Michael a. Hernandez, jr.,

[هيثم الفقى]

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The defense then presented testimony from Hernandez's half-brother, Richard Hartman Jr., and Hernandez's mother, Cheryl Walker,5 about Hernandez's dysfunctional childhood in which he was exposed to drugs and violence from a young age. According to their testimony, Cheryl and Hernandez's father, Michael Hernandez Sr., used marijuana on a regular basis in Hernandez's presence when he was a child and also used crystal methamphetamine and cocaine. They wandered around the country and were in hiding from the Bandidos, a motorcycle group from which they had fell out of favor. Cheryl later left Michael Sr. and relocated to California with Hernandez. In California, Cheryl, who was no longer using methamphetamines but was drinking heavily, briefly reunited with Michael Sr.


They later separated, and Cheryl left Hernandez, who was approximately three years old at the time, with his father while she sold drugs. Michael Sr. lived with the Esterbrooks, who were also using and dealing drugs.


Richard Jr. and Cheryl testified that Hernandez returned to live with Cheryl several years later after she met and married Michael Murphy. Murphy, who also abused drugs, beat Cheryl in front of her children and was jailed for putting a gun in her mouth. Cheryl sent Hernandez back to his father because she was afraid for












5. Cheryl testified through a videotaped deposition because she was serving a sentence in a correctional facility for killing her husband, Anthony Walker.








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his life when she was with Murphy. Hernandez lived with his father in a hotel room until his father's death from a drug overdose.


Richard Jr. and Cheryl also testified that Hernandez lived with Cheryl and her new husband, Anthony Walker. Anthony was verbally and physically abusive, and Hernandez witnessed him choke, beat, and shake Cheryl. Anthony also once punched Hernandez so hard that he needed an appendectomy. Furthermore, both Cheryl and Anthony used alcohol and marijuana.


According to the testimony of Hernandez's relatives, Cheryl later sent Hernandez to live with the Esterbrooks once more, and Hernandez never lived with her again. Hernandez reported being beaten and molested at the Esterbrooks' home, and he eventually left their home and was in the custody of the state.


In addition, Richard Jr. and Cheryl testified that Hernandez's paternal grandparents, Al and Barbara Hernandez, later took him to live with them, and he never saw his mother again until he testified for her at her trial for killing Anthony.


Hernandez then stayed with Richard Jr. as well as with his other half-brother, Shawn Hartman. Hernandez also lived on the streets. After Richard Jr. found this out, he talked Hernandez into living with him again in Florida, where Hernandez alternated living with Richard Jr. and Richard Sr. Hernandez used cocaine during this time and smoked marijuana. Hernandez later moved to Tennessee with his wife.








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The defense also presented testimony from Dr. John Bingham, a mental health counselor. Bingham testified that Hernandez met the diagnostic criteria for a chemical dependency to marijuana and cocaine. Bingham also testified that he believed that Hernandez and Arnold's actions on November 18, 2004, appeared to reflect "an absence of thinking and more reaction to the situation as it unfolded. . . .


All they were interested in is responding in the sense of getting crack cocaine."


Bingham testified that he believed that Hernandez's ability to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired as a result of his chronic cocaine use and being under the influence at the time as well as because of the psychological and physical abuse he had experienced.




The defense also presented testimony from Dr. Brett Turner, a neuropsychologist. Turner testified that because of Hernandez's "lack of participation" and lack of motivation several of the tests he had performed were invalid, including the neurological testing. However, Turner testified that Hernandez's IQ score was accurate; Hernandez's full scale IQ score was 89, which was in the low-average range. Turner also testified that Hernandez's achievement testing, which also was valid, identified a learning disability for spelling and written expression. Moreover, Turner testified that while he was not able to substantiate damage to Hernandez's frontal lobe because of the invalid







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neurological test score, he believed that Hernandez's history suggested it. Turner also had several diagnoses, including polysubstance dependence disorder, depressive disorder, posttraumatic stress disorder, impulse control disorder or cognitive disorder not otherwise specified, and antisocial personality disorder.


Turner also opined that Hernandez was "under extreme emotional disturbance at the time of the offense as a result of a chronic history of emotional instability deficits and behavior control and deficits in his reasoning and cognitive abilities all acutely exacerbated by the effects of cocaine intoxication." In addition, Turner opined that Hernandez's capacity to appreciate the criminality of his conduct was substantially impaired "because appreciate actually means to be fully aware, and I do not believe that he was fully aware at the time of the incident offense. I believe he was engaged in a string of behavioral responses, one leading to the next . . . ."




The defense also offered into evidence Arnold's judgment and sentence for the crimes. Arnold pleaded nolo contendere to felony murder with a deadly weapon and was sentenced to a term of life imprisonment without the possibility of parole.




The State then presented testimony from Dr. Harry McClaren, a forensic psychologist. McClaren testified that one of the two psychological tests he had administered was invalid due to an overreporting of psychopathology and that the other one was technically valid but also was exaggerated by Hernandez. McClaren







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also noted that the IQ test showed that Hernandez had a full scale IQ of 89, which was in the upper bounds of the low-average range. McClaren also opined that Hernandez suffered from posttraumatic stress disorder and some form of depression, which was compounded by polysubstance dependence. McClaren also testified that based on a history of head injuries and records indicating a learning disability, Hernandez might have some degree of brain dysfunction, which McClaren characterized as a cognitive disorder not otherwise specified. McClaren also testified that Hernandez had antisocial personality disorder and borderline personality disorder. When asked if the mental health disorders had a causal effect on Hernandez's conduct in the murder of Ruth Everett, McClaren said no. He testified that posttraumatic stress disorder, depression, antisocial personality disorder, and borderline personality disorder might heighten the risk of substance abuse, which "would be an indirect rather than a direct link" to his criminal conduct. McClaren also opined that Hernandez was not under extreme mental or emotional disturbance. McClaren explained that Hernandez was intoxicated on cocaine, which in McClaren's belief, did not give rise to the level of the statutory mitigating circumstance. McClaren also opined that Hernandez was not acting under extreme duress or under the substantial domination of another person.


McClaren further testified that Hernandez's ability to appreciate the criminality of his conduct or conform his conduct to the requirements of law was not







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substantially impaired. McClaren testified that while Hernandez was impaired from cocaine at the time, he was not substantially impaired and was able to engage in "goal-oriented behavior."




The State also entered into evidence a copy of Hernandez's judgment and sentence in Tennessee for misdemeanor theft.




On February 9, 2007, the jury recommended the death penalty by a vote of eleven to one. The court then held a Spencer6 hearing on March 9, 2007. As rebuttal to the statutory mitigator of lack of significant prior criminal history, the State offered testimony regarding Hernandez's conviction for petit theft. The defense then offered unsworn testimony from Barbara Hernandez (Hernandez's step-grandmother) and Richard Jr., and defense counsel read a statement that Hernandez had prepared.



At the sentencing hearing held on March 22, 2007, the court sentenced Hernandez to death. The court found four aggravating circumstances: (1) Hernandez was previously convicted of another felony involving the use or threat of violence to the person, namely aggravated battery on a law enforcement officer with great bodily harm and with a weapon and battery upon a jail detainee (great weight); (2) the capital felony was committed while Hernandez was engaged in the commission of the crimes of robbery with a deadly weapon and burglary of a










6.



Spencer v. State, 615 So. 2d 688 (Fla. 1993).







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dwelling with assault or battery while armed with a dangerous weapon and while the dwelling was occupied by a person (great weight); (3) the capital felony was committed for the purpose of avoiding or preventing lawful arrest or effecting an escape from custody (great weight); and (4) the capital felony was especially heinous, atrocious, or cruel (HAC) (great weight).7 The trial court found the statutory mitigator of lack of significant history of prior criminal activity (some weight).8 The court also evaluated the nonstatutory mitigating circumstances offered by Hernandez.9















7. The court rejected the aggravating circumstance that the victim of the capital felony was particularly vulnerable due to advanced age or disability.










8. The court rejected the following statutory mitigators: the crime was committed while Hernandez was under the influence of extreme mental or emotional disturbance; Hernandez's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; Hernandez acted under extreme duress or under the substantial domination of another person; and Hernandez's age, twenty-three, at the time of the crime.







9. Hernandez offered twenty-eight circumstances, and the court added the twenty-ninth circumstance. The court found the following: (1) "He lived in dysfunctional, neglectful, and impoverished childhood circumstances" (some weight); (2) "He had essentially no family home with anything normal in it; he did not have any regular schooling; his parents were separated and he was bounced from parent to parent, to abusive foster homes, and to abandonment" (substantial weight); (3) "His parents were outlaws, motorcycle gang members, hard drug dealers and abusers, who were under threat of death from the motorcycle gang" (substantial weight); (4) "His parents introduced Defendant to narcotics at an early age" (substantial weight); (5) "His mother had many live-in paramours, who were physically, mentally, and emotionally abusive to her and to Defendant" (some weight); (6) "Defendant witnessed physical abuse of mother on many occasions"







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(some weight); (7) "Defendant was abandoned by mother on more than several occasions and placed in foster care, where he was further mentally, physically, and emotionally abused" (substantial weight to the abandonment aspect, but no weight to the rest because it was addressed in factor (9)); (8) "Defendant's father was overdosed by drugs at the hands of his girlfriend, while Defendant was living with him" (some weight); (9) "The Defendant was mentally, physically, emotionally, and ***ually abused in foster care over a four year period as a pre-teen/early teen" (some weight); (10) "The Defendant ran away because of the abuse and because his mother would not come to his aid; his mother also told him goodbye, and that she was going to commit suicide" (some weight); (11) "The Defendant was dysfunctional by this time, and began to live on the streets and continue in drug usage" (some weight); (12) "The Defendant lived with his 1/2 brother for a period of time, but was subjected to continued drug exposure and use at the hands of his 1/2 brother's father, Richard Hartman" (some weight); (13) "The Defendant attended learning disabled classes in school when he attended" (some weight); (14) "The Defendant was able to marry and supported his family for two years" (some weight); (15) "The Defendant has been characterized as a loving person, loving father and husband" (some weight); (16) "The Defendant has a life-long addiction to controlled substances due to his involuntary exposure to them at an early age" (some weight); (17) "The Defendant was enticed into binging on cocaine at the time of the instant offense by the co-Defendant" (no weight); (18) "The Defendant had been drinking the night before and was still under the influence of alcohol on the morning of the offense" (some weight); (19) "The offense was unplanned, and was initiated by the co-Defendant" (no weight); (20) "The resulting homicide was a spontaneous, unplanned act" (no weight); (21) "The co-Defendant actually took the property of the decedent in hopes of finding money or means to get money to purchase cocaine" (no weight); (22) "When confronted, the Defendant accepted responsibility for taking part in the offense" (substantial weight); (23) "The Defendant has continuously shown remorse for his conduct" (slight weight); (24) "The Defendant has cooperated with the police to resolve the offense" (some weight); (25) "The Defendant has two documented suicide attempts" (some weight); (26) "The co-Defendant was offered a life sentence and was equally culpable, and actually initiated the entire episode" (no weight); (27) "The Defendant is not worthy of the death penalty for his participation in this crime" (no weight); (28) "Defendant has other mental and cognitive disorders that do not qualify as statutory mitigating circumstances" (some weight); and (29) "Defendant's family members have given sworn and unsworn testimony and provided letters attesting to Defendant's good character" (some weight).









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The court gave great weight to the jury's recommendation and found that "[a]lthough mitigating circumstances exist in this case, the serious aggravating circumstances which have been proven beyond a reasonable doubt greatly outweigh the mitigating circumstances." The court sentenced Hernandez to death for the first-degree murder and sentenced him to consecutive life sentences for the robbery and burglary.



ANALYSIS




Hernandez raises eight claims on appeal. We will discuss each of these issues in turn below as well as the sufficiency of the evidence and the proportionality of Hernandez's death sentence.


SUFFICIENCY OF THE EVIDENCE




Although Hernandez does not raise the issue of sufficiency of the evidence on appeal, we have an obligation to independently review the record to determine whether sufficient evidence exists to support Hernandez's convictions. See Bevel




v. State, 983 So. 2d 505, 516 (Fla. 2008); see also Fla. R. App. P. 9.142(a)(6) ("In death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.").




Hernandez was convicted of first-degree murder, robbery with a deadly weapon, and burglary of a dwelling with assault or battery. The jury was







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instructed on both premeditated and felony murder, and the jury found Hernandez guilty on a general verdict form. Because the jury was instructed on both theories of first-degree murder and found Hernandez guilty on a general verdict form, the evidence must support either premeditated or felony murder. See Dessaure v. State, 891 So. 2d 455, 472 (Fla. 2004).


We have reviewed the record, and we find the evidence, as detailed above, sufficient to support Hernandez's murder conviction on either theory of first- degree murder as well as his convictions of robbery and burglary.



MOTION TO STRIKE THE VENIRE




Hernandez argues that the trial court erred by denying his motion to strike the venire and motion for a mistrial after a prospective juror, Kevin Mancusi, saw Hernandez in shackles. He argues that the court failed to protect his right to a fair trial and right to the presumption of innocence. However, Hernandez does not challenge the trial court's determination that shackling was necessary.




First, it is well accepted that shackling a defendant during a criminal trial is "inherently prejudicial." Holbrook v. Flynn, 475 U.S. 560, 568 (1986); see Bello




v. State, 547 So. 2d 914, 918 (Fla. 1989). Visible shackling interferes with the accused's presumption of innocence and the fairness of the fact-finding process.


Deck v. Missouri, 544 U.S. 622, 630 (2005); Bryant v. State, 785 So. 2d 422, 428 (Fla. 2001). For that reason, visible shackles must not be used unless "justified by







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an essential state interest" specific to the defendant on trial. Deck, 544 U.S. at 624 (quoting Holbrook, 475 U.S. at 569).




But though it is widely recognized that visible shackling is inherently prejudicial to a defendant, it is just as accepted that the right to be free of shackles is not absolute; shackles may be used when warranted by the circumstances. See Deck, 544 U.S. at 633; Bryant, 785 So. 2d at 428. The right may be overcome by considerations such as "physical security, escape prevention, or courtroom decorum." Deck, 544 U.S. at 628; see also Bryant, 785 So. 2d at 428. For example, the necessity of shackles may be sufficiently shown "where there is a history or threat of escape, or a demonstrated propensity for violence." Jackson v. State, 698 So. 2d 1299, 1303 (Fla. 4th DCA 1997). Shackling is a permissible tool to be exercised in the judge's sound discretion under such circumstances. Bryant, 785 So. 2d at 428.



Furthermore, to determine whether shackles are necessary to ensure the safety and security of the defendant and the other individuals present during trial, the trial court must hold a hearing if the defendant objects and requests an inquiry into the necessity for shackling. See Bryant, 785 So. 2d at 429.


In this case, the State sought to have Hernandez shackled on request of the sheriff's office. Upon objection by defense counsel, the trial court conducted the required evidentiary hearing to determine the necessity of shackling. Based on the







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testimony and arguments presented, the trial court found that shackling Hernandez was necessary and ordered Hernandez shackled. The trial court based its determination on the fact that Hernandez had twice committed a battery against law enforcement officers, had been convicted of battery on his codefendant after fighting with him in their jail cell, had threatened a law enforcement officer when she did not provide him with a razor after one of the attacks on a law enforcement officer, had self-mutilated with a razor during a previous trial, and was indicted for capital murder which could result in the imposition of a death sentence. The trial court also determined that a stun belt would not be as effective as shackles, as it could malfunction and might not prevent Hernandez from suddenly engaging in an act of violence against himself or others.





Furthermore, upon determining that shackling was necessary but aware of its obligation to ensure that Hernandez receive a fair trial, the trial court immediately ordered that precautions be implemented to prevent the jury from seeing Hernandez's shackles. The trial court ordered that the counsel tables be formed into "L" shapes to block the shackles from the jury, that no "All rise" instruction would be given when the jury entered or left the courtroom, that the State stack boxes under chairs parallel with the jury box to form an additional visual barrier between the jury and Hernandez, that bunting be placed around the bottom of the
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