McCloud v. State, SC12–2103.

CourtUnited States State Supreme Court of Florida
Citation208 So.3d 668
Docket NumberNo. SC12–2103.,SC12–2103.
Parties Robert Pernell McCLOUD, Appellant, v. STATE of Florida, Appellee.
Decision Date17 November 2016

208 So.3d 668

Robert Pernell McCLOUD, Appellant,
STATE of Florida, Appellee.

No. SC12–2103.

Supreme Court of Florida.

Nov. 17, 2016.

208 So.3d 672

Ita M. Neymotin, Regional Counsel, and Byron P. Hileman, Jr., John Andrew Crawford, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL; Candance M. Sabella, Chief Assistant Attorney General, and Christina Z. Pacheco, Assistant Attorney General, Tampa, FL, for Appellee.


This case is before the Court on appeal from a judgment of convictions of first-degree murder and sentences of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons discussed below, we affirm the convictions but reduce the sentences to life imprisonment.


Robert McCloud appeals his convictions and sentences for the first-degree murders of Dustin Freeman and Tamiqua Taylor. During the afternoon of October 3, 2009, McCloud and Andre Brown were driving around the Malibu neighborhood of Orlando, Florida, when they ran into Joshua Bryson. The three visited Major Griffin at his house, where a series of discussions about "hitting a lick" or robbing known drug dealer, Wilkins Merilan, began. Griffin and Bryson robbed Merilan on Father's Day of the same year and believed he held back large quantities of drugs and cash during that encounter. Jamal Brown (not related to Andre Brown) later joined the group, and the discussions culminated in a plot to burglarize Merilan's house in Poinciana, Florida, while Merilan was visiting Orlando.

That evening, before leaving Orlando, the men equipped themselves with various

208 So.3d 673

firearms, including a .38 caliber revolver, a .40 or .45 caliber semiautomatic, and a 9 millimeter semiautomatic. They then traveled to Poinciana in two vehicles and, upon reaching Merilan's neighborhood between 10 and 11 p.m., drove down his cul-de-sac to surveil his house. The group then drove to the local Walmart and parked there to further discuss their plan. They may have made a second trip to Merilan's house and back to Walmart. After traveling back to the neighborhood just past midnight, Bryson positioned himself in his vehicle somewhere in close proximity to Merilan's street, while the others positioned themselves in Merilan's backyard. The group realized that Merilan in fact was home and also that a party was underway at an adjacent house. This caused them to pause and wait for about three hours while refining their plan.

The group eventually decided to move forward with robbing Merilan. The physical evidence shows that the front door was kicked in and shots were simultaneously fired toward the master bedroom. Merilan was immediately subdued, bound by his wrists and ankles, and placed on the master bedroom floor. Taylor, Merilan's girlfriend who was living with him, was in the master bedroom. She was ordered to take Merilan's three-year-old daughter, who was spending the weekend with Merilan, and sit on the living room couch. Freeman, Merilan's friend who was visiting from Miami, was in the guest bedroom and was also bound and placed on the master bedroom floor.

The group ransacked the house, collecting about $4,000 to $5,000 in cash, $10,000 worth of marijuana, a .38 caliber revolver, and possibly a small quantity of cocaine. Believing more was in the house, they turned their attention to Merilan and began demanding the whereabouts of the rest of his drugs and cash. While still tied up and laying on the floor, Merilan was kicked and had a forty-pound dumbbell dropped on his head. His arms were sliced with a steak knife. Merilan also had boiling water laced with bleach poured on his back; the water seeped into the carpet and scalded his thighs, stomach, and groin area. He indicated that the drugs and money were in the tires of his Hummer vehicle in hopes that a pedestrian would see the cohorts or that the vehicle's alarm would activate. It was about that time that Bryson was summoned to the house.

While somewhat conflicting, the evidence generally shows that Merilan was either placed in the master bedroom closet or broke his restrains and ran into it. A series of loud and soft sounding gunshots subsequently rang out with multiple shots being fired at the closet, where Merilan was sitting with his back against the door. The shootings resulted in Merilan being shot several times, including in the stomach, testicle, and thigh. Freeman and Taylor were shot in the back of the head at close range while on the master bedroom floor and living room couch, respectively. The group subsequently fled the Poinciana area in their vehicles and rendezvoused back in Orlando, where they divided up the drugs and cash. McCloud took the stolen firearm.

In investigating the crimes, the Polk County Sheriff's Office (PCSO) focused on Bryson as a suspect after detecting his fingerprint in the back compartment of Merilan's vehicle. Bryson was arrested in Orlando on October 20, 2009. He initially denied his involvement, but after being confronted with the fingerprint evidence, he provided deputies with a statement implicating McCloud, Griffin, Andre, and Jamal as participants in the crimes. Griffin was arrested the following day but did not provide a statement to law enforcement officers. Andre was arrested one

208 So.3d 674

week later and Jamal months thereafter; both provided statements concerning the crimes.

McCloud was arrested on October 21, 2009. Orange County Sheriff's Office (OCSO) deputies apprehended McCloud in connection with an outstanding arrest warrant for an unrelated offense and notified Polk County authorities. That evening, PCSO Detective Troy Lung met them in a church parking lot and provided McCloud with his Miranda1 warnings, after which he agreed to speak with detectives. McCloud was then transported to OCSO facilities, where he was questioned for the next several hours. During the interrogation, McCloud made several admissions to PCSO Detectives James Evans and Consuelo Gallegos–Bias in which he implicated himself in the burglary and robbery but denied harming Merilan, Taylor, and Freeman. Unbeknownst to McCloud, fifty-five minutes of his interview with Gallegos–Bias was video recorded.

McCloud and the other four men were charged by separate indictments, each alleging two counts of first-degree murder, and one count each of attempted first-degree murder, conspiracy to commit burglary, armed robbery, and armed burglary of an occupied dwelling with an assault or battery. Griffin was deemed legally incompetent to stand trial and diagnosed as intellectually disabled; thus, he was statutorily ineligible for the death penalty. Bryson, Andre, and Jamal entered into negotiations with the State and, among other terms, agreed to plead "no contest" to two counts of second-degree murder and testify truthfully in all proceedings concerning each codefendant. Bryson's agreement also included an imprisonment term of ten years, and Andre's and Jamal's agreements each included fifteen years. Bryson, Andre, and Jamal testified at McCloud's trial, but Jamal insisted on cross-examination that his testimony was false.

McCloud argued throughout the trial proceedings that his video-recorded statement with Detective Gallegos–Bias was involuntary and thus inadmissible because it was elicited through excessively coercive tactics by law enforcement officers. He further denied having any participation in the various crimes and admitted that he only engaged in the earlier stages of the discussions that occurred in Orlando on the afternoon of October 3, 2009. Also, McCloud insisted that at the times of the actual robbery, burglary, murders, and attempted murder, he was babysitting a child or children in the Apopka/Maitland area while his wife was in the hospital. He testified and called other witnesses in support of this alibi.

On March 5, 2012, a jury found McCloud guilty on each count charged in his indictment. The jury further determined by special interrogatory that he actually possessed a firearm but did not discharge it during the commission of the crimes. During the penalty phase, the defense presented testimony of several family members, including McCloud's wife, older sister, sister-in-law, and mother-in-law. The defense also presented expert testimony from two psychologists. The jury recommended death sentences for the murder convictions by an eight-to-four vote, and the trial court sentenced McCloud to death on August 31, 2012. The trial court also sentenced McCloud to life imprisonment for attempted first-degree murder, five years' imprisonment for the conspiracy, life imprisonment with a minimum mandatory sentence of ten years for the armed burglary, and life imprisonment with a minimum mandatory sentence of ten years

208 So.3d 675

for the armed robbery. The trial court ordered that the sentences run concurrently.

In imposing the death sentences, the trial court concluded that the State proved five statutory aggravating circumstances2 beyond a reasonable doubt, and found two statutory mitigating circumstances3 and sixteen nonstatutory mitigating...

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16 cases
  • Lawrence v. State
    • United States
    • United States State Supreme Court of Florida
    • 29 octobre 2020
    ...reversed death sentences due to a lack of proportionality underscores the need for proportionality review. See, e.g., McCloud v. State , 208 So. 3d 668 (Fla. 2016) ; Phillips v. State , 207 So. 3d 212 (Fla. 2016) ; Yacob v. State , 136 So. 3d 539 (Fla. 2014) ; Scott v. State , 66 So. 3d 923......
  • Tigue v. Commonwealth, 2017-SC-000156-MR
    • United States
    • United States State Supreme Court (Kentucky)
    • 1 novembre 2018
    ...Mich. 2012).60 Whittle, 2016 WL 4433685, *3-5.61 Kletter, supra note 43.62 State v. Perea, 322 P.3d 624 (Utah 2013) ; McCloud v. State, 208 So.3d 668 (Fla. 2016) ; Jimerson v. State, 56 N.E.3d 117 (Ind. App. 2016).63 U.S. v. Dougherty, NMCCA 201300060, 2013 WL 6858964 (N.M.C.C.A. 2013) (rev......
  • Jeffries v. State
    • United States
    • United States State Supreme Court of Florida
    • 13 juillet 2017
    ...majority op. at 548. The plurality's failure to conduct a relative culpability analysis contradicts our decision in McCloud v. State , 208 So.3d 668 (Fla. 2016), and our other precedent on relative culpability. Either the plurality has receded sub silentio from McCloud and our precedent req......
  • Walton v. State, SC16–448
    • United States
    • United States State Supreme Court of Florida
    • 17 mai 2018
    ..., 141 So.3d 1178 (Fla. 2014).5 Acid phosphatase is commonly found in seminal fluid. See Swafford , 125 So.3d at 766.6 McCloud v. State , 208 So.3d 668 (Fla. 2016).7 Walton claims that: (1) his death sentences violate the Eighth Amendment and the Florida Constitution; and (2) the retroactivi......
  • Request a trial to view additional results
4 books & journal articles
  • Defendant's statements
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • 30 avril 2021
    ...discussed other parts of the crime, there is no unambiguous revocation of the waiver of the right to remain silent. McCloud v. State, 208 So. 3d 668 (Fla. 2016) A police officer’s act of agreeing that defendant could see and talk to his girlfriend in return for his statement is not the type......
  • Evidence
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • 30 avril 2021
    ...a read-back of defendant’s confession, or even informing jury it was available, does not preserve the issue for appeal. McCloud v. State, 208 So. 3d 668 (Fla. 2016) The court properly allows the state to cross defense mental health experts regarding their knowledge of the facts of a case so......
  • The trial (conduct of trial, jury instructions, verdict)
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • 30 avril 2021
    ...which would be more helpful to their deliberations than simply reading the words on a transcript or during a read back. McCloud v. State, 208 So. 3d 668 (Fla. 2016) While physical transcripts of testimony are prohibited in jury rooms during deliberations, readbacks of testimony are specific......
  • Appeals
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • 30 avril 2021
    ...statements, appellate court may review the tape for facts legally sufficient to support the trial court’s ruling. McCloud v. State, 208 So. 3d 668 (Fla. 2016) State did not have right to petition for certiorari review of order granting probationer’s motion for early termination of probation......

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