& SC14-88 Jerone Hunter v. State of Florida and Jerone Hunter v. Julie L. Jones, etc. , 175 So. 3d 699 ( 2015 )

Supreme Court of Florida
____________
No. SC12-246
____________
JERONE HUNTER,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC14-88
____________
JERONE HUNTER,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[April 30, 2015]
PER CURIAM.
Jerone Hunter appeals an order of the circuit court denying his motion to
vacate his convictions of first-degree murder and sentence of death filed under
Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of
habeas corpus. For the reasons that follow, we affirm the denial of his
postconviction motion and deny his habeas petition.1
I. BACKGROUND
On direct appeal, this Court described the facts as follows:
On August 27, 2004, Hunter was charged in a fourteen-count
superseding indictment relating to the murders of Erin Belanger,
Roberto Gonzalez, Michelle Nathan, Anthony Vega, Jonathon
Gleason, and Francisco Ayo-Roman. Hunter, with codefendants Troy
Victorino and Michael Salas, went to trial on July 5, 2006.
Codefendant Anthony Cannon previously pled guilty as charged.
The evidence at trial established the following. On the morning
of August 6, 2004, a coworker of two of the occupants of a residence
on Telford Lane in Deltona, Florida, discovered the victims’ bodies.
Belanger lived at the Telford residence with Ayo-Roman, Nathan, and
Vega. Gonzalez and Gleason happened to be at the house the night of
the murders. The six victims had been beaten to death with baseball
bats and had sustained cuts to their throats, most of which were
determined to have been inflicted postmortem. Belanger also
sustained lacerations through her vagina up to the abdominal cavity of
her body; the injuries were consistent with having been inflicted by a
baseball bat. The medical examiner determined that some of the
victims had defensive wounds. A dead Dachshund was also found in
the house.
Following a call to 911, law enforcement officers responded to
the scene. The front door had been kicked in, breaking a deadbolt
lock and leaving a thirteen-inch shoe-print impression on the door.
The victims were found throughout the house and blood was
everywhere. A knife handle and knife blade were recovered at the
scene, along with two playing cards with bloody shoe imprints, a bed
sheet with footwear impressions, as well as a pay stub with a footwear
impression.
Hunter, who at the time was eighteen years old and in twelfth
grade, met codefendant Cannon two months before the murders. He
1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
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knew codefendant Salas from high school. Hunter met codefendant
Victorino during the end of June or beginning of July of 2004, and
moved in with Victorino a few days later. Together Hunter and
Victorino lived in three different residences, including a house that
belonged to victim Belanger’s grandmother. No one had permission
to stay at Belanger’s grandmother’s house, but Victorino testified that
the owner’s grandson had given him permission to stay there.
Approximately a week before the murders, Belanger contacted
police concerning suspicious activity at her grandmother’s residence.
Victorino also reported to police that he had items stolen from the
same house. He became angry when the police told him he would
have to provide a list of the stolen property. Victorino told the police
he would take care of the matter himself. Victorino also met with
Belanger at her residence, seeking return of his property.
Brandon Graham, who was living with codefendants Cannon
and Salas, met Hunter and Victorino when they went to Belanger’s
house on Telford Lane a few days before the murders so that
Victorino could pick up his belongings. Victorino wanted them to
fight the people at the residence. Hunter yelled for the occupants to
come out and fight.
On the morning before the murders, Graham, Salas, and
Cannon drove to the house where Hunter and Victorino were living.
Victorino discussed a plan to beat everyone to death at the Telford
residence, asking them if they “were down for it” and saying to
Hunter, “I know you’re down for it” because he had belongings stolen
as well. All agreed. Victorino verbally described the layout of the
Telford house and who would go where. Hunter asked if they should
wear masks; Victorino said no because they would kill all of the
occupants.
A witness testified that around midnight on August 5, 2004, she
saw Hunter, Salas, Cannon, and Victorino near the murder scene.
And Graham testified that the morning after the murders, he saw
Victorino’s belongings in the back of Cannon’s SUV. On the day
after the murders, Victorino was arrested on a probation violation.
In his statement to police, Hunter said that he had gone in
Cannon’s SUV to the house on Telford on late Saturday or early
Sunday to get his belongings that had been taken from Belanger’s
grandmother’s house. He had an aluminum baseball bat with him.
Hunter said he entered the house through the front door and found
Gleason in the recliner in the living room. Hunter screamed,
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“Where’s my stuff,” and when Gleason said, “I don’t know,” he hit
him with the bat. Hunter hit Gleason because he thought he was
lying. Gleason attempted to get up from the recliner and Hunter hit
him again. Hunter said he hit Gleason more than three times but less
than twelve. Hunter said he then went to look for his belongings.
Hunter also indicated that he encountered victim Gonzalez in one of
the bedrooms. He claimed he hit Gonzalez because Gonzalez had
swung at him with a stick. After Gonzalez dropped his stick, Hunter
continued to hit him, three to five more times. Hunter then continued
looking for his belongings. Eventually, Hunter and his codefendants
left in Cannon’s SUV. Hunter, who wore a black shirt, black shorts,
and blue and white Nike tennis shoes during the incident, stated that
he washed his clothes afterwards.
Cannon’s SUV was seized on August 7, 2004. Salas admitted
to being at the Telford residence the night of the murder and stated
that Cannon had driven them there. Salas described what he had done
while in the house and said the bats had been discarded at a retention
pond. Based upon that information, law enforcement authorities
recovered two bats from the pond and two bats from surrounding
trees.
Salas testified about Hunter’s involvement in the murders.
Salas explained that before the men entered the house on Telford,
Hunter called Salas and Cannon “[b******]” because they did not
want to take part in the plan. Hunter ran into the house after
Victorino. Salas ran in next and saw Hunter swing his bat. Hunter
said to Gleason, “I don’t like you” and started hitting him. Hunter
asked Salas if he had killed Gonzalez; Hunter called Salas a “[p****]
boy” when Salas said he was not killing anyone. Hunter then ran into
the bedroom and began hitting Gonzalez in the face and head. Hunter
hit Gonzalez between twenty and thirty times, saying he had to kill
him. Salas left the house. When Hunter came out he described how
he found Nathan hiding in one of the bedrooms and killed her when
she pled for her life. Salas described Hunter as having a look of
“ferule [sic] joy.”
Pursuant to a search warrant, numerous items were taken from
the house where Hunter and Victorino lived. Among the items taken
was a pair of size thirteen boots, a pair of size ten and one-half Nike
blue and white tennis shoes without shoe laces, and a pair of shoe
laces. These shoes, the laces, and other physical evidence were
admitted at trial linking Hunter, Salas, and Victorino to the murders.
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Hunter v. State, 8 So. 3d 1052, 1057-59 (Fla. 2008) (footnotes omitted).
Following the penalty phase, “[t]he jury recommended a death sentence for
the murder of Gleason by a vote of ten to two, a death sentence for the murder of
Gonzalez by a vote of nine to three, a death sentence for the murder of Nathan by a
vote of ten to two, a death sentence for the murder of Vega by a vote of nine to
three, and life sentences for the murders of Belanger and Ayo-Roman.” Id. at
1060-61. The trial court followed the jury’s recommendations, finding that the
aggravating circumstances2 outweighed the mitigating circumstances,3 and
2. “[T]he trial court found the following five aggravating circumstances
with their respective assigned weights: (1) the defendant has been previously
convicted of another capital felony or felony involving the use or threat of violence
to a person—very substantial weight; (2) the crime for which the defendant is to be
sentenced was committed while he was engaged in the commission of the crime of
burglary—moderate weight; (3) the crime for which the defendant is to be
sentenced was committed for the purpose of avoiding or preventing a lawful
arrest—moderate weight; (4) the capital felony was especially heinous, atrocious,
or cruel—very substantial weight; and (5) the capital felony was a homicide and
was committed in a cold, calculated, and premeditated manner without any
pretense of moral or legal justification—great weight.” Hunter, 8 So. 3d at 1061.
3. “[T]he trial court found three statutory mitigating circumstances and
assigned weights: (1) age of the defendant at the time of the crime—some weight;
(2) the defendant acted under extreme duress or under the substantial domination
of another person—some weight; (3) the defendant has no significant history of
prior criminal activity—little weight. The trial court also found three nonstatutory
mitigating circumstances: (1) the level of maturity of the defendant at the time of
the crime—little weight; (2) the defendant exhibited good conduct during
incarceration—very little weight; and (3) the defendant exhibited good conduct
during trial—very little weight.” Id.
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sentenced Hunter to death for the murders of Jonathon Gleason, Roberto Gonzalez,
Michelle Nathan, and Anthony Vega. Id. at 1061.
On direct appeal, this Court affirmed Hunter’s convictions and sentences.4
Id. at 1076. Thereafter, the United States Supreme Court denied Hunter’s petition
for writ of certiorari. Hunter v. Florida, 556 U.S. 1191 (2009).
On April 14, 2010, Hunter filed a motion for postconviction relief. After
summarily denying several claims and after holding an evidentiary hearing on
Hunter’s claims alleging ineffective assistance of trial counsel during the penalty
phase and guilt phase, the postconviction court denied relief. Hunter now appeals
4. On direct appeal, Hunter argued that: (1) “the trial court erred in denying
his motion to suppress the statements he made to law enforcement officers;” (2)
“the trial court erred in denying his motion to suppress the shoe laces seized from
his temporary residence;” (3) “the trial court erred in denying his motion for
mistrial as his rights under the Sixth Amendment to confrontation and cross-
examination were violated when the State’s witness, Cannon, the fourth
perpetrator, refused to be cross-examined;” (4) “the trial court erred in denying his
motion for judgment of acquittal;” (5) “the trial court erred in denying his motion
to sever his trial from that of his two codefendants;” (6) there was “instructional
error during the guilt phase [because the] use of the conjunction ‘and/or’ between
the defendants’ names resulted in reversible error;” (7) “the trial court assigned
improper weights to the mitigating factors and improperly balanced the mitigation
against the aggravating factors;” (8) “[this Court’s] proportionality review is
legally insufficient because this Court only considers cases where death has been
imposed,” and “his death sentence is disproportionate;” (9) “lethal injection, the
chemicals used to carry out a death sentence, and Florida’s procedures for
administering the death penalty are unconstitutional under both the Florida and
United States Constitutions;” and (10) “his death sentence is unconstitutional under
Ring v. Arizona, 536 U.S. 584 (2002).” Id. at 1061-76.
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the denial of his postconviction motion. He also petitions this Court for a writ of
habeas corpus.
II. POSTCONVICTION MOTION
A. Ineffective Assistance of Counsel During the Penalty Phase
First, Hunter argues that his trial counsel provided ineffective assistance
during the penalty phase for: (1) failing to present further nonstatutory mitigation
evidence; (2) failing to develop and present evidence of Hunter’s future conduct in
prison as mitigation; and (3) his statement during closing arguments that a majority
vote was required to impose a death sentence. Because Hunter has failed to
establish the requirements necessary for relief, we affirm the trial court’s denial of
relief.
Following the United States Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), this Court explained that two requirements must
be met for ineffective assistance of counsel claims to be successful:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.
Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright,
490 So. 2d 927, 932 (Fla. 1986)).
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Regarding the deficiency prong of Strickland, there is a strong presumption
that trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 689.
Moreover, “[a] fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. The defendant carries the burden to
“overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)).
Regarding the prejudice prong of Strickland, the defendant “must show that
but for his counsel’s deficiency, there is a reasonable probability he would have
received a different sentence. To assess that probability, we consider ‘the totality
of the available mitigation evidence—both that adduced at trial, and the evidence
adduced in the [postconviction] proceeding’—and ‘reweig[h] it against the
evidence in aggravation.’ ” Porter v. McCollum, 558 U.S. 30, 41 (2009) (quoting
Williams v. Taylor, 529 U.S. 362, 397-98 (2000)); see also Dennis v. State, 109
So. 3d 680, 690 (Fla. 2012) (“[T]he defendant must show that there is a reasonable
probability that, ‘absent the [deficient performance], the factfinder would have
[had] a reasonable doubt respecting guilt.’ ”) (quoting Strickland, 466 U.S. at 695).
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“A reasonable probability is a ‘probability sufficient to undermine confidence in
the outcome.’ ” Dennis, 109 So. 3d at 690 (quoting Strickland, 466 U.S. at 694).
Because both prongs of Strickland present mixed questions of law and fact,
this Court employs a mixed standard of review, deferring to the trial court’s factual
findings that are supported by competent, substantial evidence, but reviewing the
trial court’s legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-
72 (Fla. 2004).
1. Additional Nonstatutory Mitigation
Hunter argues that trial counsel were ineffective for failing to present further
nonstatutory mitigation evidence at the penalty phase. Specifically, Hunter asserts
that trial counsel should have introduced numerous aspects of Hunter’s social
history, including Hunter’s stressful home environment, his family history of
mental illness, and his being kicked out of his family’s house prior to the offenses.
We affirm the denial of this claim.
First, Hunter has failed to demonstrate deficiency. At the postconviction
evidentiary hearing, trial counsel testified that in their case preparation they
focused on Hunter’s mental health. Trial counsel explained that they met with
Hunter’s family members a number of times, but they were uncooperative and not
willing to admit the family history of mental illness. Additionally, trial counsel
testified that they retained an investigator, Odalys Rojas, to interview Hunter’s
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family members and others and summarize the findings. Trial counsel involved
Ms. Rojas in several meetings in efforts to obtain a comprehensive social history
on Hunter but did not call her to testify at trial, noting that her testimony may have
opened the door for negative testimony about Hunter’s aggression. See Everett v.
State, 54 So. 3d 464, 474 (Fla. 2010) (“This Court has also consistently held that a
trial counsel’s decision to not call certain witnesses to testify at trial can be
reasonable trial strategy.”). Instead, during the penalty phase, trial counsel called
three mental health experts, including a psychiatrist, neuropsychologist, and
psychologist, to testify to Hunter’s mental health and Hunter’s family history of
mental illness. And “strategic decisions do not constitute ineffective assistance of
counsel if alternative courses have been considered and rejected and counsel’s
decision was reasonable under the norms of professional conduct.” Occhicone v.
State, 768 So. 2d 1037, 1048 (Fla. 2000). Therefore, Hunter has failed to
demonstrate deficiency.
Additionally, Hunter has not demonstrated prejudice. During the
postconviction hearing, Dr. McClaren testified that Hunter was probably exposed
to domestic violence and other negative influence in his family environment that
would be traumatic for a child to experience. Further, in a deposition, Dr. Mings
discussed his findings of Hunter’s mental illness, including Hunter being in the
early stages of schizophrenia. However, this additional mitigation evidence Hunter
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presented during the postconviction hearing was largely cumulative of the
mitigation evidence presented during the penalty phase. For example, Hunter’s
social history and mental health issues were presented at the penalty phase through
the testimonies of Hunter’s family members and doctors. The trial record reflects
that the family members testified that Hunter mostly kept to himself, carried on
conversations with his deceased twin brother, witnessed his father physically
abusing his mother, and felt abandoned by his older brother moving out.
Additionally, three mental health experts testified during the penalty phase that
Hunter suffered from serious mental health issues throughout his life. Specifically,
Dr. Berns addressed “Hunter’s family’s history of mental illness, including
schizophrenia and depression.” Hunter, 8 So. 3d at 1060. Dr. Mings testified that
“[Hunter’s] profile was consistent with a person with a psychotic mental illness
[and] that Hunter was not functioning as a normal adult.” Id. Additionally, Dr.
Gur conducted behavior imaging and concluded that Hunter’s brain damage and
functioning would tend to make him a follower. Id. Therefore, because the
additional evidence Hunter claims should have been presented was largely
cumulative of the evidence actually presented during the penalty phase, Hunter has
not established a reasonable probability of a different result had trial counsel
presented this additional evidence during the penalty phase. In other words, our
confidence in the outcome is not undermined. See Atwater v. State, 788 So. 2d
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223, 234 (Fla. 2001) (“There is no reasonable probability that re-presenting
virtually the same evidence through other witnesses would have altered the
outcome in any manner.”).
Accordingly, we affirm the trial court’s denial of relief.
2. Evidence of Future Conduct in Prison
Hunter also argues that trial counsel were ineffective for failing to develop
and present evidence of Hunter’s future conduct in prison as mitigation at the
penalty phase. Specifically, Hunter claims that trial counsel should have
introduced evidence that Hunter is not a psychopath and conclusions of
psychological measures that show Hunter’s risk of future violence is lower than the
base rate. We affirm the denial of this claim.
First, Hunter has failed to demonstrate deficiency. At the evidentiary
hearing, trial counsel testified that their strategy regarding mitigation was to focus
on Hunter’s mental health issues. And evidence about Hunter’s future conduct in
prison, including his potential for rehabilitation and nonviolent existence in prison,
would have been contradictory to trial counsel’s mitigation theory. For example,
at the penalty phase, Hunter presented family members and experts who testified to
Hunter’s mental health issues, including schizophrenia and a profile consistent
with a person with a psychotic mental illness. See Hunter, 8 So. 3d at 1060. In
contrast, during the postconviction proceeding, Dr. Brown and Dr. McClaren
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agreed with the conclusion that Hunter is not a psychopath. Therefore, because it
appeared to contradict the mental health testimony, trial counsel’s decision not to
present evidence about Hunter’s future conduct in prison and that his risk of future
violence was lower than the base rate appears to have been a reasonable strategic
decision. See Occhicone, 768 So. 2d at 1048 (“[S]trategic decisions do not
constitute ineffective assistance of counsel if alternative courses have been
considered and rejected and counsel’s decision was reasonable under the norms of
professional conduct.”).
Additionally, Hunter has not demonstrated prejudice. While Hunter
presented evidence of future conduct in prison in the postconviction proceeding,
evidence was also presented that the findings were based on speculation.
Moreover, even considering future conduct in prison with the other mitigation
evidence presented during the postconviction proceeding, as well as the mitigation
presented at the penalty phase, the mitigating circumstances would not outweigh
the five aggravating circumstances presented in this case, namely conviction of a
capital felony, during the course of a burglary, for the purpose of avoiding or
preventing a lawful arrest, HAC, and CCP. See Tanzi v. State, 94 So. 3d 482, 491
(Fla. 2012) (“The mitigating evidence adduced at the evidentiary hearing combined
with the mitigating evidence presented at the penalty phase would not outweigh the
evidence in aggravation as this case included six aggravating circumstances given
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great and utmost weight.”). Therefore, there is not a reasonable probability that
investigating and presenting evidence of Hunter’s future conduct in prison would
have led to a different result. In other words, our confidence in the outcome is not
undermined.
Accordingly, we affirm the trial court’s denial of relief.
3. Trial Counsel’s Statement About the Majority Vote
Further, Hunter argues that trial counsel was ineffective for his statement
during closing arguments that a majority vote was required to impose a death
sentence. However, we affirm the denial of this claim.
Even assuming that trial counsel was deficient for his statement during
closing arguments, Hunter has failed to demonstrate prejudice. In the jury
instructions, the trial court correctly advised the jury of the vote required for the
advisory sentence. Notably, the votes for each of the four victims to impose the
death penalty were beyond the majority vote stated. Therefore, there is not a
reasonable probability that, absent trial counsel’s statement during closing
arguments, that there would have been a different result. In other words,
confidence in the outcome is not undermined.
Accordingly, we affirm the trial court’s denial of Hunter’s claim that trial
counsel were ineffective during the penalty phase.
B. Ineffective Assistance of Counsel During the Guilt Phase
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Next, Hunter argues that trial counsel were ineffective during the guilt phase
for failing to properly preserve his objection and move for a mistrial regarding
Robert Anthony Cannon’s testimony. However, Hunter did not demonstrate that
he was prejudiced by trial counsel’s alleged error.
Cannon, the fourth perpetrator, negotiated a plea deal in exchange for
agreeing to testify at the joint trial of the other three defendants, including Hunter.
On direct appeal, this Court denied Hunter’s claim “that the trial court erred in
denying his motion for mistrial as his rights under the Sixth Amendment to
confrontation and cross-examination were violated when the State’s witness,
Cannon, the fourth perpetrator, refused to be cross-examined.” Hunter, 8 So. 3d at
1065.
In a codefendant’s case, Victorino v. State, 127 So. 3d 478, 488 (Fla. 2013),
where the same issue was raised regarding Cannon’s testimony, this Court found
that Victorino was not prejudiced by trial counsel’s error in failing to preserve
alleged error and to move for a mistrial at the time of Cannon’s testimony.
Similarly, in this case, we affirm the denial of Hunter’s claim.
Hunter has not demonstrated that Cannon’s testimony was so harmful as to
merit a mistrial. In fact, Cannon’s testimony and refusal to answer questions did
not vitiate Hunter’s trial. See England v. State, 940 So. 2d 389, 401-02 (Fla. 2006)
(“A motion for a mistrial should only be granted when an error is so prejudicial as
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to vitiate the entire trial.”). Cannon’s comments regarding Hunter were brief and
unelaborated. Specifically, on direct examination, Cannon’s testimony regarding
Hunter was the following: (1) Cannon knew Hunter for a couple days prior to the
crimes, and (2) Victorino, Hunter, Salas, and Cannon entered the home armed with
baseball bats. Therefore, similar to what we concluded in Victorino, Cannon’s
testimony mentioning Hunter did not vitiate Hunter’s trial. Victorino, 127 So. 3d
at 489 (“[O]nly a few lines of testimony were harmful to Victorino . . . As a result,
Cannon’s testimony was not essential to the State’s case against Victorino.”).
Further, the incriminating points made in Cannon’s testimony regarding
Hunter were established by other evidence. Specifically, in his statement to police,
Hunter stated that on the night of the offenses, he went to the Telford home to get
his belongings, and he had an aluminum baseball bat with him. Hunter, 8 So. 3d at
1058. Hunter further stated that he hit victims Gleason and Gonzalez several times
with the bat. Id. Additionally, “Salas testified about Hunter’s involvement in the
murders,” that “Hunter ran into the house after Victorino[, and] Salas ran in next
and saw Hunter swing his bat.” Id. at 1059. Cannon’s testimony was cumulative
and merely “lent further support to . . . fact[s] already known to the jury.” Cherry
v. State, 781 So. 2d 1040, 1051 (Fla. 2000). Therefore, Hunter was not prejudiced
by trial counsel’s error. See Victorino, 127 So. 3d at 490 (“[T]he incriminating
portions of Cannon’s testimony were substantially cumulative to other evidence
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presented at trial. A defendant is not prejudiced by the improper admission of
evidence if the evidence is merely cumulative.”).
Accordingly, this Court affirms the trial court’s denial of Hunter’s claim that
trial counsel were ineffective during the guilt phase.
C. Other Issues
Hunter also raises four constitutional challenges, all of which do not entitle
him to relief: (1) rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar is
unconstitutional; (2) the trial court unconstitutionally instructed the jury that its
role was advisory; (3) Florida’s capital sentencing scheme violates due process and
constitutes cruel and unusual punishment on its face and as applied to him because
Florida’s death penalty statute does not ensure that defendants are not sentenced to
death in an arbitrary and capricious manner; and (4) his sentence is
unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). These claims are
procedurally barred because they should have been or were raised on direct
appeal.5 See Dennis, 109 So. 3d at 698; Lukehart v. State, 70 So. 3d 503, 521-22
(Fla. 2011); Troy v. State, 57 So. 3d 828, 842-44 (Fla. 2011). Therefore, this Court
affirms the denial of each of these claims.
5. On direct appeal, Hunter raised the claims that the lethal injection
protocol and Florida’s procedures for administering the death penalty are
unconstitutional and that his sentence violated Ring, and this Court found that
Hunter is not entitled to relief. Hunter, 8 So. 3d at 1075-76.
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D. Cumulative Error
Hunter also argues that he was denied a fundamentally fair trial based on
cumulative error. “However, where the individual claims of error alleged are
either procedurally barred or without merit, the claim of cumulative error also
necessarily fails.” Israel v. State, 985 So. 2d 510, 520 (Fla. 2008) (quoting Parker
v. State, 904 So. 2d 370, 380 (Fla. 2005)). As discussed in the analysis of the
individual issues above, the alleged errors are either procedurally barred or without
merit. Therefore, the cumulative error claim is similarly without merit, and we
affirm the denial of this claim.
III. HABEAS PETITION
In his habeas petition, Hunter contends that Florida’s death penalty statute
violates the Eighth Amendment’s evolving standards of decency because most
states require a unanimous jury verdict to recommend a death sentence. However,
this Court recently reviewed and rejected this same argument in Kimbrough v.
State, 125 So. 3d 752, 753 (Fla. 2013). As we explained in Kimbrough, Hunter’s
claim “is subject to our general jurisprudence that non-unanimous jury
recommendations to impose the sentence of death are not unconstitutional.”
Kimbrough, 125 So. 3d at 754 (quoting Mann v. State, 112 So. 3d 1158, 1162 (Fla.
2013)); see also Parker, 904 So. 2d at 383 (“This Court has repeatedly held that it
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is not unconstitutional for a jury to recommend death on a simple majority vote.”).
Accordingly, we deny relief.
IV. CONCLUSION
For the forgoing reasons, we affirm the denial of Hunter’s postconviction
motion and deny his habeas petition.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Two Cases:
An Appeal from the Circuit Court in and for Volusia County,
William A. Parsons, Judge - Case No. 642004CF001380XXXAWS
And an Original Proceeding – Habeas Corpus
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Middle Region,
and Ann Marie Mirialakis, Assistant-Capital Collateral Regional Counsel, Middle
Region, Tampa, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and James Donald
Riecks, Assistant Attorney General, Daytona Beach, Florida,
for Appellee/Respondent
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