Supreme Court of Florida _____________

No. SC11-1076

_____________

TERRY SMITH,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[January 16, 2014]

PER CURIAM.

This case is before the Court on appeal from Terry Smith’s first-degree 

murder convictions and sentences of death for the killings of Berthum Gibson and 

Keenethia Keenan, and his first-degree murder conviction and life sentence for the 

killing of Desmond Robinson. We have jurisdiction. See art. V, § 3(b)(1), Fla. 

Const. For the reasons that follow, we affirm the convictions and sentences.

I. BACKGROUND

While looking for narcotics on June 5, 2007, Terry Smith, then age nineteen, 

called an acquaintance, Breon Williams. Williams, a street level drug dealer, 

informed Smith that he was going to purchase some drugs and invited Smith to 
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join him. Smith took Williams up on his offer. In the late evening of June 5, 

Williams picked Smith up from the home of Smith’s mother. From there they rode 

on Williams’ motorized scooter to a house in Jacksonville, Florida, where 

Desmond Robinson and Berthum Gibson sold drugs.

Williams had previously purchased drugs from Desmond Robinson at that

location. On previous occasions, Williams had entered through the back door of 

the home, which was locked and contained a sheet of Plexiglas on its interior. 

When Williams and Smith arrived at the house, they pulled into the driveway, 

parked Williams’ scooter, and walked up to the back door. Williams knocked on 

the door, and Robinson let them in.

After Williams and Smith entered the kitchen, Robinson locked the door and 

left the key in it. When they entered, Gibson and Keenethia Keenan were sitting at 

a table in the kitchen and dining room area of the home. Williams walked to the 

kitchen counter, which was located near the door, and began to count his money to 

determine how much cocaine he could purchase. While Williams was counting his 

money, he heard Smith say “[g]ive it up,” followed by gunshots. Williams turned 

to run out of the residence, which required turning the key that was already in the 

door to unlock it. Before exiting, Williams saw Smith shoot Robinson multiple 

times. Williams was in such a hurry to leave the house that he left approximately 

$400 on the kitchen counter and his scooter in the driveway.
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The State then presented circumstantial evidence that instead of escaping out 

the back door after killing Robinson, Smith stepped over Robinson’s body and 

proceeded into the hallway, where he shot in the direction of Gibson and Keenan. 

Gibson and Keenan each died from a single gunshot wound that was attributed to 

Smith’s ten millimeter handgun. Keenan’s body was found unarmed in the back of 

the southeast bedroom, where she died within seconds of the gunshot piercing her 

heart. When police arrived, they found Gibson, who was still alive despite a 

gunshot wound to his abdomen. He was leaning against the bed in the same 

bedroom with a rifle in his hands. Paramedics transported Gibson to the hospital, 

where he died due to internal injuries from the gunshot wound. Police found shell 

casings from the gun used by Smith in the kitchen and dining room area as well as 

in the living room area of the home. They also found shell casings from the rifle 

used by Gibson in the southeast bedroom and the hallway leading up to the 

bedroom.

After shooting Gibson and Keenan, Smith ran out the back door of the 

house, touching the Plexiglas portion of the door on his way out. When police 

arrived, they found Williams’ money on the kitchen counter and drugs on the 

dining room table. After exiting the crime scene, Smith called Ullysses Johnson to 

pick him up from the area. At the time, Johnson was at home playing video games 

with his brother Raylan Johnson and Jonathan Peterson. The three then picked 
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Smith up near the crime scene. In the car, Smith told them that he had shot three 

people.

After arriving at the Johnsons’ home, Ullysses Johnson and Peterson went 

inside, while Smith and Raylan Johnson remained outside. Smith gave his gun to 

Raylan Johnson, who buried it in the yard and then sold it a few days later to 

Walter Dumas. They also burned Smith’s clothes in a bin that was in the yard.

The jury found Smith guilty of first-degree murder for the deaths of 

Robinson, Gibson, and Keenan. The jury found Smith guilty of first-degree 

murder under both the felony murder and premeditated theories in the deaths of 

Gibson and Keenan, and guilty under only the felony murder theory in the death of 

Robinson. The jury also found Smith guilty of attempted armed robbery.

The jury recommended a life sentence in the first-degree murder of 

Robinson. The jury recommended sentences of death by a vote of eight to four for 

the first-degree murder of Gibson and by a vote of ten to two for the first-degree 

murder of Keenan.

The trial court held a hearing pursuant to Spencer v. State, 615 So. 2d 688 

(Fla. 1993), prior to sentencing Smith to death for the first-degree murders of 

Gibson and Keenan and to life imprisonment for the first-degree murder of 

Robinson. The court gave great weight to the aggravating circumstances that 

Smith was previously convicted of another capital felony, § 921.141(5)(b), Fla. 
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Stat. (2011), and that the capital felony was committed while Smith was engaged 

in an attempt to commit robbery, § 921.141(5)(d), Fla. Stat. (2011), merged with 

the aggravator that Smith committed the capital felony for pecuniary gain, § 

921.141(5)(f), Fla. Stat. (2011). The court found the statutory mitigating 

circumstance of Smith’s age at the time of the crime, nineteen, established and 

gave it moderate weight. Regarding the nonstatutory mitigating factors sought by 

Smith, the court concluded that the following factors were established: (1) Smith’s 

mental status was mitigating (moderate weight); (2) Smith loves his children and 

their mothers and they love him (some weight); (3) Smith was a good brother to his 

siblings (little weight); (4) Smith took care of his sister’s seven children while she 

was at work (moderate weight); (5) Smith is dependable (some weight); (6) Smith 

was a good employee and therefore he would do well in prison (slight weight); (7) 

Smith was well behaved during court proceedings (no weight because it is not 

mitigating); (8) Smith could be rehabilitated in prison and make positive 

contributions to society (little weight); (9) Breon Williams was never charged with 

a crime arising out of the murders on June 5, 2007 (no weight because it is not 

mitigating); (10) Smith grew up in a “terrible” neighborhood (some weight).

II. ANALYSIS

On appeal of his convictions and sentences Smith raises four issues: (A) the 

evidence is insufficient to support his convictions for premeditated murder for the 
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killings of Gibson and Keenan; (B) the trial court erred in giving additional weight 

to the felony murder aggravating circumstance on the basis that the murders were 

premeditated; (C) Smith’s sentence is disproportionate; and (D) the trial court erred 

in sentencing Smith to death because Florida’s capital sentencing proceedings are 

unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002).

A. Sufficiency of the Evidence

In his first claim on appeal, Smith claims that the trial court erred in denying 

his motions for judgments of acquittal because the evidence is insufficient to 

support his convictions for first-degree premeditated murder in the deaths of 

Gibson and Keenan. Specifically, Smith asserts that the evidence does not refute 

his claim that he acted in self-defense. As we explain below, Smith did not 

preserve this claim for review. In any event, under this Court’s independent 

review of the evidence, Smith’s argument lacks merit. Sufficient evidence 

supports Smith’s three first-degree murder convictions.

“Florida Rule of Criminal Procedure 3.380(b) states that a motion for 

judgment of acquittal ‘must fully set forth the grounds on which it is based.’ ” 

Victorino v. State, 23 So. 3d 87, 103 (Fla. 2009). This Court has further held that 

when a defendant does not raise in the trial court the same grounds for granting the 

motion argued on appeal, the claim is not preserved for appeal. See id.; Archer v. 

State, 613 So. 2d 446, 448 (Fla. 1993). After the State rested its case, Smith 
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moved for a judgment of acquittal “as to each count in the Indictment, in that the 

State has not established a prima facie case of evidence. No further argument.” 

The trial court denied Smith’s motion. After the close of evidence, Smith’s 

counsel renewed the “motion for judgment of acquittal and all of [his] previously 

made motions.” The trial court denied the renewed motion for judgment of 

acquittal. Smith did not argue to the trial court, as he argues on appeal, that he 

killed Gibson and Keenan in self-defense. Therefore, Smith failed to preserve his 

self-defense claim for appeal.

Even though Smith failed to preserve his claim that the trial court erred in 

denying his motions for judgment of acquittal, “this Court independently reviews 

the record to confirm that the jury’s verdict is supported by competent, substantial 

evidence.” Davis v. State, 2 So. 3d 952, 966-67 (Fla. 2008) (citing Fla. R. App. P. 

9.142(a)(6)). The jury found Smith guilty of the first-degree murder of victims 

Gibson and Keenan under two theories: felony murder and premeditated murder. 

Additionally, the jury found Smith guilty of the first-degree murder of victim 

Robinson under the felony murder theory. The evidence is sufficient to support all 

three convictions.

Two standards of review apply to the determination of whether the evidence 

of guilt is sufficient. Where the evidence of guilt is direct, either in whole or in 

part, this Court reviews whether “a rational trier of fact, upon reviewing the 
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evidence in the light most favorable to the State, could find that the elements of the 

crime have been established beyond a reasonable doubt.” Twilegar v. State, 42 So. 

3d 177, 188 (Fla. 2010). However, where the evidence of guilt is wholly 

circumstantial, “not only must the evidence be sufficient to establish each element 

of the offense, but the evidence also must be inconsistent with any reasonable 

hypothesis of innocence proposed by the defendant.” Id. “The issue of 

inconsistency is a jury question and the verdict will be sustained if supported by 

competent, substantial evidence.” Id.

In order for the State to obtain convictions for first-degree murder under the 

felony murder theory in this case, it must prove beyond a reasonable doubt that the 

unlawful killings of Gibson, Keenan, and Robinson were committed while Smith 

was engaged “in the attempt to perpetrate” robbery. § 782.04(1)(a)2.d., Fla. Stat. 

(2012). “In order to prove attempted armed robbery, the State must show: (1) the 

formation of an intent to commit the crime of robbery; (2) the commission of some 

physical act in furtherance of the robbery; and (3) the use of a firearm.” Franqui v. 

State, 699 So. 2d 1312, 1317 (Fla. 1997). Section 812.13(1), Florida Statutes, 

defines robbery as “the taking of money or other property which may be the 

subject of larceny from the person or custody of another, with intent to either 

permanently or temporarily deprive the person or the owner of the money or other 
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property, when in the course of the taking there is the use of force, violence, 

assault, or putting in fear.”

The direct evidence standard of review applies to the convictions for the 

murders of Robinson, Gibson, and Keenan under the felony murder theory. See

Twilegar, 42 So. 3d at 189-90. Here, the State presented the testimony of Breon 

Williams, an eyewitness to those crimes. Williams testified that: (1) he went with 

Smith to buy narcotics; (2) when they arrived at the house, Robinson opened the 

door, and Gibson and Keenan were sitting at the dining room table; (3) Smith went 

to the dining room with Robinson; (4) he heard Smith say “[g]ive it up;” (5) 

seconds later he heard gunshots; and (6) as he ran out of the house, he saw Smith 

shoot Robinson. Further, forensic evidence—Smith’s palm print on the Plexiglas 

interior of the back door—established that Smith had been at the crime scene, 

which contradicts his initial assertion that he had never been inside the house.

A rational trier of fact, when viewing the above evidence in the light most 

favorable to the State, could conclude that the State proved each element of firstdegree felony murder beyond a reasonable doubt in the deaths of Gibson, Keenan, 

and Robinson. First, a rational trier of fact could conclude that Smith attempted to 

commit armed robbery when he told Robinson to “[g]ive it up” while holding a 

firearm. Next, a rational trier of fact could also conclude that Gibson, Keenan, and 

Robinson were unlawfully killed while Smith was attempting to perpetrate the 
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armed robbery based on: (1) Williams’ testimony that he saw Smith shoot 

Robinson; (2) Williams’ testimony that he saw Gibson and Keenan in the same 

room a few seconds before the attempted armed robbery; (3) the testimony of law 

enforcement officers that they found Gibson and Keenan with gunshot wounds at 

the crime scene shortly afterwards; and (4) the evidence that the gunshot wounds 

sustained by all three victims were inflicted by the same gun.

In reviewing the sufficiency of the evidence of premeditation in the murders 

of Gibson and Keenan, the circumstantial evidence standard applies. See id. at 

188. The evidence to prove premeditation in the murders of Gibson and Keenan is 

wholly circumstantial because there were no witnesses to these two murders and 

Smith’s admission—made in the car as he fled the crime scene—that he shot three 

people did not establish premeditation. At trial, Smith argued that he was innocent 

of all crimes charged and the witnesses against him were not credible. On appeal, 

Smith for the first time claims that the murders of Gibson and Keenan were 

“reflexive” in response to being shot at by Gibson and Keenan and that the State 

did not present any evidence to contradict this theory of self-defense. The relevant 

inquiry regarding whether the circumstantial evidence of guilt is inconsistent with 

the defense’s theory of innocence is based on the evidence presented and the 

theory argued to the jury at trial. See id.; State v. Law, 559 So. 2d 187, 188 (Fla. 

1989). Further, even if this Court were to consider Smith’s new self-defense 
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argument on appeal, the evidence conclusively refutes Smith’s claim that Keenan 

was shooting at him.

This Court has defined premeditation as requiring

more than a mere intent to kill; it is a fully formed conscious purpose 

to kill. This purpose to kill 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 to be committed and the probable result of that 

act.

Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002) (quoting Wilson v. State, 493 So. 

2d 1019, 1021 (Fla. 1986)). This Court has further explained that “[e]vidence from 

which premeditation may be inferred includes such matters as the nature of the 

weapon used, the presence or absence of adequate provocation, previous 

difficulties between the parties, the manner in which the homicide was committed, 

and the nature and manner of the wounds inflicted.” Twilegar, 42 So. 3d at 190 

(quoting Larry v. State, 104 So. 2d 352, 354 (Fla. 1958)).

The evidence of Smith’s guilt under the premeditation theory includes the 

following: (1) Smith brought a gun with him to the crime scene; (2) Gibson and 

Keenan retreated to the bedroom area of the house during the brief period of time 

between Smith’s entering the home and his murdering Robinson; (3) Smith could 

have left the house through the same door that opens into the kitchen that he used 

to enter the house and that Williams used to run out of the house; (4) Smith had to 

move from the kitchen and dining room area into the living room area to shoot 
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Gibson and Keenan; (5) shell casings from Smith’s gun were found in the living 

room; (6) the shell casings from Smith’s gun that correlated to the wounds 

sustained by Robinson were found in the kitchen and dining room area; (7) Keenan 

could not have been shooting at Smith because she was unarmed when police 

discovered her body and she died within seconds as a result of a gunshot wound 

piercing her heart; and (8) all of the shell casings from the rifle fired by Gibson 

were found in the bedroom and hallway area. This evidence establishes that rather 

than leaving the home after shooting Robinson, Smith made a deliberate choice to 

locate and shoot Gibson and Keenan, who had retreated to the bedroom area. 

Therefore, the evidence cannot be reconciled with Smith’s hypothesis of 

innocence. Accordingly, the evidence of Smith’s guilt is sufficient to support his 

convictions under both the felony murder and premeditation theories.

B. Weight Assigned to Murder During the Course

of a Felony Aggravating Factor

Smith claims that the trial court erred in giving great weight to the murder 

committed during the course of an attempted armed robbery aggravating factor in 

the deaths of Gibson and Keenan. The trial court did not err. This Court has stated 

that “the weight to be accorded to an aggravator is within the discretion of the trial 

court and will be affirmed if based on competent substantial evidence.” Sexton v. 

State, 775 So. 2d 923, 934 (Fla. 2000). “A court abuses its discretion only when 

the judicial action is arbitrary, fanciful, or unreasonable, which is another way of 
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saying that discretion is abused only where no reasonable [person] would take the 

view adopted by the trial court.” Frances v. State, 970 So. 2d 806, 817 (Fla. 2007) 

(quoting Trease v. State, 768 So. 2d 1050, 1053 n.2 (Fla. 2000)) (alteration in 

original; internal quotation marks omitted). A trial court does not abuse its 

discretion when it considers the specific facts and circumstances of a defendant’s 

felony in determining the weight that it should assign to aggravating factors based 

on that felony. See Carter v. State, 980 So. 2d 473, 483 (Fla. 2008) (concluding 

that trial court did not abuse its discretion by considering facts of burglary in 

assigning great weight to felony committed in the course of burglary aggravator); 

Owen v. State, 862 So. 2d 687, 702-03 (Fla. 2003) (concluding that trial court did 

not abuse its discretion in assigning great weight to aggravating factor that murder 

was committed in the course of burglary where defendant broke into home to 

murder babysitter).

Based on the foregoing, the trial court did not err in considering the 

circumstances of Smith’s crimes when determining the appropriateness of Smith’s 

two death sentences. Smith was convicted of three contemporaneous murders that 

occurred after he attempted to rob the occupants of the house he went to with 

Williams.

Smith, however, asserts that by taking into account the fact that the murders 

of Gibson and Keenan were premeditated, the trial court impermissibly relied on a 
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nonstatutory aggravator. Smith argues that this Court disapproved of the 

consideration of premeditation as an aggravating factor in Brown v. State, 381 So. 

2d 690, 696 (Fla. 1980). Brown is distinguishable because the trial court in Brown

considered premeditation as a separate aggravating circumstance for the murder. 

Here, the trial court concluded that the weight that it should apply to the committed 

during the course of an enumerated felony aggravating factor was increased by the 

premeditated nature of two of the murders that occurred during the attempted 

armed robbery.

Smith further asserts that the trial court’s erroneous consideration of 

premeditation regarding the murders of Gibson and Keenan was exacerbated by the 

State’s failure to present sufficient evidence of premeditation. For the reasons 

discussed above regarding the sufficiency of the evidence, the evidence of Smith’s 

premeditation in the murders of Gibson and Keenan was sufficient. Accordingly, 

the trial court did not abuse its discretion nor did it apply a nonstatutory 

aggravating factor by giving great weight to the felony murder aggravating 

circumstance.

C. Proportionality

To ensure uniformity of sentencing in death penalty proceedings, this Court 

considers the totality of circumstances and compares each case with other capital 

cases. The Court does not simply compare the number of aggravating and 
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mitigating circumstances. Taylor v. State, 937 So.2d 590, 600 (Fla. 2006). 

“Further, in a proportionality analysis, this Court will accept the weight assigned 

by the trial court to the aggravating and mitigating factors.” Hayward v. State, 24 

So. 3d 17, 46 (Fla. 2009). “In performing a proportionality review, a reviewing 

court must never lose sight of the fact that the death penalty has long been reserved 

for only the most aggravated and least mitigated of first-degree murders.” Urbin v. 

State, 714 So. 2d 411, 416 (Fla. 1998).

Smith’s death sentences are proportional under Florida law. The trial court 

found two aggravating circumstances for each of Smith’s death sentences: (1) prior 

capital felony based on the other two contemporaneous murders; and (2) murder in 

the course of attempted armed robbery merged with pecuniary gain. The trial court 

found Smith’s age at the time of the crime, nineteen, as the only statutory 

mitigation and gave it moderate weight. Additionally, the trial court found the 

following nonstatutory mitigating factors were established: (1) Smith’s mental 

status (moderate weight); (2) Smith loves his children and their mothers and they 

love him (some weight); (3) Smith was a good brother to his siblings (little 

weight); (4) Smith took care of his sister’s seven children while she was at work 

(moderate weight); (5) Smith is dependable (some weight); (6) Smith was a good 

employee and therefore he would do well in prison (slight weight); (7) Smith was 

well behaved during court proceedings (no weight because it is not mitigating); (8) 
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Smith could be rehabilitated in prison and make positive contributions to society 

(little weight); (9) Breon Williams was never charged with a crime arising out of 

the murders on June 5, 2007 (no weight because it is not mitigating); (10) Smith 

grew up in a “terrible” neighborhood (some weight). Smith has not demonstrated 

that the trial court erred in weighing these factors.

Smith’s death sentences are comparable to the death sentences upheld as 

proportional in Hayward, 24 So. 3d at 46-47 (concluding death sentence 

proportional where aggravators were prior violent felony resulting from previous 

second-degree murder, given great weight, and murder committed in the course of 

a robbery merged with pecuniary gain, given great weight, no statutory mitigation, 

and eight nonstatutory mitigators, given very little to some weight), and Bevel v. 

State, 983 So. 2d 505, 523-25 (Fla. 2008) (concluding death sentence proportional 

where single aggravating factor of prior violent felony for contemporaneous 

murder and attempted murder convictions, given very great weight, no statutory 

mitigation, and six nonstatutory mitigators, given between very little and minimal 

weight). Given this record, we conclude that Smith’s death sentences are 

proportional.

D. Ring Claim

Smith is not entitled to relief on his claim that his death sentences are 

unconstitutional under Ring. This Court has repeatedly held that Ring is satisfied 
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when the defendant has previously been convicted of a violent felony based on a 

contemporaneous murder. See, e.g., Chandler v. State, 75 So. 3d 267, 269 (Fla. 

2011); Frances, 970 So. 2d at 822-23. Further, this Court has repeatedly held that 

Ring is satisfied when the defendant commits the murder in the course of an 

enumerated felony. See, e.g., Gudinas v. State, 879 So. 2d 616, 617 (Fla. 2004); 

Owen v. Crosby, 854 So. 2d 182, 193 (Fla. 2003). Smith was convicted of three 

contemporaneous first-degree murders and attempted armed robbery by a 

unanimous jury. Accordingly, Smith’s death sentences are not unconstitutional 

under Ring.

III. CONCLUSION

For the reasons stated above, we conclude that Smith is not entitled to relief 

from his convictions and sentences for the first-degree murders of Berthum 

Gibson, Keenethia Keenan, and Desmond Robinson. Accordingly, we affirm 

Smith’s convictions and sentences.

It is so ordered.

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

and PERRY, JJ., concur. 

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

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

Adrian Gentry Soud - Case No. 16-2009-CF-004417
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Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public 

Defender, Tallahassee, Florida, 

for Appellant

Pamela Jo Bondi, Attorney General, and Carolyn Snurkowski, Associate Deputy 

General, Tallahassee, Florida, 

for Appellee