Reynolds v. State, SC17–793

• Citation: 251 So.3d 811
• Decision Date: 05 April 2018
• Docket Number: No. SC17–793,SC17–793
• Parties: Michael Gordon REYNOLDS, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

251 So.3d 811

Michael Gordon REYNOLDS, Appellant,
v.
STATE of Florida, Appellee.

No. SC17–793

Supreme Court of Florida.

[April 5, 2018]

James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Julissa R. Fontán, Maria E. DeLiberato, and Chelsea Shirley, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant

Pamela Jo Bondi, 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 by Michael Reynolds from an order denying a motion to vacate sentences of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from sentences of death, this Court has jurisdiction under article V, section 3(b)(1), of the Florida Constitution. For the reasons explained below, we affirm the circuit court's denial of relief.

251 So.3d 813

FACTUAL AND PROCEDURAL BACKGROUND

We detailed the underlying crimes in Reynolds's direct appeal. Reynolds v. State (Reynolds I ), 934 So.2d 1128, 1135–39 (Fla. 2006). For the purposes of this proceeding, it is relevant that Reynolds was convicted for the first-degree murders of Robin and Christina Razor, along with the second-degree murder of Danny Privett and the burglary of a dwelling with armed battery. Id. at 1135.

At the penalty phase, Reynolds waived his right to present mitigating evidence. Outside the presence of the jury, Reynolds was advised of his right to present mitigation evidence, but he waived that right after conferring with counsel at length. Moreover, the trial court conducted a thorough colloquy to ensure that Reynolds understood the rights that he was waiving and even recessed for one day, giving Reynolds the opportunity to fully consider his decision. Reynolds v. State (Reynolds II ), 99 So.3d 459, 493–97 (Fla. 2012). Concerning his waiver, Reynolds explained his decision:

I don't want to present a mitigating case here because there's no such thing. I mean, Your Honor, it's a waste of time because I have [no mitigators ]. I've been locked up all my life.

....

... I have no mitigating , I have nothing that's gonna dictate against my record, and I know that the final outcome of this is that I'm gonna go to death row, and I would wish, if you would, and if y'all would honor that and please let me get this done and get up the road. And that's about the best way I can say it, Your Honor. I'm ready to go.

Id. at 493–94 (alteration in original). Trial counsel swore in an affidavit that Reynolds waived mitigation, "at least in part, because he did not think there was any chance of convincing six jurors to vote for life, and did not want to subject his sisters to the stress of testifying before a jury."

In a pretrial motion, Reynolds moved for the use of a special verdict form containing jury factfinding on aggravation. The trial court denied that motion. Moreover, in reading the instructions, the trial court informed the jury that "the final decision as to what punishment shall be imposed is the responsibility of the judge." Yet, the trial court explained that it could reject their advisory recommendation "only if the facts [were] so clear and convincing that virtually no reasonable person could differ." The trial court also informed the jury that "the law require[d] the court to give great weight" to the recommendation.

After deliberation, the jury unanimously recommended death on each count of first-degree murder.

At a Spencer¹ hearing, trial counsel filed mitigation with the trial court that it would have presented at the penalty phase—absent Reynolds's waiver of that right. The trial court conducted the Spencer hearing. As a result, the trial court found the following aggravators proven beyond a reasonable doubt and afforded great weight to each: for the murder of Robin Razor, the trial court found four aggravators—(1) Reynolds's previous conviction for another capital felony or felony involving use or threat of violence to a person; (2) Reynolds committed the murder while engaged in, or the accomplice to, or attempting to commit, a burglary; (3) the murder was committed for the purpose of avoiding a lawful arrest; and (4) the murder was especially heinous, atrocious, or cruel (HAC)—and for the murder of Christina Razor, the

251 So.3d 814

trial court found the same four aggravators, along with a fifth aggravator—the victim of the murder was a person less than twelve years old. On each count of first-degree murder, the trial court found the existence of four statutory mitigators and afforded little weight to each: (1) Reynolds was gainfully employed; (2) Reynolds manifested appropriate courtroom behavior; (3) Reynolds cooperated with law enforcement; and (4) Reynolds had a difficult childhood, including various subparts.² In accordance with Muhammad v. State , 782 So.2d 343 (Fla. 2001), the trial court did not afford great weight to the unanimous jury recommendation because the jury did not hear the mitigation.³ After weighing the substantial aggravation against the minimal mitigation, the trial court sentenced Reynolds to death for the murders of Robin and Christina Razor.

Reynolds appealed his convictions and sentences to this Court, and we affirmed. Reynolds I , 934 So.2d at 1161. His petition for writ of certiorari was denied by the United States Supreme Court on January 8, 2007. Reynolds v. Florida , 549 U.S. 1122, 127 S.Ct. 943, 166 L.Ed.2d 721 (2007). Pursuant to Florida Rule of Criminal Procedure 3.851, Reynolds filed his initial motion for postconviction relief, raising several claims. After an evidentiary hearing, the circuit court denied each claim, which we affirmed along with denying his petition for writ of habeas corpus. Reynolds II , 99 So.3d at 501.

Following Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied , ––– U.S. ––––, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017), Reynolds filed the instant successive motion to vacate his sentences of death. After a case management conference on March 2, 2017, the circuit court denied Reynolds's successive motion in a subsequent written order.

This appeal follows.

ANALYSIS

In this successive postconviction motion, Reynolds raises two claims: (1) his death sentences violate the Sixth Amendment in light of Hurst and Hurst v. Florida , ––– U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) ; and (2) his death sentences violate the Eighth Amendment under Caldwell v. Mississippi , 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and must be vacated in light of Hurst , Hurst v. Florida , and Perry v. State , 210 So.3d 630 (Fla. 2016). These issues present purely legal questions, which we review de novo. E.g. , Mosley v. State , 209 So.3d 1248, 1262 (Fla. 2016).

Sixth Amendment Hurst Claim

Reynolds contends that the circuit court erred in denying his successive motion for postconviction relief pursuant to Hurst under the Sixth Amendment.

Reynolds's death sentences became final when the Supreme Court denied his writ of certiorari on January 8, 2007. Reynolds v. Florida , 549 U.S. 1122, 127 S.Ct. 943, 166 L.Ed.2d 721. Because the sentences became final after Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Hurst applies retroactively to this case. E.g. , Mosley , 209 So.3d at 1274–83 (applying Hurst retroactively to a post– Ring , postconviction defendant). In Hurst , we held "that in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient

251 So.3d 815

for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge." 202 So.3d at 54. Further, we concluded that Hurst error is capable of harmless error review. Id. at 66–68 ; see, e.g. , King v. State , 211 So.3d 866, 889 (Fla. 2017). Accordingly, we must decide whether Reynolds's Hurst error was harmless beyond a reasonable doubt. E.g. , Davis v. State , 207 So.3d 142, 174 (Fla. 2016).

In Hurst , we explained our standard for harmless error review:

Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence. Although the harmless error test applies to both constitutional errors and errors not based on constitutional grounds, "the harmless error test is to be rigorously applied," and the State bears an extremely heavy burden in cases involving constitutional error. Therefore, in the context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury's failure to unanimously find all the facts necessary for the imposition of the death penalty did not contribute to Hurst's death sentence in this case. We reiterate:

The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for

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