Supreme Court of Florida

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No. SC17-1475

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WILLIE SETH CRAIN, JR.,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[April 5, 2018]

PER CURIAM.

Willie Seth Crain, Jr., appeals the postconviction court’s denial of his 

successive motion for postconviction relief. We have jurisdiction. Art. V, § 

3(b)(1), Fla. Const. Crain’s motion sought relief based on the United States 

Supreme Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), and this 

Court’s opinions in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), cert. denied, 

137 S. Ct. 2161 (2017), and Perry v. State, 210 So. 3d 630 (Fla. 2016). For the 

reasons fully explained below, we affirm the postconviction court’s denial of relief.
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BACKGROUND

In 1999, a jury convicted Crain of first-degree murder and kidnapping with 

intent to commit or facilitate the commission of a homicide. Crain v. State, 894 

So. 2d 59, 62 (Fla. 2004), cert. denied, 546 U.S. 829 (2005). On direct appeal, this 

Court explained the facts underlying Crain’s crimes:

Willie Seth Crain, a then fifty-two-year-old Hillsborough 

County fisherman and crabber, was charged with the September 1998 

kidnapping and first-degree murder of seven-year-old Amanda 

Brown. At the time, Amanda was three feet, ten inches tall and 

weighed approximately forty-five pounds.

. . . .

[On the night of the crimes,] Crain mentioned that he had a 

large videotape collection and invited [the victim’s mother,] Hartman 

and Amanda to his trailer to watch a movie. Amanda asked if he had 

“Titanic,” which she stated was her favorite movie. Crain stated that 

he did have “Titanic” and Amanda pleaded with her mother to allow 

them to watch the movie. Hartman was initially reluctant because it 

was a school night, but she finally agreed. Crain drove Hartman and 

Amanda approximately one mile to his trailer in his white pickup 

truck.

. . . .

At [one] point in the evening, Hartman asked Crain if he had 

any medication for pain. Crain offered her Elavil and Valium. . . . 

Hartman elected to take five, five-milligram Valium tablets. Crain 

took one Valium tablet.

Eventually, Hartman decided that it was time to leave. Crain 

drove Hartman and Amanda back to their residence and accompanied 

them inside. . . . 

According to Hartman, she told Crain, who appeared to be 

intoxicated at that time, that he could lie down and sober up but she 

was going to bed. The time was approximately 2:30 a.m. Within five 

minutes of Hartman going to bed, Crain entered Hartman’s bedroom 

and lay down on the bed with Hartman and Amanda. Hartman 

testified that she neither invited Crain to lie in her bed nor asked him 
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to leave. Crain was fully clothed and Amanda was wearing a 

nightgown. Amanda was lying between Hartman and Crain. 

Penny Probst, a neighbor of Hartman, testified that at 

approximately 12 midnight on September 10-11, 1998, she saw a 

white truck parked immediately behind Hartman’s car in Hartman’s 

driveway. In the early morning hours of September 11, Probst 

observed the truck parked at the side of Hartman’s residence with 

lights on and the engine running. Probst heard the truck leave after 

about five minutes. 

Hartman slept soundly through the night. When she woke in

her bed alone the next morning, she discovered that Amanda was 

missing. Hartman testified her alarm clock read 6:12 a.m. when she 

awoke. Hartman immediately called Crain on his cell phone. At that 

time, he was at the Courtney Campbell boat ramp in Hillsborough 

County loading his boat. He told Hartman he did not know where 

Amanda was. Hartman then called the police and reported Amanda’s 

disappearance.

Id. at 62-64 (footnotes omitted). 

Following the jury’s unanimous recommendation for death, the trial court 

sentenced Crain to death, finding three aggravating factors and assigning each the 

noted weight: “(1) prior violent felonies (great weight), (2) the murder was 

committed during the course of a kidnapping (great weight), and (3) the victim was 

under the age of twelve (great weight).” Id. at 67. The trial court “found no 

statutory mitigators and eight nonstatutory” mitigating circumstances. Id. 

On direct appeal in 2004, this Court affirmed Crain’s first-degree murder 

conviction, finding sufficient evidence “to establish first-degree felony murder 

based on kidnapping with the intent to inflict bodily harm.” Id. at 73. As to 

Crain’s kidnapping conviction, this Court concluded that “competent, substantial
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evidence [did] not exist to support the jury verdict of kidnapping with intent to 

commit homicide.” Id. at 76. Therefore, this Court “reverse[d] the judgment of 

guilt of kidnapping and direct[ed] the trial court on remand to enter judgment for 

false imprisonment, and to resentence Crain accordingly.” Id. Crain’s sentence of 

death became final in 2005.

In 2011, this Court explained its holding on direct appeal with respect to 

Crain’s kidnapping conviction: 

In contrast to the jury instruction on count I, which related to 

the murder charge and instructed the jury on alternative theories of 

kidnapping, on count II, the jury was not instructed on the unpled 

alternative of kidnapping with intent to inflict body [sic] harm. Thus, 

on appeal, when examining whether the evidence was legally 

sufficient to support a separate conviction for kidnapping as charged 

in count II of the indictment, this Court concluded that competent, 

substantial evidence did not exist to support the jury verdict of 

kidnapping with the intent to commit homicide. As to count I, 

however, we held that there was sufficient evidence to support a 

felony murder conviction under the alternative theory of kidnapping 

with the intent to inflict bodily harm. 

Crain v. State, 78 So. 3d 1025, 1032 n.3 (Fla. 2011) (citations omitted).

ANALYSIS

In this case, Crain argues that, despite this Court consistently holding that 

Hurst errors are harmless in cases where the jury unanimously recommended 

death, his case is different because: (1) the kidnapping aggravating factor was 

invalidated; (2) there was no finding that the murder was heinous, atrocious, or 

cruel (HAC) or cold, calculated, and premeditated (CCP); (3) the jury was given
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inaccurate instructions regarding its sentencing responsibility;1and (4) the jury was 

not instructed on mercy. As we explain below, we reject Crain’s arguments and

conclude that the Hurst error in Crain’s case was harmless beyond a reasonable 

doubt.

On remand from the United States Supreme Court in Hurst v. Florida, this 

Court held in Hurst:

[A]ll the critical findings necessary before the trial court may consider 

imposing a sentence of death must be found unanimously by the jury. 

We reach this holding based on the mandate of Hurst v. Florida and 

on Florida’s constitutional right to jury trial, considered in conjunction 

with our precedent concerning the requirement of jury unanimity as to 

the elements of a criminal offense. In capital cases in Florida, these 

specific findings required to be made by the jury include the existence 

of each aggravating factor that has been proven beyond a reasonable 

doubt, then finding that the aggravating factors are sufficient, and the 

finding that the aggravating factors outweigh the mitigating 

circumstances. We also hold, based on Florida’s requirement for 

unanimity in jury verdicts, and under the Eighth Amendment to the 

United States Constitution, that in order for the trial court to impose a 

sentence of death, the jury’s recommended sentence of death must be 

unanimous. 

202 So. 3d at 44. Hurst applies retroactively to Crain’s sentence of death, which 

became final in 2005. See Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016). 

This Court also determined that Hurst errors are subject to harmless error 

review. 202 So. 3d at 67. In Davis v. State, 207 So. 3d 142 (Fla. 2016), this Court 

explained that “it must be clear beyond a reasonable doubt that a rational jury 

 

1. See Caldwell v. Mississippi, 472 U.S. 320 (1985).
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would have unanimously found that there were sufficient aggravating factors that 

outweighed the mitigating circumstances.” Id. at 174. In Davis, emphasizing the 

jury’s unanimous recommendation for death, this Court concluded that the Hurst

error was harmless beyond a reasonable doubt, explaining:

Even though the jury was not informed that the finding that 

sufficient aggravating circumstances outweighed the mitigating 

circumstances must be unanimous, and even though it was instructed 

that it was not required to recommend death even if the aggravators 

outweighed the mitigators, the jury did, in fact, unanimously 

recommend death. From these instructions, we can conclude that the 

jury unanimously made the requisite factual findings to impose death 

before it issued the unanimous recommendations. 

Id. at 174-75 (citation omitted). Since Davis, this Court has held in several cases 

that the jury’s unanimous recommendation for death rendered the Hurst error 

harmless beyond a reasonable doubt.2 

The kidnapping aggravating factor in Crain’s case remains valid because 

kidnapping with the intent to inflict bodily harm underlies Crain’s first-degree 

felony murder conviction. See § 921.141(5)(d), Fla. Stat. (1997) (including “any: 

. . . kidnapping”). Therefore, the jury properly considered this aggravating factor 

 

2. See, e.g., Guardado v. Jones, 226 So. 3d 213 (Fla. 2017), cert. denied, 

Nos. 17-7171, 17-7545, 2018 WL 1568519 (U.S. April 2, 2018); Middleton v. 

State, 220 So. 3d 1152 (Fla. 2017), cert. denied, 138 S. Ct. 829 (2018); Jones v. 

State, 212 So. 3d 321 (Fla.), cert. denied, 138 S. Ct. 175 (2017); Hall v. State, 212 

So. 3d 1001 (Fla. 2017); Knight v. State, 225 So. 3d 661 (Fla. 2017), cert. denied, 

No. 17-7099, 2018 WL 1369193 (U.S. Mar. 19, 2018); Kaczmar v. State, 228 So. 

3d 1 (Fla. 2017), petition for cert. filed, No. 17-8148 (U.S. Mar. 14, 2018).
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in making its sentencing recommendation. See Davis, 207 So. 3d at 175. Thus, 

the jury’s unanimous recommendation for death renders the Hurst error harmless 

beyond a reasonable doubt.

Finally, we have previously rejected Crain’s other claims that the jury’s 

unanimous recommendation for death is unreliable and the Hurst error is, 

therefore, not harmless beyond a reasonable doubt. See, e.g., Reynolds v. State, 

No. SC17-793 (Fla. Apr. 5, 2018) (denying Caldwell claim); Morris v. State, 219 

So. 3d 33 (Fla.) (no CCP or HAC aggravating factor), cert. denied, 138 S. Ct. 452 

(2017). Thus, this Court can rely on the jury’s unanimous recommendation for 

death to conclude that the Hurst error in Crain’s case was harmless beyond a 

reasonable doubt. 

CONCLUSION

Based on the jury’s unanimous recommendation for death, we conclude that 

the Hurst error in Crain’s case is harmless beyond a reasonable doubt. 

Accordingly, we affirm the postconviction court’s order denying his successive 

motion for postconviction relief.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and LAWSON, JJ., concur.

CANADY and POLSTON, JJ., concur in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, 

IF FILED, DETERMINED.
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An Appeal from the Circuit Court in and for Hillsborough County, 

Michelle Sisco, Judge - Case No. 291998CF017084000AHC

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Ann Marie 

Mirialakis and Ali A. Shakoor, Assistant Capital Collateral Regional Counsel, 

Middle Region, Temple Terrace, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott A. Browne, 

Senior Assistant Attorney General, Tampa, Florida,

for Appellee