Lowe v. State

Decision Date19 October 2018
Docket NumberNo. SC12-263,SC12-263
Citation259 So.3d 23
Parties Rodney Tyrone LOWE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Antony P. Ryan, Regional Counsel, Steven H. Malone, Special Assistant Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee


This case is before the Court on direct appeal from a resentencing of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Rodney Tyrone Lowe appeals his sentence of death for the 1990 first-degree murder of Donna Burnell. The trial judge sentenced Lowe to death after the new penalty phase jury recommended the death penalty by a vote of twelve to zero. We first set forth the factual and procedural background of this case and then address Lowe's claims, including his Hurst v. Florida (Hurst v. Florida ), ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), claim and his claim that his death sentence is disproportionate. For the reasons explained below, we affirm Lowe's sentence of death.


Lowe was convicted by a jury and sentenced to death for the July 1990 first-degree murder of Donna Burnell. The jury also convicted Lowe of attempted robbery. We set forth the following facts in Lowe's first direct appeal:

On the morning of July 3, 1990, Donna Burnell was working as a clerk at the Nu-Pack convenience store in Indian River County when a would-be robber shot her three times with a .32 caliber handgun. Ms. Burnell suffered gunshot wounds to the face, head, and chest and died on the way to the hospital. The killer fled the scene without taking any money from the cash drawer.
During the week following the shooting, investigators received information linking the defendant, Rodney Lowe, to the crime. Lowe was questioned by investigators at the police station and, after speaking to his girlfriend, gave a statement that implicated him in the murder. Following this statement, Lowe was arrested and indicted for first-degree murder and attempted robbery.
At trial, the State presented witnesses who testified that, among other things, Lowe's fingerprint had been found at the scene of the crime, his car was seen leaving the parking lot of the Nu-Pack immediately after the shooting, his gun had been used in the shooting, his time card showed that he was clocked-out from his place of employment at the time of the murder, and Lowe had confessed to a close friend on the day of the shooting. The State also presented, over defense objection, the statement Lowe gave to the police on the day of his arrest. Lowe advanced no witnesses or other evidence in his defense. After closing arguments, the jury returned a verdict finding Lowe guilty of first-degree murder and attempted armed robbery with a firearm as charged.

Lowe v. State , 650 So.2d 969, 971 (Fla. 1994).

At the conclusion of the original penalty phase, the jury, by a vote of nine to three, recommended death. Id. at 972. The trial court followed the jury's recommendation and sentenced Lowe to death, finding two aggravators: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; and (2) the capital felony was committed while the defendant was engaged in or was an accomplice in an attempt to commit robbery. Id. The trial court also found that the mitigators did not outweigh the aggravators. Id. In addition to the sentence of death, the trial court sentenced Lowe to fifteen years' imprisonment for the attempted robbery conviction. Id.

On direct appeal, Lowe raised ten guilt phase issues and seven penalty phase issues. Id.1 We rejected Lowe's arguments on all claims and affirmed his convictions and sentence of death. 650 So.2d at 971. On October 2, 1995, the United States Supreme Court denied certiorari. Lowe v. Florida , 516 U.S. 887, 116 S.Ct. 230, 133 L.Ed.2d 159 (1995).

Lowe filed an initial motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. Lowe v. State , 2 So.3d 21, 28 (Fla. 2008). Following several amended postconviction motions and amendments to these motions, the trial court held a Huff2 hearing. 2 So.3d at 28. The trial court summarily denied twelve of the thirty-three claims and held an evidentiary hearing on the remaining twenty-one claims. Id. Lowe filed two supplemental claims after the hearing, and an additional evidentiary hearing was set for the Brady3 violation claim. 2 So.3d at 28. After the second evidentiary hearing, the trial court issued an order denying all of Lowe's claims. Id.

Lowe then filed a successive postconviction motion based on newly discovered evidence and also filed a motion for rehearing. Id. The trial court held a hearing on the motion for rehearing and the first successive postconviction motion. Id. On March 18, 2005, the trial court issued an order denying a new trial but granting a new penalty phase based on the motion for rehearing and the first successive motion. Id. at 29. Lowe appealed the trial court's denial of part of his postconviction motion, raising five claims. Id.4 Lowe also petitioned for a writ of habeas corpus, raising three claims. Id.5 The State cross-appealed. 2 So.3d at 29. This Court affirmed the trial court's denial of relief on all claims raised by Lowe, affirmed the trial court's order granting a new penalty phase, and denied habeas relief. Id. at 46.

The new penalty phase commenced on September 12, 2011. On September 23, 2011, the jury unanimously recommended death. At the Spencer6 hearing held on October 28, 2011, no additional evidence of aggravation or mitigation was presented. On January 26, 2012, the trial court followed the jury's recommendation and sentenced Lowe to death, finding that five aggravators, merged to four, outweighed one statutory mitigator and various nonstatutory mitigators.7 This appeal follows.


Now on appeal from the new penalty phase, Lowe raises the following eighteen claims: (1) the trial court improperly granted the State a cause challenge to a prospective juror; (2) the trial court erred in overruling defense counsel's objection to the State's use of a mannequin; (3) the State's use of a computer-generated diagram of the crime scene as a demonstrative aid was improper; (4) the trial court erred in admitting Officer Ambrum's testimony regarding Lowe's possible sentence for a violation of community control; (5) the trial court erred in restricting mitigating evidence and limiting cross-examination; (6) the trial court erred in excluding the defense expert's testing results due to a discovery violation; (7) comments made by the State during closing amounted to fundamental error; (8) the trial court erred in sending prejudicial evidence not introduced at trial to the jury room for consideration during deliberations; (9) the trial court erred in precluding the jury from considering evidence of Lowe's limited role in the killing, disproportionate treatment compared to others, and a lawful evaluation of the aggravators; (10) the trial court erred in not instructing the jury to make a culpability finding before it considered imposing a death sentence; (11) the jury was misled regarding sentencing options by the trial court and the State; (12) the trial court erred in not independently weighing the aggravating and mitigating circumstances; (13) the aggravators found were not submitted to the jury properly and were not supported by competent, substantial evidence; (14) the trial court did not apply the correct law and its mitigation findings are not supported by record evidence; (15) the trial court erred in denying Lowe's special verdict form and instructions; (16) the incomplete record on appeal requires reversal; (17) death is not a proportionate punishment in this case; and (18) cumulative error. We address each issue in turn.

I. Cause Challenge to Prospective Juror

Based on the responses prospective juror Charles Simard provided on his juror questionnaire regarding the death penalty, the State conducted the following voir dire:

(Prosecutor) Mr. Butler: You indicated also on your questionnaire that you don't believe in the death penalty?
Charles Simard: That's right.
Mr. Butler: Now at first glance it would look then like it might be difficult for you to sit as a juror in a case where the only issue is whether the Defendant receives a death sentence or life without the possibility of parole for twenty-five years; is that fair?
Charles Simard: Yes.
Mr. Butler: Given your personal opposition to the death penalty, are you going to be able to engage in that weighing process, or do you think that because of where you stand personally you're always going to tilt those scales towards -- towards a life sentence?
Charles Simard: Yes, I'd probably go for life.
Mr. Butler: And that's even though the Judge would tell you you're supposed to weigh it?
Charles Simard: Yes.
(Defense counsel) Mr. Garland: Do you think as you sit here today that you could put aside your personal opinions, and listen to Judge Pegg's instructions and make a decision as to whether or not you could recommend life or death in this case?
Charles Simard: I think so.
Mr. Garland: You think you can follow the law?
Charles Simard: Uh-huh.
Mr. Garland: Is that a yes?
Charles Simard: Yes.

At sidebar, the State moved for a cause challenge, arguing that Mr. Simard told the defense he could follow the law, but told the State otherwise. The State argued that "there's certainly a reasonable doubt as to whether [Simard] can be fair and impartial." Defense counsel objected, arguing that Mr. Simard's responses did not rise to the level of a cause challenge, and suggesting that "if the State wants to use a peremptory that's up to them." The trial court granted the State's challenge,...

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