[align=justify]
- 36 -

In 1990 (before we decided Burns but apparently after the case was tried), the Florida Legislature codified the rule of sequestration in section 90.616, Florida Statutes. See ch. 90-174, § 2, at 743, Laws of Fla. Section 90.616, Florida Statutes (2006), states in pertinent part:





(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).


§ 90.616(1), Fla. Stat. (2006). While our decisions under the common law emphasized the discretionary nature of the decision to sequester witnesses, section




90.616 adopts the view that sequestration is demandable as a matter of right.


Charles W. Ehrhardt, Florida Evidence § 616.1, at 655 (2008 ed.). Nevertheless, the codified rule of sequestration also includes categories of witnesses who may not be excluded. See § 90.616(2), Fla. Stat. (2006). As one of those categories, section 90.616(2)(c) provides that a court may not exclude "[a] person whose presence is shown by the party's attorney to be essential to the presentation of the party's cause." § 90.616(2)(c), Fla. Stat. (2006).


We have recognized that in applying the exception in section 90.616(2)(c) for those persons whose presence is shown to be essential to the presentation of the cause of one of the parties, "the trial court `has wide discretion in determining which witnesses are essential.' " Knight, 746 So. 2d at 430 (quoting Charles W.


Ehrhardt, Florida Evidence § 616.1, at 509 (1998 ed.)); see also Strausser v. State,







- 37 -

682 So. 2d 539, 541 (Fla. 1996) (citing § 90.616(2)(c) and finding no abuse of discretion in allowing the mental health expert to remain present in the courtroom while the defendant testified). Under section 90.616(2)(c), the burden is on the party seeking to avoid sequestration of a witness to demonstrate why the presence of the witness is essential.


In Strausser, we addressed the exemption of the State's mental health expert witness under the codified rule. In Strausser, the defense attempted to show that the defendant was insane at the time of the murder, and the trial court permitted the State's mental health expert to remain in the courtroom to hear the defendant's testimony. 682 So. 2d at 540-41. We reasoned that because a main issue in Strausser was the sanity of the defendant at the time of the crime, the trial court may have reasonably concluded that the expert's presence during the defendant's testimony was "essential to the presentation of the . . . cause." Id. at 541 (quoting § 90.616(2)(c), Fla. Stat. (1993)). We also noted that the State's expert was only present for the direct examination of the defendant. Id. Thus, we held that there was no abuse of discretion. Id.


Hernandez argues that because the State did not demonstrate a need for Dr. McClaren to sit through the entire penalty phase, his case is distinguishable from Burns and Strausser. However, we need not resolve that issue, because we conclude that any error did not result in prejudice to Hernandez.








- 38 -

Hernandez contends that the State bears the burden of proving that prejudice did not result from the trial court's ruling. He contends that this Court should use the harmless-error analysis under State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), which places the burden on the State to prove beyond a reasonable doubt that the error complained of did not contribute to the outcome. See id. at 1135. Hernandez also relies on federal case law interpreting Federal Rule of Evidence 615, the federal codification of the rule of sequestration, to argue that the prosecution has the burden to show that the accused was not prejudiced by the witness's exception from the rule of sequestration. 12


Accepting appellant's contention that we should apply the harmless-error test of DiGuilio, we conclude that Hernandez was not prejudiced by the trial court's decision to allow Dr. McClaren to remain in the courtroom during the penalty phase. Importantly, Dr. McClaren did not directly rebut any factual assertions made by lay witnesses during the penalty phase, including the abuse








12. Specifically, Hernandez cites United States v. Jackson, 60 F.3d 128 (2d Cir. 1995), and United States v. Farnham, 791 F.2d 331 (4th Cir. 1986). In Farnham, the Fourth Circuit held, "Although Rule 615 does not require that [the defendant] show prejudice, we remain bound by the harmless error rule." 791 F.2d at 335. In Jackson, the Second Circuit held that "the burden to demonstrate lack of prejudice, or harmless error, properly falls on the party that had opposed sequestration." 60 F.3d at 136. However, rather than using the harmless-beyond- a-reasonable-doubt standard, the Second Circuit explained, "[A] new trial is in order `unless it is manifestly clear from the record that the error was harmless or unless the prosecution proves harmless error by a preponderance of the evidence.' " Id. at 137 (quoting United States v. Brewer, 947 F.2d 404, 411 (9th Cir. 1991)).







- 39 -

Hernandez suffered as a child or his history of drug abuse. In fact, Dr. McClaren acknowledged the abuse endured by Hernandez as a child and Hernandez's extensive history of substance abuse. Furthermore, his testimony correlated with that of the other experts regarding Hernandez's diagnoses, the tests administered, and Hernandez's past. Moreover, while his testimony correlated with the other experts' testimony regarding these matters, there is no indication that his expert opinion was based upon the other experts' testimony. Dr. McClaren's testimony mainly differed from the testimony of the other experts with regard to the mental mitigators. He disagreed with Drs. Bingham and Turner on whether Hernandez's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. Dr. McClaren also disagreed with Dr. Turner regarding whether the crime was committed while Hernandez was under the influence of extreme mental or emotional disturbance.


While Dr. McClaren's testimony may have differed from the other experts' testimony regarding the existence of mental mitigators, the jury was aware that this difference was solely the result of a difference in professional opinion rather than a disagreement with any of the factual circumstances related to the case or appellant's life. For example, on cross-examination, the following exchange occurred:


Q [defense counsel] No. And just as you said, all of those factors, a person can be suffering from multiple mental disorders,







- 40 -

disabilities, brain trauma, PTSD, and a person can know the difference between right and wrong. But similarly a person could not. And you just happen to disagree in this case, right?



A [Dr. McClaren] Yes, I do.


Q But that's your professional opinion. Your professional opinion is that you disagree. Not that it is impossible that Michael Hernandez was in fact meeting the statutory criteria. You disagree professionally with Drs. Bingham and Turner?



A Absolutely. Yes.


Furthermore, the jury was aware at all times that Dr. McClaren had listened to the testimony of the other witnesses during the penalty phase. On both direct and cross-examination, Dr. McClaren explained that he listened to testimony of the witnesses during the penalty phase, including Hernandez's mother, half-brother, and wife. Further, defense counsel was free at all times to explore this fact with Dr. McClaren during cross-examination and there is no suggestion on appeal that defense counsel was limited in any way during this examination.


In sum, Dr. McClaren did not refute the factual testimony of the witnesses during the penalty phase and admitted that he had observed the testimony of other witnesses during the penalty phase. Only his professional opinions differed from those of the defense expert witnesses. Further, there is no suggestion that either his opinions or the factual predicates upon which those opinions were based would have been different if he had not been allowed direct access to the other testimony elicited during the penalty phase. In fact, Dr. McClaren was presented with a view







- 41 -

of the defendant's background that the defense itself relied upon for its case in mitigation. Therefore, we conclude that Dr. McClaren's presence throughout the penalty phase was harmless beyond a reasonable doubt.


FAILURE TO DISMISS THE INDICTMENT




Hernandez next argues that the trial court erred in failing to dismiss the indictment.


Before trial, Hernandez filed a motion to dismiss with prejudice the indictment filed against him. Hernandez argued that the United States Supreme Court's decisions in Jones v. United States, 526 U.S. 227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), required the aggravators to be alleged in the indictment and proven beyond a reasonable doubt. Because the State had not alleged the aggravating circumstances, Hernandez argued that the indictment should be dismissed. In the alternative, Hernandez requested an order requiring the jury to make unanimous findings of fact with respect to each aggravator and to indicate those unanimous findings on a special interrogatory verdict form. The trial court denied this motion.




We have repeatedly rejected the argument that aggravating circumstances must be alleged in the indictment. See, e.g., Coday v. State, 946 So. 2d 988, 1006 (Fla. 2006) (rejecting the defendant's argument that the failure to allege the aggravating circumstances in the indictment renders a sentence unconstitutional







- 42 -

under Ring); Ibar v. State, 938 So. 2d 451, 473 (Fla. 2006) (noting that the defendant's claim that the indictment was defective because it did not provide notice of the aggravators had been addressed adversely to the defendant); Blackwelder v. State, 851 So. 2d 650, 654 (Fla. 2003) (observing that this Court had rejected the argument that aggravating circumstances must be alleged in the indictment); Kormondy v. State, 845 So. 2d 41, 54 (Fla. 2003) (explaining that Ring does not require notice of the aggravating factors that the State will present).



Similarly, we have also rejected Hernandez's alternative argument that a special verdict form indicating the aggravating factors found by the jury should have been used. See, e.g., Ibar, 938 So. 2d at 473 (noting that the defendant's claim that the verdict forms should have indicated which aggravators the jury found had been addressed adversely to the defendant); Kormondy, 845 So. 2d at 54 (observing that Ring does not require a special verdict form indicating the aggravating factors found by the jury).


We have not receded from these decisions, and we do not recede from them now. Accordingly, we find no error.




INSTRUCTION ON VICTIM IMPACT EVIDENCE



Hernandez argues that the trial court erred in giving the jury instruction on victim impact evidence approved by this Court in Kearse v. State, 770 So. 2d 1119, 1132-33 (Fla. 2000), and Rimmer v. State, 825 So. 2d 304, 330-31 (Fla. 2002). He
[/align]