facility in Georgia. Dr. Deborah Leporowski testified for the State . She stated that in order to prepare for her testimony, she reviewed the reports, previous testimony, and- 14

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depositio ns of Doctors Barnard and Riord an and the report of Dr. Landrum . She also reviewed the police reports in this case , transcripts, witness interviews, letters that Middleton wrote while he was in jail, and Department of Corrections records

. S he also interviewed Middleton . Dr. Lep o r owski maintained that Middleton’s IQ scores are illogical with an initial score of 72, a score of 83 two years later and then months later receiving a score of 75. Dr. Lep o r owski opined that a score of
83 is likely Middleton’s actual IQ score. Dr. Lep o ro wski diagnosed Middleton with antisocial personality disorder, as did Dr. Barnard.
Dr. Lep o rowski determined that Middleton was malingering “or at least exaggerating” when taking his personality tests. Dr . Lep o rowski found no history of mental illness in Middleton’s records or in her interview with him. She rejected any assertion that Middleton’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was sub stantially impaired. She opined that Middleton’s upbringing did not in any way lead him to believe that those actions involving this crime were okay or were warranted in any way based on the victim’s behavior

. She testified that e verything he told her about the day of the crimes was logical, made sense, and indicated that he was able to make decisions and choices. Dr. Le p o rows ki further noted that Middleton appeared to remember what he did throughout the day, where he did drugs an d with whom. On cross

- examination, she stated that Middleton’s jail records- 15

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indicated that his detox fro m drugs while in jail was typical and did not evidence drug dependence, but that he used them intermittently when he had access to them. 2. Family Hist ory Testimony The trial court appointed Joe Parrish, a licensed private investigator , to assist the defense in developing mitigation for the penalty phase. Mr. Parrish determined that Middleton’s mother abused drugs and his older siblings acted as parents to him. Midd leton expressed to Parrish some depression concerning the death of his father figure, a former employer, who had died

. Mr. Parrish found that Middleton was employed at a welding company for a period of time and was described by the

owner as being a hard worker and very dependable . Parrish also found that marijuana use at an early age led Middl eton to abuse heavier drugs . Mr. Parrish spoke with Middleton’s eldest daughter, who lived in the same mobile park with her mother and younger sister. She explained that in the days leading up to the murder , she noticed that her father’s physical appearance had changed and that he was abusing drugs. Parrish also described a history of domestic violence between Middleton and his girlfriend, Sabrina Jones. Devenna Pearson, Middleton’s older sister , testified on his behalf. She described their c hildhood as physically and emotionally painful. She explained that t he i r mother provided for the necessities of life, such as food, clothing, shelte r and basic hygiene through social security benefits that she received following the- 16

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death of her husband. She explained that she and Middleton were never required to go to school. Pearson additionally explained that she was sexually molested by her step father for approximately three and a half years , and that her mother was aware of the abuse but did not stop it . Her older sister found out and stopped the abuse by cutting t he i r a busive stepfather. She recalled that she was sent away for a few months an d Middleton remained in the house with their mother

. She described her brother, as she knew him growing up, as outgoing, fun and someone who always tried to make everyone laugh. Dewanna Sprowse, Middleton’s eldest sister, also testified on his behalf

. S he explained that t he i r mother would sell her food stamps for beer and drugs. Sprowse recalled that Middleton did not have c lean clothes and fitted shoes , and that if she was not home to get her siblings up and ready for school then t he i r mother would just tell them to go outside and play. She explained that one of her stepfathers was physically abusive to her younger siblings, including Middleton. She testified that t he i r mother had always placed men before her children, and that she d id not spend any money on holidays, birthdays , or books. She recalled Middleton being about age twelve or thirteen when he finally quit going to school.- 17

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She described Middleton, as she remembered him g rowing up, as a sweetheart, talented , with a good hea rt. 5
D. Middleton’s Pretrial Motion to Suppress His Confession The defense filed a motion to suppress the defendant’s confession, claiming that Middleton was too intoxicated to waive his Miranda rights

. The moti on additionally alleged that Middleton d id not possess the intellectual ability to comprehend his Miranda rights and that Middleton’s final interview was conducted
aft er Middleton’s attorney provided the Sheriff’s Office with a form invoking Middleton’s constitutional right to remain silent. T he hearing on the motion took
p lace on April 10, 2012, and June 29, 2012. 1. Lay Witnesses At the hearing on the motion to suppress, Christopher Jenkins testified for the defense. He testified that he wa s disable d and was prescribed Roxicodone and
Xanax. H e testified that since 2007 he would either sell or give Middleton his prescription medications . On the day of the murder, he went to Middleton’s trailer to give him some drugs and to look at the television that Middleton wanted to sell. He gave Middleto n three Roxicodone pills. Middleton snorted two of the pills while Jenkins was there.

5 . The trial court held a Spencer hearing on August 24, 2012. See Spencer v. State , 615 So. 2d 688 (Fla. 1993). Neither the State nor the defense presented any additional evidence

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The State called St eve Britnell to testify at the s uppression hearing. He testified consistently with his guilt ph ase testimony. Britnell recalled he and Middleton e ach taking one Xanax pill on the morning o f the murder. He further recalled that in the e arly afternoo n, the two shared $20 worth of m ethamphetamine, which Britnell described as “a little bit.” He indicated that immediately following the sale of the tele vision, he drove Middleton to a Circle K to purchase cocaine

. They each consumed “a line or two” of cocaine in the Circle K parking lot. Later, Captain John Rhoden and Lieutenant Brad Stark approached them and asked them to come to the police station to give a statement. They drove to the station voluntarily. Captai n Rhoden testified that Middleton had no trouble standing or keeping his posture, did not appear to be under the influence of drugs or alcohol, spoke clearly , and did not appear to have any problems understanding what was being said to him. Lieutenant Stark testified that n one of the men appeared to be off

balance. Nothing indicated that the defendant was under the influence of alcohol.
On cross

- examination, he stated that it would surprise him to hear that Middleton had done crystal meth, coca ine and Xanax during that day. Detective Marty Faulkner test ified regarding his interviews of Middleton. The first interview occurred o n July 28, 2009 , at 11:56 p.m., in his office, with another detective and Assistant State Attorney Ashley Albright present. He read- 19

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the Miranda card verbatim to Middleton, who signed, dated and time stamped it. Middleton agre ed to speak with detectives, but seemed nervous. He stated that Middleton appeared to be coherent and not u nder the influence of any drugs; Middleton was responsive to questions and his memory appeared to be fine. The interview lasted approximately one hour. Middleton made no admis sions during this interview. Faulkner interviewed Middleton a sec ond time, again in his office, in the early morning hours of July 29, 2009. Middleton made no admissions . The third intervie w lasted three minutes, and at that time Middleton claimed that Garrett Wade Fowler had committed the murder

. Middleton was placed under arrest at the end of the thir d interview. W hen Faulkner returne d to work, at approximately 11

a.m. , Sergeant Coleman infor med him that Middleton wanted to speak with him. Coleman t estified and corroborated that Middleton made this request and that he relay ed the request to Faulkner. This interview lasted for approximately twenty

three mi nutes before Middleton asked to go back to his cell. The officers then immediately concluded th e interview and returned Middleton to his cell. Faulkner further testified that on July 30, he felt obligated to check on Middleton, based on Middleton’s state of mind during the interview conducted the previous day. When Faulkner arrived, Middleton was in segregation and standing at the gate of his cell . Middleton asked to speak to him, and Faulkner had- 20

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Middleton escorted to his office, where the final interview took place

. During this final interview, a fter repeate dly being advised of his Miranda rights, Middleton confessed to murdering Roberta Christensen . On cross

- ex amination, Faulkner acknowledged that he inform ed Middleton that he would have to waive his right to counsel to speak with him, and it was on the fin al (approximately seventh) time that Faulkner told Middleton what he would have to say in order to waive his rights, which Middleton had in fact done

. Assistant Public Defender Stanley Glenn testified that he was initially appointed to represent Middleto n . He stated that on the morning of July 30, 2009, he filed an invocation of rights form with the clerk ’ s office and that afternoon he personally delivered it to the Sheriff’s Office front desk , instructing them that it be given to the lead detective inve stigating Christensen’s death . Glenn first met with Middleton the next day and reviewed the form with him. Middleton was very depr essed at this time. Glenn was concerned that Middleton n eeded someone to talk to and might make incriminating statements. He repeatedly informed Middleton not to make any statements with out him being present. On cross

examination, Glenn acknowledged that unbeknown to him, when he filed the invocation of rights form at 11:28 a.m. and delivered it to the Sheriff’s Office that afternoon on July 30, 2009, the defendant had already confessed at approximately 9:24 a.m. that morning.- 21

- 2. P sychological Testimony
F orensic p sychologist Dr. Gregory Landrum testified for the defense at the suppression hea ring

. He testified that he met with Middleton on two occasions in August 2009. He indicated that Middleton was competent to proceed and assist in his own defense. He determined that Middleton’s IQ was 72, which is in the borderline mental retardation ra nge. He additionally determined that Middleton reads on a fifth

- grade level. Dr. Landrum was not asked to do an evaluation regarding Miranda competency. On cross

- examination, Dr. Landrum stated emphatically that Middl eton is not mentally retarded. Dr. L andrum stated that it is possible that Middleton was faking when he was examined by Dr. Riordan, who determined that his IQ was 75, months after being examined by Dr. Barnard, who determ ined that it was 83. According to Dr. Landrum, administering the same tests within a year may result in a false positive. Dr. James Barnard also testified for the defense. He prepared two reports,

one of which was a psychological evaluation and the other an examination of Middleton’s compe tency to waive his Miranda right s. He determined that Middleton’s full scale IQ was 83. He additionally found that Middleton was not malingering. Dr. Barnard indicated that Middleton’s chronic use of drugs resulted
in an increased tolerance for the substances and the need for more of the- 22

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substances to get high . This factor and other factors indicate dependence on a substance as distinguished from abuse. He reported Middleton ’s statement that drugs make him “go, go, go” and less able to control his impulses and that Middleton told hi m that before he went to jail he had not slept for two nights. D r. Barnard opined that Middleton should have been placed in a private detox facility when he was arrested. Dr. Barnard determined that at the time of Middleton’s confession, he was likely wi thdrawing from substances and may have been under the effects of substances , at least during the time of his initial interrogation. Dr. Barnard administered an instrument entitled “ Dr. Thomas Grisso’s Understanding and Appreciating Miranda Rights .” Dr. Barnard testified that Middleton’s total score was 13 out of 30, more than two standard de viations below the mean. He testified that a lthough Middleton could paraphrase portions of Miranda , he “showed a very significant weakness in terms of his abilit y to intelligently apply knowledge of Miranda , to novel situations. ” Dr. Barnard stated that it was difficult to reconcile his findings during the testing with what he saw on the confession video. He explained that there is no correlation between having had Miranda warning s administered in the past and actually understanding them. He also stated that there are no validity scales for Grisso’s Miranda test. On cross

- ex amination, Dr. Barnard stated that Middleton made general remarks indicating that he may have been malingering during the testing with Dr.- 23

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Landrum, but he did not specifically mention whether he was referring to the IQ

test. Dr. Barnard’s testing also indicated that Middleton may have exaggerated
some of his answers t o appear more maladju sted tha n he actually was on the date of the testing. D r. Barnar d diagnosed Middleton with anti social personality disorder ; he explained that one m ajor feature of this disorder is that the person has a tendency to be untruthful. Dr. Barnard further testi fied that before the Grisso test was administered, Middleton stated he had been advised of his rights at least five times. However, after the Grisso test, Middleton claimed that he had never been read Miranda rights, despite his extensive criminal history. A fter the Grisso test, Middleton told Dr. Barnard that the confession tapes had been altered. Middleton also told the doctor that methamphetamines make him think better. Middleton made comments
to Dr. Bar nard indicating that the police in Okeechobee violated his rights , which
D r. Bar nard opined indicat e s that he knew what his rights were. On redirect, Dr. Barnard stated that the conditions that Middleton was under at the time of the interrogation, plus t he interrogation procedures themselves, made it more likely that he would acquiesce to the police. He also opined that Middleton did not fully comprehend his Miranda r ights when he waived them

. Dr. Michael Riordan testified for the defense. Dr. Riordan w as ordered to conduct a neuropsychological evaluation on Middleton. Dr. Riordan prepared a- 24

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written report, which he subsequently modified or redacted. He modified his original finding that Middleton had brain damage , and i n the subsequent report he indic at ed that Middleton suffers from a cognitive disorder. He explained that “the cognitive disorder was the more appropriate term as a neuropsychologist to report.” Dr. Riordan reviewed the reports prepared by Dr. Barnard. He agreed with Dr. Barnard’s find ing that Middleton was incompetent to waive his Miranda rights at the time of his interrogation, based on his borderline intellectual functioning, his cognitive disorder, and his drug use , which would have caused withdrawal at the time of the interrogation

. Dr. Riordan also found that Middleton had polysubstance dependence disorder. He indicated that Middleton was not malingering. Dr. Riordan did not have Middleton perform the Grisso test, but did not disagree with Dr . Barnard’s findings.
Dr. Riordan did not diagnose an antisocia l personality disorder. His report indicated that Middleton had a tendency to exaggerate his problems. Dr. Riordan had previously indicated in a February 11, 2012 , letter to the defense that Middleton was not initially incompete nt to waive his Miranda rights, b ut as the interrogation progressed , he became incompetent to proceed. Dr. Riordan wrote a letter to the defense in April 2012 indicating that Middleton’s drug withdrawal would ha ve furthered his incompetence, but Dr. Riord an did not review jail records to determine whether Middleton was suffering from withdrawal symptoms

. And- 25

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Middleton did not state that he was suffering from withdrawal symptoms during the interrogation. Instead , he told Dr. Riordan that the police harass ed him and tampered with the confession tapes. Dr. Riordan was not aware that Middleton signed a Miranda waiver. Dr. Deborah Leporow ski testified for the State. She testified that she reviewed Dr. Landrum’s report, along with the deposition reports and in

- court testimony of Dr. Riordan. She also reviewed Dr. Barnard’s raw data and his deposition and was present for his testimony. Additionally, she reviewed Middleton’s videotaped confessions, witness statements, drug treatment records,
and Department of C orrections and jail records; she also interviewed Middleton at the county jail on May 10, 2012. She did not administer the WAIS test because it had already been administered three times. She testified that the discrepancy in the

score s may be due to poor motivation or deliberately underperforming on the test with Dr. Riordan. Dr. Leporowski reviewed Dr. Riordan’s testing, his raw data , and his report and determined that Middleton pe rformed in the average or above

average range on most instruments. S he opined that “[t]he only areas where he demonstrated anything really in an impaired range were instruments that I felt could be accounted for by his lack of education.” Sh e observed that his scores varied on the memory tests, with delayed recall being i n the impaired range and- 26

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stated, “T hose are essentially the only two areas where there’s anything that’s not perfectly intact in the overall neuropsycholog ical functioning area. ” Dr. Leporowski stated that she would not diagnose the defendant with brain da mage or a cogni tive disorder. She stated there was nothing in the testing that would indicate that Middleton had trouble comprehending the Miranda warnings. Additionally, she said Middleton was candid with her about his drug use on the day of the mu rder and even told her that there was another drug that he used that day that Britnell did not report. He did not have difficulty reporting the information in

a logical order. In addition to not administering another WAIS

- IV, Dr. Leporowski d id not administe r another Grisso test . She explained that one shortcoming of the exam is that it was developed for a certain jurisdiction, in 1980 , and the language that the exam tests for has not been updated, despite the change in the administration of the warnings acr oss jurisdictions. Middleton told Dr. Leporowski that he was threatened and that the confession tapes had been altered. She concluded that Mid dleton had the capacity to know ingly and intelligently waive his Miranda rights. Dr. Leporowski disagreed with Dr. Riordan’s testimony indicating that Middleton was suffering from withdrawal

. She opined that withdraw a l typically

occur s seventy

- two hours after consuming drugs and alcohol. She explained that- 27

-

on his jail medical records, he is described as cool, coo perative, coherent, and not agitated. Dr. Leporowski spoke with the jail nurse , who indicated that they never had to use detox protocols for Middleton and that he did not need any medica l attention at all. She opined that this is indicative of his intermittent, rather than his continuous , use of the substances. Dr. Leporowski found th at Middleton was malingering during her evaluations of him.
O n cross - examination, Dr. Leporowski acknowledged tha t Middleton reported doing methamphetamine before lu nch, followed by eighty milligrams of OxyContin, then Roxicodone that afternoon at his trailer , and Xanax and coca ine later that evening. He also indicated that he walked down to Brewskis and consumed a couple of beers and three lines of cocaine. The tr ial court denied the defense’s motion to suppress Middleton’s
confession

. II. ANALYSIS A. Avoid Arrest Aggravator Middleton first argues that the trial court erred in finding the avoid arrest aggravator. We agree that the record does not support this aggravato r as Middleton’s sole or dominant motivation for the murder. This Court has consistently held that where the victim is not a law enforcement officer, “the State must show that the sole or dominant motive for the murder was the elimination of- 28

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the witness” in order to prove this aggravator. Davis v. State , 604 So. 2d 794 , 798 (Fla. 1992) ; see also Green v. State , 583 So. 2d 647 (Fla. 1991); Perry v. State , 522 So. 2d 817 ( Fla. 1988) . The trial court’s order on this issue lists eight facts that support this aggravator: (1) the defendant personally knew the victim, and went to her home without any type of disguise; (2) the defendant told Garret Wade Fowler that he was going to rob Ro berta Christensen, after seeing a large amount of money inside her home the day before; (3) t he defendant walked 130 feet to the victim’s home in broad daylight; (4) t he defendant knew that the victim was home because he could see her red car from his ow n home, and the car was parked directly in front of the entrance to her home; (5) t he defendant knew that the victim’s husband was out of town and she was home alone; (6) the victim did not pose any physical threat to the defendant; (7) t he defendant armed himself with a knife from his residence, b efore going over to the victim’s home; and (8) the victim was the defendant’s neighbor, who lived almost directly across the street. In addition , the trial court indicated that the main object of the criminal endeavor was the tip money , not the television . Finally , the trial judge said that if the victim was left alive the defendant would have been quickly arrested. Notably, only a few of these f actors have a direct bearing on or support the avoid arrest aggravator (i.e., the defendant knew the victim and did not wear a disguise and the defendant would have been promptly arrest ed had the victim lived and identified him). Many of the other factors listed by the trial court for this aggravator either support ed Middleton’s statement that he went to the victim’s
ho me to borrow money, or that he went there only intending to rob her, bef ore- 29

-

things became “ crazy. ” This C ourt has determined that the eigh th factor listed is not enough to prove this aggravator. See Foster v. State , 778 So. 2d 906 (Fla. 2000) ; Consal vo v. State , 697 So. 2d 805 (Fla. 1996)

. Additionally, the trial court’s determination that Middleton’s primary objective was to obtain the “easily concealable tip money , ” implies that pecuniary gain was a dominant motive for the killing.
In Davis , Green , and Perry , the defendants raised similar issues involving the avoid arrest aggravator. In each of these cases , this C ourt struck the avoid arrest aggravator even though the defendants were acquainted with the victims

. In Davis , the defendant stabbed an elderly female acquaintance inside her home and stole some of the victim’s belongings before exiting the residence. Davis , 604 So. 2d at 795

. In Green , the defendant and his girlfriend went to the home of their landlords, a married couple, and paid them $250, under the threat of an impending
eviction. Green , 583 So. 2d at 648. Green went home, changed his shirt, grabbed the largest b utcher knife from his kitchen and went back to his landlord’s house. When he arrived at the house, his landlord let him into the house, but was adaman t about keeping Green’s check. Green stabbed the husband and wife. Green returned the knife to his home and, later that night, hitched a ride from Hillsborough County to St. Petersbu rg and then to Ft. Lauderdale. In Perry , the defendant killed his neighbor during a robbery attempt. 522 So. 2d at 819. The- 30

-

fact that the victims could have identified the de fendants was not enough to demonstrate beyond a reasonable doubt that the sole or dominant motive for the murders was witness elimination. Although the trial judge correct ly stated that the avoid arrest aggravator can be supported by circumstantial eviden ce through inferences from the facts in the record, his reliance on cases such as Jennings v. State , 718 So. 2d 144 (Fla. 1998), and Riley v. State , 366 So. 2d 19, 22 (Fla. 1978) , is not well

- founded. In Jennings we upheld the finding of this aggravator based on the fact that the defendant knew the victim , used gloves, and stated that if he ever committed a robbery he would not leave any witnesses. And in Riley , we affirmed the finding of this aggravator based on the defendant knowing the victim coupled with the fact that the victim was “executed after one of the perpetrators expressed a concern for subsequent identification. ” Although the trial court infers that Middleton killed the victim because he would hav e been arrested quickly if he had left her alive, there are no other facts that indicate that this was his sole or dominant reason for killing her, especially in the absence of other evidence indicating that Middleton was specifically concerned about elimi nating the victim as a witness. Therefore, we strike this aggravating circumstance.
B. CCP Aggravator- 31

-

Middleton next challenges the trial court’s finding of the cold, calculated and premeditated aggravator (CCP)

. On appeal, it is this Court’s task to revie w the record to ensure that the trial court applied the correct rule of law for each aggravating circumstance, and if so, determine whether there is competent substantial evidence in the record to support the finding. Willacy v. State , 696 So. 2d 695 (Fla . 1997). We agree with Middleton that there was no t competent , substantial evidence in the reco rd to support this aggravator. In order to es tablish the CCP aggravator, it is the State’s burden to prove beyond a reasonable doubt that : (1) “the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold)”; (2) “the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated)”; (3) “the defenda nt exhibited heightened premeditation (premeditated)”; and (4) “the defendant had no pretense
of moral or legal justification.” Franklin v. State , 965 So. 2d 79, 98 (Fla. 2007). “ ‘CCP involves a much higher degree of premeditation’ than is required to prove first

- degree murder.” D eparvine v. State , 995 So. 2d 351, 381

- 82 (Fla. 2008) (quoting Foster v. State , 778 So. 2d 906, 921 (Fla. 2000 )). “Premeditation can be established by examining the circumstances of the killing and the conduct of the accused .” Franklin , 965 So. 2d at 98. Further, “the evidence must prove beyond a reasonable doubt that the defendant planned or prearranged to commit murder- 32

-

before the crime began.” Thompson v. State , 565 So. 2d 1311, 1318 (Fla. 1990). “The CCP aggravator can ‘be indicated by circumstances showing such facts as advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course.’ ” Franklin , 965 So. 2d at 98 (quoting Swafford v. State , 533 So. 2d 270, 277 (Fla. 1988)). In this case, t he evidence is inconsistent with the murder being a product of cool and calm reflection

. Although Middleton procured a knife prior to entering the victim’s residence, there is no evidence that he possessed the wea pon for the
p urpose of attacking the victim. Rather, Middle ton planned to commit a robbery

. In walking over to the victim’s residence, Middleton did not conceal his identity. The evidence suggests that while inside the victim’s residence, the victim refused Middleton’s request for money. After a struggle ensued, Middleton fatally stabbed the victim. It was during the course of this struggle when Middleton formulated his intent to kill her . Middleton’s behavior at the time of the murder can be aptly
described as murder committed in a frenzied rage or during a heated struggle following the victim’s refusal to give him money. Following this spontaneous
murder

— which was not carried out as a matter of course

— the victim’s body remained in her residence; Middleton left her home with the victim’s property, to wit, her television.- 33

-

Based on this evidence, we conclude that the State did not prove beyond a reasonable doubt that Middleton had a careful prearranged plan or design to murder the victim before he e ntered the victim’s residence. Thus, we disagree with the trial court’s finding that the murder was a planned event, not a sudden, impulsive act. Although following the murder Middleton washed his hands in his kitchen sink, changed his clothes, and plac ed his bloody clothes i n a bag with the murder weapon

— as noted by the trial court

— these actions do not prove that he planned the murder beforehand.
W e conclude that the evidence is not indicative of a heightened premeditated intent to murder

. The fact s in this case are similar to Castro v. State , 6 44 So. 2d 987, 991 (Fla. 1994), which did not involve a careful design and heigh tened premeditation necessary for CCP when “the record reflect[ed] that Castro planned to rob Scott .” In addition, we did not f ind the murder in Hansbrough v. State , 509 So. 2d 1081, 1086 (Fla. 1987) , to show the cold and calculated premeditation necessary for CCP where there “appear[ed] to be a robbery t hat got out of hand,” resulting in a “frenzied sta bbing.” Accordingly, we conclude that there is no competent, substantial evidence to support the finding of the CCP aggravator . Therefore, w e strike the finding of this aggravator. “When this Court strikes an aggravating factor on appeal, ‘the harmless error test is applied t o determine whether there is no reasonable possibility that the error- 34

-

affected the sentence.’ ” Williams v. State , 967 So. 2d 735, 765 (Fla. 2007) (quoting Jennings v. State , 782 So. 2d 853, 863 n. 9 (Fla. 2001)); see also Diaz v.
State , 860 So. 2d 960, 96 8 (Fla. 2003) (“We find this error harmless, however, after consideration of the two remaining aggravating circumstances and the five mitigating circumstances in this case.”). Despite striking the avoid arrest and CCP aggravators, two valid aggravators re main in this unanimous death

recommendation case. The two aggravators which remain are that the murder was especially heinous, atrocious, or cruel ( HAC ) and that it was committed duri ng the commission of a burglary and for pecuniary gain , which were each given “great weight ” by the trial court. The trial court did not find any statutory mitigation applicable in this case. In its sentencing order, the tri al court expressly stated that any of the considered aggravating circumstances found in this case, sta nding alone, would be sufficient to outweigh the mitigation in total presented regarding the Christensen murder. In Smith v. State , 28 So. 3d 838, 868 (Fla. 2009), this Court held that the trial court’s erroneous finding of the CCP aggravator was harmless because the sentencing order provided that “ any one of the aggravators found (except the felony probation aggravator) was sufficient to outweigh the mitigating circumstances found in this case and due to the other applicable aggravating factors.” Therefo re, it is clear that the trial court would have imposed a death- 35

-

sentence for Middleton absent the avoid arrest and CCP aggravators. Because we conclude that there is no reasonable possibility that the erroneous findings of the avoid arrest and CCP aggrava tors contributed to Middleton’s death sentence , the

errors were harmless. C. Proportionality Middleton argues that without the avoid arrest and CCP aggravator s , his death sentence is disproportionate as co m pared to cases such as Perry and Davis

. After striking the two aggravators in this case, we find that the sentence of death is still proportional to similar cases

. In order to ensure uniformity in dea th penalty proceedings, this Court undertakes a comprehensive analysis of the aggravating and mitigati ng circumstances to determine whether the case falls within the category of the most aggravated and least mitigated. See Floyd v. State , 913 So. 2d 564, 578 (Fla. 2005) (quoting Anderson v. State , 841 So. 2d 390, 407

- 08 (Fla. 2003)) . This analysis involve s a thoughtful and delib erate proportionality review consider ing the totality of circumstances of the case and then comparing it with other capital

cases with similar aggravating and mitigating circumstances

. It is not a comparison between the number of a ggravating and mitigating circumstances. Tillman v. State , 591 So. 2d 167, 169 (Fla. 1991) (quoting Porter v. State , 564 So. 2d 1060, 1064 (Fla. 1990) )

.- 36

-

In this case, the jury voted twelve to zero in favor of the death penalty. The trial court weighed four aggravators against eleven non statutory mitigators. 6 The aggravators found are: (1) the capital felony was committed while the defendant
was engage d in the commission of a burglary or an attempt to commit a burglary and the capital felony was committ ed for pecuniary gain; (2) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting escape from custody; (3) the capital felony was HAC ; and (4) the capital felony was CCP. The court gave all of these aggrava tors great weight. The eleven

non statutory mitigators found are: (a ) t he defendant has below

- average or borderline intelligence (little weight); (b ) t he defendant suffers from attention deficit hyperactivity disorder (ADHD) (little weight) ; ( c ) t he defend ant has a long history of chronic s ubstance abuse (some weight); (d ) t he defendant had no adult role models to guide hi m as a child (little weight); (e ) t he defendant’s mother was not involved in child

- rearing or supervision and was unavailable emotionally for her children (little weight); ( f ) t he defendant had a steady history of employment until his chronic substance abuse and incarcerations made it difficult to maintain such employment (little weight); ( g ) t he defendant had little, if any, form al educati on (little weight); (h ) t he defendant has two children (little weight); ( i ) t he

6

. The trial court determined that the proposed mitigator that Middleton’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired was not proven.- 37

-

defendant was subjected to chronic neglect, as well as made aware of sexual abuse that was inflicted by his stepfather upon hi s sister (little weight); (j ) t he defendant
expres sed remorse for his crime (little weight); and ( k ) t he defendant exhibited appropriate courtroom behavior (little weight). Having stricken two of the aggravators, this Court must analyze the two appropriately found aggravators of HAC and during the commission of a burglary/pecuniary gain with the nonstatutory mitigators outlined above. We begin this analysis with the trial court’s weighing of both the aggravators and mitigators. Each of the aggravators was given great weight. We ha ve in a long line of cases found the HAC aggravator to be on e of the most serious in our limited statutory aggravating circumstances. See , e.g. , Larkins v. State , 739 So. 2d 90 (Fla. 1999). Significantly, t he trial court only gave one of the non statu tory mitigators “some weight” and the other eleven were given “little weight.” Additionally, because some of the mitigators were similar, the trial court analyzed them together. Namely, the trial court combined the analysis for the defendant’s proposed

m itigator of low IQ with his diagnoses of ADHD . The trial court also combined the analysis for the defendant’s proposed mitigators of no adult role models, his mother being emotionally unavailable , the defendant being chronically neglected , and his sister being molested by his stepfather.- 38

-

The defense argues that this case is similar to Davis v. State , 604 So. 2d 794 (Fla. 1992) , and Perry v. State , 522 So. 2d 817 (Fla. 1988)

. H owever , both are distinguishable from this case. In Davis this Court, after striking two aggravators, did not impose a life sentence. Rather we remanded the matter to the trial judge for reconsideration of the sentence because we could not determine beyond a reasonable doubt that the trial judge would have impo sed a death sentence in the absence of the two aggravators that were stricken. The trial judge ultimately determined that the remaining aggravating circumstances outweighed the mitigating circumstances and reimposed a sentence of death. We affirmed. The fact that Davis ultimately received a life sentence was not based on the elimination of aggravating circumst ances but was the result of postconviction relief for
in effective assistance of counsel regarding racial comments

. This Court in Perry had to a ddress a situation involving a judge’s override of a jury recommendation of life. In order to uphold the imposition of a death sentence under those circumstances, we must find that no reasonable person could differ with the sentence of death. See Tedder v. State , 322 So. 2d 908 (Fla. 1975 ). While Perry also involved the striking of two aggravating circumstances, that factor was not the basis for the imposition of a sentence of life imprisonment. This Court made it clear that there were mitigating circumstances presented to the jury that the jury could have considered in reaching its determination of a life sentence.- 39

-

Thus, we said the Tedder standard had not been met, and the case was remanded for imposition of a life sentence without parole for twenty five years. This case is , however, more similar to G eralds v. State , 674 So. 2d 96 (Fla. 1996) , where this Court found the defendant’s death sentence to be proportionate under circumstances much like the ones presented here. In Geralds the jury unanimously voted for a death sentence, the same aggravators w ere proven beyond a reasonable doubt, and the trial court gave minimal weight to the defendant’s mitigation. Geralds w a s a carpenter who worked remodeling the victim’s trailer

. Knowing that the victim’s husband was out of town, he attacked her, beating h er, stabbing her in the neck and stealing various items from the home

. At his original sentencing, t he trial court found the same four aggravators that were found in this case. We struck the CCP and witness elimination aggravators, and remanded for a

new penalty phase. On appeal from the subsequent sentencing, we again struck the CCP aggravator, but found there was no reasonable likelihood of a life sentence under the circumstance of that case. 674 So. 2d at 104

- 05

. In both this case and Geralds , the ju ries unanimously recommended

sentence s of death . Both cases ultimately have the aggravators of heinous , atrocious, and cruel murder during the course of a felony/pecuniary gain, and the aggravators were given great weight. The mitigators in each case were nonstatutory, with exception of the age mitigator found in Geralds , and in each- 40

-

instance they were given little or very little weight. We conclude here, as we did
in Geralds , that even with out the aggravators that were stricken, the tri al court would have found the aggravating factors substantially outweigh ed the mitigating evidence. We, therefore, find that Middleton’s death sentence is proportional.

D. Order of Penalty Phase Witnesses /Continuance Middleton argues that the trial cou rt abuse d its discretion in denying his motion to continue the penalty phase to allow the family to travel to the trial and present mitigation testimony prior to the expert testimony. The defense argues that this ruling prohibited the defense from setting the predicate for the expert testimony through the lay witness testimony. The decision of whether to grant a motion for continuance is in the sound discretion of the trial court. In re Gregory , 313 So. 2d 735, 737 (Fla. 1975). This Court has made clear that it will cautiously review the trial court’s decision to deny such a motion and will not reverse the decision unless there has been a palpable abuse of this judicial discretion which clearly and affirmatively appears in the record. Magill v. State , 3 86 So. 2d 1188, 1188 (Fla. 1980) ; Cooper v. State , 336 So. 2d 1133, 1138 (Fla. 1976). To prevail on his motion for continuance, the defendant was required to show: (1) prior due diligence to obtain the witness’ s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance caused- 41

-

material prejudice. Geralds v. State , 674 So. 2d at 99 (citing United States v.
O ’ Neill , 767 F.2d 780, 784 (11th Cir. 1985) )

. On the requirement of prior due diligence, the defense admitted that it did not use the proper subpoena to ensure that the witnesses traveled from Georgia to provide testimony on the date sc heduled for their testimony. The trial court gave a full day in between the guilt and the penalty phase to allow both sides to resolve any is sues with witness availability. Despite this, the defense witnesses were not available to testify. In rejecting the defense’s motion for a continuance, the trial
court offered the def

ense an opportunity to allow it s investigator to travel to Georgia to pick up the witnesses and bring them to court or, alternatively, to live stream their testim ony from a facility in Georgia. H ad the defense done its due diligence, the trial court could have been made aware of the possibility that Middleton’s relatives could not travel, and these same arrangements could have been made a day prior, without the need for a continuance.
A s to the second, third , and fourth requirements, the denial of the motion did not prevent the jury from hearing the testimony of the relatives, and there is no indication that the defense was materially prejudiced. I t only required the jury to hear this evidence after the expert witness testimony

. Additionally, the expert witness essentially provided general details about the def endant’s childhood, which

were corroborated by the relatives’ testimony. Although the defense may have- 42

-

been inconvenienced by the denial of the motion because it preferred for the relatives to testify before the experts , the denial of the continuance did not prevent the jury from hearing the testimony. Therefore, the trial court did not abuse its discretion in denying Middleton’ s motion for a continuance.

E. Denial of Defense’s Request for a Mitigation Specialist Mid d leton argues that the trial court abused its discretion in denying the defense funds to appoint a mitigation specialist. The appointment of experts is within the tria l court’s discretion. San Martin v. State , 705 So. 2d 1337, 1347 (Fla. 1997). A trial court’s denial of funds to an indigent defendant for appointment of an expert will not be disturbed unless there has been an abuse of discretion. Id. Florida appellat e courts use a two

- part test to evaluate an alleged abuse of discretion: (1) whether the defendant made a particularized showing of need; and (2) whether the defendant was prejudiced by the court ’ s denial of the motion requesting the expert assistance. Id

. If such a request is denied, and not later renewed by the party asserting the need, it is waived. Id. On October 28, 2010, the parties attended a hearing where the trial court granted the defense’s motions to appoint co

- counsel and a fact investigato r. In appointing the investigator, the trial court stated that “in a death penalty case with issues of mitigation, it’s almost self

- evident” why the defense would need an investigator. The very next motion that the trial judge heard in that proceeding wa s- 43

-

the defendant’s motion to appoint a mitigation specialist. The State objected to the motion, stating that an expert was not needed to do the type of investigations that a mitigation specialist is expected to do

. The trial court denied the motion pursuant to Leon Shaffer Golnick Adver., Inc. v. Cedar , 423 So. 2d 1015 (Fla. 4th DCA 1982), stating that the defense was asking him to disregard an administrative order from the chief judge of the circuit, which set a maximum hour ly rate for specialists on the case, “based on nothing other than representations of counsel” that the mitigation specialist’s work would not be “duplicative of [the investigator just appointed].” The trial court refused to appoint a mitigation specialist because the defense did not demonstrate a particularized need or showing for one. Therefore, the trial court denied the

mot ion without prejudice and invited the defense to set a hearing on the motion in the future when it could demonstrate a particulariz ed need. The trial court did not abuse its discretion in denying the defense’s motion to appoint a mitigation s pecialist. The defense did not demonstrate a particularized need for the mitigation specialist, in light of its having been granted the appointment of an experienced investigator. The defense claims that only the mitigation specialist can explain how his or her responsibilities are different from those of a fact investigator . T his argument is not persuasive. Although a mitigation specia list can best explain his or her capabilities and strategy, the- 44

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attorney requesting the services should at the very least be able to provide the court with an explanation of what the mitigation specialist is expected to provide that the fact investigator m ay not. Without this explanation, the defense is requesting for the court to provide state funds for the defense to conduct what may very well be the gathering of information cumulative to that gathered by the court

- appointed fact investigator. Midd l e to n’s reliance on Ake v. Oklahoma , 470 U.S. 68 (1985) , is misplaced

. I n Ake , the Supr eme Court reversed because the s tate court did not provide the defendant expenses for a psychiatric evaluation to assess his sanity at the time of the crime. Id. Importantly, in that case, the defendant was initially declared incompetent to stand trial

. Id. T herefore, the Supreme Court determined that the defendant was entitled to a psychiatrist once he made a preliminary showing that his sanity at the time of the offense was likely to be a significant factor at trial. Id. In this case, Middleton was evaluated by four different doctors and was also appointed a fact investigator. Additionally, during the hearing on Middleton’s motion to appoint a mitigation specialist, the defense told the court that it would come back a few months before the trial to request the appoin tment of a mitigation expert, and the court invited the defense to do so . T he defense never renewed the motion. If at any point the defense could specifically demonstrate how a mitigation specialist was imperative to its case, in addition to the other previously- 45

-

provided experts , the defense could have set a hearing on the motion t hat had already been filed. Because error has not been demons trated, we deny relief on this claim

. Although we find no abuse of discreti on in this case, we note that it may be appropriate in other cases for a trial court to grant the defense’s request to appoint a mitigation specialist.

F. Individualized Sentencing R equirement Middleton raises numerous claims to support his argument that the trial court did not perform the individualized sentencing required for death penalty cases. He first claims the trial court improperly and arbitrarily rejected findings of medic al experts, and cites Nowitzke v. State , 572 So. 2d 1346 (Fla. 1990) , for support . In Nowitzke , however, this Court reiterated that it is improper for the prosecution to discredit the in s anity defense, as a legal defense, in front of the jury. Id. at 1355. No defense of insanity was made in this case, and no argument based on Nowitzke was made

. Instead the defense argues for a new penalty phase claiming the trial judge denigrated the field of psychology and rejecte d the findings of the experts

. This argument is based on the trial court’s agreement with and citation to the
dissent in United States v. Byers , 740 F.2d 1104 (D.C. Cir. 1984) , where the dissenting judge commented on the imprecision of the science of psychiatry

. Despite this agreement , the trial court evaluated the testimony of all of the experts- 46

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who testified about the defend ant’s mental status and determined that Dr. Lep o rowski was more credible. Relief on this issue is not warranted

. Middleton additionally claims that the trial cou rt used a strawman argument to denigrate the defense’s mitigation. See Consalvo v. State , 697 So. 2d 805, 814

- 15 (Fla. 1996) (explaining that a strawman argument is one where the prosecutor creates an issue not raised by the defense then proceeds to knock it down) . In this case, the trial court did not manufacture an argument for the purpose of using the testimony regarding Middleton’s psychological state. The defense argued and the trial court considered the mitigating factor of substantial impairment. The psychological data the trial court used to find that Middleton was not impaired was previously presented to assess Middleton’s mental state, and the two experts that testified during the penalty phase were repeatedly questioned about those reports and asked to compare their findings to the reports of the nontestifying doctors. T he trial court considered the entire record of proceedings where Middleton’s psychological capacity was concerned. This strawman argument has no merit

. See
Perez v. State , 919 So. 2d 347, 37 4 (Fla. 2005) (determining that the trial court was allowed to use in

- court testimony and an expert’s report, which was admitted into evidence during the Spencer hearing, to conclude that the mitigator of inability to conform conduct to the requirements of the law was not established).- 47

-

Middleton next claims that the trial cour t improperly rejected mitigating evidence of impaired capacity. The trial court provided a thorough explanation of why it was rejecting the statutory mitigator tha t defendant’s ability to conform his conduct to the requirements of the la w was substantially impaired. 7 The trial court compared the testimony of Dr. Barnard, who determined that the defendant was not “substantially impaired,” to the testimony of Dr. Lep o rowski, who stated that she saw no evidence that the defendant was s uffering from a mental disorder and noted that the defendant made rational decisions on the night of the murder. After considering the record, t he trial court determined that the statutory mitigat or did not exist

. See Walker v. State , 707 So. 2d 300, 318 (Fla. 1997) ( contradictory evidence on mitigat ing factor supports trial court’ s conclusion that factor d id not exist). Relief on t his claim is denied. Middl eton further claims the trial court used the wrong standard in evaluating hi s abusive childhood and abused its discretion in assigning weight to this mitigation , citing Mines v. State , 390 So. 2d 332 (Fla. 1980) , and Campbell v. State , 571 So. 2d 415 (Fla. 1990) , receded from on other grounds by Trease v.

7 . Middleton also argues the trial court should have evaluated the evidence as nonstatutory mitigation. It is clear from the trial court’s discussion that consideration was given to subs tantial impairment, significant impairment, and impairment, and the court found none had been demonstrated. It should also be noted that the trial court used the mental health and drug use evidence to support other nonstatutory mitigation.- 48

-

State , 768 So. 2d 1050 (Fla. 2000), as support. Both Mines and Campbell stand for the proposition that once a trial court determines that a defendant is not insane , it must still consider the statutory mental mitigating factors

. Campbell , 571 So. 2d at
418

- 19 ; Mines , 390 So. 2d at 337

. The trial court below did not reject the statutory mental mitigators af

ter finding Middleton to be sane; it rejected them after a reasoned analysis comparing the finding s of the mental health experts who evaluated him. To the extent that Middleton argues that the trial court erred in using the sa nity standard to reject the non statutory mental mitigation and assigned it improper weight, this Court addressed this issue in Consalvo . In that case , this Court found that where the trial court would have likely accorded a mitigating circumstance the same amount of weight had it used a different standard, the defendant ’ s claim should be denied. 697 So. 2d at 818

- 19. The trial court incorporated its analysis from the order on Middleton’s motion to suppress his

co nfession and additionally referred to Dr. Lep o rowski’s finding that the defendant was thinking rationally on the night of the murder. Therefore, it is not likely that a different standard of review would have changed the trial court ’s ruling on this
issue. G. Admission of Middleton’s Confession Video Middleton’s m otion to s uppress his confession contained three general allegations: (1) that the defendant’s statements were illegally obtained because the- 49

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consumption of drugs and alcohol caused him to become incompetent to proceed with the interview process, invalidating his waiver of his rights; (2) that the defendant does not have the intellectual ability to adequately comp rehend his Miranda rights in order to knowingly and intelligently waive them; and (3) that the final interview was conducted after the defendant was represented by counsel and after his court

- appointed counsel filed his Invocation of Constitutional Rights form with the clerk on July 30 , 2009 , at 11:28 a.m. The trial court in the order on the motion specifically addressed ea ch allegation, and denied the motion. Middleton now claims that the admission of this evidence into his trial was error, based on th e same claims raised in his pre trial motion. 8 We conclude that the motion to suppress was properly denied. A trial court’s decision to deny a motion to suppress comes to this Court cloaked with a presumption that its f actual findings are correct, but we apply a de novo standard of review to legal issues and mixed questions of law and fact which ultimately determine constitutional issues. Smithers v. State , 826 So. 2d 916, 924

- 25 (Fla. 2002). When considering the validity of a confession, this

8 . Defense cou nsel raised a standing objection to anything that would involve the motion to suppress the confession, including but not limited to interviews of the defendant. The jury was provided with an edited transcript that had been approved by both parties to refe r to as they watched the interviews. Juror s were notified that the transcripts were not evidence and would be collected once the video was over.- 50

-

Court considers the totality of the circumstances surrounding the defendant’s
confession. Lukehart v. State , 776 So. 2d 906, 920 (Fla. 2000 ).
In Traylor v. State , 596 So. 2d 957 (Fla. 1992), this Court stated that under the Florida Constitution, if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin or, if it has already begun, must immediately stop. If the suspect indicates in any manner that he or she wants the help of a lawyer, interrogat ion must not begin until a lawyer has been appointed and is present or, if it has already begun, must immediately stop until a lawyer is present. Once a suspect has requested the help of a lawyer, no state agent can reinitiate interrogation on any offense throughout the period of custody unless the lawyer is present, although the suspect is free to volunteer a statement to police on his or her own initiative at any time on any subject in the absence of counsel. A waiver of a suspect’ s constitutional rights must be voluntary, knowing, and intelligent, and, where reasonably practical, prudence suggests it should be in writing. . . . [A] ny statement obtained in contravention of these guidelines violates the Florida Constitution and may not be used by th e State. Id. at 966 (footnotes omitted). A defendant who has “expressed his desire to deal with the police only through counsel is not subject to further interrogation until counsel has been made available to him, unless the accused has himself initiate d further communication, exchanges, or conversations with the police.” Edwards v. Arizona , 451 U.S. 477,
4 84

- 85 (1981). It does not appear that the trial court abused its discretion in denying Midd l e ton’s motion to suppress his confession. The trial cou rt determined- 51

-

that the office where the confession occurred was a standard office, and not an interrogation room or any other particularly threatening or intimidating venue. The defendant did not appear to be under the influence of drugs or alcohol. His speech was clear and coherent. His answers are fairly responsive to the questions asked. He was capable of articulating thoughts, giving directions and describing events. More importantly, the video tape confirms and corroborates fully the t estimony of Captain John Rhoden, Lieutenant Brad Stark, Detective Marty Faulkner and Dr. Deborah Lep [o] ro wski. It is more difficult to reconcile the videotape with the testimony of Drs. James B [a] rnard and Michael Riordan. These findings are supported by the reco rd. The trial court also determined that , based on the testimony of Middleton’s friend, Britnell, and the officers who encountered Middleton on the night of the murder, he did not appear to be so influenced by drugs and alcohol as to be incoherent or not understand that he was waiving his right to remain silent. The trial c ourt also observed that of the f our psychologist s who evaluated Middle t on, Dr. Lep o rowski appeared to have been the most thorough ; s he reviewed all of the records and gave the most rea sonable explanation for the discrepancies between the doctors on the issue of Middleton’s capacity to knowingly and voluntarily waive his right. As to the defen dant’s claim regarding the invocation of rights form filed by the attorney , the trial court ob served that it is clear from the record that Middleton’s invocation of rights form had not been executed or served on law- 52

-

enforcement prior to t he defendant’s last interview. T he written invocation of rights was filed in the court file at 11:28 a.m. on J uly 30, 2009, and served on the Sheriff’s O ffice that afternoon after the defendant’s last interview , which was conducted that morning at approximately 9:24 a.m. The trial court’s finding that Middleton initiated contact with Detective
Faulkner is also s upported by the record. It is clear from the record that Middleton initiated the final interview with Detective Faulkner, understood that he had the right to remain silent, and voluntarily chose to waive it. At the beginning of the fourth interview, the defendant was reminded of his Miranda rights. He continued to blame Wade Fowler; he was arrested minutes later. When Detective Faulk n er arrived at the Sheriff’s O ffice on July 29, 2009 , at approximately 11 a.m., he was notified that Middleton was request ing to speak to him again. The recording began at 12:35 p.m. On the recording, Detective Faulkner confirmed that Middleton had in fact requested to speak to him and that Middleton had not yet been to first appearance. Detective Faulkner read Middleton h is Miranda rights and M iddleton waived his right to remain silent. After initially ask ing why a different man was not in jail , Middleton began to r amble about clearing his conscience and getting his life together . T he detectives repeatedly asked him not to wa ste their time. Middleton beg an to explain the events of the day, including drug use. He explained that he and Steve Britnell went to someone’s house and did OxyContin- 53

-

and smoked methamphetamine . He did not remember what time he went to the victim’ s trailer , only that it was less than twenty minutes after Fowler and Britnell

went to Wal mart. He stated that he knocked on the victim’s door and things just went “crazy.” He described the events as “foggy.” When Detective Faulkner followed up with a q uestion about how long Middleton was at the victim’s trailer before the altercation occurred, Middleton stated that he did not want to talk anymore and requested to go back to his cell. Detective Faulkner imm ediately states, “ The time is now 12:58 P.M., c oncluding the int erview with Dale.” Faulkner testified that he went over to the jail the next day , July 30, to check on Middleton because he was so distraught the night befo re. He stated that upon seeing him at the jail, Middleton req uested to speak to him again. Detective Faulk n er immediately had one of the corrections officers escort Middleton to his office. The Sheriff’s Office and the jail are connected, wit h the distance from Faulkner’s o ffice and the jail being approximately fifty yards. The ju ry reviewed the January 30, 2009 , recording of Middleton’s interview, along with a transcript. The video begins with Detective Faulk n er confirming that it was Middleton who initiated the interview. Middleton informs Faulkner during the interview that he had been to first appearance that morning and was told not to talk to anyone. Faulkner told him that they could not speak unless he specifically decided to speak without his attorney being present. Faulkner repeatedly asked Middleton if he was- 54

-

sure that he wanted to talk without his attorney present; Middleton responded that he did. Faulkner read Middleton his Miranda rights again. Middleton again waived his right to remain silent. Middleton insisted on speaking with Faulkner to clear his head and get past what happened. Thereafter, Middleton confessed to the murder of the victim and the the ft of her television. When D etective Maerki entered the room, he inquired whether Middleton had been to first appearance, to which Middleton replied that he had. He also inquired whether Middle ton had requested to speak to him and Faulkner, to which Middleton also replied i n the affirmative. Thro ughout the entire interview, Middleton repeatedly offered information, stating that he wanted everything to be over with because the murder that he committed was out of character; he resisted the offer to have counsel present, and he agreed to assist in th e investigation. It is clear from the record that Middleton initiated contact with Detective Faulkner, rendering his subsequent interview valid under Edwards v. Arizona

. Additionally, the requirements of Traylor have been met in this case where the detecti ves immediately stopped the interview at Middleton’s request, and only

resume d their conversation with him on his prompting. The trial court properly denied the defendant’s motion to suppress the videotaped confession.
H. Sufficiency of the Evidence- 55

-

Middlet on argues that the trial court erred in denying his motion for judgment of acquittal, claiming that the State failed to present sufficient evidence to support Middleton’s convictions for first

- degree premeditated murder and first

degree felony murder. Aft er the State rested in the guilt phase , the defense moved for a judgment of acquittal, claiming that the State had not proven that the murder was premeditated in nature, only that it was committed during a robbery. The State responded by pointing out that Middleton stabbed the victim thirty

- five times. The trial c ourt denied the motion finding the threshold for submission of the case to the jury had been surpassed because of the totality of the evidence, including DNA evidence, blood spatter evidence, the number of stab wounds, th e nature of the wounds, and Middleton’s arming of himself prior to going to the victim’s trailer

. The defense also moved for a judgment of acquittal as to the burglary count, claiming that Middleto n was invited into the trailer and stating that the S tate did not prove that Middleton intend ed to commit the theft of the television before he entered the trailer . The State responded that Middleton said the victim told him to leave and attempted to remove him from the trailer , thus withdrawing any consent to enter that was initially given

. Th e S tate also argued that it did not have to prove inten t to commit theft because it could proceed on the theory that the defendant remained in the home with the intent to commit murder , which he ultimately- 56

-

committed. The trial court denied the motion for ac quittal on these grounds . The defense then notified the court that, based on the court’s decision on the motion for judgment of acquittal on the burglary charge , the defense had no argument as to the motion for judgment of acquittal on felony murder , which was predicate d o n the burglary. We affirm the denial of the defendant’s motion for judgment of acquittal. The evidence in a capital case is judged to be sufficient when it is bo th competent and substantial. See Phillips v. State , 39 So. 3d 296, 308 (Fla.), cer t. denied , 562 U.S. 1010 (2010). This Court has an obligation to independently review the record to determine whether sufficient evide nce exists to support Middleton’ s con victions. Id. This Court must “view the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the existence of the elements of the c rime beyond a reasonable doubt. ” Rodgers v.
State , 948 So. 2d 655, 674 (Fla. 2006) ( citing Bradley v. State , 787 So. 2d 732, 738 (Fla. 2001)). Further, “[a] general guilty verdict rendered by a jury instructed on
both first

- degree murder alternatives may be upheld on appeal where the evidence is sufficient to establ ish either felony murder or premeditation.” Crain v. State , 894 So. 2d 59, 73 (Fla. 2004).- 57

-

The jury was instructed on both premeditated and felony murder, and the jury found Middleton guilty on a special verdict form listing both felony murder and preme ditated murder; the jury found him guilty of both.

“ Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill. The purpose may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act t o be committed and the probable result of the act.” Premeditation may be inferred from such facts as “the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homici de was committed, and the nature and manner of the wounds inflicted

. ” Hall v. State , 107 So. 3d 262, 281 (Fla. 2012 ) (emphasis added ) (footnotes omitted ) (quoting Bradley , 787 So. 2d at 738 ; Norton v. State , 709 So. 2d 87, 92 (Fla. 1997)), cert. denied 134 S. Ct. 203 (2013)

. Here, sufficient evidence exists to support a conviction for premeditated first

- degree murder and first

- degree felony murder

. The defendant went to his neighbor’s trailer armed with a knife. When she would not give him money and

atte mpted to get him out of her trailer , the defendant attacked her with the knife. The medical examiner testified that the forensic evidence indicate d a struggle between the victim and the defendant that began in the kitchen, and that drag marks indicate d th at the victim was alive and moving erratically as she was dragged from the kitchen area to the bedroom. The medical examiner also said there were several passes of a sharp instrument to create the margin of the wound,- 58

-

such as a sawing motion. The blood s tains indicated that her carotid artery was not cut until she got into the bedroom. The amount and pattern of blood on the victim’s waistband indicates that she may have been sitting up slightly or halfway when she received the neck injury. The victim’s shirt was pulled upwards toward her neck, which is consistent with being dragged. The victim had a bruise on her chee k that was consistent with the tread and design of Mi ddleton’s boots. The victim had bruises and a cut to her face, a puncture and stab w ounds on her chest, neck, ear, and arms. The victim had defensive wounds that indicated that she was trying to get away from someone who had a knife. The autopsy revealed that the neck injury occurred toward the end of the attack. T here was sufficient e vidence that the defendant committe d the homicide with a premeditated de sign to effect the death of Mrs. Christensen. See Hall , 107 So. 3d at 281. There is also sufficient evidence of felony murder. In Bradley v. State , 33 So. 3d 664 (Fla. 2010), this Court determined that a conviction for felony murder will stand where the State can show that, even if the defendant was invited into the home by an occupant, the consent was expressly revoked prior to the defendant’s opportunity to begin the attack on the victim. Id. at 683. In this case, Middleton explained that he and Wade Fowler had been discussing the crime for a few days because they were experiencing “hard times.” Middleton asked the victim to loan him money, but she said she did not have any m one y because she paid the bills.- 59

-

He stated the victim got scared and tri ed to push him out of her trailer . Middleton pulled out the knife he brought with him, and the attack ensued. Thereafter, Middleton took the victim’s television, which he later sol d fo r $200. Under these facts, e ven if t he victim invited Middleton into her kitchen, as he claimed, that consent was clearly revoked w hen the victim attempted to get Middleton out of her home, and when she struggled with him down the hallway before he ultima tely cut her throat in the bedroom.

I. S ection 921.141(5)( i ), F lorida Statutes ( 2009 ) Middleton claims that the CCP aggravator is unconstitutionally vague and overbroad, is inca pa

ble of a constitutionally narrow construction and has been and is being applied in an arbitrary and inconsistent manner. He also claims that the standard jury instruction administered in this case did not require that the State prove beyond a reasonable doubt an intent to kill before the crime began, and is therefore unconsti tut ional. We deny relief as t his Court has on numerous occasions upheld the constitutionality of this aggravating factor and the standard jury instruction against similar claims. See , e.g. , McWatters v. State , 36 So. 3d 613, 643 (Fla. 2010); Donaldson v. State , 722 So. 2d 177 ( Fla. 1998); Hunter v. State , 660 So. 2d 244 ( Fla. 1995).
J. Jury Instructions- 60

-

Middleton claims that the jury instruction stating that the jury must only consider mitigation after it is “reasonably convinced” of its existence is impro per. More specifically, he claims that it violates separation of powers for the judiciary to place a limitation on the consideration of mitigation that the legislature has not specifically placed in the statute. We deny relief because t hese specific chall enges have been raised and rejected by this Court in a number of cases. See Salazar v.
State , 991 So. 2d 364 (Fla. 2008); Johnson v. State , 969 So. 2d 938 (Fla. 2007); Bogle v. State , 655 So. 2d 1103 (Fla. 1995); Walls v. State , 641 So. 2d 381 (Fla. 1994)

. K. Section 921.141 (5)(d), Florida Statutes ( 2009 ) Middleton argues that the felony murder aggravator is facially unconstitutional because (1) it does not genuinely narrow the class of persons eligible for the death penalty, and (2) i t does not reasonably j ustify the imposition of a more severe sentence compared to others found guilty of murder. As support for his argument, Middleton cites the decisions of three other state supreme courts that have declared this aggravator to be improper, and urges this Cou rt to follow those courts, and do the same. We again reject Middleton’s argument on this issue.
In Mills v. State , 476 So. 2d 172 ( Fla. 1985) , this Court rejected the argument that Middleton makes here, stating that “[t]he legislative determination
that a first

- degree murder that occurs in the course of another dangerous felony is- 61

-

an aggravated capital felony is reasonable.” Id. at 178 (citing State v. Dixon , 283 So. 2d 1, 9 (Fla. 1973)) ; s ee also Blanco v. State , 706 So. 2d 7, 11 (Fla. 1997) ( “E ligibility for this aggravating circumstance is not automatic: The list of enumerated felonies in the provision defining felony murder is larger than t he list of enumerated felonies in the provision defining the aggravating circumstance of commission during the course of an enumerated felony. . .

. This scheme thus narrows the class of death

- eligible defendants. We find no error. ” (citations omitted) ( footnotes omitted) ) ; s ee also Blanco v. McNeil , No. 07

- 61249

- CIV, 201 0 WL 9098788 at *9 (S.D. Fla. Dec. 7, 2010) ( rejecting Blanco’s claim that felony murder aggravator was unconstitutional ( citing Blystone v. Pennsylvania , 494 U.S. 299 ( 1990) ))

. L. Hurst v. Florida During the pendency of this case, the United States Supreme Court found Florida’s death penalty scheme unconstitutional in Hurst v. Florida , 136 S. Ct. 616 (2016). We granted supplemental br iefing in which Middleton argued that he is entitled to a new penalty phase. On remand from the United States Supreme
Court , we determined that “ before a sentence of death may be considered by the trial court in Florida, the jury must find the existence of the aggravating factors proven beyond a reasonable doubt, that the aggravating factors are sufficient to impose death, and that the aggravating factors outweigh the mitigating- 62

-

circumstances.” Hurst v. State , 202 So. 3d 40 , 53 (Fla. 2016). We further held that a unanimous jury recommendation is necessary for the imposition of death and determined that Hurst error is capable of harmless error review. Id. at 68

. We reject Middleton’s argument that he is entitled to a life sentence under section 775.082(2), Florida Statutes (2012)

. See Hurst , 202 So. 3d at 63

- 66 . Thus, the issue before us is whether any Hurst error during Middleton’s penalty phase proceedings was harmless beyond a reasonable doubt. This Court has determined that Hurst error is evaluated by the following harmless error standard: Where th e error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence. See, e.g. , Zack v. State , 753 So. 2d 9, 20 (Fla. 2000). Although the harmless error test applies to both constitutio nal errors and errors not based on constitutional grounds, “the harmless error test is to be rigorously applied,” [ State v. ] DiGuilio , 491 So. 2d [1129,] 1137 [Fla. 1986], and the State bears an extremely heavy burden in cases involving constitutional erro r. Therefore, in the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury’s failure to unanimously find all the facts necessary for imposition of the death penal ty did not contribute to Hurst’s death sente nce in this case. We reiterate: The test is not a sufficiency

- of

- the

- evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwh elming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier

- of

- fact by simply weighing the evidence. The focus is on the effect of the error on the trier

- of

- fact. DiGuilio , 491 So. 2d at 1139. “The q uestion is whether there is a reasonable possibility that the error affected the [sentence].” Id.- 63

-

Id. at 68 ( last alteration in original). For the error to be harmless, this Court must determine that a rational jury would have unanimously found that there were sufficient aggravating factors that outweighed the mitigating circumstances. We emphasize the unanimous jury recommendation of death in this case. This unanimous recommendation allows us to determine that, beyond a reasonable doubt, a rational jury would have unanimously found that sufficient aggravating factors outweighed the mitigation. See Davis v. State , 41 Fla. L. Weekly S528, S539

- 40 (Fla. Nov. 10 , 2016). Jurors in Middleton’s case heard standard jury instructions informing them that th ey were to determine sufficient aggravators existed and that aggravation outweighed mitigation before recommending death.
See Fla. Std. Jury Instr. (Crim.) 7.11. Jurors were presented with miti gation and informed that they could consider mitigating circu mstances of which they were reasonably convinced. Although the jurors w ere not informed that they were required to find unanimously that sufficient aggravating circumstances outweighed the mitigation, the jury did recommend death unanimously in this cas e. W e conclude that the jury would have unanimously made the findings necessary to impose death. See Davis , 41 Fla. L. Weekly at S539

- 40 . The extreme aggravation in this case further bolsters our determination that any Hurst error is harmless beyond a r easonable doubt: the trial court found both HAC and during the commi ssion of a burglary- 64

-

aggravators supported by competent, substantial evidence. These are among the most serious aggravating factors. We find that the State can sustain its burden of showi ng that any Hurst error in this case was harmless beyond a reasonable doubt. Although the jury in this case was informed that it was not required to recommend death unanimously, it did so. The unanimous recommendation of death in this case is the sort of recommendation we have determined is constitutionally sufficient to impose a sentence of death. Cf. Davis , 41 Fla. L. Weekly at S539

- 40

. Based on the foregoing, Middleton is not entitled to a new penalty phase.
III. CONCLUSION For the reasons stated in this opinion, we affirm Middleton’s con viction for first

- degree murder and his death sentence

. It is so ordered. LABARGA, C.J., and PARIENTE, and LEWIS, JJ., concur. PARIENTE, J., concurs with an opinion, in which LABARGA, C.J., concurs. CANADY and POLSTON, JJ., concur in result. QUINCE, J., concu rs in part and dissents in part with an opinion. LAWSON, J., did not participate. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. PARIENTE, J., concurring. I join the Court’s opin ion, which affirms Middleton’s conviction and death

sentence

. I write separately to emphasize the importance of a mitigation specialist- 65

-

to the defense team’s investigation and presentation in a capital case and to encourage trial courts to provide defense counsel the assistance of both a mitigation specialist and a fact investigator upon a proper and timely request

. In my view, a trial court should not deny a request for a mitigation specialist either based on the misconception that these specialists are similar to fact investigators or based on undue emphasis on an additional expert “costing too much.” It is also important that prosecutors do not add to that misconception by arguing, as the prosecutor did here, that all “a mitigation expert does is synt hesiz[e] spankings and timeouts and things of that nature,” and “you don’t have to be an expert” to “go out and find people who can offer mitigation about

. . . bumps [the defendant] got on the head or spankings he got in school or whatever the case might be.” 9 As for the importance of a mitigation specialist, this Court has emphasized that “ t he obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated

— this is an integral part of a capital case. ” State v. Lewis , 838 So. 2d 1102, 1113 (Fla. 2002). The investigation into mitigation can be

9

. The prosecutor’s sarcastic comments reflect not only a misunderstanding of the effect of early childho od traumas on brain development but also highlight the tendency of some prosecutors to degrade mitigation. Cf. Oyola v. State , 158 So. 3d 504, 512

- 13 (Fla. 2015) ( rebuking p rosecutor ial arguments that characterize a defendant ’ s mitigating evidence as “excuses,” “make

- believe,” “flimsy,” or “phantom” ).- 66

-

a monumental undertaking, requiring a significant amount of time that would ideally begin as soon as possible. See American Bar Association (ABA) Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases (ABA Guidelines) , Commentary to Guideline 1.1, reprinted in 31 Hofstra L. Rev. 913, 925 (2003). The difference between a thorough assessment of mitigation and a cursory one could , quite literally , b e a matter of life and death.
W hen funding is properly requested, the defense team should receive the assistance of both a fact investigator and a mitigation specialist to ensure a complete and reliable mitigation investigation

. T here is an “apparent wi despread use of mitigation specialists or coordinators” in Florida , a s the First District Court of Appeal has explained when quashing a trial court order denying a defendant’s motion for additional mitigation
coordinator fees

. Criminal Specialist Investig ations, Inc. v. State , 58 So. 3d 883, 886 (Fla. 1st DCA 2011). 10 Cases in this Court demonstrate that the use of a mitiga tion specialist in capital cases is not unusual in Florida. See, e.g. , Turner v. State , 37 So. 3d 212, 219 (Fla. 2010) (noting that a mitigation specialist testified in a capital case); Twilegar v. State , 42 So. 3d 177, 203 (Fla. 2010) (noting th at the

10 . The issue was before the First District, rather than this Court, because a life sentence was imposed following the penalty phase, and the mitigation specialist was requesting additional compensation for her work in having successfully developed mitigation.- 67

-

defense counsel had enlisted the assistance of a mitigation specialist in a capital case); Deparvine v. State , 995 S o. 2d 351, 360 (Fla. 2008) (noting that a mitigation specialist testified in the penalty phase of a capital case ). 11 The ABA has published guidelines to “set forth a national standard of practice for the defense of capital cases in order to ensure high q uality legal representation” for defendants facing a possible death penalty. ABA Guidelines, 31 Hofstra L. Rev. at 919. At the hearing on the motion to appoint a mitigation specialist in this case, the defense counsel urged the trial court to consider th e ABA Guidelines, by explaining that these Guidelines “include[] a suggestion, if not a mandatory requirement, that a mitigation specialist

. . . should be appointed in death cases because of the nature of the crime and because of the serious nature of the potential penalty.” The prosecutor’s misguided response was, “I could care less about what they [the ABA] think about the death penalty and how it operates in the State of Florida.” Contrary to the opinion of the prosecutor in this case, the ABA Guideli nes do have relevance to capital cases, even if the se guidelines are not binding in

11 . Since at least 2011, mitigation specialists have been recognized as a part of capital cases, when the General Appropriations Act of 2011 set the maximum hourly rate for mitigation specialists at $75. See ch. 2011

- 69, § 4, at 126, Laws of Fla; see also § 27.425, Fla. Stat. (indicating that the rate specified annually in the General Appropriations Act is the maximum compensation rate in cases in which the court has appointed private counsel or declared a person indigent for costs).- 68

-

determining whether counsel rendered ineffective assistance. The United States Supreme Court has referred to the various renditions of these g uidelines as “guides
to deter mining what is reasonable” for an attorney’s performance , or as reflecting “well

- defined norms” for attorney conduct. Rompilla v. Beard , 545 U.S. 374, 387
& n.7 (2005); Wiggins v. Smith , 539 U.S. 510, 524 (2003). This Court has also relied upon these g ui delines in determining whether trial counsel has adequately investigated mitigation evidence. See, e.g. , Parker v. State , 3 So. 3d 974, 984

- 85 (Fla. 2009) (citing the ABA G uidelines in a postconviction appeal to determine that trial counsel’s performance as to investigating and presenting mitigation evidence was deficient); Blackwood v. State , 946 So. 2d 960, 974 (Fla. 2006) (citing the Supreme Court’s reliance on the ABA G uidelines in Wiggins in determining that trial counsel unreasonably failed to attemp t to present mental health mitigation evidence, and concluding that there was competent , substantial evidence to support the trial court’s finding of deficient performance). A mitigation specialist is “an indispensable member of the defense team throughout all capital proceedings [,]

. . . possess [ ing ] clinical and information

gathering skills and training that most lawyers simply do not have.” ABA Guidelines, C ommentary to Guideline 4.1 , 31 Hofstra L. Rev. at 959. Not only do mitigation specialists have honed skills in gathering and understanding the nature of potential mitigation evidence, such as the significance of early childhood- 69

-

trauma, but mitigation specialists

— unlike the defendant’s lawyer

— can testify in the penalty phase to impart the results of their mitigation investigation to the jury that must weigh the mitigation and aggravation in determining whether to recommend the death sentence. As opposed to fact investigator s , mitigation specialis t s “are generally trained in the social sciences, with college degrees in social work or psychology,” and “are adept at gathering institutional records, interviewing lay and professional people, and compiling case histories.” Hon. Helen G. Berrigan, The I ndispensable Role of the Mitigation Specialist in a Capital Case: A View From the Federal Bench , 36 Hofstra L. Rev. 819, 827

- 28 (2008). “Significantly, they are trained in uncovering family trauma and screening for often subtle mental and psychological di sorders,” and are “experienced in interpersonal communication so they know how to develop trust and rapport with even the most difficult or distrustful of individuals.” Id. at 828 (footnote omitted). Part of the mitigation specialist’s job is to “conduct a comprehensive life history investigation of the client and identify all relevant mitigation issues.” Richard G. Dudley Jr. & Pamela Blume Leonard, Getting It Right: Life History Investigation as the Foundation for a Reliable Mental Health
Assessment , 3 6 Hofstra L. Rev. 963, 966 (2008) (footnote omitted).- 70

-

A mitigation specialist has the potential to benefit a criminal defendant in a capital case in a wide variety of ways, as summarized by the commentary to Guideline 4.1 of the ABA Guidelines: They ha ve the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed. They have the clinical skills to recognize such things as congenital, mental or neurologi cal conditions, to understand how these conditions may have affected the defendant’s development and behavior, and to identify the most appropriate experts to examine the defendant or testify on his behalf. Moreover, they may be critical to assuring that the client obtains therapeutic services that render him cognitively and emotionally competent to make sound decisions concerning his case.

. . . The mitigation specialist compiles a comprehensive and well

documented psycho

- social history of the client bas ed on an exhaustive investigation; analyzes the significance of the information in terms of impact on development, including effect on personality and behavior; finds mitigating themes in the client’s life history; identifies the need for expert assistance ; assists in locating appropriate experts; provides social history information to experts to enable them to conduct competent and reliable evaluations; and works with the defense team and experts to develop a comprehensive and cohesive case in mitigation. The mitigation specialist often plays an important role as well in maintaining close contact with the client and his family while the case is pending. The rapport developed in this process can be the key to persuading a client to accept a plea to a senten ce less than death. ABA Guidelines, Commentary to Guideline 4.1, 31 Hofstra L. Rev. at 959

- 60 (footnotes omitted); see also ABA Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (2008), reprinted in 36 Hofstra
L. Rev. 677, 682 (2008) (explaining that mitigation specialists are skilled interviewers who can identify and locate relevant persons, recognize and elicit- 71

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information related to mental health, establish a rapport with witnesses, and “advise counsel on the a ppropriate mental health and other expert assistance”). The importance of appointing a mitigation specialist becomes all the more evident in a case involving an indigent defendant, where the trial court appoints private counsel, who generally does not ha ve the same institutional resources as the Public Defender’s Office. In such cases, the trial judge effectively decides “what financial assistance, investigators, or experts the defense will be allowed.” Berrigan, 36 Hofstra L. Rev. at 823. “By controll ing the purse strings, the trial judge effectively controls the quantity and quality of information that will flow to the jury if a penalty phase is necessary.” Id. As the Eleventh Circuit Court of Appeals has stated, “[p]ermitting an indigent capital de fendant to introduce mitigating evidence has little meaning if the funds necessary for compiling the evidence [are] unavailable.” Westbrook v. Zant , 704 F.2d 1487, 1496 (11th Cir. 1983), overruled on other grounds by Peek v. Kemp , 784 F.2d 1479, 1494 (11t h Cir. 1986). Accordingly, given the importance of a mitigation specialist to the defense’s presentation in a capital case, I strongly encourage trial courts to liberally grant proper requests for mitigation specialists. Nevertheless, I would not find r eversible error in this case because the defense lawyer expressly stated that he would renew his request for a mitigation specialist, but he did not do so . Further, in this direct- 72

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appeal, Middleton is unable to show how he was prejudiced. I therefore con cur in the affirmance of the conviction and death sentence. LABARGA, C.J., concurs. QUINCE, J., concurring in part and dissenting in part. I concur with the majority’s findings that the evidence here is sufficient to sustain Middleton’s convictions. I disagree with the majority’s finding that the
Hurst error was harmless beyond a reasonable doubt for the same reasons set forth in Justice Per ry’s partial concurrence in Davis v. State , 41 Fla. L. Weekly S528, S540

- 41 (Fla. Nov. 10, 2016) (Perry, J., concurring in part and dissenting in part). The jury’s unanimous recommendation of death in this case does not enable this Court to conclude beyon d a reasonable doubt that the jurors would have made all the findings necessary for the imposition of death unanimously. Just as this Court declined to speculate as to how the jurors would have voted in Hurst v. State , 202 So. 3d 40, 69 (Fla. 2016), so to o should we decline to speculate in this case. I conclude that the error here was harmful. An Appeal from the Circuit Court in and for Okeechobee County, Robert Eugene Belanger , Judge

- Case No. 472009CF000448CFAXMX Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Appellant Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Lisa

- Marie Lerner, Assistant Attorney General, West Palm Beach, Florida,- 73

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for Appellee