KIM JACKSON, Appellant, vs. STATE OF FLORIDA, Appellee.
No. SC13-2090
Supreme Court of Florida
[August 27, 2015]
This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See
FACTS
Debra Pearce was stabbed to death in her kitchen on or around October 17, 2004. The murder remained unsolved until 2008, when DNA from a hair found on Pearce‘s body was matched to Kim Jackson and a fingerprint found in blood on the sink above Pearce‘s body was also matched to Jackson.
Pearce was last seen by her mother between midnight and 1:30 a.m. on October 15 to 16, 2004. Pearce was discovered late in the evening on October 18, or in the early morning hours of October 19, by a neighbor and friend of Pearce who purchased drugs from her and used them at the house. That evening, the friend walked past Pearce‘s house and saw that the gate was open. Over the previous days, he had called her several times, but received no answer, and he had noticed that her van was not in her driveway. When he approached the house, he saw that the sliding glass door was open. He entered and found Pearce‘s body. He returned to his house and called the police.
The medical examiner determined that the cause of Pearce‘s death was hypovolemic shock due to vascular hemorrhage as a result of stab wounds to the neck and shoulder—in layman‘s terms, Pearce bled to death as a result of a fatal stab wound to her neck that struck her jugular vein and a fatal stab wound to her chest/shоulder area that struck her subclavian artery and vein. The stab wound to the chest pierced through Pearce‘s bra, sliced her left breast, continued across into the right side of her chest, and pierced her scapula. The knife, which had been left in Pearce‘s chest, was only five inches long, but it had penetrated seven to eight inches into her body. The blow with the knife was forceful enough to pierce the
The medical examiner also found several other injuries. Because the body was in the early stages of decomposition, the medical examiner could not determine whether certain injuries were lacerations or incisions. One such injury was a superficial wound to Pearce‘s forehead, and another was a wound to her left cheek. Additionally, there were two wounds to Pearce‘s chin—one where the blade entered, and the other where the blade exited. Pearce also had two cuts across her ear, a scrape or abrasion on the left side of her head that indicated she had been hit or her body was dragged, and five shallow cuts on the left side of her head. Her right eye was bruised from a forceful blow. Additionally, Pearce had two lacerations/incisions to her right forehead that were jagged, due to either a knife with a dull blade, or the blade of a knife being raggedly ripped across her skin.
The medical examiner could not be certain as to whether Pearce was conscious throughout the attack, but stated that it was possible because she bled to death—she was not knocked unconscious, her spinal cord was not severed, and no major organs were involved. Additionally, Pearce‘s right pinky finger had a deep cut that penetrated the tendons and was consistent with a defensive wound. Pearce also had a cut on the back of her left forearm that went from shallow to deep,
A crime scene reconstructionist was called to Pearce‘s house on October 19, and he noted that Pearce, who was face-down on the kitchen floor below the sink, had been dead for some time. The reconstructionist retrieved a dark-colored hair from the back of Pearce‘s right calf that appeared out of place. He observed the knife that had been left in Pearce‘s chest and also found a second knife beneath her body.1 Additionally, the reconstructionist found significant blood spatter in the kitchen and determined that the spatter around the sink was consistent with either a weapon being swung back, or from the impact when the weapon was swung down. He also discovered a fingerprint in blood on the lip of the sink.
The reconstructionist utilized luminal testing on red stains detected on the rug outside of the kitchen, which revealed an impression left by a person wearing a sock, and another impression left by a person wearing a shoe. He testified that it appeared as though the person who left the tread dragged his or her feet, and the tread appeared to lead toward the master bathroom. He could not determine
The investigation revealed that around the time of the murder, an eyewitness saw three individuals near the back of Pearce‘s house. The lead detective spoke with two of these individuals, who admitted that they took several items from the house, including a television, a VCR, and a DVD player. However, no forensic evidence linked these individuals to the home or Pearce.
Fingerprints that were found at Pearce‘s house were submitted to the Florida Department of Law Enforcement (FDLE) latent print unit in Jacksonville. The analyst there determined that none of the prints were of value. However, the lead detective discovered that the Pinellas County unit possessed equipment that could enhance latent prints, and the sink was transported there so that more detail could be obtained from the latent fingerprint located on the sink. Although the equipment did not prove to be particularly useful, the Pinellas County latent print unit examined the photographs of the sink fingerprint and determined that it was of value. However, no match for the fingerprint was found at that time. The lead detective also submitted photographs of several of the prints lifted from Pearce‘s house to the Federal Bureau of Investigation (FBI). The FBI determined that among the prints it received, one latent fingerprint was of value (the sink
Identification
It was only later that FDLE matched DNA extracted from the hair that was found on Pearce‘s calf to Jackson.2 After receiving this information, the lead detective located Jackson in Georgia, where he had been incarcerated since 2005. During an interview with Jackson on January 22, 2008, the lead detective asked whether Jackson knew Pearce or had been to her house. The detective showed Jackson a photograph of Pearce, as well as several pictures of her house. Jackson asserted that he had never met or seen Pearce, and had never been to her house.
After Jackson was identified as a suspect, latent print analysts with the FBI and Pinellas County were asked to compare Jackson‘s known prints with the fingerprint from the sink. Jacqueline Slebrch, the FBI latent print examiner, examined the photograph of the sink fingerprint.3 She noted spots or distortion on the fingerprint, and that the fingerprint was one of multiple prints left on top of
The sink fingerprint was also examined by William Schade, who worked for the Pinellas County Sheriff‘s Office. Like Slebrch, he concluded that the sink fingerprint matched the right ring finger of Jackson, and that the fingerprint was left on the sink while Jackson‘s finger was coated in a wet substance, such as blood. When Schade made the comparison, he had no knowledge that Slebrch had also concluded that the sink fingerprint matched the right ring finger of Jackson.
However, during trial, Jackson presented the testimony of Michelle Royal, the Jacksonville Sheriff‘s Office latent print analyst who concluded that the sink fingerprint was of no value and could not be used to identify any suspect. She nonetheless testified that even prints of no value can be used to exclude suspects,
Alibi
Jackson presented as an alibi that he visited Adel, Georgia, between October 15, 2004, and October 22, 2004, to celebrate his birthday with his family, which he did every year for a weekend around his birthday. His birthday is October 13, which fell on a Wednesday in 2004. October 15 was the Friday that followed his birthday. The testimony of Jackson and his wife, sister, and father presented as an alibi that his cousin drove him to Adel on Friday, October 15, and he did not return until after the murder occurred. He had intended to return on Sunday with his cousin, but did not, and later obtained money from a friend for bus tickets, missed the initial bus, and eventually returned to Jacksonville by bus on October 22. The friend who provided Jackson with bus money testified that she recalled that Jackson visited her work place in October 2004, but she could not recall the date.
Jackson testified that he knew Pearce through her boyfriend, had met her between five and ten times, and had been to her house approximately five times. He had previously purchased crack cocaine from Pearce‘s boyfriend, as well as from Pearce. He also testified that he and Pearce had become comfortable interacting with each other, and that she would let him enter her house.
Jackson testified that he had been at Pearce‘s house one week before his trip to Adel, and he helped move a couch while he was there. Jackson explained that his fingerprint could be on the sink because he had removed a rag from the garbage disposal and placed his hand on the sink while he looked under it. He admitted that his hands were not bloody when he repaired the disposal, and that this occurred months before the murder.
In rebuttal, the State presented the lead detective, who testified that Pearce‘s vehicle was found on the same road where Jackson resided at the time of the murder. The vehicle was approximately one to one and a half miles from his residence. However, no evidence connected Jackson to the vehicle.4
Penalty Phase
During the penalty phase, the State presented the victim impact statements of Pearce‘s mother and daughter. The parties stipulated to two aggravating circumstances: (1) Jackson was on probation at the time of the murder, and (2) Jackson was previously convicted of three violent felonies.5 Additionally, despite the stipulation, the State presented the testimony of the victims of two of the prior violent felonies. The victim of the armed robbery testified that Jackson robbed her at gunpoint while she was at work. The surveillance video of the event was played for the jury. The victim of the aggravated assault testified that he worked for the Georgia Bureau of Investigation and, while he was assigned to purchase cocaine while undercover in the Adel area, he unsuccessfully attempted to purchase crack
Jackson presented the testimony of forensic psychologist Dr. Jerry Valente, who met with Jackson twice to determine whether he was competent for trial. Dr. Valente performed a standardized intelligence test on Jackson, and determined that Jackson is of low-average intelligence. Specifically, Jackson‘s IQ is within a 10-point range of 84. His brain is fully developed and he completed the 12th grade. Dr. Valente testified that Jackson displayed no evidence of psychosis, neurosis, or hallucinations, and was cooperative, well-mannered, and respectful of authority. Dr. Valente described Jackson‘s psychological profile as flat and with nothing of clinical significance.
Jackson also presented several people who testified with respect to his positive attributes, including that he: (1) was good at sports; (2) worked well with others; (3) coached and participated in softball; (4) was a role model and a leader; (5) was caring, supportive, and kind; (6) was upbeat; (7) motivated and encouraged others; (8) was dependable; (9) was helpful; (10) was humble; (11) was respectful; (12) was religious and attended prayer meetings; (13) spoke well of and displayed genuine concern for others; (14) regretted and was sorry for certain actions during his life, and wished to be and do better; (15) was a hard worker, who did good work, was prompt, and did not complain about long hours; (16) was protective;
Jackson‘s father testified that he was in the Army when Jackson was a child and was stationed at various locations both within and outside of the United States. When the father was stationed in the United States, Jackson spent summers at the army bases. When the father was stationed out of the country, Jackson lived with his grandfather. The father described Jackson as a good child who had friends and played sports. He attended Jackson‘s games when he could, but often could not because of his work. The father believed that Jackson would be a productive person and would assist other prisoners if given a life sentence. He stated that he has a good relationship with Jackson and would continue to be involved in Jackson‘s life.
Several other family members testified, including Jackson‘s sister, half-sister, daughter, stepson, and wifе. Jackson‘s sister and half-sister testified that he was a good influence and played sports. Jackson‘s sister testified he was protective of her as a child and taught her sports. Jackson‘s daughter and stepson testified that Jackson encouraged them to make good choices in life. His stepson testified that Jackson was a better influence and father figure than his biological father. Both the stepson and Jackson‘s wife described him as a good father and
In rebuttal, the State presented the testimony of a Georgia Department of Corrections employee, who testified that Jackson received nine disciplinary reports in 2007.
On April 26, 2013, the jury recommended a sentence of death by a vote of 8 to 4. The jury form required the jury to indicate whether Jackson played a significant role in the homicide of Debra Pearce. The jury unanimously found beyond a reasonable doubt that Jackson played a significant role in the homicide.
During the Spencer6 hearing, the State presented victim impact statements of Pearce‘s mother and sister. The defense presented the testimony of a mitigation specialist, who testified that he spoke with Jackson‘s best friend, who would have been able to provide mitigation with respect to good deeds by Jackson.7 The friend agreed to appear during the guilt phase, but then failed to respond to all attempts to contact him. The mitigation specialist stated that the friend had told him Jackson was in Adel in 2004 for Jackson‘s birthday.
Jackson presented numerous nonstatutory mitigating circumstances. The trial court found that sixty-six had been established, and grouped them into twelve categories. Additionally, within the twelve categories, the trial court often discussed several factors together in assigning them weight. The trial court found that Jackson did not prove the mitigating circumstance that he is religious/faith based and guided his daughter spiritually.
The first category of mitigation found by the trial court is that Jackson is a good father and husband and shares the love of his family. The trial court found twenty-four mitigating circumstances within this category: (1) Jackson is a good father to his daughter (moderate weight); (2) Jackson encouraged his daughter to study (some weight); (3) Jackson encouraged his daughter to go to college (some weight); (4) Jackson encouraged his daughter to grow beyond Nashville, Georgia (some weight); (5) Jackson is involved in his daughter‘s life and taught her right
The second category is that Jackson is a good sibling and son, and he shares the love of his relatives in Georgia. The trial court found eleven mitigating circumstances within this category: (25) Jackson assumed the role of protectоr and role model to his younger sister (slight weight); (26) Jackson was a good influence on his sister (slight weight); (27) Jackson encouraged his sister through difficulties as she grew up (slight weight); (28) there is mutual love and respect between Jackson and his sister (slight weight); (29) Jackson‘s sister will maintain a relationship with him while he is incarcerated (slight weight); (30) Jackson is a good son and has been good to his father as an adult (slight weight); (31) Jackson is respectful and polite to his father (slight weight); (32) Jackson has a good relationship with his father (slight weight); (33) Jackson‘s father will continue to foster their relationship while Jackson is incarcerated (slight weight); (34) Jackson visited his father, family, and friends in Adel, Georgia (slight weight); and (35) Jackson was active in his church9 (slight weight).
The fourth category is that Jackson is a nice, generous, helpful person and friend, and the trial court found six mitigating circumstances within this category: (45) Jackson has a good reputation in Adel, Georgia as a nice and good person (slight weight); (46) Jackson was not known by his friends to be violent (slight weight); (47) Jackson was not a trouble-maker as a child or teenager (slight weight); (48) Jackson was humble, generous, and helped others (some weight); (49) Jackson was a good and trusted friend (slight weight); and (50) Jackson is trustworthy and has a good heart (some weight).
The sixth category is that Jackson is a polite, respectful person. The trial court found three mitigating circumstances within this category: (56) Jackson was a gentleman and respectful of women (slight weight); (57) Jackson was not rude to friends or strangers (slight weight); and (58) Jackson was polite, respectful, and had good manners (slight weight).
The seventh category is that Jackson is religious, and the trial court found two mitigating circumstances within this category: (59) Jackson believes in and gave himself to God (somе weight); and (60) Jackson and his wife hosted church functions at their home (some weight).
The final categories each contain only one mitigating circumstance: (63) Jackson had a positive outlook on life (slight weight); (64) Jackson‘s friends and associates will continue to foster a relationship with and visit him while he is incarcerated, which the trial court found to be established as to Jackson‘s family, but not as to his friends (some weight); (65) Jackson has low-average intelligence (slight weight); and (66) Jackson respects the judicial process and has been polite and cooperative throughout these proceedings (some weight).
In its sentencing order, the trial court addressed the instruction it read to the jury during the penalty phase with respect to whether Jackson played a significant role in Pearce‘s murder. The trial court recognized that the instruction approved by this Court with respect to Enmund/Tison10 addresses the defendant‘s state of mind, which was not included in the instruction read in this case.11 However, the
The trial court weighed the aggravating circumstances against the mitigating circumstances, and noted that the mitigating evidence demonstrated that Jackson had a good home and family life, many friends, did not lack for the necessities in life, did not suffer any abuse or trauma as a child, and did not have any mental health issues. The trial court stated that the image of Jackson as a good friend, father, and husband starkly contrasted with his commission of a brutal and savage murder, as well as the earlier armed robbery. The trial court concluded that the aggravating factors far outweighed the mitigating circumstances and imposed a sentence of death.
This direct appeal followed.
ANALYSIS
Sufficiency
On appeal, Jackson contends that the evidence is insufficient to exclude every reasonable theory of innocence for the following reasons: (1) Jackson had an alibi for the murder, i.e., he was in Georgia to celebrate his birthday; (2) the latent fingerprint found on the sink was not of sufficient value for comparative purposes; (3) the sink fingerprint could have been left prior to the murder; (4) the hair could have been left at Pearce‘s home on an earlier date and transferred onto the body after the murder; and (5) there is insufficient evidence of premeditation. Alternativеly, Jackson asserts that even if he were present during the murder, there is no evidence that he was an active participant in the murder.
The jury was presented with two mutually exclusive theories of what occurred—either Jackson committed the murder, or he was in Adel when the murder occurred. The State introduced competent, substantial evidence that contradicted Jackson‘s alibi, and, accordingly, the trial court properly denied Jackson‘s motion for judgment of acquittal. Because of this, it became the role of
Sink Fingerprint
The latent fingerprint relied on by the State was lifted from the lip of the sink above where Pearce was discovered. Jackson asserts that the evidence was insufficient to establish that the fingerprint belonged to him to the exclusion of all reasonable inferences. However, the State presented the testimony of two fingerprint experts whose qualificatiоns were not questioned or contested during trial. Those experts identified the fingerprint as a match to the right ring finger of Jackson. Thus, the State presented evidence with respect to the identification of the print that was sufficient to withstand a motion for judgment of acquittal and, therefore, this was an issue of fact to be decided by the jury.
DEFENSE COUNSEL: Now, with regard to this print, there‘s not a way to determine—and I‘m going to use a phrase—which came first, in a sense, the print was there and the blood came after or the blood was there and the print went through it. There‘s not a way to determine that, is there?
RECONSTRUCTIONIST: Well, there is with regard to [the] fingerprint at the sink. That was transferred from a hand to the sink so the blood is on the hand and then gets transferred to the sink.
The reconstructionist further testified that the sink fingerprint was a transfer impression that was not left before the attack and could not have been there before the blood.
Counsel alleged for the first time during oral arguments that the reconstructionist was not qualified to state this opinion. Even if, as a crime scene reconstructionist rather than a fingerprint expert, he was not qualified to testify that the fingerprint was a blood transfer print, Pinellas County fingerprint expert Schade also testified that fingerprints that are left in a wet substance are distinctive:
SCHADE: Now, I should point out that the [photograph of the sink fingerprint] is a print that was left in a wet substancе. Now, when I told you before about touching a surface and leaving behind the impression of your fingers, that‘s assuming that the surface of those ridges are coming in contact and that‘s what‘s left behind, is the moisture that‘s on the surface of the ridges. Even when you get dirt and grease on your hands or paint, if you touch something, most times you‘ll leave an impression of the ridges. The furrows are not
touching. Only the ridges are. But what happens on a print when the fingers or the palms are covered in a wet surface, heavy perspiration or another foreign substance, when you touch, you‘re actually squeezing that substrate, you‘re squeezing the matrix into the furrows, and so the ridges are not the white part, they‘re the black—I‘m sorry. I got that backwards. The ridges are not the black part that was developed, they are the white part, because the substance was pushed into the furrows. I‘m not sure if I‘m making sense, but it‘s a tonal reversal. It‘s very common when you‘re dealing with prints left in a foreign substance....
PROSECUTOR: Would that be common on, let‘s say, a bloody fingerprint?
SCHADE: Yeah, blood is an example of a foreign substance....
(Emphasis supplied.) This testimony supports the conclusion that Jackson‘s finger was coated in wet blood before he touched the sink.
Further, the testimony provided by Slebrch also alludes to this theory. Slebrch testified:
SLEBRCH: What can happen if you get an excess amount of blood or any substance on your hand and then touch a surface with a certain amount of pressure, that will push any of the substance coating your fingers and coating those friction ridges into the spaces in between the ridges or the furrows and that will end up being behind the impression of the furrows.
PROSECUTOR: And is that something you take into account when looking at latent prints like this?
SLEBRCH: Yes.
Thus, Slebrch indicated that the sink print was left while Jackson‘s finger was coated in an excess amount of blood.
There‘s been some discussion in this trial about the possibility that a latent print was left behind on this object, on a sink, and that later blood kind of preserved that print or captured it by going on top of it, similar to the way black powder would be applied to a latent print to preserve and capture that. Have you ever seen anything like that in your training and experience?
Slebrch responded that she had not. During cross examination, defense counsel elicited the following responses:
DEFENSE COUNSEL: Now, Ms. Slebrch, you—when [the prosecutor] was asking you a moment ago if you had ever seen where blood had been dropped and then a print had gone through it, you stated that you had never seen that before, is that right?
SLEBRCH: That‘s correct. I had never seen that.
DEFENSE COUNSEL: Does that mean that that could never happen?
SLEBRCH: No, it‘s possible that that could occur.
(Emphasis supplied.) The emphasized portion of this testimony is not evidence that Jackson‘s theory of events is possible based on the evidence in this case. Rather, this is simply a statement that such an event may, generally and in some hypothetical set of circumstances, be possible. Such vague testimony that does not
Hair Evidence
The DNA expert testified that the hair found on the back of Pearce‘s calf provided a complete DNA profile of Jackson, and the presence of a complete DNA profile demonstrated that the hair had been forcibly removed. She explained that there are three stages of hair growth: (1) the first stage, in which hair has a fleshy root with DNA cells and is growing and firmly attached to the head; (2) the second stage, during which the root begins to die, the hair no longer actively grows, and only a partial DNA profile may be present; and (3) the third stage, during which hair is no longer attached to the root, may be naturally shed, and is unsuitable for DNA testing. She also testified that normal handling, such as brushing or running a hand through hair, would not be sufficient to forcibly remove hair in the first stage of growth. However, once hair has been removed, it may be transferred from one object to another, and there is no way to determine when the hair was removed.
Jackson‘s theory of innocence is that the hair was removed prior to the murder, possibly while he moved a couch at Pearce‘s house, and was transferred onto Pearce by a cat or when she sat on the couch. However, the State presented evidence that a struggle occurred between Pearсe and her attacker—i.e., the
Circumstantial Evidence Cases
The presence of both the hair and the fingerprint distinguishes this case from other circumstantial cases in which only one piece of evidence connected the defendant to the murder scene. For example, in Jaramillo v. State, 417 So. 2d 257, 258 (Fla. 1982), the defendant‘s fingerprints were lifted from a knife found on a table in the victims’ house, a grocery bag found next to a chair, and the packaging for a knife that was found near one of the victims. The victims had been shot to death in their home. Id. at 257. The defendant testified that he knew the nephew of one victim, who lived in the home, and that during a visit to the home a day prior to the murders, he helped organize the garage. Id. at 258. He explained that he needed a knife to cut boxes, and was told to use a knife that was in a bag on the dining room table. Id. Notably, fingerprints that did not match the defendant were
Similarly, in Shores v. State, 756 So. 2d 114, 115 (Fla. 4th DCA 2000), the Fourth District Court of Appeal reversed a burglary conviction where the only evidence that implicated the defendant was the presence of his fingerprint on a box of ammunition in a drawer that was ransacked. The district court noted that there was no evidence with regard to when the fingerprint had been left on the box, and when identity in a circumstantial case is established exclusively by fingerprint evidence, there must be evidence that the print could have been left only at the time the crime was committed. Id. (citing C.E. v. State, 665 So. 2d 1097, 1098 (Fla. 4th DCA 1996)). Moreover, the district court noted that when a fingerprint is found on an item that was accessible to the public, the evidence is insufficient to sustain a conviction. Id. at 116. The defendant in Shores alleged that his fingerprint could have been on the ammunition box before the victim purchased it,
Instead, this case is more comparable to Darling v. State, 808 So. 2d 145, 157 (Fla. 2002), in which the circumstantial evidence included not only a fingerprint, but also DNA evidence in the form of semen. In Darling, the defendant asserted that he had consensual sex with the victim, and she was then killed by another person. Id. at 156. However, the evidence of sexual assault combined with the lack of any evidence that the defendant had a relationship with the victim was inconsistent with this theory. Id. Additionally, this Court rejected the defendant‘s contention that the presence of his fingerprint on a lotion bottle in the victim‘s bathroom was not compelling and insufficient to establish guilt pursuant to Jaramillo and Shores. Id. at 157. The Court concluded that the fingerprint combined with the evidence of rape and DNA evidence distinguished
Similarly, the evidence here includes the blood transfer fingerprint as well as Jackson‘s forcibly removed hair. The presence of both pieces of evidence that are unique to Jackson distinguishes this case from circumstantial cases that are based on a sole piece of evidence. Further, the evidence is inconsistent with the theory that Jackson was in Adel at the time of the murder and supports the conclusion that Jackson was inside Pearce‘s home and struggled with her at the time of the murder.
Moreover, the cases relied on by Jackson are distinguishable. In Ballard, over one hundred fingerprints were lifted from the crime scene, four of which were frоm the bedframe near where one of the two victims was found. Ballard, 923 So. 2d at 479. One of the prints on the bedframe belonged to the defendant. Id. Additionally, six hairs were found in the hand of one of the victims, three of which belonged to the victim, two that were too short to provide sufficient information, and one that belonged to the defendant. Id. at 479-80. This hair was in the third phase of growth, and there was no cellular tissue on it, so the expert could not determine whether the hair was forcibly removed or naturally shed. Id. at 480. Additionally, five unidentified forcibly removed hairs were also discovered in the house, and hundreds of hairs in total were recovered. Id.
Jackson contends that this case is comparable to Ballard. Like in Ballard, there was other hair and fingerprint evidence. A total of five hairs were found in Pearce‘s home, three of which were not suitable for DNA testing, one that matched Pearce, and one that matched Jackson. A palm print was lifted from a doorjamb inside the house that remained unidentified, but Jackson was excluded as a person
However, despite these similarities, significant distinctions render Ballard inapplicable. For example, the hair found in this case had been forcibly removed, whereas the hair in Ballard could have been naturally shed. Additionally, unlike in Ballard, there were no hairs other than the defendant‘s found on Pearce. With respect to the print evidence, the sink fingerprint was left in wet blood, and placed Jackson above or near the body during the murder. In Ballard, there was no evidence as to when the defendant‘s fingerprint was left on the bed. 923 So. 2d at 484. Moreover, in Ballard many fingerprints remained unidentified. Id. at 479. Here, the only print that remained unidentified was the palm print left on a doorjamb.
With respect to the evidence of other crimes (here, the stolen property; in Ballard, the drive-by shooting), there is no evidence that any violent crimes had been directed towards Pearce around the time of the murder. Further, the lead
This Court‘s opinion in Cox v. State, 555 So. 2d 352 (Fla. 1989), also relied on by Jackson, is equally inapplicable. In Cox, the evidence against the defendant included that: (1) O-type blood, the same type as the defendant‘s, was found in the car of the victim; (2) the tongue of the defendant had been bitten off and appeared to have been bitten by a person other than the defendant; (3) a hair that was consistent with that of the defendant was found in the vehicle of the victim; and (4) a print that appeared to be made by a military-type boot was found in the victim‘s vehicle, and the defendant was in the military at the time of the crime, but no comparison was performed on the print found in the vehicle and the defendant‘s boots. Id. at 353. This Court held the circumstantial evidence to be insufficient. Id. However, the evidence here is more compelling. The hair found on Pearce was tested for DNA and matched Jackson, thus placing him in Pearce‘s house. The blood transfer print demonstrates that he was in the house during the murder. In contrast, nothing in Cox conclusively linked the defendant to the victim. Id.
The third case relied on by Jackson, Lindsey v. State, 14 So. 3d 211 (Fla. 2009), is even less comparable. In Lindsey, the Court summarized the circumstantial evidence as follows:
(1) a Crown Royal bag containing jewelry was taken during the robbery of Big Dollar pawn shop; (2) [the defendant‘s ex-wife] found a Crown Royal bag containing jewelry in a closet of an apartment where she sometimes stayed with [the defendant] and several other individuals, including [another individual who had been convicted for the second-degree murder of the victim and the robbery of the pawn shop]; (2) [the defendant] eventually sold the jewelry from the bag in the closet at a flea market; [and] (3) [the defendant told another inmate] that [the inmate] should always kill witnesses to crimes and that [the defendant] had to do that.
Id. at 215-16. In addition, a fingerprint that matched the defendant was found on a pawn shop slip dated several weeks before the murder. Id. at 214. The Court held this evidence insufficient to establish that the defendant was in the pawn shop at the time of the murder. Id. at 216. As previously discussed, the evidence here places Jackson in Pearce‘s house during the murder.
Active Participant
Jackson alleges for the first time on appeal that the evidence is insufficient to establish that he was an active participant in the murder. Jackson relies on the evidence that more than one person may have been in the home to assert that he may merely have been present during the killing. However, where a conviction is based on circumstantial evidence, the State is not required to contradict every possible version of events. See Smith, 139 So. 3d at 845. Rather, the State is required to present evidence that contradicts the theory of innocence presented by the defendant during trial. Id. Further, this claim is not preserved because it was not asserted before the jury.
Premeditation
Whether premeditation exists is a question of fact for the jury, as is whether the State has presented evidence to exclude all reasonable hypotheses of innocence. Premeditation is a fully formed and conscious purpose to kill, and can be formed up to even only a moment before a killing occurs, but must exist for a sufficient time to permit reflection as to the nature and probable result of the act. Green v. State, 715 So. 2d 940, 943-44 (Fla. 1998) (citing Coolen v. State, 696 So. 2d 738, 741 (Fla. 1997)). When a victim is deliberately stabbed with a knife
In Perry, the victim was stabbed four times in the chest and three times in the neck, and also suffered a defensive wound to the thumb. Id. at 81. Four of these wounds would have been fatal individually. Id. at 86. One stab wound penetrated the chest bone of the victim, which required extensive force and demonstrated the injury was carefully inflicted in a deliberate manner so as to effectuate death. Id. Similarly, in Morrison v. State, 818 So. 2d 432, 452 (Fla. 2002), the victim suffered two major knife wounds to the neck, and the second blow was sufficiently deep to nick the victim‘s vertebrae. This Court concluded that the use of a knife to stab the victim in this manner was sufficient evidence to support the jury‘s conclusion that the murder was premeditated. Id.
Here, the State presented as circumstantial evidence of premeditation the multiple and violent stab wounds inflicted with a knife, many of which were to Pearce‘s head. Additionally, the stab wounds to the neck and chest were both fatal. Because the knife was left in Pearce‘s chest, it is likely that the neck wound was inflicted first. Thus, even after Jackson had fatally wounded Pearce in the neck, he stabbed her again in the chest and with such force that the five-inch knife
This case is distinguishable from Green, 715 So. 2d at 940; Coolen, 696 So. 2d at 738; and Kirkland v. State, 684 So. 2d 732 (Fla. 1996), relied on by Jackson. In each case, the State relied exclusively on the nature and number of stab wounds to establish premeditation, and this Court held the circumstantial evidence to be insufficient. In both Green and Coolen, the evidence reasonably supported a scenario in which the killings resulted from an escalated fight. 715 So. 2d at 944; 696 So. 2d at 742. Here, because Jackson relied exclusively on an alibi defense, the only possible conclusions from the evidence presented during trial were that Jackson was not present, or he committed a premeditated killing. With respect to Kirkland, the nature and number of wounds is not comparable to those inflicted on Pearce. Additionally, the Court in Kirkland noted that the defendant had an IQ in the sixties. 684 So. 2d at 735.13 Jackson has an IQ within a ten-point range of eighty-four. Accordingly, this case is closer to Perry and Morrison than to Green, Coolen, or Kirkland.
Closing Statements
During trial, Schade testified with respect to changes in the testimony given by fingerprint experts over the last ten to twenty years. For example, the prosecutor asked Schade to explain how laboratories have changed over the years, and Schade responded:
Well, we‘ve always talked about the science of fingerprints, however, we did not always adhere to some of the other principles of science that are now coming to the forefront. Science is never absolute, one hundred percent certain. Science always leaves the door open for additional information, additional examination, and even changing conclusions. Early on, and as recently as 15 years ago, fingerprint people were trained you examine the evidence carefully, you come to a conclusion and you stand by it, come hell or high water. It was weakness to say, well, I‘m reconsidering my opinion. And that‘s a big change for us. It‘s still is very difficult sometimes to think that, you know, we can no longer say we‘re one hundred percent certain, this is a one hundred percent match.
Those terms are no longer allowed in court and that‘s really holding to the [tenets] of science. It‘s just the way it is. It‘s a preponderance of evidence, it‘s a conclusion that, you know, it can be possible or plausible conclusions but science never says one hundred percent. That‘s a big change for us to go from the days of it‘s my opinion, I‘m a hundred percent and I will not be swayed to reconsidering.
In addition, when the State cross-examined Royal, the following exchange occurred:
PROSECUTOR: Okay. Now, would you agree with the concept that if an identification is made, for example, when you come into court
and you say that matches that person, that that‘s a hundred percent accurate? ROYAL: That is correct.
PROSECUTOR: Okay. Is there any doubt in your mind whatsoever when you make those decisions?
ROYAL: No, the identification is made then I‘m a hundred percent certain that the unknown print was identified to a set of known prints.
PROSECUTOR: And that‘s the way you‘ve been taught to operate?
ROYAL: That is how I operate.
During closing statements, the prosecutor made the following remark:
Now, Michelle [Royal] is a good woman. I‘ve put her on the stand before in many cases to convict defendants of crimes. She‘s just wrong on this one. It happens. It was interesting, the reason I asked her this question about the hundred percent and the reason why Bill Schade spent all that time talking about the change is Michelle Royal is old school. She was taught you walk into court, it‘s a hundred percent, no doubt, this is the way I am. She‘s also taught that once a lab makes a decision, that decision is final. She runs that lab, she made the call that wasn‘t a print of value аnd she‘s going to stand by that conclusion because that‘s what she does in court. A hundred percent.
Bill Schade told you that‘s really not where the business—not where the expertise is going. You saw a lot of that from the FBI. Jacqueline Slebrch. She‘s the new school. She‘s been taught new. That‘s why they‘re doing the whole blind verifications. That‘s why they‘re doing those things. Regardless, he admits it‘s his print.
No objection was made to this remark, and as such, we review it for fundamental error. Braddy v. State, 111 So. 3d 810, 837 (Fla. 2012), cert. denied, 134 S. Ct. 275 (2013). An error is not fundamental unless it reaches down into the validity of
the trial itself to the extent that the guilty verdict could not have been obtained in the absence of the error. Id.To the extent that the prosecutor‘s closing statement compared “old school” and “new school” methodology, these remarks were related to testimony that was presented to the jury. Where the jury is to decide a matter based on the testimony of competing experts, it is the job of the attorney to highlight how the testimony of the expert presented by the opposing party differs from that of his or her own expert and explain why the opposing expert‘s opinion is flawed. Counsel must attempt to persuade the jury why it should credit one expert over another by attacking the opposing expert‘s credentials and distinguishing the methods and procedures used by each expert.
However, it is impermissible to vouch for the credibility of a witness, see Williamson v. State, 994 So. 2d 1000, 1013 (Fla. 2008), assert personal knowledge, see Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1028 (Fla. 2000), or comment on facts outside the evidence presented during trial, see Bigham v. State, 995 So. 2d 207, 214 (Fla. 2008). To the extent that the prosecutor vоuched for or asserted personal belief as to the credibility of Royal, asserted personal knowledge of how she operates, commented on matters outside the evidence presented during trial, or bolstered the testimony of Slebrch, we conclude that any error was not fundamental.
HAC
Jackson asserts that the HAC aggravating circumstance was impermissibly vicariously applied to him. The trial court addressed in its sentencing order whether HAC may be applied to Jackson in light of the request by the State that a principal instruction be given. The trial court found the following:
In this case, the Court has no trouble finding that the Defendant was “particularly physically involved” in the murder of Debra Pearce. The Defendant testified that he wasn‘t present when the crime occurred. Clearly the jury rejected the Defendant‘s claim of alibi when it found him guilty of Premeditated First Degree Murder. With the jury‘s rejection of the Defendant‘s alibi claims, and no testimony from the Defendant, or anyone else, that specifically identified anyone other than the Defendant who could have done the actual killing, the overwhelming conclusion to reach is that the Defendant directly caused the victim‘s death.
However, even if there was an unknown assailant that did the actual killing, the forensic evidence linking the Defendant to the crime scene supports the determination that the Defendant was “particularly physically involved” in killing Debra Pearce. The Defendant‘s fingerprint left in the victim‘s blood next to the kitchen sink not only identified the Defendant as a suspect, but also indicated that he was present while the victim‘s blood was still fresh and had not dried up. The imprint was, therefore, made close to the time that the victim struggled with her attacker. Also, a hair expert testified during the guilt phase that the hair found on the victim‘s calf matching the Defendant‘s DNA profile was a pulled hair containing the root, not one that was cut or clipped with a sharp instrument. As such, this evidence was consistent with a finding that the Defendant engaged in some type of struggle with the victim, again, at or near the time of her death.
As previously discussed, we conclude that the evidence is sufficient to support the jury conviction for first-degree, premeditated murder to the exclusion of all reasonable theories of innocence that were presented during trial. The evidence presented during trial establishes that: (1) Jackson had the wet blood of Pearce on his hand and touched the sink above where Pearce was found; (2) a hair that had been forcibly removed from Jackson was found on Pearce such that it would have fallen off had she stood up; (3) Pearce suffered defensive wounds; and (4) Jackson lied and denied knowing Pearce or ever having been to her house until confronted with the evidence аgainst him. This evidence supports the jury determination that Jackson struggled with Pearce and ultimately stabbed her to death. Accordingly, the HAC aggravating circumstance was not applied vicariously in this case, and this claim is without merit.
Moreover, this case is not comparable to Perez v. State, 919 So. 2d 347 (Fla. 2005), relied on by Jackson. In Perez, the evidence conclusively established that two identified individuals were present during the murder. Id. at 356. The
Here, the evidence was merely ambiguous as to whether more than one person was present during the murder. Although a second knife was found under Pearce with DNA on it that did not match either Jackson or Pearce, there is no evidence that this knife was used during the attack. Further, in contrast to the defendant in Perez, Jackson never asserted until this appeal that he was present and simply not active in the murder. Accordingly, this case is not comparable to Perez.
Additionally, even though Jackson does not appear to dispute that HAC applies to the murder, we note that competent, substantial evidence supports this aggravating circumstance, which has been consistently upheld in cases where the
Proportionality
Jackson asserts that the death penalty cannot be imposed because it violates the requirement of individualized punishment delineated by Enmund and Tison. However, Enmund and Tison do not apply to this case, which was prosecuted exclusively on the basis of premeditated first-degree murder. No felony murder instruction was read to the jury. In Jackson v. State, 575 So. 2d 181, 190-91 (Fla. 1991), this Court explained the holdings of Enmund and Tison:
In Enmund and Tison, the Court said that the death penalty is disproportional punishment for the crime of felony murder where the defendant was merely a minor participant in the crime and the state‘s evidence of mental state did not prove beyond a reasonable doubt that the defendant actually killed, intended to kill, or attempted to kill. Mere participation in a robbery that resulted in murder is not enough culpability to warrant the death penalty, even if the defendant anticipated that lethal force might be used . . . .
Jackson also asserts that the death sentence is disproportionate. In each case that imposes the death penalty, the Court performs a comprehensive analysis to determine whether the crime is among the most aggravated and least mitigated. See Taylor v. State, 937 So. 2d 590, 601 (Fla. 2006). The Court considers the totality of the circumstances and compares the case with other capital cases so as to ensure uniform application of the death sentence. Id.
Here, the three aggravating factors of prior violent felony conviction (based on two convictions), murder committed while on felony probation, and HAC were each given great weight. These aggravating factors were weighed against sixty-six mitigating circumstances, many of which were substantially similar and related to Jackson‘s positive attributes as a father, husband, friend, and worker. Of the sixty-six mitigating circumstances, the trial court found that thirty-six warranted only slight weight, twenty-three warranted some weight, and only seven warranted
Proportionality is not a comparison of thе number of circumstances, but instead is a qualitative review of the totality of the circumstances and the underlying basis that supports the application of each circumstance. See Simpson v. State, 3 So. 3d 1135, 1148 (Fla. 2009). This Court has previously held the death sentence to be proportionate despite the finding of a large number of mitigating circumstances. See Abdool v. State, 53 So. 3d 208, 215, 228 (Fla. 2010) (holding death sentence proportionate where cold, calculated, and premeditated and HAC were weighed against four statutory mitigating factors and forty-eight nonstatutory mitigating factors); see also Willacy v. State, 696 So. 2d 693, 695 n.2, 696 (Fla. 1997) (holding death sentence proportionate where five aggravating circumstances were weighed against thirty-one nonstatutory mitigating factors, most of which were cumulative and general in nature). Here, although the trial court found a large number of mitigating factors, they are repetitive and involve positive aspects of Jackson‘s life, whereas the three aggravating factors demonstrate an individual who repeatedly commits violent criminal acts. Accordingly, we conclude that the underlying bases for the aggravating circumstances in this case are weightier than those that support the mitigating circumstances.
the videotape of the . . . robbery shows an individual who, with all deliberate intent and absolutely no hesitation, walked into the lobby of a hotel, immediately pointed a handgun at an innocent victim, and demanded money. [The victim of the aggravated assault], likewise, provided the description of an individual involved in a narcotics transaction that was willing to brandish a handgun despite the risks presented by such an act.
The court further concluded that the felony probation aggravating circumstance warranted enhanced weight because Jackson was on probation for a violent crime when he committed the murder.
The Court has held the death penalty to be proportionate in cases that involve similar aggravating and mitigating circumstances to those here. In Duest v. State, 855 So. 2d 33, 45, 47 (Fla. 2003), the death sentence was affirmed where the victim was stabbed twelve times, and three aggravating circumstances—prior violent felony (on the basis of two convictions), murder committed during a robbery or for pecuniary gain, and HAC—were weighed against twelve non-statutory mitigating circumstances. Of the mitigating circumstances, two warranted great weight—that the defendant had a physically and emotionally abusive childhood, and that he experienced childhood traumatization and deprivation of love. Id. at 38 n.3. Similarly, in Singleton v. State, 783 So. 2d 970, 972-73, 979-80 (Fla. 2001), this Court held the death sentence to be proportionate where the victim had been stabbed seven times and the two aggravating circumstances of prior violent felony and HAC were weighed against three statutory mitigating circumstances (the defendant suffered from an extreme mental or emotional disturbance at the time of the murder, the defendant‘s capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired, and the defendant was sixty-nine at the time of the murder), and nine nonstatutory mitigating circumstances.
The cases relied on by Jackson are not comparable. In Larkins v. State, 739 So. 2d 90, 92 (Fla. 1999), the aggravating factors of prior violent felony and pecuniary gain were weighed against two statutory mitigating factors and eleven nonstatutory mitigating factors. The Court noted that the most serious aggravator
In contrast, HAC was found in this case. Additionally, Jackson had no mental health or emotional mitigation, and the forensic psychologist testified that there was nothing clinically significant in Jackson‘s psychological profile. Further, Jackson did not lead a relatively crime-free life and had violent felony convictions for acts both before and after the murder. When the trial court weighed the aggravating and mitigating circumstances, it specifically noted: “From the evidence, the Defendant has consistently led an entirely separate life from the one known to his family and friends that involved a repeated willingness to resort to violent criminal acts to further his intentions.”
In Johnson v. State, 720 So. 2d 232, 235 (Fla. 1998), the aggravating circumstances of prior violent felony (based on four convictions) and murder committed during a burglary merged with pecuniary gain were weighed against the statutory mitigating circumstance of young age and six nonstatutory mitigating circumstances. This Court noted that although the prior violent felony aggravating
The othеr cases relied on by Jackson are equally uncompelling. See Robertson v. State, 699 So. 2d 1343, 1347 (Fla. 1997) (death penalty vacated where the murder was “an unplanned, senseless murder committed by a nineteen-year-old, with a long history of mental illness, who was under the influence of alcohol and drugs at the time“); Terry v. State, 668 So. 2d 954, 965 (Fla. 1996) (holding death sentence disproportionate where the murder was the result of a robbery gone bad, and the aggravating circumstances of prior violent felony and murder committed during the course of an armed robbery/pecuniary gain were not compelling given the underlying facts); Wilson v. State, 493 So. 2d 1019, 1023 (Fla. 1986) (holding death sentence disproportionate where “the murder . . . was
Accordingly, we hold the death sentence to be proportionate in this case.
Ring
Jackson asks that we revisit prior decisions that hold that Florida‘s death penalty statute does not violate the Sixth Amendment under the principles announced in Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000). We decline to revisit the numerous decisions that hold that Florida‘s capital sentencing scheme does not violate the United States Constitution under Ring or Apprendi. See, e.g., Abdool, 53 So. 3d at 228 (“This Court has also rejected [the] argument that this Court should revisit its opinions in Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002), and King v. Moore, 831 So. 2d 143 (Fla. 2002).“); see also Duest, 855 So. 2d at 49. Moreover, this Court has repeatedly held that Ring does not apply where the trial court found the aggravating factors of prior violent felony and felony probation, both of which are present in this case. See, e.g., Hampton v. State, 103 So. 3d 98, 116 (Fla. 2012); Hodges v. State, 55 So. 3d 515, 540 (Fla. 2010).
CONCLUSION
Based on the foregoing, we affirm Jackson‘s conviction and sentence of death.
It is so ordered.
LABARGA, C.J., and LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.
PARIENTE, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
James Hunt Daniel, Judge - Case No. 162008CF010726AXXXMA
Nancy Ann Daniels, Public Dеfender, and Nada Margaret Carey, Assistant Public Defender, Second Judicial Circuit, Bartow, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Patrick M. Delaney, Assistant Attorney General, Tallahassee, Florida,
for Appellee