Mark D. Sievers v. State of Florida ( 2022 )

Supreme Court of Florida
____________
No. SC20-225
____________
MARK D. SIEVERS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
November 17, 2022
PER CURIAM.
Mark D. Sievers appeals his first-degree murder conviction
and corresponding death sentence, as well as his conviction for
conspiracy to commit murder.1 We affirm in all respects.
FACTS AND PROCEDURAL BACKGROUND
Guilt Phase
On June 28, 2015, Dr. Teresa Sievers left a family vacation
and returned alone to her Bonita Springs home. After pulling into
the garage, she retrieved her luggage and walked into the house.
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Unbeknownst to Dr. Sievers, Curtis Wayne Wright, Jr., and Jimmy
Ray Rodgers were waiting inside to carry out the murder that her
husband—defendant Mark D. Sievers—had hired them to perform.
When Dr. Sievers entered the kitchen, Wright and Rodgers beat her
in the head with hammers until she died.
The murder marked the culmination of a plot that began
weeks earlier, when Sievers traveled to Missouri for Wright’s May
2015 wedding. Over the course of several conversations during the
wedding weekend, Sievers asked his longtime friend Wright to
murder Dr. Sievers as soon as possible. Initially uncertain, Wright
eventually agreed to “take care of it” for at least $100,000 in life
insurance proceeds.
Wright then recruited Rodgers by promising him part of the
life insurance money. In his trial testimony, Wright explained that
Rodgers had “been involved in other deaths” and characterized him
as “somebody that would actually do it.” Throughout the planning,
only Wright communicated with Rodgers; Sievers had explicitly told
Wright that he did not want to know the identity of any accomplice
Wright might hire. Sievers and Wright themselves used prepaid cell
phones for their calls about the plot, thinking those phones were
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safer and more secure than their regular phones. Phone records
showed that their prepaid phones became active only after they
exchanged a code word on their regular lines.
Sievers envisioned two possible scenarios for the murder: June
28 at the Sieverses’ home (to look like a burglary) or June 29 at
Dr. Sievers’ medical office (to look like a mugging). Sievers knew his
wife was set to return home alone from a family vacation on June
28. He had booked her return flight, and he wanted to ensure that
he and their daughters would not be in town at the time of the
killing.
Sievers prepared in depth for each scenario. For the home
murder plan, Sievers tested going over the backyard fence, and he
trimmed bushes in the yard to carve out a path to the garage. He
also told Wright how to enter the house and disarm the security
system. For the office murder plan, Sievers sent Wright aerial
photographs of the building, identifying a secluded stairwell that
Dr. Sievers used when she left work late at night. He also gave
Wright the stairway access code. Sievers told Wright that,
regardless of where the murder took place, it should appear to have
been committed incident to a burglary or robbery.
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Wright and Rodgers left Missouri on June 27, equipped with
detailed instructions and money from Sievers. They arrived in
Bonita Springs, Lee County, Florida, early the next morning.
Wright and Rodgers first stopped at the Sieverses’ home and left
after a brief visit. Then they drove past Dr. Sievers’ medical
practice to evaluate its potential as a murder location, but they
eliminated that option after feeling too exposed on the property. For
the remainder of the day, they napped in their rental car, shopped
at Walmart, and spent time at the beach.
Around 10:30 p.m., Wright and Rodgers returned to the
Sieverses’ residence. They put on coveralls and gloves and “pried
open” the already unlocked side door to mimic a burglary. Thinking
Dr. Sievers would arrive at midnight, Wright was taken aback when
he heard the garage door roll up shortly before 11:25 p.m. Wright
scrambled to conceal himself in the garage as he watched
Dr. Sievers park the car, retrieve her luggage, and enter the house.
Wright then followed her, picking up a hammer that was lying on
the garage freezer on his way inside.
As he walked into the kitchen, Wright stumbled on a dog dish,
startling Dr. Sievers, who turned toward Wright at the noise.
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Wright struck her head once and swung two more times while she
put up her hands to defend herself. At this point, Rodgers began to
attack her, too. Using a different hammer, Rodgers bludgeoned her
in the head over and over. Eventually, Dr. Sievers went silent as
she fell to the floor, where Rodgers continued to hit her until Wright
made him stop. Certain that Dr. Sievers was dead, Wright and
Rodgers left the house and drove back to Missouri.
While Wright and Rodgers were carrying out the murder,
Sievers was still at his mother-in-law’s home in Connecticut, on
vacation with his two daughters. Earlier that day, Sievers out of the
blue called Dr. Mark Petrites, a family friend, to “check in” and
inform him of Dr. Sievers’ travel plans. The next morning, on June
29, Sievers heard from Dr. Sievers’ office that she did not show up
for work. Sievers again called Dr. Petrites and asked him to stop by
the house to check on his wife. Dr. Petrites found it odd that
Sievers gave him the garage code and instructed Dr. Petrites to just
walk in, rather than first knock on the front door. When he entered
the Sieverses’ home, Dr. Petrites found Dr. Sievers face down on the
kitchen floor in a pool of blood.
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The first break in the subsequent police investigation came
two weeks later. Law enforcement in Illinois called lead detective
David Lebid with the news that someone had come forward with
information potentially related to the murder. Lebid traveled to
Illinois to conduct an in-person interview of the informant, and,
from that interview, Wright emerged as a suspect.
Eventually, police obtained a warrant to search Wright’s house
in Missouri. There, they seized Wright’s cell phone and the GPS
used on the trip to Florida, which in turn linked Wright to Rodgers.
While detectives executed a search warrant at Rodgers’ residence in
Missouri, Rodgers’ girlfriend, Taylor Shomaker, led authorities to
evidence connecting Rodgers to the crime, including the backpack,
shoes, shirts, and beverage cooler that had been purchased at a Lee
County Walmart on the day of the murder. Shomaker also brought
detectives to the sites where she and Rodgers had discarded the
coveralls worn during the murder and pieces of Rodgers’
deconstructed prepaid cell phone. Wright and Rodgers were then
arrested, interrogated, and charged.
Wright initially denied involvement in the murder. But he
later confessed, implicated Sievers in the crime, and agreed to a
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plea deal. Sievers himself was indicted in May 2016 for first-degree
murder and conspiracy to commit murder.
At trial, the State proved its case principally through Wright’s
testimony; Rodgers did not testify. The State corroborated Wright’s
account with cell phone, GPS, and video surveillance records that
documented both Sievers’ painstaking planning and Wright’s
locations in the weeks before and immediately after the murder.
The State presented the backpack, shoes, shirts, and beverage
cooler that were purchased in Lee County on the day of the murder
and later found in Rodgers’ Missouri home. The State also
introduced fibers from Rodgers’ discarded coveralls worn during the
murder that were found on Dr. Sievers’ corpse and in the rental car.
Dr. Thomas Coyne, the Lee County medical examiner, testified
about the autopsy he performed on Dr. Sievers. He determined that
she died from blunt head trauma from multiple impact wounds to
the back of the skull that were consistent in size with the head of a
hammer.
Sievers did not testify at trial. His defense counsel argued in
closing that there was no credible evidence connecting Sievers to
the crime. According to defense counsel, the State had done
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nothing more than prove that Wright and Rodgers—not Sievers—
murdered Dr. Sievers. The defense focused on Wright’s asserted
lack of credibility, highlighting his bipolar disorder, his status as a
five-time felon, and his admitted lies during the investigation. The
defense theorized that Wright, hoping to protect his wife from being
prosecuted for tampering in the murder investigation, was simply
parroting a narrative that had been fed to him by the State.
On December 4, 2019, the jury found Sievers guilty of first-
degree premeditated murder and conspiracy to commit murder.
Penalty Phase
The same jury returned a week later for the penalty phase.
The State presented victim impact evidence but otherwise relied on
evidence from the trial. Sievers presented mitigating evidence
through several relatives, all of whom testified to his loving
relationship with his family, especially with his daughters.
The State sought to prove two aggravators: murder committed
in a cold, calculated, and premeditated manner with no pretense of
moral or legal justification; and murder committed for pecuniary
gain. The jury unanimously found the CCP aggravator but not the
pecuniary gain aggravator. On the verdict form, it checked that no
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mitigating circumstances had been proven, even though Sievers’
lack of criminal history had been conceded by the State. The jury
unanimously recommended a death sentence.
Spencer Hearing and Sentencing
The trial court held a Spencer 2 hearing on January 3, 2020.
Sievers entered his clean disciplinary record from the Lee County
Sheriff’s Office, a postcard from his daughter, and a letter that had
been written before the murder by Dr. Petrites’ wife, expressing her
affection for the Sievers family. The court noted for the record that
Sievers’ daughters did not want him to die. Sievers himself made a
statement to the court. He denied involvement in the murder, said
he loved Dr. Sievers and their two daughters, and asked to be
spared from the death penalty. The State introduced an additional
victim impact statement.
After a thirty-minute recess, the trial court sentenced Sievers
to death for the murder conviction and to a consecutive thirty-year
prison sentence for the conspiracy conviction. The court gave great
weight to the jury’s recommendation in favor of a death sentence. It
2. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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found the CCP aggravator (but not the pecuniary gain aggravator)
proven beyond a reasonable doubt and gave it great weight. The
court found the following mitigating circumstances had been
established, but gave them little weight: that Sievers had no prior
criminal history; that he had a loving and supportive relationship
with his family; that his family would be negatively affected if he
were to be executed; and that he had engaged in charitable
activities that benefited the community. The court found that the
mitigating effect of Sievers’ positive relationship with his family was
undercut by his decision to procure the murder of his daughters’
mother. Finally, the court found that the evidence did not support
Sievers’ requested statutory mitigator for capital felony accomplices
whose participation was “relatively minor.”
This direct appeal followed.
ANALYSIS
Sievers raises myriad challenges to his convictions and death
sentence, none of them meritorious. We will address Sievers’ claims
in the order presented in his opening brief.
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Guilt Phase Challenges
Issues I through III: Polygraph-Related Claims. A principal
theme of Sievers’ closing argument was that the State had not
subjected Wright to a polygraph examination, even though Wright’s
plea agreement gave the State the option to do so. Sievers’ counsel
ended closing argument by telling the jury: “When you weigh the
evidence and you look at all these facts, ultimately, the one
question you all have to ask yourselves: Do you trust Curtis Wayne
Wright? And would you feel different if a polygraph had been
administered?” After defense counsel finished, and outside the
presence of the jury, the State argued that this reference to a
polygraph was improper. Ultimately, the State persuaded the trial
court to instruct the jury as follows: “If Mr. Wright had actually
taken a polygraph, those results, if they were—if he passed, would
not have been admissible during this trial.” The State then
proceeded to give its rebuttal.
Sievers now argues that the trial court’s instruction misstated
the law, that it amounted to a comment to the jury on the
evidentiary weight of the State’s decision not to give Wright a
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polygraph exam, and that it indirectly commented on Wright’s
credibility. We disagree.
As to the first point, Sievers forfeited any challenge to the
substance of the trial court’s instruction. During the parties’
discussion of this issue with the trial court, defense counsel did not
contest the instruction’s content. Instead, counsel told the trial
court that the State, rather than the court itself, should raise the
admissibility issue with the jury in the form of an argument.
Nor is there merit to Sievers’ claim that the trial court’s
instruction amounted to a comment on the evidence or on Wright’s
credibility. The jury could reasonably have taken defense counsel’s
closing argument to imply that the jury would have known the
results of any polygraph exam administered to Wright. Against that
backdrop, it was not error for the trial court to issue a clarifying
instruction. Importantly, the trial court gave Sievers free rein to
argue to the jury that the decision not to subject Wright to a
polygraph showed the State’s unwillingness to find the truth.
Sievers next maintains that the State, in rebuttal, falsely
suggested that Wright would be administered a polygraph exam
sometime between the end of trial and Wright’s sentencing. The
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record does not support this claim. It is true that the State’s
rebuttal told the jury that Wright remained obligated to take a
polygraph at the State’s request, but the argument did not imply
that the State necessarily would avail itself of that option.
Sievers’ final polygraph-related claim has to do with the
testimony of lead detective Lebid. Lebid interviewed Wright in July
and August 2015, and he was present for Wright’s proffer in
January 2016 and sworn statement in February 2016. On cross-
examination, Lebid acknowledged that the State had not given
Wright a polygraph exam, even though Lebid knew that Wright lied
in the 2015 interviews and at the beginning of the January 2016
proffer. On redirect and over defense counsel’s objection, the
prosecution rhetorically asked Lebid if he needed a “lie detector
machine” to tell him when Wright was lying—to which Lebid
answered “no.” Sievers now argues that these questions and
answers implied that Lebid had a “natural ability” to detect Wright’s
truthfulness and thus improperly bolstered Wright’s credibility.
The record does not support Sievers’ argument. It was defense
counsel, during Lebid’s cross-examination, who first juxtaposed
Wright’s undisputed lies with the State’s failure to administer a
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polygraph exam. In response, the State on redirect elicited
testimony that, at the time of Wright’s summer 2015 interviews,
Lebid was already aware of evidence (e.g., surveillance videos from a
Walmart in Florida) that directly exposed Wright’s lies. Read in its
entirety, the thrust of the testimony on redirect was not that Lebid
had an intuitive sense of Wright’s credibility, but rather that other
evidence available to Lebid showed when Wright was lying. We
conclude that no improper bolstering occurred.
Issue IV: Wright’s Reference to Prayer. On direct examination,
Wright acknowledged that he lied at the outset of his January 2016
proffer meeting when he said that he had stayed outside the
Sieverses’ home while Rodgers alone carried out the killing. Wright
explained the lie by testifying that he had “struggled with [his] own
personal involvement in it, the physical part of it.” But then he said
this about his decision to tell the truth: “I just couldn’t quite let go
of all that. And I took a break. I talked to my attorney. I prayed.”
Defense counsel objected, arguing that Wright’s reference to having
prayed violated section 90.611, Florida Statutes (2019). Sievers
now argues that this alleged violation appealed to “religious bias”
and improperly bolstered Wright’s credibility.
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We find no violation of section 90.611. That law says:
“Evidence of the beliefs or opinions of a witness on matters of
religion is inadmissible to show that the witness’s credibility is
impaired or enhanced thereby.” Here, Wright made a fleeting
reference to prayer and explicitly equated it with talking to his
attorney and taking a break. The prosecution neither solicited
Wright’s prayer reference nor mentioned it again. Sievers’ argument
lacks merit.
Issue V: Wright’s February 2016 Meeting with the State. After
the January 2016 proffer, Wright again met with the State on
February 19, 2016. The latter meeting proceeded in two parts.
First, Wright discussed a plea agreement and agreed to cooperate
with the State. Second, Wright made a sworn statement about the
murder.
Part of the discussion at the February meeting focused on
Wright’s wife, Angela. The prosecutor told Wright that the
authorities were aware that Mrs. Wright had asked potential
witnesses in the investigation to change their statements. In that
context, the prosecutor referred to Wright’s wife as a “blip on [his]
radar screen” that he wanted “to go away.” But the prosecutor
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explained that the plea agreement would not protect Wright’s wife
and that she would be prosecuted if the investigation revealed her
involvement in the murder. Wright acknowledged that he
understood and assented to the plea agreement. He then gave his
sworn statement.
At trial, after the State rested its case-in-chief, Sievers recalled
Lebid for the purpose of introducing into evidence the video of the
“blip” discussion at the February 2016 meeting. The State objected,
arguing that the disputed video footage was hearsay, that any
introduction of the video needed to occur during Sievers’ cross-
examination of Wright or Lebid, and that the video evidence would
be cumulative in light of Wright’s and Lebid’s testimony on direct
and cross-examination. Sievers countered that it was admissible
because the State had opened the door by asking Wright about his
truthfulness in its case-in-chief and because the video would show
Wright’s bias to protect his wife. The trial court excluded the video.
Sievers argues on appeal that the trial court erred by
excluding the video footage, but we disagree. Regardless of the
merits of the State’s hearsay objection or of the State’s objection to
the timing of Sievers’ attempt to introduce the footage, we conclude
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that the video evidence was cumulative and therefore properly
excluded. See § 90.403, Fla. Stat. (2019) (“Relevant evidence is
inadmissible if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of issues, misleading the
jury, or needless presentation of cumulative evidence.”); Gutierrez v.
Vargas, 239 So. 3d 615, 625 (Fla. 2018) (“Courts should exercise
their discretion to avoid the needless waste of time through
unnecessary presentation of cumulative evidence.”).
The record shows that Sievers questioned both Lebid and
Wright about the February 2016 meeting. During Wright’s cross-
examination, defense counsel explicitly broached the “blip”
discussion that Sievers sought to introduce via the video:
DEFENSE: You had some concerns that Ms. Wright may
be charged in some capacity for this; is that correct?
WRIGHT: I had concerns that she was going to get—yeah.
DEFENSE: Yes.
WRIGHT: Yeah, I don’t know about a charge, but yeah.
DEFENSE: And do you recall that Mr. Hunter said that
Angie is a blip that will go away? Do you recall Mr.
Hunter saying that?
WRIGHT: Yeah.
...
DEFENSE: That made you feel better about giving your
testimony, protecting your wife, correct?
WRIGHT: Not about giving my testimony, but . . .
DEFENSE: You love your wife, correct?
WRIGHT: I do.
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DEFENSE: You want to protect your wife, correct?
WRIGHT: I do.
DEFENSE: And so if you can make sure that she is
insulated from prosecution, that’s something you want,
isn’t it?
WRIGHT: Yeah, when she’s innocent.
On recross, defense counsel again asked if Wright remembered
the prosecutor calling Mrs. Wright a “blip” and read portions of the
transcript from the February 2016 meeting. Counsel even elicited
Wright’s acknowledgment that he wanted to protect his wife (though
Wright added that his participation in the plea agreement had
“nothing to do” with her).
Likewise, during Lebid’s cross-examination, defense counsel
asked about Mrs. Wright. He said:
DEFENSE: Mr. Hunter asked you about Angela Wright.
You said there was no evidence to show that Angela
Wright went to Florida; is that correct?
LEBID: Correct.
DEFENSE: Okay. And you said you could—you could
affirmatively rule out Angela Wright as a participate—
participant in the murder, correct?
LEBID: Correct.
...
DEFENSE: If Ms. Wright helped in the planning, she
could be charged, correct?
LEBID: Absolutely.
DEFENSE: If she helped Mr. Wright avoid detection, she
could be charged for this, correct?
LEBID: Absolutely.
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And even after the trial court ruled to exclude the video,
counsel questioned Lebid about Mrs. Wright’s involvement in the
case and how Lebid was able to eliminate her as a suspect.
Finally, relying on the evidentiary foundation developed during
trial, defense counsel in closing argument pursued the theme that
Wright was lying to protect his wife. Counsel told the jury that Mrs.
Wright had tampered with witnesses, and he suggested that the
State could have charged her in connection with the murder.
Alluding to the prosecutor’s remarks at the February 2016 meeting,
counsel told the jury: “And why not prosecute Angie [Wright]?
Because she’s a blip. She’s a blip that only Curtis Wright can make
go away.”
We note that Sievers does not claim that Wright or Lebid gave
any trial testimony inconsistent with any statement in the excluded
video. On the contrary, their testimony appears to have accurately
recounted the exchanges at issue. We find no error in the trial
court’s decision to exclude this cumulative evidence.
Issue VI: Sexual Motive. During Wright’s cross-examination,
defense counsel inquired whether Lebid had asked Wright about his
“sexual preference” and about whether Sievers and Wright “had a
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sexual relationship.” The trial court sustained the State’s
relevance-based objections before Wright could answer the
questions. In a sidebar, the court explained to counsel: “It’s not
relevant at this time, unless someone is going to get up and say
they had a relationship. I haven’t heard it, so I don’t see how it’s
even relevant, and I’m going to sustain the objection.” Sievers now
argues that the trial court’s ruling violated Sievers’ confrontation
rights and deprived him of an opportunity to explore Wright’s
motives for murdering Dr. Sievers.
“Limitations on the examination of a particular witness are
controlled in the sound discretion of the trial court, and the trial
court’s ruling in this area will only be reversed if the aggrieved party
demonstrates an abuse of that discretion.” Kormondy v. State, 845
So. 2d 41, 52 (Fla. 2003). We see no abuse of discretion here. It
was reasonable for the trial court, before allowing defense counsel
to proceed down a tangential and potentially distracting path, to
determine whether there was any evidence showing a potential
romantic relationship between Wright and Sievers. Absent any
proffer from defense counsel to that effect, the trial court acted
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within its discretion by sustaining the State’s objection to defense
counsel’s questioning on this issue.
Issue VII: Neighbor’s Testimony. During the State’s case-in-
chief, the jury heard testimony from Kimberly Torres, the Sieverses’
next-door neighbor. Two aspects of Torres’s testimony are at issue
on appeal. First, Torres testified about unexpectedly encountering
Sievers on her backyard lanai several months before the murder.
Second, Torres recounted an argument she overheard between
Sievers and Dr. Sievers the month before the murder. Torres
testified that Dr. Sievers said, “I’m f-ing tired of this” and “I’m
leaving,” to which Sievers responded: “If that’s what you want to
do, fine, but we’ll see about that.” Sievers objected at trial to these
portions of Torres’s testimony.
Sievers now argues that the trial court should not have
allowed the testimony about the lanai encounter because it was
irrelevant, overly prejudicial, and evidence of prior bad acts. But we
see no error in the admission of this testimony. Torres’s testimony
tended to corroborate Wright’s account that Sievers had actively
scoped out his home as a possible murder location and investigated
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jumping over the backyard fence as the best way to access the
home.
As to Torres’s testimony about the overheard argument,
Sievers maintains that the statements Torres attributed to
Dr. Sievers and him are hearsay and do not fall within any
exception to the hearsay rule. The State counters that the
statements qualify under exceptions for excited utterances and for
statements of then-existing state of mind. In particular, the State
says that Sievers’ “we’ll see about that” comment shows Sievers’
state of mind and helps explain his conduct in having his wife
killed.
We need not resolve the question whether the disputed
statements qualified for any hearsay exception or, indeed, whether
the statements even meet the definition of hearsay; after all, it is
not obvious that the statements contained assertions that were
offered to prove the truth of the matter asserted. Any error in
admitting Torres’s testimony about the Sievers’ argument was
harmless because there is no reasonable possibility that such error
contributed to the conviction.
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To the extent it relied on Torres’s testimony at all, the State
focused on the lanai encounter, not the overheard argument. In
closing argument, the State emphasized what it called Sievers’
“recon mission” to Torres’s backyard. But the State did not even
mention the overheard argument. Nor did the State in closing
argue to the jury that marital problems explained the murder.
Instead, the State argued that Dr. Sievers’ substantial life insurance
gave Sievers a financial motive to commit the crime. Under these
circumstances, we believe the State has met its burden to prove
harmless error beyond a reasonable doubt.
Issue VIII: Autopsy Photographs. Sievers next challenges the
trial court’s decision to admit eleven autopsy photographs showing
trauma to Dr. Sievers’ head and body. The photographs depicted
injuries to her skull from multiple angles, as well as defensive
wounds on her body. Sievers argues that the photos’ prejudicial
effect substantially outweighed their probative value.
We find no abuse of discretion in the admission of the autopsy
photographs here. In this case, the photographs corroborated
Wright’s testimony about the murder and assisted the jury in
understanding the medical examiner’s testimony.
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Issue IX: Cumulative Error. Sievers next argues for reversal
based on cumulative error. That doctrine applies where multiple
errors, though individually harmless, combine to deprive the
defendant of a fair and impartial trial. McDuffie v. State, 970 So. 2d
312, 328 (Fla. 2007). The cumulative error doctrine has no place in
this case because we have not found multiple errors. See Fletcher
v. State, 168 So. 3d 186, 220 (Fla. 2015); Pagan v. State, 830 So. 2d
792, 815 (Fla. 2002).
Issues X and XI: Motions for Judgment of Acquittal. Sievers
maintains that the trial court erred in denying his motions for
judgment of acquittal on the first-degree murder count and on the
conspiracy count. We review the denial of a motion for judgment of
acquittal de novo and uphold convictions supported by competent,
substantial evidence. Pagan, 830 So. 2d at 803. If, after viewing
the evidence in the light most favorable to the State, a rational trier
of fact could find the existence of the elements of the crime beyond
a reasonable doubt, sufficient evidence exists to sustain a
conviction. Id. For the reasons we explain, we affirm the trial
court’s denial of Sievers’ motions for judgment of acquittal on both
counts.
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As to the first-degree murder count, the State had to prove
that Dr. Sievers was dead, that Sievers’ criminal act caused her
death, and that her death was premeditated. § 782.04(1)(a), Fla.
Stat. (2019). Because Sievers was not present at the murder, the
jury was instructed on the principal theory of liability. Under that
theory, Sievers could be found guilty of first-degree murder if he
had procured, hired, or aided Dr. Sievers’ killing. § 777.011, Fla.
Stat. (2019).
Wright’s testimony was sufficient to establish every necessary
element of the crime, and it is not for our Court to determine the
credibility of that testimony. Specifically, the jury could conclude
from Wright’s testimony that Sievers had promised to pay Wright to
murder Dr. Sievers, that Sievers and Wright carefully planned the
murder weeks in advance, and that Wright and Rodgers murdered
Dr. Sievers according to Sievers’ plan. As we have explained, the
State corroborated Wright’s testimony with cell phone evidence
showing their communications leading up to the murder. The State
also presented evidence corroborating Wright’s account of his and
Rodgers’ commission of the crime. We therefore reject Sievers’
claim, and, under our independent obligation to review the
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sufficiency of the evidence, we conclude that competent, substantial
evidence supports Sievers’ first-degree murder conviction. See Fla.
R. App. P. 9.142(a)(5).
As to the conspiracy count, Sievers points to the fact that the
indictment alleged that he conspired with both Wright and Rodgers.
Sievers claims that he was entitled to a judgment of acquittal given
the undisputed evidence that Sievers never communicated with
Rodgers about the murder and told Wright that he did not want to
know the identity of any accomplice.
Sievers’ argument here misstates the law of conspiracy. To
sustain a conspiracy conviction, the government does not need to
prove that the defendant knew the identity of every other person
alleged to have been part of the conspiracy. It is enough that the
State prove that the alleged co-conspirators shared a common
purpose to commit the crime. See Blumenthal v. United States, 332
U.S. 539, 557 (1947) (“[T]he law rightly gives room for allowing the
conviction of those [members] discovered upon showing sufficiently
the essential nature of the plan and their connections with it,
without requiring evidence of knowledge of all its details or of the
participation of others.”); Pino v. State, 573 So. 2d 151, 152 (Fla. 3d
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DCA 1991) (“Moreover, direct proof of the criminal agreement is not
necessary to establish a conspiracy; the jury may infer from all the
surrounding circumstances that a common purpose to commit a
crime existed.”). Here, Wright’s testimony was sufficient to support
a jury finding that Sievers, Wright, and Rodgers all were members
of a single plot to murder Dr. Sievers.
Penalty Phase Challenges
Issue XII: Notice of Intent to Seek the Death Penalty. Section
782.04(1)(b), Florida Statutes (2016) (effective Mar. 7, 2016), sets
out certain procedural requirements for death penalty cases. In
pertinent part it says:
If 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.
The notice must contain a list of the aggravating factors
the state intends to prove and has reason to believe it can
prove beyond a reasonable doubt. The court may allow
the prosecutor to amend the notice upon a showing of good
cause.
This provision went into effect in March 2016, and the State
concedes that it applied to Sievers’ prosecution. 3
3. Florida Rule of Criminal Procedure 3.181 also governs the
State’s notice to seek the death penalty, but that rule is
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Sievers was arraigned on May 9, 2016. Forty-four days later—
that is, one day before the statutory deadline—the State filed a
notice of intent to seek the death penalty. But that notice did not
list the aggravating factors that the State intended to prove. The
omission was inadvertent, as the State appears to have been
unaware of the then relatively new requirements of section
782.04(1)(b). Instead, the State had filed the notice under the 2016
version of Criminal Procedure Rule 3.202, which pertained to
discovery in death penalty cases and did not require any
aggravators to be listed.
Sievers soon filed a motion to strike the State’s notice. That
same day—four days after the expiration of the 45-day deadline—
the State filed an amended, substantively compliant notice that
listed two aggravating factors. Sievers responded with a motion to
strike the State’s amended notice.
After a hearing, the trial court entered an order denying
Sievers’ motions to strike. The court concluded that the State’s
inapplicable here because the Court did not adopt it until months
later, on September 15, 2016.
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initial filing, though defective for failing to list aggravators, was
timely. And the court further ruled that the State had shown good
cause for filing an amended, compliant motion—specifically, that
the delay was “negligible” and that Sievers was not prejudiced.
Sievers now argues that the trial court’s ruling was in error and
that the State’s failure to file a timely, compliant notice requires this
Court to reverse Sievers’ death sentence.
We affirm, but on grounds independent of the merits of the
trial court’s good cause determination. Guided by our Court’s
analysis in Massey v. State, 609 So. 2d 598 (Fla. 1992), the most
analogous precedent of which we are aware, we conclude that any
procedural defect here is subject to harmless error analysis.
In Massey, the state had failed to comply with a statute that
required notice to be served on the defendant before his sentencing
as a habitual felony offender. The defendant argued that the state’s
procedural misstep required vacatur of his sentence. Our Court
disagreed, relying on section 59.041, Florida Statutes (1989). That
statute instructs that a reviewing court may not set aside a criminal
judgment “for error as to any matter of pleading or procedure”
unless the court determines that “the error complained of has
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resulted in a miscarriage of justice.” Our Court’s precedents equate
this statutory standard with the harmless error test. See State v.
Lee, 531 So. 2d 133, 136 n.1 (Fla. 1988). In Massey, we
emphasized: “[T]he issue in this case is not whether Massey must
show harm in order to assert the lack of notice as error but rather
whether the state, by affirmatively proving no harm, can bring this
technical error within the harmless error rule.” 609 So. 2d at 600.
Here, as in Massey, we are faced with a statute that imposes a
mandatory claim processing (i.e., nonjurisdictional) rule but does
not specify a remedy for noncompliance. Applying the harmless
error standard of review, we conclude that the State has shown
beyond a reasonable doubt that Sievers suffered no prejudice from
any delay in the State’s full compliance with section 782.04(1)(b).
In Sievers’ case, the State filed a compliant notice within four days
of the statutory deadline. At that time, discovery had not
commenced, and no hearings were scheduled. Sievers’ trial did not
begin until three and a half years later, in November 2019. Given
these circumstances, we find harmless error and therefore decline
to vacate Sievers’ death sentence.
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Issue XIII: Prior Criminal History Mitigator. On the penalty
phase verdict form, the jury checked “no” to the statement: “One or
more individual jurors find that one or more mitigating
circumstances was established by the greater weight of the
evidence.” The jury did so even though the State, in its penalty
phase closing argument, twice conceded that Sievers had
established the statutory mitigator for “no significant history of
prior criminal activity.”
Sievers now maintains that the jury’s decision was a reaction
to a misstatement by the State in that same closing argument.
During a question-by-question explanation of the penalty phase
verdict form, the State told the jury: “So, if one or more individual
jurors find that one or more mitigating circumstances was
established by the greater weight of the evidence, check ‘no.’ It was
not.” Sievers claims that, through this misstatement, the State
“persuaded” the jury to reject an “important undisputed” mitigator
and thereby “corrupted the jury’s decision-making process.”
Because Sievers did not object to the disputed statement at
trial, we review this claim for fundamental error. And we find no
such error here. Almost immediately after the statement at issue,
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in the same closing argument, the State again told the jury that
Sievers had no prior criminal history. After the State’s closing,
defense counsel reminded the jury about the State’s concession.
And finally, after the parties’ penalty phase closing arguments, the
trial court instructed the jury on the law of mitigating
circumstances and accurately explained the penalty phase verdict
form. Viewing the relevant record as a whole, we conclude that
Sievers has fallen far short of the high bar necessary to establish
fundamental error as to this claim. Santiago-Gonzalez v. State, 301
So. 3d 157, 175 (Fla. 2020) (reciting fundamental error standard).
Issue XIV: Postcard Redaction. As mitigation, Sievers
repeatedly emphasized his loving relationship with his family,
especially his two daughters. In addition to offering live testimony
from several relatives, Sievers sought to prove that relationship by
introducing into evidence a postcard his daughter had sent him
while he was in custody. The State objected to the postcard as
hearsay but agreed to its admission—including a portion of the
postcard saying “I love you”—subject to redaction of these three
sentences: “Is it possible they could kill you? I really hope NOT.
Please say no.” (Emphasis in original.) The postcard was redacted
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over Sievers’ objection and admitted into evidence. Sievers now
argues that the redaction constituted reversible error.
Our precedent establishes that, in the penalty phase of a
capital trial, both the State and the defendant must be afforded the
opportunity to rebut hearsay evidence sought to be admitted by the
other side. Frances v. State, 970 So. 2d 806, 813-14 (Fla. 2007).
There is no question that the redacted portion of the postcard—
saying that the daughter did not want Sievers to be executed—was
hearsay. Here, neither of Sievers’ daughters testified, and the State
would have had no opportunity to cross-examine the author of the
postcard. We find no abuse of discretion in the trial court’s
evidentiary ruling.
Issue XV: Victim Impact Evidence. At the penalty phase trial,
the State presented victim impact evidence consisting of live
testimony from Dr. Sievers’ mother and a brief video clip of
Dr. Sievers herself. In the video, Dr. Sievers discusses her
commitment to practicing holistic and preventative medicine.
Sievers objected at trial, and he now argues that the admission of
the video, particularly in combination with the testimony of
Dr. Sievers’ mother, was reversible error.
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We find no error in the admission of the victim impact
evidence here. Under Florida law, victim impact evidence is
admissible “to demonstrate the victim’s uniqueness as an individual
human being and the resultant loss to the community’s members
by the victim’s death.” § 921.141(8), Fla. Stat. (2019). Our Court
regularly upholds the admission of victim impact evidence that falls
within the statutory definition. See, e.g., Colley v. State, 310 So. 3d
2, 17 (Fla. 2020) (statement from victim’s friend detailing victim’s
unique characteristics permissible); Jordan v. State, 176 So. 3d
920, 932-33 (Fla. 2015) (statement from victim’s family detailing
loss permissible). In this case, the live testimony and the brief (less
than two-minute) video were relevant to show the loss suffered by
Dr. Sievers’ family and community, and this evidence was not
unduly prejudicial.
Issue XVI: Alleged Failure to Hold a Spencer Hearing. The
Spencer hearing is an aspect of the capital sentencing process that
typically occurs after the penalty phase trial and jury
recommendation, but before the trial court’s imposition of sentence.
We have explained that the purpose of a Spencer hearing is to:
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(a) give the defendant, his counsel, and the State, an
opportunity to be heard; (b) afford, if appropriate, both the
State and the defendant an opportunity to present
additional evidence; (c) allow both sides to comment on or
rebut information in any presentence or medical report;
and (d) afford the defendant an opportunity to be heard in
person.
Spencer, 615 So. 2d at 691. In this case, the trial court on January
3, 2020, held a hearing at which all of these things occurred—
including an in-person statement from Sievers, argument from
defense counsel, and the admission of additional mitigating
evidence. After hearing from the parties, the trial court took a
recess to collect its thoughts. The court then returned and imposed
its sentence.
Although he did not object to the trial court’s procedure at the
time, Sievers now argues that our Court’s decision in Spencer
required the trial court to impose sentence on a separate day after
the Spencer hearing. Sievers maintains that the procedure that the
court followed here amounted to a failure to hold a Spencer hearing
at all, and that this was fundamental error.
Sievers’ argument lacks merit. Our decision in Spencer does
not categorically preclude the trial court from holding a Spencer
hearing and imposing sentence on the same day. Nor does Florida’s
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death penalty statute say that a Spencer hearing and the imposition
of sentence must occur on different days. § 921.141, Fla. Stat.
(2019). We find no error—much less fundamental error—in the
procedure that the trial court followed here. See Robertson v. State,
187 So. 3d 1207, 1216-17 (Fla. 2016) (combining Spencer hearing
and imposition of sentence in one proceeding did not violate due
process where defendant presented evidence and addressed the
court before imposition of sentence).
Issue XVII: Cold, Calculated, and Premeditated Aggravator.
Sievers argues that the jury’s CCP finding lacks a constitutional
basis because it depended entirely on Wright’s (allegedly uncredible)
testimony. We reject this claim for the same reason that we
rejected Sievers’ challenge to the denial of his motion for judgment
of acquittal. It is the jury’s role, not ours, to evaluate witnesses’
credibility and weigh the evidence.
Issue XVIII: Proportionality Review. Sievers lastly urges us to
undertake a proportionality review. We held in Lawrence v. State,
308 So. 3d 544 (Fla. 2020), however, that this Court lacks
constitutional or statutory authority to do so. We decline to revisit
Lawrence here.
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CONCLUSION
We affirm Sievers’ first-degree murder conviction and
corresponding death sentence, as well as his conviction for
conspiracy to commit murder.
It is so ordered.
MUÑIZ, C.J., and CANADY, POLSTON, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., concurs in result with an opinion.
FRANCIS, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
LABARGA, J., concurring in result.
Because I continue to adhere to my dissent in Lawrence v.
State, 308 So. 3d 544 (Fla. 2020), wherein this Court abandoned
this Court’s decades-long practice of comparative proportionality
review in direct appeal cases, I can only concur in the result.
An Appeal from the Circuit Court in and for Lee County,
Bruce E. Kyle, Judge – Case No. 362015CF000673000BCH
Howard L. “Rex” Dimmig, II, Public Defender, and Karen M. Kinney,
Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and
Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida,
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for Appellee
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