Bargo v. State

• Citation: 331 So.3d 653
• Decision Date: 24 June 2021
• Docket Number: SC19-1744
• Parties: Michael Shane BARGO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

331 So.3d 653

Michael Shane BARGO, Appellant,

v.STATE of Florida, Appellee.

No. SC19-1744

Supreme Court of Florida.

June 24, 2021

Philip J. Massa of Philip J. Massa, P.A, West Palm Beach, Florida, for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Doris Meacham, Assistant Attorney General, Daytona Beach, Florida, for Appellee

PER CURIAM.

This case is before the Court on appeal from a sentence of death. Michael Shane Bargo appeals the sentence of death that was imposed at his resentencing for the 2011 first-degree murder of Seath Jackson. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

We previously affirmed Bargo's conviction for first-degree murder with a firearm but vacated his sentence of death and remanded for a new penalty phase based on Hurst v. State , 202 So. 3d 40 (Fla. 2016), receded from in part by State v. Poole , 297 So. 3d 487 (Fla. 2020), cert. denied , ––– U.S. ––––, 141 S. Ct. 1051, 208 L.Ed.2d 521 (2021). Bargo v. State , 221 So. 3d 562, 570 (Fla. 2017) (Bargo I ). At the new penalty phase, the judge, following the jury's unanimous recommendation, imposed a sentence of death. We affirm.

BACKGROUND

The facts relating to the crime and investigation are detailed in Bargo I . 221 So. 3d at 563-67. In short, the evidence established that on the night of April 17, 2011, at then-eighteen-year-old Bargo's request, codefendant Amber Wright lured fifteen-year-old Seath Jackson to codefendant Charlie Ely's home, so that Bargo, codefendant Kyle Hooper, and codefendant Justin Soto could ambush and kill Jackson. After Jackson was struck in the head by Hooper and shot by Bargo, Jackson unsuccessfully attempted to flee. Id. at 565. Jackson was tackled by Soto, shot again by Bargo, beaten, and then put into a bathtub. Id.

Bargo's plan was to keep the victim alive after the initial assault so that Bargo could kill him and the victim would know his killer before he died. To that end, Bargo stayed in the bathroom with the victim and hit him, cursed at him, and fired more bullets into him. Bargo ultimately killed the victim by shooting him in the face. Thereafter, Bargo and Soto carried the victim's body in a sleeping bag to Ely's fire pit and placed it into a large fire. Bargo and Wright later went to bed, and Hooper tended the fire until about 2:30 a.m.

On the morning of April 18, 2011, James Havens—Wright's and Hooper's "stepdad"—arrived at Ely's home and helped dispose of the victim's remains. Hooper had previously helped Wright and Ely clean up the blood in the home with bleach. The remains from the fire pit had been stored in three paint buckets with lids, which Bargo and Soto put in the back of Havens’ truck along with cinder blocks and cable. Havens drove Bargo and Soto—at Bargo's direction—to a remote water-filled rock quarry in Ocala, Florida, where they dumped the cinder block laden buckets.

Id. (footnotes omitted). Bargo was later arrested, tried, and "found ... guilty of first-degree murder with a firearm." Id. at 567.

During the initial penalty phase, the jury recommended death by a vote of ten to two. Id. at 568. The trial court found two aggravators were proven beyond a reasonable doubt—i.e., that the murder was especially heinous, atrocious, or cruel (HAC), and that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP)—and assigned both great weight. Id. at 568 n.6. The trial court concluded that the two aggravators "greatly outweighed ... two statutory mitigators and fifty nonstatutory mitigators." Id. at 568. And the trial court sentenced Bargo to death. Id.

On direct appeal, this Court affirmed Bargo's conviction but vacated his sentence of death and remanded for a new penalty phase based on Hurst v. State , while "declin[ing] to address Bargo's other penalty phase claims" or "the proportionality of his death sentence." Id. at 570.

At the new penalty phase, the jury unanimously found that the State established the existence of both proposed aggravators (HAC and CCP) beyond a reasonable doubt; that the aggravating circumstances were sufficient to warrant a possible death sentence; that one or more mitigating circumstances was established by the greater weight of the evidence; and that the aggravators outweighed the mitigating circumstances. And the jury unanimously recommended that Bargo be sentenced to death.

After the Spencer¹ hearing, the circuit court found that the two statutory aggravators (HAC and CCP) were proven beyond a reasonable doubt, accorded each great weight, and concluded that each "alone would justify the imposition of a death sentence." As to mitigation, the circuit court was "reasonably convinced of the existence of twenty-one (21) mitigating circumstances," assigning them weight as follows: "one (1) was assigned very little weight, ten (10) were assigned little weight, eight (8) were assigned slight weight; and two (2) were assigned moderate weight." The court further found that four proposed mitigators were not "reasonably established" and that three others were not mitigating.² Following the jury's recommendation, the court sentenced Bargo to death.

ANALYSIS

In this direct appeal of his sentence of death, Bargo raises five issues: (1) the 2016 amendment to section 782.04(1)(b), Florida Statutes, retroactively precluded the State from seeking the death penalty at resentencing; (2) the circuit court erred in the application of the HAC aggravator; (3) the circuit court abused its discretion in giving "little or no weight" to the mental mitigation presented by Bargo; (4) the circuit court abused its discretion by failing to adequately consider Bargo's age and ten other mitigating circumstances; and (5) Bargo's death sentence is disproportionate. We address each issue in turn.

I. Section 782.04(1)(b)

In his first issue, Bargo argues that the State was foreclosed from seeking the death penalty. He asserts that the Notice of Intent to Seek the Death Penalty (the Notice) filed by the State in 2011 was neither "timely filed" nor later "properly amended" to list the proposed aggravators for the new penalty phase. He relies on the purported retroactivity of section 782.04(1)(b), which was amended in 2016 to add certain notice requirements the State must follow when seeking the death penalty. See ch. 2016-13, § 2, Laws of Fla.

As amended in 2016, section 782.04(1)(b) provides in part that "[i]f the prosecutor intends to seek the death penalty, the prosecutor must give notice to the defendant and file the notice with the court within 45 days after arraignment," and that "[t]he notice must contain a list of the aggravating factors the state intends to prove." § 782.04(1)(b), Fla. Stat. (2016). The amendment took effect on March 7, 2016. See ch. 2016-13, § 7, Laws of Fla. Later in 2016, this Court adopted "new rule 3.181 (Notice to Seek Death Penalty)" to implement the statutory amendment. In re Amendments to Fla. Rules of Crim. Proc. , 200 So. 3d 758, 758 (Fla. 2016). Prior to the statutory amendment and rule adoption, no statute or rule required the State either to file a notice within 45 days of arraignment to be able to seek the death penalty, or to file a notice listing the proposed aggravators.³

Bargo asserts that the 2011 Notice should be "quashed" because it was purportedly not filed within 45 days of his waiver of arraignment, and because it never included a list of aggravators and was never amended to place him on notice "of the aggravators for the second penalty phase." He concedes that the State gave him notice of the proposed aggravators prior to the initial penalty phase, in which the State pursued the same two aggravators (HAC and CCP) later pursued at the new penalty phase.

In concluding that the State was not precluded from seeking the death penalty, the circuit court here explained that the "new statute and the rule," which "did not exist in 2011 or [2013]," were both "keyed by an arraignment" and that "nobody gets re-arraigned when their case is sent back for a new resentencing." Nevertheless, the court ruled that the State would be limited to the same two aggravators sought at the initial penalty phase, given that Bargo had long been on notice of those two aggravators.

We agree with the circuit court that the State was not precluded from seeking the death penalty.⁴ At bottom, nothing in the 2016 legislation evinces any intent to apply to cases in which a defendant was arraigned—or waived arraignment—years before the amendment took effect. See Jackson v. State , 256 So. 3d 975, 976 (Fla. 1st DCA 2018) (concluding that the 2016 amendment to section 782.04(1) did "not apply retroactively to an arraignment that occurred in 2007").

Bargo claims that the 2016 amendment, enacted in the wake of the Supreme Court's decision in Hurst v. Florida , 577 U.S. 92, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), "establishe[d] a Sixth Amendment right ... and as such applies retroactively." We disagree. Nothing in Hurst v. Florida mentions any right to receive written notice of proposed aggravators, let alone within 45 days of arraignment. Indeed, this Court later in 2016 recognized as much. See Perry v. State , 210 So. 3d 630, 636 (Fla. 2016) (concluding that the 2016 amendment to section 782.04(1) was "not required by ... Hurst v. Florida "), receded from on other grounds by Rogers v. State , 285 So. 3d 872 (Fla. 2019). We reject Bargo's claim.

II. HAC – Evidence of Post-death Acts

Bargo next argues that the circuit court improperly "allow[ed] testimony and evidence to the facts of what happened to the victim's body after the murder," and that this evidence "confused the jury as to the proper application of the [HAC aggravator]."⁵ He relies on Jones v. State , 569 So. 2d 1234 (Fla. 1990), in which evidence of post-death acts was presented and in which this Court concluded that the trial court erred in giving the HAC instruction. But based on our review of the record, we conclude that Bargo did not...