[align=justify]
- 54 -

series of attacks preceding this final act provide competent, substantial evidence to support the trial court's finding of the HAC aggravator. Thus, we conclude that the trial court did not err in finding that the murder was especially heinous, atrocious, or cruel.





PROPORTIONALITY



Disparate Sentences




Hernandez argues that the trial court erred in sentencing him to death because his codefendant, Christopher Shawn Arnold, was equally culpable but was sentenced to life in prison without the possibility of parole after pleading nolo contendere to felony murder with a deadly weapon. Hernandez contends that because they were equally culpable but received disparate sentences, his death sentence is constitutionally disproportionate.



"When a codefendant is equally as culpable or more culpable than the defendant, the disparate treatment of the codefendant may render the defendant's punishment disproportionate." ***ton v. State, 775 So. 2d 923, 935 (Fla. 2000).


If, however, "the circumstances indicate that the defendant is more culpable than a codefendant, disparate treatment is not impermissible despite the fact the codefendant received a lighter sentence for his participation in the same crime."


Brown, 721 So. 2d at 282. "A trial court's determination concerning the relative culpability of the co-perpetrators in a first-degree murder case is a finding of fact







- 55 -

and will be sustained on review if supported by competent substantial evidence."


Puccio v. State, 701 So. 2d 858, 860 (Fla. 1997). Although the trial court may not have specifically stated that Hernandez was more culpable than Arnold, the trial court clearly considered and rejected Hernandez's argument of equal culpability by giving no weight to this mitigating factor offered by Hernandez. In its sentencing order, the court explained:


While both Defendant and the co-defendant are responsible for the victim's death, Defendant, himself admitted that his hands broke the victim's neck and held the knife that slashed her neck. Subsequently, when Defendant spoke to Ms. Hartman during a jail visit, he indicated that co-defendant could not complete the murder. While the Court recognizes that disparate treatment does exist in this case, the treatment is justified. The disparate treatment does not mitigate the offense and is given no weight.



Although the record reveals that Arnold was a participant in the crimes, it does not support Hernandez's claim that Arnold was equally culpable in the victim's murder. While Arnold may have had the original idea for going to the Everett house for crack cocaine or money, may have encouraged and actively participated in the robbery and burglary, and may have inflicted nonfatal injuries to the victim by smothering her with a pillow with Hernandez's assistance, the record reflects that Hernandez, not Arnold, inflicted the fatal injuries by breaking the victim's neck and slashing her throat. Moreover, the record suggests that after attempting to suffocate the victim, Arnold expressed reluctance to complete the attack and gave the victim a bag to breathe in to calm her down. The record







- 56 -

further reflects that Hernandez consequently pushed Arnold aside and then broke the victim's neck and cut her throat.


Given that Hernandez actually inflicted the fatal injuries, this case is similar to other cases in which we have found a defendant's death sentence to be proportionate even though the codefendant received a lesser sentence but was actively involved in the victim's murder. See, e.g., White v. State, 817 So. 2d 799, 801-02, 809-11 (Fla. 2002) (finding the defendant's death sentence proportionate where the defendant delivered the fatal stab wounds to the victim after his codefendant suggested they teach the victim a lesson and they beat her, drove her to the end of a deserted road, and pulled her out of the car and passed her over a barbed wire fence before killing her); Brooks v. State, 918 So. 2d 181, 186-87, 208-10 (Fla. 2005) (holding that the defendant's death sentence was proportionate where the defendant was the "knifeman" in the planned attack on the codefendant's paramour and her infant daughter); Hannon v. State, 638 So. 2d 39, 41, 44 (Fla. 1994) (concluding that the defendant was more culpable and his death sentence was justified where he delivered the fatal blow to one of the victims, after his codefendant had stopped stabbing the victim, and where he shot the other victim); cf. Colina v. State, 634 So. 2d 1077, 1078, 1083 (Fla. 1994) (agreeing with the trial court that the codefendant's participation was lesser where the codefendant







- 57 -

hit one of the victims only once and the defendant was responsible for the lethal blows that killed both victims).


Hernandez essentially argues that because Arnold's culpability is similar to the culpability of defendants in cases where we have found the death penalty to be proportionate and is dissimilar to the culpability of defendants in cases where we have found the death penalty to be disproportionate, Arnold is equally culpable to Hernandez. Hernandez also argues that Arnold's culpability is similar to the culpability of the defendants in Tison v. Arizona, 481 U.S. 137 (1987), in which the United States Supreme Court held that a death sentence may be proportionate if the defendant was a major participant in the felony and the defendant's state of mind amounted to a reckless indifference to human life. See id. at 158. As the State correctly observes, the cases Hernandez cites are inapposite. None of these cases address the issue of the proportionality of a defendant's sentence when a codefendant received a life sentence.


Because the record contains competent, substantial evidence to support the conclusion that Hernandez was more culpable than Arnold, we find that the trial court did not err in imposing a death sentence on Hernandez even though Arnold received a life sentence.




Comparison to Other Cases








- 58 -





While Hernandez challenges the proportionality of his sentence in light of his argument regarding disparate sentencing of his codefendant, he does not otherwise challenge the proportionality of his sentence. Nevertheless, "[t]his Court must review the proportionality of a death sentence, even if the issue has not been raised by the defendant." Walker v. State, 957 So. 2d 560, 585 (Fla. 2007) (quoting Bolin v. State, 869 So. 2d 1196, 1204 (Fla. 2004)); see also Fla. R. App.




P. 9.142(a)(6). The purpose of this Court's proportionality review is to "foster uniformity in death-penalty law." Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991). Proportionality review is a consideration of the totality of the circumstances in a case in comparison with other capital cases. Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990). It entails a "qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis." Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998).


The jury voted eleven to one to recommend death, and in sentencing Hernandez to death, the court gave great weight to the jury's recommendation.


The trial court found four aggravating factors and assigned great weight to each:


Hernandez was previously convicted of violent felonies; Hernandez committed the murder during the course of a robbery and burglary; Hernandez committed the murder to avoid arrest; and the murder was especially heinous, atrocious, or cruel.


While the court found only one statutory mitigator, no significant history of prior







- 59 -

criminal activity, and assigned it some weight, the court found multiple nonstatutory mitigating circumstances, including several to which the court assigned substantial weight.13 The trial court found that "[a]though mitigating circumstances exist in this case, the serious aggravating circumstances which have been proven beyond a reasonable doubt greatly outweigh the mitigating circumstances."


We have upheld death sentences in cases involving similar aggravating and mitigating circumstances. See, e.g., Guardado v. State, 965 So. 2d 108, 110-12 &




n.2, 119 (Fla. 2007) (finding the death penalty proportionate where the defendant beat and stabbed an elderly woman in an effort to obtain money to continue his crack cocaine binge, and the trial court found five aggravators including prior violent felony, engaged in the commission of a robbery with a weapon, and HAC,









13. In brief, these mitigators included the following circumstances.


Hernandez had a dysfunctional childhood, marked by, among other things, the lack of a stable home, witnessing the abuse of his mother, abandonment by his mother, physical, emotional, mental, and ***ual abuse, exposure to drugs at a young age, and the death of his father from a drug overdose. Furthermore, Hernandez suffered from drug addiction for many years and suffered from it at the time of the offense and was under the influence of alcohol on the morning of the murder. Hernandez also suffered from mental and cognitive disorders, including posttraumatic stress disorder, depressive disorder, polysubstance dependence disorder, antisocial personality disorder, borderline personality disorder, impulse control disorder, cognitive disorder not otherwise specified, and possible brain damage. Hernandez also attended learning disabled classes as a child. In addition, Hernandez was a loving father and husband, who accepted responsibility for taking part in the offense and cooperated with police to resolve it.








- 60 -

no statutory mitigators, and nineteen nonstatutory mitigators including that the defendant accepted responsibility, had a lengthy history of substance abuse and addiction to crack cocaine, and was ***ually molested as a child); White, 817 So. 2d at 801-03 & nn.2-3, 811 (finding the death penalty proportionate where the defendant and his codefendants beat the victim, stabbed her, and slit her throat, and the trial court found four aggravators including prior violent felony, engaged in the commission of a kidnapping, avoid arrest, and HAC, one statutory mitigator, and nine nonstatutory mitigators including an abusive childhood, an extensive history of alcohol and substance abuse, organic brain damage, and alcohol intoxication at the time of the offense); Morris v. State, 811 So. 2d 661, 662-65 & nn.2-5, 669 (Fla. 2002) (find the death penalty proportionate where the defendant broke into an elderly woman's apartment, beat and strangled her, and stole her television and rare coins, and the trial court found four aggravators including prior violent felony and HAC, one statutory mitigator, and numerous nonstatutory mitigators including physical and emotional abuse as a child, a mother who was a drug and alcohol abuser, witnessing the physical and ***ual abuse of his mother and sisters, an absent father, learning disabilities as a child, lifelong addiction problems, and loving relationships with his family).


Considering the totality of the circumstances, we find Hernandez's sentence of death proportionate.








- 61 -




CONCLUSION






Based on the foregoing reasons, we affirm Hernandez's convictions and sentences.



It is so ordered.


WELLS, CANADY, and POLSTON, JJ., and ANSTEAD, Senior Justice, concur.


PARIENTE, J., concurs in result only with an opinion, in which QUINCE, C.J., and LEWIS, J., concur.


NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.



PARIENTE, J., concurring in result only.



I agree with the majority that the conviction and sentence should be affirmed. I write to address one discrete issue: whether the trial court erred in allowing the State's expert witness Dr. McClaren to remain in the courtroom during all of the testimony of the defense's penalty phase witnesses. I would specifically conclude that in this case the trial court's ruling was error.


As the majority correctly recognizes, "section 90.616 adopts the view that sequestration is demandable as a matter of right." Majority op. at 37. Although sequestration is demandable as a matter of right, section 90.616(2)(c) provides that a court may not exclude a witness who is shown to be "essential." Further, the majority also correctly recognizes that "the burden is on the party seeking to avoid







- 62 -

sequestration of a witness to demonstrate why the presence of the witness is essential." Majority op. at 38.


The bottom line in this case is that the State failed to establish why the presence of Dr. McClaren during the defense's penalty phase was essential and the trial court failed to make any findings as to why his presence was essential. Here, the State failed to proffer an adequate reason for its request to excuse Dr. McClaren from the rule of sequestration. The State merely noted that "the factual witnesses, such as the State's aggravating evidence, as well as the background evidence that will be presented concerning the defendant, are the very type of things that a psychologist bases their expert opinion on." The fact that an expert witness will hear "the very type of things" that he or she bases their expert opinion by remaining in the courtroom does not render their presence essential. If such a reason were adequate to excuse a witness from the rule of sequestration, then all experts would be exempt from the rule. There is no authority for such a blanket exception to the rule of sequestration. Rather, section 90.616(2)(c) requires the party seeking an exception from the rule for its witness to "show" that the witness's presence is "essential to the presentation of the party's cause."


As to the trial court's exercise of its discretion, the trial court failed to make any findings on whether Dr. McClaren's presence was essential. Instead, it merely accepted the State's assertion that the decision to permit the witness to remain in







- 63 -

the courtroom is discretionary, noting, "I think it's discretionary. He's an expert and subject to cross. I'll permit it." Although the trial court correctly understood that such a determination was discretionary, the mere fact that Dr. McClaren is an expert does not automatically exempt him from the rule.


The ruling of the trial court is at odds with our precedent and is distinguishable from Burns v. State, 609 So. 2d 600 (Fla. 1992), and Strausser v. State, 682 So. 2d 539, 541 (Fla. 1996). Burns is clearly distinguishable from the instant case because there the trial court determined that allowing the State's psychologist to remain in the courtroom during testimony by the defendant and the defense's psychologist was necessary because the defendant was not required to submit to an examination by the State's expert and allowing the State's expert to remain was "the only avenue available for the state to offer meaningful expert testimony to rebut the defense's evidence of mental mitigation." 609 So. 2d at




606. Further, this Court adopted rule 3.202 after Burns was decided, requiring the court to order that the defendant in a death penalty case be examined by the State's mental health expert within forty-eight hours of a capital murder conviction.


Hernandez was examined by Dr. McClaren pursuant to rule 3.202 after the jury returned a guilty verdict. Thus, Dr. McClaren's presence during the presentation of the defense's penalty phase case was not "the only avenue available" to the State to rebut the defense's evidence of mental mitigation through expert







- 64 -

testimony. See Burns, 609 So. 2d at 606. Moreover, the State did not and could not explain why Dr. McClaren's presence was essential as required under section




90.616(2)(c).


Strausser is also distinguishable from this case. There, relying on Burns, this Court concluded that the trial court did not abuse its discretion in exempting the court-appointed expert from the rule of sequestration. However, in reaching this conclusion, the Court noted that the expert was "present only during the direct examination of [the defendant]." Strausser, 682 So. 2d at 541 (emphasis added).


In this case, Dr. McClaren was present for the entire penalty phase despite the fact that he had already examined Hernandez and absent any showing by the State or finding by the trial court that his presence was essential for the entire penalty phase, or for any portion of it.


To avoid any error in the future, the trial court should follow several steps in considering whether to exempt an expert witness from the rule of sequestration to ensure that discretion is being exercised in a manner consistent with both the rule and section 90.616(2)(c). First, trial courts should require the party seeking an exemption from the rule for its witness to demonstrate why the witness's presence is essential. Then, the trial court should make a finding that the presence of the witness is essential, weighing any potential harm that might result from an exception to the rule of sequestration. Finally, once the trial court makes such a







- 65 -

finding, it should then determine the portion of the testimony during which the presence of the witness is essential. Adherence to these guidelines, and a rejection of a blanket exception to the rule of sequestration, best serves to uphold the trial court's discretion, the rule, and section 90.616(2)(c). See Knight, 746 So. 2d at 430 ("The purpose of the rule of sequestration is `to avoid a witness coloring his or her testimony by hearing the testimony of another,' thereby discouraging `fabrication, inaccuracy and collusion.'") (quoting Charles W. Ehrhardt, Florida Evidence § 616.1 at 506 (1998 ed.)).


In this case, I conclude that the trial court abused its discretion in permitting Dr. McClaren to remain in the courtroom for the entire penalty phase, but agree that any error is harmless error beyond a reasonable doubt and that no prejudice can be demonstrated.14 For this reason, I concur with the result reached by the majority.






QUINCE, C.J., and LEWIS, J., concur.


An appeal from the Circuit Court in and for Santa Rosa County,


Ronald V. Swanson, Judge ­ Case No. 2004-CF-001184













14. Hernandez argues that the error was "inherently prejudicial," or in the alternative, that the error was harmful under a harmless error analysis. While I disagree that the trial court's action constituted per se reversible error, I agree with both Hernandez and the majority that the action is subject to a harmless error analysis.








- 66 -

Nancy Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Appellant

Bill McCollum, Attorney General, Tallahassee, Florida, and Ronald A. Lathan, Jr., Assistant Attorney General, Tallahassee, Florida, for Appellee
[/align]