Petition for Writ of Certiorari — Sean Alonzo Bush, Petitioner v. Florida

Supreme Court briefOct 15, 2020

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IN THE

SUPREME COURT OF THE UNITED STATES

Case No.

SEAN BUSH,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

APPENDICES

Appendix A Florida Supreme Court Opinion

Appendix B Trial Transcript pp. 1462-69 (First Motion

For Judgment of Acquittal)

Appendix C Trial Transcript pp. 1557-82 (Section Motion

For Judgment of Acquittal)

IN THE

SUPREME COURT OF THE UNITED STATES

Case No.

SEAN BUSH,

Petitioner,

Vs.

STATE OF FLORIDA,

Respondent.

APPENDIX A

Florida Supreme Court Opinion

APPENDIX B

Trial Transcripts (First Motion for Judgment of Acquittal)

APPENDIX C

Trial Transcripts (Second Motion for Judgment of Acquittal)

IN THE SUPREME COURT OF THE UNITED STATES

Case No.

SEAN BUSH,

Petitioner,

VS.

STATE OF FLORIDA,

Respondent.

APPENDIX A

Bush v, State, 295 So.3d 179 (2020)

45 Fla. L. Weekly $145

295 So.3d 179

Supreme Court of Florida.

Sean Alonzo BUSH, Appellant,

STATE of Florida, Appellee.

No. 8C18-227

May 14, 2020

Synopsis

Background: Defendant was convicted of first-degree

murder in the Circuit Court, 7th Judicial Circuit, St. Johns

County, Howard M. Maltz, J., and he was sentenced to

death. He appealed.

Holdings: The Supreme Court held that:

applying competent, substantial evidence standard, there

was sufficient circumstantial evidence to support

conviction for first-degree murder, abrogating Wright v.

State, 221 So.3d 512;

no discovery violation occurred under Richardson;

victim’s statement that her children were with their father

was not admissible as dying declaration;

District Court was within its discretion in limiting defense

counsel’s closing argument;

jury instructions at penalty phase of trial did not diminish

jury’s understanding of its role in sentencing process;

state’s comments in closing argument at penalty phase did

not improperly characterize various _— mitigating

circumstances; and

death sentence was proportionate.

Affirmed.

Labarga, J., filed opinion concurring in part and

dissenting in part.

*184 An Appeal from the Circuit Court in and for St.

Johns County, Howard M. Maltz, Judge - Case No.

55201 1CF001604X XAXMX

Attorneys and Law Firms

James S. Purdy, Public Defender, Raymond M. Warren

and Nancy Jean Ryan, Assistant Public Defenders,

Seventh Judicial Circuit, Daytona Beach, Florida, for

Appellant

Ashley Moody, Attorney General, Tallahassee, Florida,

and Doris Meacham, Assistant Attorney General, Daytona

Beach, Florida, for Appellee

Opinion

PER CURIAM.

This case is before the Court on appeal from a judgment

of conviction of first-degree murder and a sentence of

death. We have jurisdiction. See art. V, § 3(b)(1), Fla.

Const. In 2017, the appellant, Sean Alonzo Bush, was

convicted in St. Johns County of the 2011 murder of his

estranged wife, Nicole Bush. He was convicted under

both the first-degree premeditated and felony murder

theories and was also convicted of burglary of a dwelling

with an assault and while armed with a firearm. The jury

unanimously recommended that Bush be sentenced to

death for the murder, and the trial court sentenced him

accordingly. This direct appeal followed. As we explain

below, we affirm the defendant’s convictions and

sentence of death.

Additionally, we note that Bush’s convictions in this case

are wholly based upon circumstantial evidence. As in all

death cases, the sufficiency of the evidence to support

Bush’s first-degree murder conviction is at issue, see

Caylor v. State, 78 So. 3d 482, 500 (Fla. 2011), requiring

that we consider the appropriate standard of review for

this important evaluation. For many years, Florida has

been an outlier in that we have used a different standard

to evaluate evidence on appeal in a wholly circumstantial

evidence case than in a case with some direct evidence.

See Knight v. State, 107 So, 3d 449, 456-57 (Fla. 5th

DCA 2013), approved, 186 So. 3d 1005 (Fla. 2016). As

we will explain, we now join all federal courts and the

vast majority of state courts in abandoning this special

appellate standard, primarily for the same reason that

Florida abandoned the special circumstantial evidence

standard for use in instructing juries in 1981. In re

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly S145

Standard Jury Instructions in Criminal Cases, 431 So. 2d

594, 595 (Fla. 1981) (rejecting the special standard for

evaluating circumstantial evidence as “confusing and

incorrect”) (quoting Holland v. United States, 348 U.S.

121, 139-40, 75 S.Ct. 127, 99 L.Ed, 150 (1954)).

FACTUAL AND PROCEDURAL BACKGROUND

In May 2011, Nicole Bush (Nicole) was brutally attacked

in her Julington Creek townhome. Medical examiner

testimony later revealed that she was shot six times, then

beaten and stabbed. Nicole initially survived the attack

but succumbed to her *185 injuries in a hospital hours

later. The investigation revealed that her estranged

husband, Sean Bush, was a significant person of interest

in the murder, and it ultimately led to his arrest and

indictment. The evidence presented at trial is summarized

as follows.

Guilt Phase

State's Case-in-Chief

At 5:47 a.m, on Tuesday, May 31, 2011, an intruder used

the master code to disarm the alarm panel in Nicole’s

Julington Creek townhome. About thirty minutes later,

Nicole called her friend Tracie Walker for help but did

not respond when Walker answered the phone. Thinking

that Nicole had called her accidentally, Walker hung up

the phone, but she was concerned about the unusual

phone call and called Nicole back. When Nicole answered

the phone, Walker heard her saying “help” and gasping

for breath before the phone disconnected. Walker again

tried to call Nicole, but the call went directly to Nicole’s

voicemail.

Walker then called a mutual friend, Lenora Jerry, and

asked her to call Nicole. Nicole answered Lenora’s phone

call and asked for help, saying that she could not make it

to the door. Jerry and Walker decided that Jerry, who

lived closer to Nicole, would go to Nicole’s home to

check on her.

Jerry and her husband, Thalmus Billington, traveled

together to Julington Creek and called 911 en route to ask

that an officer be dispatched to Nicole’s home to conduct

a welfare check. When they arrived, Jerry observed that

Nicole’s garage door was up, and the door leading from

the garage to the interior of the home was open. Jerry and

Billington looked around the outside of the home and did

not see any signs of forced entry. Then, they walked

through the garage and the interior door into the kitchen,

where Jerry called out to Nicole. Nicole did not respond,

and Jerry and Billington walked outside and met the

responding officer, Deputy Graham Harris.

After talking with Jerry and Billington, Deputy Harris

entered the home and announced his presence. Upon

hearing a mumbled voice coming from the second floor,

Deputy Harris walked up the stairs and noticed red stains

on the carpet. He walked to the master bedroom, where

Nicole lay in a pool of blood. She was conscious but

severely injured. Nicole asked for help and told Deputy

Harris that she had been shot in the head. Deputy Harris

asked Nicole who attacked her. She said she did not

know, but she consistently referred to the attacker as a

“he” or “him.”

Paramedics arrived shortly thereafter and observed

Nicole’s “immediately life-threatening’ _ injuries,

including multiple gunshot wounds to her head, as well as

bruising and severe swelling. They asked Nicole

questions to determine her level of orientation, and

although she was generally unresponsive, she continued

to ask for help and state that somebody shot her. Nicole

was transported to the trauma center at Shands Hospital in

Jacksonville, where she died at 8:51 a.m., shortly after

arrival,

That afternoon, St. John’s County Sheriffs Office

Detective Sean Tice received instructions to contact and

interview Nicole’s husband, Sean Bush. Although Bush

and Nicole were married at the time, they had separated

and were living apart. Detective Tice and Deputy Jessica

Hines went to Bush’s home in Jacksonville, informed him

of Nicole’s death, and proceeded to interview him.

Bush’s First Interview: Afiernoon of the Murder

Bush explained that he and Nicole met while working for

the same company. They *186 married in 2002 and

moved to Jacksonville in 2005. They had two minor sons,

8. No claim to ang!

U.S. Government Works. 2

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly $145

the younger who was their biological son and the older

whom Bush had known since the child was two months

old and later adopted, At the time of the murder, the boys

were six and nine years old. Bush also had two older

children, a son and a daughter who lived out-of-state.

Bush and Nicole started experiencing marital problems in

2006, and they lived apart from one another for several

months. Although they reunited in 2007, they continued

to have problems and eventually separated in 2009. Bush

said that he and Nicole had agreed to get divorced and

that Nicole had obtained divorce papers.

Nicole and Bush shared in caring for the children, but

Nicole was their primary caregiver. Normally, Bush

would keep them every other weekend, picking them up

on Friday evening and bringing them home to Nicole on

Sunday evening between 7 and 7:30 p.m.

In 2010, Nicole purchased the Julington Creek townhome

where she and the children lived at the time of the murder.

Bush never lived there, but he frequently visited the

children, and Nicole paid him to clean the home. Bush did

not have his own house key, but he had access to the

spare key that Nicole hid in the garage. Bush also knew

the passcode to enter the garage from the outside.

Bush was asked to describe his activities in the days

leading up to the murder. The weekend before the murder

was Memoria! Day weekend, and Nicole was murdered

the morning after the holiday. Even though the children

had spent the previous weekend with Bush, he said that he

kept them again throughout the Memorial Day weekend

because one of the boys was misbehaving and Nicole

asked him to keep the children and the family dog. Bush

said that the plan was for him to keep the boys through

the weekend and take them to school on Tuesday

morning.

Bush explained that on Friday evening, he met Nicole at a

restaurant to pick up the boys and then went to the

townhome to pick up the dog and some items for the

boys. By his account, this was the last time that he used

the key to enter the townhome. On Saturday, he took the

boys to get haircuts, and they returned to his house

afterward and watched television. Bush said that he and

the children did not go anywhere on Sunday. He also said

that, on Monday, the day before the murder, he was at

home with his children all day except for an afternoon trip

to the grocery store, and the last time he spoke with

Nicole was later that night. Bush said that he remained at

home all night until it was time to take the children to

school at approximately 7:15 on Tuesday morning. Later,

however, he said he left home that morning to check gas

prices while the children were getting dressed for school,

but did not purchase any gas. He returned home after

taking the children to school.

Bush said that at the time of the murder, he was dating a

woman named Sharon Bennett, and he was good friends

with a woman named Brenda Eckling (Brenda Daniels).'

Bennett testified that she met Bush on the internet around

2009. She did not know that Bush was married at first;

she found out on social media after knowing him for

about one year. When Bennett confronted Bush via text

message about his being married, Bush admitted to it but

said that he was in the process of getting a divorce.

Around New Year’s Day in 2011, the two were discussing

marriage. Bennett told Bush that she did not want to be

his *187 secret anymore and that he needed to finalize his

divorce if their relationship was to continue. After that

discussion, Bush showed Bennett some divorce

paperwork, and she believed that the process was moving

along.

When asked if he knew of anyone who might have a

motive to kill Nicole, Bush suggested that Nicole’s work

as a collection agent might have given someone a motive.

Before the interview ended, Bush agreed to provide his

cell phone to the St. Johns County Sheriff's Office for

examination. Later that day, Bush took his phone to the

sheriff's office, and Detective Tice interviewed Bush a

second time while Bush waited for a detective to retrieve

information from the phone. Tice asked Bush if he would

provide a DNA sample, and Bush expressed concern that

his DNA would be found throughout Nicole’s house,

saying: “I’ve been in every part of the house ... ve been

in the bedroom. I've been in the kids’ room. I’ve been in

the kitchen. I’ve cleaned the bedroom ... I have handled

probably everything in there from the toilets to the

floors.” After Detective Tice explained that DNA is used

to both include and exclude individuals during an

investigation, Bush agreed to provide a sample.

Additionally, a gunshot residue kit was used on Bush’s

hands.

A visual inspection of Bush’s upper body revealed no

visible injuries. However, Detective Tice observed a mark

on Bush’s lower leg which Bush initially said was a

mosquito bite and later in the interview said was a spider

bite. Detective Tice also noticed that Bush was walking

with a limp and asked Bush about it. Bush said that while

attending a company function, he broke his foot when he

hopped off a stage in the excitement of winning a prize.

Bush again expressed concern about his DNA being in

Nicole’s house, and Detective Tice explained again that

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly $145

the location of an individual’s DNA is an indicator as to

whether the person was in Nicole’s house for a lawful

purpose. After Detective Tice left the interview room,

Bush said to himself: “I’m going to jail. I’m going to

prison. I’m going to prison.”

The Crime Scene

The investigation of the crime scene confirmed that

Nicole suffered a brutal attack. Blood stains and blood

spatter were found throughout her bedroom, and the

attack was so intense that some of the blood spatter

reached the ceiling. Large quantities of blood were found

on the bed, the floor, and the bedroom door. Three bullet

holes were found in Nicole’s bloody pillow, and a

projectile was retrieved from her bedroom wall. In

addition to the evidence found in Nicole’s bedroom, six

bloody shoeprints were found in the living room.

The Autopsy

The autopsy, conducted by Dr. Jesse Giles, revealed that

Nicole suffered three different types of injuries: gunshot

wounds, blunt force injuries, and sharp force wounds.

Nicole’s death was the cumulative result of the blood loss

from all of her injuries. She sustained six gunshot

wounds, five to her head and one to her elbow. One of the

five head wounds went through Nicole’s eyebrow and

fractured the bone. Dr. Giles explained that the bullet

traveled through Nicole’s right eyeball, ruptured it and

caused immediate blindness. The bullet then went into her

mouth, where she swallowed it, and it passed into her

small bowel. The gunshot to Nicole’s elbow was a

superficial wound that could have been a defensive

wound. The gun was never found.

Additionally, Nicole sustained blunt force injuries to her

head, face, and upper and lower extremities. She suffered

at least three blows to the top of her head *188 that split

her skull and bruised her brain. The back of Nicole’s

shoulder revealed bruising and scraping, which indicated

that she was hit with an object in that area at least three

times. Her left arm and shoulder revealed crushed tissue

and torn muscle with a large area of hemorrhage,

indicating a significant blow by a rod-like object. The

same arm also sustained a sharp force injury. She also

sustained blunt force trauma to both of her knees,

indicated by the same rod-like marking. The blunt force

injuries were consistent with having been hit with a

baseball bat.

Moreover, sharp force injury occurred to Nicole’s left leg,

where she was stabbed above the knee. She was also

stabbed in her left breast and right arm, and there was an

incision in her left arm. The weapon used to inflict

Nicole’s sharp force injuries was never found.

Dr. Giles opined that the sharp force injuries occurred

“late in the whole [series of] events” because there was

very little hemorrhaging from those injuries. The lack of

hemorrhaging was due to her having “very little blood

still inside her body and her vessels.”

Dr. Giles further testified that Nicole “was definitely

conscious through much of the attack.” He explained,

“There again [were] three different types of wounds, but

there’s been multiple wounds of different types over

multiple parts of her body and she has defensive injuries.

There’s been a significant struggle that continued for

some period of time here before she finally succumbed.”

Nicole died from “hypovolemic shock due to multiple

injuries, gunshots, blunt force and stab wounds.” Dr.

Giles explained, “In laymen’s terms she bled to death

from being shot and having her skin torn in her head and

other areas mashed and bruised to her body [sic] and then

finally being cut.”

Firearm Testimony

Although the gun used to shoot Nicole was never

recovered, bullet fragments recovered from her head and

from the wall in her bedroom were submitted to the

Florida Department of Law Enforcement (FDLE) for

analysis. Firearms examiner Peter Lardizabal examined

the bullet fragment retrieved from the bedroom wall and

testified that although the fragment was too badly

damaged to conclusively link it to a particular type of

firearm, it appeared to be a remnant of a .22 caliber piece

of ammunition, “almost certainly a .22 long rifle, rimfire

caliber design.”

The largest bullet fragment recovered during the autopsy

was also consistent with a rimfire .22 caliber cartridge

design. An examination of Nicole’s pillow revealed that

the muzzle of the firearm was placed against the pillow

when the shots were fired. The pattern created by the

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly $145

gunshots was also consistent with that of a rimfire caliber

such as a .22 caliber long rifle.

Bush as a Person of Interest

Bush became a person of interest very early in the

investigation, Within days of the murder, investigators

began to focus on Bush, and evidence obtained over the

course of the next three months resulted in his arrest in

late August 2011. Investigations into Bush’s whereabouts

at the time of the attack, his return to the crime scene days

after the murder, the connection between his shoes and

the bloody shoeprints left at the crime scene, and his dire

financial situation all yielded incriminating evidence.

1. Bush’s Whereabouts on the Morning of the Murder

Bush gave inconsistent statements about where he was

when Nicole was attacked, and his statements conflicted

with the testimony of trial witnesses. At the time of the

murder, Bush rented a room in the *189 home of Kathy

Phillips. Phillips testified that on the day of the murder,

she did not see Bush or his van when she left home

between 6:15 and 6:20 a.m. to go to work. However,

during his first interview with Detective Tice on the day

of the murder, Bush first said that he was at home until

7:15 am. when he took the boys to school. Later in the

interview, Bush said that he left home to check on gas

prices while the boys were getting dressed but did not

purchase any gas.

In a follow-up interview with Detective Tice the week

after the murder, Bush said that the boys had not yet

gotten up when he went to check gas prices. When

confronted with his earlier inconsistent statement, Bush

admitted that he did not go to check gas prices. Instead,

he said that he went to see if his friend Brenda Daniels

was home but found that she was not. Although Bush said

that Daniels lived about ten minutes from him, Bush

estimated that he was away from home for two hours.

Daniels testified that she did not see Bush that morning.

During trial, the jury learned that a morning drive from

Bush’s home in Jacksonville to Nicole’s home in

Julington Creek—-around the time that the attack

occurred—was about thirty minutes each way. Bush’s van

was not spotted on any neighborhood surveillance videos

during the period of time around the attack, but trial

testimony indicated that a walk at a normal pace from the

northern (back) gate of Julington Creek to Nicole’s

townhome took less than five minutes.

Records from Julington Creek Elementary School showed

that on the morning of the murder, the Bush children

checked into the school’s extended day care program later

than normal. Donna Hughes, one of the employees who

worked with the program and was familiar with the

children, testified that Nicole normally brought them to

school. Hughes did not remember Bush having brought

them to school except for that day.

The jury also heard a recorded call between Bush and his

brother-in-law, Ramone Gregory. Gregory, a Tampa

Police Department officer, placed a series of four phone

calls to Bush in July and August 2011 and decided to

record the conversations because he knew that Bush was a

person of interest.’ During the first phone call, Gregory

said that he and his wife, Kim, talked about her last phone

call with Nicole, which took place the day before the

murder. According to Kim, Nicole told her that Bush

wanted to keep the boys that weekend because he was

depressed about not having a job.

2. Bush’s Return to the Crime Scene

Investigators’ suspicions surrounding Bush intensified in

light of his behavior upon returning to Nicole’s townhome

several days after the murder, and his actions were

especially incriminating in light of information learned

from Nicole’s relatives.

Sergeant George Harrigan testified that he met members

of Nicole’s family at the townhome a few days after the

murder so that they could retrieve some items for the

children, who were in their custody at the time. Harrigan

asked them to walk around and see if any items were

missing. They advised that Nicole’s laptop was missing as

well as an aluminum baseball bat that she kept by her bed

for protection.

After learning this information, Harrigan searched

Nicole’s bedroom and moved *190 a dresser, where he

found a laptop and jewelry hidden underneath, The front

of the dresser touched the floor, which would have

prevented anyone from simply sliding the laptop and

Jewelry under it. Harrigan testified that the items could

nto ong

rment Works. §

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly $145

not have been placed there without significant movement

of the dresser: “You’d have to pull [the dresser] out, put

something there, pull it back forward or, possibly, remove

the bottom drawer, place something, and put the drawer

back in.” Additionally, having seen the bloody shoeprints

in the living room that led to the sofa, Harrigan searched

the sofa and found a baseball bat tucked in the crevice

between the back of the sofa and the part that holds the

lower cushions.

Detective Tice testified that Bush asked him about getting

access to Nicole’s home because he needed some items

for the family dog. After Sergeant Harrigan discovered

the hidden laptop, jewelry, and baseball bat, the

investigators decided to allow Bush to return to the home

with a key and document Bush’s activity inside. A search

warrant was obtained.

On June 4, cameras were used to set up surveillance in

two areas of the home—in the living room facing the

sofa, and in Nicole’s bedroom facing the dresser. The

cameras were set to detect pixel movement and begin

recording. Because the cameras responded to a change in

light, if the lights were off, the camera would not detect

the movement and would not record. Thus, the lights were

left on in the townhome so that the camera would

interpret the pixel contrast as movement and begin

recording.

After the cameras were installed, evidence tape was

placed on the doors to secure the home. Detective Tice,

who helped set up the cameras, returned to the Sheriff's

Office and arranged for Bush to pick up the house key.

Another detective checked the evidence tape at 8 a.m. and

noon on June 5 and noted that it had not been tampered

with. However, when he returned on June 6, the tape on

the front door had been broken. He retrieved the

surveillance cameras and took them to the Sheriff's Office

for examination.

Detective Vincent Russo testified regarding the

surveillance videos. The first of two videos of the dresser

showed the lights on in Nicole’s bedroom. The second

video, recorded later, showed the lights completely off in

the bedroom except for a light that briefly appeared in the

bottom right hand corner of the screen, which Detective

Russo testified appeared to come from a flashlight. The

first of two surveillance videos of the sofa similarly began

with the living room lights on, and then, one of the lights

was turned off. That video also showed the original

position of the sofa cushion closest to where the baseball

bat had been hidden. The second video, recorded later,

demonstrated that the cushion was moved. A photo

overlay of the sofa videos was also created to demonstrate

the difference between the first and second images of the

sofa and was published to the jury.

Sharon Bennett, whom Bush was dating at the time of the

murder, was visiting Bush at his house on the night that

he went to Nicole’s townhome. She testified that around

10 p.m., Bush said that he was going out “to get some

air,” and leaving her behind, took her car. Bennett tried

texting and calling Bush while he was gone but was

unable to reach him until he was on his way home. When

he returned after two hours, Bush did not immediately say

where he had been, but Bennett noticed that the passenger

seat of her car had been pushed back and that there was

debris on the seat. When she questioned him, he said that

the debris was dog food and that he had gone to Nicole’s

house to get some items for the dog. Later however, Bush

said that he looked around the townhome *191 while he

was there, and he used his flashlight to look around

because he did not want anyone to see him. Bush also told

Bennett that he parked her car around the corner from

Nicole’s home in an effort to avoid being seen by the

neighbors.

3. Bush’s Timberland Shoes

Another link between Bush and the murder was his

collection of Timberland shoes. About one week after the

murder, a search warrant was executed at Bush’s home.

Multiple pairs of Bush’s shoes were collected and

submitted to FDLE for analysis and for comparison with

the bloody shoeprints found in Nicole’s living room. Of

the six bloody shoeprints found at the crime scene, five of

them were suitable for analysis. Senior crime laboratory

analyst Lynn Ernst testified that all five shoeprints

corresponded with Bush’s Timberland shoes.

Sharon Bennett testified that Bush normally wore

Timberland boots and kept them neatly organized at his

home. When shown the shoes that had been entered into

evidence, she recognized each pair as belonging to Bush.

However, Bush had a favorite pair of Timberland boots

that appeared older than the others, and that pair was not

among those in evidence. Moreover, Bennett did not see

those boots again after the murder.

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly $145

4, Bush’s Financial Situation

Bush’s financial status was also a focus of the

investigation, and multiple witnesses testified regarding

Bush’s dire financial status at the time of the murder.

Bank records showed that Bush had five bank accounts at

the time of the murder (two savings accounts, two

personal checking accounts, and one business checking

account). According to the account summaries for the

period that included the date of the murder, two accounts

had negative balances, one had a balance of $1.34, one

had a balance of $13.85, and another had a balance of

$277.

In the weeks leading up to the murder, Bush exchanged

text messages with others in which he talked about his

financial situation: “[T]he only thing that can really help

me is money seeing how I’m seriously in need and owing

child support .... A card with kind words are [sic] nice but

not reajly gonna pay many bills so I’m at a bit of a loss.”

Bush described himself as “broke as a joke” and

“bleeding straight out. Low cash.”

Additionally, Kathy Phillips testified that when Bush

moved into her home, he told her that he had an

information technology job at a biomedical firm but that

he needed a roommate because he was paying child

support for four children. Bush was twice late paying his

rent between February and April 2011, and in March or

April, Bush told Phillips that he was going to be late

paying his rent because he had been laid off for several

months. In April 2011, Bush’s church paid his rent for

him.

Bush was the primary beneficiary of Nicole’s Minnesota

Life group life insurance policy in the amount of

$815,240, Sharon Bennett testified that shortly before

Bush was arrested, which occurred in August of 2011, she

was with him when he received a phone call from

someone who said that he was calling from Nicole’s job

and wanted to remind Bush that Nicole had an insurance

policy through her employer. After the phone call ended,

Bush told Bennett what he knew about the policy. Bush

gathered more details about the policy over the next few

days and then spoke with Bennett about it again.

On July 20, 2011, however, Bush had called Minnesota

Life to inquire about the policy. This phone call revealed

that Bush was aware of Nicole’s life insurance policy

before he received the anonymous phone call. During the

call, Bush stated that he *192 was married to Nicole, and

he wanted to verify that he was still the policy

beneficiary, noting, “I know I was [listed as the

beneficiary] years ago ....”

The claims representative confirmed that Bush was a

beneficiary and informed him that a beneficiary statement

had previously been mailed to him to initiate the recovery

of insurance proceeds. However, the mail was returned to

the insurance company. The representative advised that

another beneficiary statement would be mailed to him. On

July 26, after receiving the statement, Bush signed it and

submitted it to Minnesota Life.

Bush's Connection to the Murder Weapons

In addition to the evidence surrounding Bush’s

statements, behavior, and life circumstances, Bush was

heavily incriminated by DNA evidence obtained from the

baseball bat and the sofa where the bat was hidden after

the attack. He was also incriminated by his computer

searches, particularly those relating to firearm use, and

specifically the use of a .22 caliber firearm.

1. DNA Testing

Multiple items were sent to FDLE for DNA testing along

with comparison samples obtained from Nicole during the

autopsy and provided by Bush and the two children. Some

of the DNA results excluded Bush. For example, male

DNA foreign to the Bush family was found on Nicole’s

laptop and on a blue towel in Nicole’s bedroom, although

FDLE DNA analyst Emily Martin explained that no

testing existed to determine when DNA was left on an

item. FDLE’s DNA testing on swabs obtained from the

baseball bat, which evidence indicated was the murder

weapon used to inflict Nicole’s blunt force injuries,

revealed a mixture of at least two individuals. The major

profile belonged to Nicole, but the minor profile was

insufficient for inclusion purposes.

FDLE also tested DNA swabs obtained from the inside of

the sofa where the baseball bat was hidden. These swabs

also revealed a DNA mixture from at least two

individuals. Nicole, Bush, and their biological son were

all included as possible contributors to that mixture. The

older son was excluded.

The baseball bat was sent to Virginia-based Bode

Technology for further DNA testing. The results of

Y-STR testing, which exclusively examines male DNA,

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly $145

showed that Bush’s DNA matched the major component

of the Y-STR profile found on the bat. Additionally, all

the alleles from Bush’s Y-STR DNA profile were found

on the swabs obtained from the handle of the bat. Further,

99.961 percent of the male population and the entire

female population were excluded as contributors to the

Y-STR profile.

Bode Technology also conducted STR testing on the bat.

The STR testing, which examines male and female DNA,

revealed that Nicole and Bush could not be excluded as

contributors to the DNA mixture found on the handle of

the bat. Moreover, the testing involved a comparison of

Bush’s DNA profile and the DNA from the bat at thirteen

genetic markers, and Bush’s alleles were found at all

thirteen markers. The statistical significance of those

results was that 1 in 1 million U.S. Caucasians, | in 1.8

million U.S. African Americans, and 1 in 3.5 million U.S.

Hispanics would be included as possible donors to the

mixture. Moreover, six alleles in the mixture matched

only Bush and not Nicole or their biological son. Despite

the presence of his DNA on the baseball bat, when

questioned by Detective Tice, Bush denied any awareness

of a bat being kept at Nicole’s home.

2. Computer Forensics

Further incriminating Bush was evidence of searches that

he conducted on his *193 computers. The day after the

murder, Detective Tice was supposed to meet Bush to

pick up his laptop and desktop computer tower, but Tice

was only able to retrieve the tower because Bush said the

laptop was being repaired. Bush agreed to get the laptop

from the repair person, and he provided it to the Sheriff's

Office later that afternoon. However, in his June 8

interview with Detective Tice, Bush admitted that he had

not taken the laptop to someone else for repair but had

worked on it himself.

When the Sheriff's Office received Bush’s laptop for

examination, it was not functional. However, no viruses

were found on the hard drive, which contained some

remnants of files, all of which were date-stamped June 1,

2011, and most of which were time-stamped 3:02 p.m.

The identical date and time stamps suggested that the

computer was wiped clean, and then files were installed.

After the examination was complete, the laptop and hard

drive were returned to Bush, and a forensic image of the

hard drive was retained as evidence.

In September 2011, following Bush’s arrest, his laptop

was seized again and re-examined. This time, the laptop

contained a different hard drive. The examination of this

hard drive as well as a subsequent examination in 2015

using the Internet Evidence Finder software revealed

searches in January and February 2011 for the following

terms: “silencer,” “silencer + plan,” “homemade

suppressor,” “how to make a homemade

silencer/suppressor,” “build a .22 caliber suppressor,”

“suppressors and silencers,” and “build a .22 caliber

suppressor.” The 2015 examination also revealed that

some terms, such as the word “silencer,” were searched in

a private browser and thus did not reveal a date or time

for the search. The results also showed that when Bush

searched the term “silencer,” he chose the term “silencer

plans” from a list of auto-populated results.

The examination of Bush’s desktop revealed that on June

1, 2011, the day after the murder, Bush conducted a

search for the term “blood.” Additionally, during the

months after the murder, but before his arrest, Bush

searched the terms “unemployment loans with bad

credit,” “insurance loans,” and “policy loans.” He also

searched the terms “first 48” and “forensic footprint wear

analysis.”

The Verdict and the Penalty Phase

Bush did not put on any evidence in defense. However,

during closing statements, defense counsel argued

reasonable doubt and challenged the identity of the

perpetrator. The jury returned its verdicts on August 2,

2017, finding Bush guilty of first-degree premeditated and

felony murder, and burglary of a dwelling with an assault

and while armed with a firearm.

Penalty Phase

The State and the defense presented evidence during the

penalty phase. Having previously filed its notice of intent,

the State sought to prove five aggravating factors: (1) the

defendant was previously convicted of another capital

felony or of a felony involving the use or threat of

violence to the person; (2) the capital felony was

committed while the defendant was engaged, or was an

accomplice, in the commission of a burglary; (3) the

mal U.S. Government Works. 8

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45 Fla. L. Weekly $145

capital felony was committed for pecuniary gain; (4) the

capital felony was especially heinous, atrocious, or cruel

(HAC); 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 (CCP).

Testifying for the State were five witnesses: Cherise

Conte-Bush *194 (Bush’s ex-wife); Sharon Bennett

(Bush’s girlfriend); Cynthia Thompson (Nicole’s mother);

Kimberly Gregory (Nicole’s sister); and Tracie Walker

(Nicole’s friend). Thompson, Gregory, and Walker were

all victim impact witnesses.

Bush and Cherise Conte-Bush married in 1998. Their

daughter was born the year before. In April 2000, the

couple had planned a romantic evening at home, but

Conte-Bush was tired and wanted to postpone the

evening. Bush insisted on continuing with their plans and

asked her to make sure their daughter was asleep by the

time he got home. The daughter fell asleep in their

bedroom. When Bush came home, he filled the bathtub

for Conte-Bush, and she got into the tub, Bush washed her

back and told her that he loved her, that she was a good

wife, and that he wanted to have another child. He then

told her that he had a surprise for her. Bush left the

bathroom but returned to run some more warm water

when Conte-Bush said the water was getting cold and she

wanted to get out of the tub. Bush told her to close her

eyes and left the bathroom again. Bush returned with an

electrically charged rod and threw it into the tub.

Conte-Bush’s back began to burn, and she screamed and

jumped out of the tub. Bush tried to push her back into the

tub, and when she was able to position herself against the

wall such that Bush could not push her back in, Bush

started choking her. Their daughter, who was three years

old at the time, awoke and opened the bathroom door.

Bush closed the door and started choking Conte-Bush

again. After their daughter opened the door again, Bush

stopped choking Conte-Bush and claimed to hear voices.

Conte-Bush ran to the bedroom phone to call 911, but the

phone was dead. She then ran to the kitchen and was able

to call 911 and get help. The next day, Conte-Bush found

a burnt rod under her daughter’s bed. Bush was ultimately

convicted of aggravated assault for his attack on

Conte-Bush. At the time of the attack, Bush was the

beneficiary of Conte-Bush’s $100,000 life insurance

policy.

Sharon Bennett was Bush’s girlfriend at the time of the

murder and at that time had been dating him for

approximately two years. One morning, at least one year

before the murder, Bush showed up at Bennett’s house

upset and in tears. Bush told her that something was going

on in his life, and he wanted to get a gun and hurt Nicole.

He mentioned that the apartment complex where Nicole

lived at the time was dark, and he could go there to attack

her. Bush asked Bennett to help him get a gun, but she

refused to do so and told him to forget the idea.

The remaining witnesses for the State were victim impact

witnesses. Nicole’s mother, Cynthia Thompson, described

the impact of Nicole’s loss on her and her family, and a

loss of happiness in her own life. Thompson said that she

no longer enjoyed traveling and participating in family

gatherings.

Nicole’s sister, Kimberly Gregory, described the impact

of the loss on her family, particularly on Nicole's

children, niece, and nephews. Nicole’s oldest son suffered

from depression as a result of her death, and the youngest

son had difficulty understanding that Nicole was gone

forever.

Nicole’s best friend, Tracie Walker, testified that Nicole’s

loss was traumatic and that she was deeply affected by it.

Walker also worked with Nicole, who was known at work

as “the cake lady” because she baked cakes for her

coworkers on special occasions. Walker said that the loss

of Nicole devastated their coworkers,

After the State concluded its presentation of penalty phase

evidence, Bush offered evidence in mitigation and relied

on *195 thirty-four —_nonstatutory _—smitigating

circumstances, many of which related to Bush’s

upbringing. The evidence presented by the defense

included testimony from ten witnesses, a combination of

lay witnesses and experts.

Bush’s younger brother, Mark Bush, testified that while

growing up in New Jersey, their living situation was

unstable, and they moved many times with their mother,

Dorothy. When they had nowhere to move to, they

sometimes stayed with their aunt. On occasion, they slept

at Penn Station in New York City. Once, they were

robbed at gunpoint while moving their belongings in a

shopping cart. Another time, they were evicted during the

holidays and were taken in by a male stranger after he

found them in the hallway of a downtown building,

Bush and Mark did not always attend school when their

living situation was unsettled, and at times they did not

have weather-appropriate clothing. When they walked to

school, they worried about their personal safety and

occasionally witnessed violence. Bush ran away from

home at least twice. They were exposed to drug dealing in

one of their homes, and one of their childhood friends was

murdered.

Bush and Mark’s mother, Dorothy, tried to protect them

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45 Fla. L. Weekly $145

from some of the dangers to which they were exposed.

However, Dorothy appeared to suffer from paranoia and

hallucinations, and she used drugs and alcohol. She had

multiple relationships that involved the physical abuse of

her and her sons, and Bush and Mark tried to protect her.

Dorothy also engaged in prostitution to provide for the

family. Mark believed that their mother treated him better

than Bush because she liked Mark’s father more. She

treated them differently in terms of discipline, affection,

and how she shared money with them.

Around the time that Bush and Mark were teenagers, the

brothers were lured into an abandoned house by an older

male teenager. The teenager told Mark to keep watch at

the front of the house while Bush went with him to look at

something. Mark heard a scuffle but decided to ignore it,

thinking that Bush could take care of himself. After they

left the house, Bush was distraught and would not teil

Mark what happened. A year or two later, Bush admitted

that he was sexually assaulted.

Mark did not graduate from high school, but Bush did.

Bush attended technical school, received information

technology training, and was a Microsoft specialist.

Bush’s oldest son, Amir, testified that Bush had been

married to his mother, but they divorced when he was

about four years old. Amir had a sister who was Bush’s

daughter by another woman. Bush gave Amir fatherly

advice and spent time with Amir and his sister at school

functions, on trips and outings, and on the weekends. The

amount of contact that Amir had with Bush lessened after

Bush moved to Florida, but they remained in contact, and

he knew Nicole and the younger children. Bush never

spoke to Amir or his sister disrespectfully about their

mothers or Nicole. Amir loved Nicole, and Nicole treated

him and his sister as if they were her own.

Bush’s first cousin, Noel Chambers, testified that Bush

was vulnerable to being bullied when he was younger.

Bush and his brother Mark wore used, worn clothing and

were teased as a result. Their mother frequently asked

family members for money. Bush, Mark, and their mother

also lost their home in a fire.

Chambers recalled that Bush’s mother did not work, and

as Bush got older, he supported her financially. Bush

worked in high school to support the family and

continued to do so during his adult years. *196 During

Bush’s last conversation with his mother, they argued

about money. About two weeks later, he found her

decomposed body in her apartment after being contacted

by neighbors. Bush was distraught after her death. Bush

tried to emulate Chambers’ mother, who was his aunt, by

bringing the family together and trying to keep in touch

with family members.

Chambers never saw Bush with his father, but Bush was a

very involved father with his own children. He recalled

Bush spending a lot of quality time with Amir and the

other children. Also, Chambers became closer to Bush

during their adult years, and Bush became a mentor to

him when his parents passed away.

Bush asked Chambers for money before Nicole’s murder.

Chambers also knew that Nicole had a life insurance

policy and knew that Bush was aware of it. After Bush

was arrested, Chambers cared for Bush’s pets.

Brenda Daniels testified that she dated Bush for

two-and-one-half years, but they did not date exclusively.

Bush gave her advice and tried to help her with family

problems. He tried to be a father figure to Daniels’

daughters and encouraged them to respect Daniels. She

helped Bush financially, including helping him buy a car.

Juliet Hart was a fourth-grade teacher at Julington Creek

Elementary who taught the older of Nicole and Bush’s

sons. The son started to have academic problems, and she

contacted Nicole and Bush. Bush attended all the

parent-teacher conferences, and he volunteered in the

classroom.

Jack Lalonde’s twenty-one-year-old son, Daniel, was

charged with murder and held in the St. Johns County Jail

during the time that Bush was also held there. Daniel and

Bush became friends, and Bush gave him advice. Lalonde

testified that Bush helped inmates with paperwork and

participated in religious services. Bush also encouraged

Daniel, who had become associated with a “rough

crowd,” to listen to Lalonde. Lalonde also had positive

conversations with Bush and placed money in Bush’s

canteen account at Daniel’s request.

Prison expert James Aiken classified Bush as a compliant

inmate who could be managed in a prison environment,

but he said that the nature of Bush’s crime would require

maximum security for the safety of the public. Aiken

considered Bush potentially vulnerable in a prison setting

because he was older than most of the other inmates, and

because his conviction was for a crime of domestic

violence. Aiken predicted that Bush would positively

impact other inmates, especially the younger, immature

population, and possibly teach inmates how to read.

Amy Nguyen, a geographical information system analyst,

relied on census and mapping data to study risk factors in

the Newark (Essex County), New Jersey, area where Bush

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grew up. Nguyen found multiple risk factors, such as an

abundance of single-mother homes, lack of educational

attainment, unemployment, and poverty.

Dr. Jethro Toomer, a clinical and forensic psychologist,

testified for the defense but did not interview Bush, He

was provided the maps created by Amy Nguyen, as well

as Bush’s school and family records. He also interviewed

Bush’s brother, Mark; Bush’s uncle; and one of Bush’s

ex-wives. Dr. Toomer testified that Bush grew up in an

unstable community. He described the environment as

one where individuals would not know what would

happen in their lives from day to day. According to Dr.

Toomer, because Bush moved an estimated fifteen times

in ten years, the instability in the family’s living situation

would have triggered hypervigilance, a fight-or-flight

mode, and a chronically *197 elevated stress level. Dr.

Toomer suggested that a child in Bush’s position would

have suffered from toxic stress syndrome. He described

Bush’s life as one of complex trauma due to the multiple

instances and duration of trauma, and he testified that

Bush suffered through a series of what Toomer described

as man-made traumas. Dr. Toomer stated that the

complex trauma and toxic stress syndrome would have

resulted in delayed secondary thought processes, deficits

in problem solving, lack of continuity in employment, and

problematic interpersonal relationships.

Dr, Janice Wilmoth, a neuropsychologist, was the last

mitigation witness. She reviewed Bush’s school records,

spoke to Bush’s ex-wife, and observed the testimony of

Bush’s son and brother. Dr. Wilmoth did not interview

Bush and was instructed not to talk with him. Dr.

Wilmoth also examined the background of Bush’s

mother, Dorothy. Dorothy, who died in her fifties, was

confirmed by the Social Security office as a schizophrenic

and received Social Security disability benefits. Dr.

Wilmoth’s testimony focused on the qualities of

schizophrenia and the impact on the children of a

schizophrenic parent. From second through eighth grade,

Bush missed hundreds of days of school, and he attended

fifteen different schools.

Jury Recommendation and Spencer Hearing

The jury unanimously found the existence of all five

aggravating factors argued by the State. The jury rejected

ten of the thirty-four mitigating circumstances as not

proven by the greater weight of the evidence, and it found

the remaining mitigation by varying vote counts. During

the Spencer’ hearing, the defense presented evidence in

support of additional nonstatutory _ mitigating

circumstances. Additionally, Bush spoke briefly and

maintained his innocence. The State did not present

additional testimony at the hearing but did offer four

additional victim impact statements over defense

objection.

Sentencing

The trial court ultimately sentenced Bush to death for the

murder. The following aggravating factors were

unanimously found by the jury, which also found that the

aggravating factors were sufficient to warrant a death

sentence. Bush’s sentence was based on the following

aggravating circumstances: (1) the defendant was

previously convicted of another capital felony or of a

felony involving the use or threat of violence to the

person (great weight); (2) the capital felony was

committed while the defendant was engaged, or was an

accomplice, in the commission of a burglary (great

weight); (3) the capital felony was committed for

pecuniary gain (great weight);’ (4) HAC (great weight);

and (5) CCP (great weight).

While the defense did not seek to prove any statutory

mitigating circumstances, the trial court found the

existence of thirty-four nonstatutory _ mitigating

circumstances.® Additionally, the trial court considered

*199 additional nonstatutory mitigating circumstances

that were not presented to the jury but presented to the

court at the Spencer hearing: (1) residual doubt of Bush’s

guilt for the murder of Nicole; (2) the State’s pretrial offer

of life imprisonment; (3) the cost of a death sentence

versus life imprisonment; and (4) a life sentence will

provide the victim’s family with closure. However, the

court rejected each one as inappropriate mitigation and,

accordingly, assigned each no weight.

On December 21, 2017, Bush was sentenced to death for

the murder and to a concurrent life sentence for the

burglary. This appeal followed.

ANALYSIS

Bush raises thirteen issues in this direct appeal.

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly S145

Additionally, although Bush did not raise the issue of

proportionality, after addressing the issues presented, we

also evaluate the proportionality of his death sentence as

compared to other cases where the death sentence has

been imposed.

1. Sufficiency of the Evidence

Bush first argues that the evidence presented at trial was

legally insufficient to support his conviction for

first-degree murder. Even apart from Bush’s argument,

this issue is before the Court because we must

independently evaluate each death case for sufficiency of

the evidence relied upon to convict the defendant. See

Caylor, 78 So. 3d at 500. Bush correctly argues that the

State’s case is based on entirely circumstantial evidence

and then asks us to review the evidence according to the

special standard of review we have previously applied to

wholly circumstantial cases. Because this special standard

is unwarranted, confusing, and out of syne with both the

jury instructions currently used in this state and the

approach to appellate review used by the vast majority of

the courts in this country, we discontinue its use.

a. Standard of Review

The history of Florida’s use of a special standard for

circumstantial evidence cases is fully explained in the

Fifth District’s opinion in Knight, 107 So. 3d at 455-57.

In summary, there was a time when all federal courts and

almost ail state courts instructed juries using a special

standard when the evidence of a defendant’s guilt

presented at trial was circumstantial. /d at 455-56. In

1954, however, the United States Supreme Court called

the standard into question, opining that “where the jury is

properly instructed on the standards for reasonable doubt,

such an additional instruction on circumstantial evidence

is confusing and incorrect.” Holland, 348 U.S. at 139-40,

75 S.Ct. 127 (1954) (emphasis added). The Supreme

Court further explained:

Circumstantial evidence ... is intrinsically no different

from testimonial evidence. Admittedly, circumstantial

evidence may in some cases point to a wholly incorrect

result. Yet this is equally true of testimonial evidence.

In both instances, a jury is asked to weigh the chances

that the evidence correctly points to guilt against the

possibility of inaccuracy or ambiguous inference. In

both, the jury must use its experience with people and

events in weighing the probabilities. If the jury is

convinced beyond a reasonable doubt, we can require

ho more.

Id, at 140,

In the wake of Holland, all federal courts and most state

courts ceased use of *200 the special circumstantial

evidence instruction and its corresponding standard of

review on appeal. Knight, 107 So. 3d at 456. This Court

eliminated the special instruction for Florida juries in

1981, citing Holland, see In re Standard Jury Instructions

in Criminal Cases, 431 So. 2d at 595, but inexplicably

and without analysis continued using the corresponding

standard of review for appellate purposes. See Knight, 107

So. 3d at 456. As a result, Florida became an extreme

outlier with a “somewhat discordant” position that the

special standard should not be used to instruct the jury but

should be used to judge the jury’s verdict. Irene Merker

Rosenberg & Yale L. Rosenberg, “Perhaps What Ye Say

Is Based Only On Conjecture” —Circumstantial Evidence,

Then and Now, 31 Hous. L. Rev. 1371, 1419 (1995). The

Texas Court of Criminal Appeals has explained the

discordance in this approach and why it should not be

accepted as follows:

As we have emphasized on numerous occasions, the

sufficiency of the evidence must be measured against

the jury charge. Given the fact that a jury is to be

guided by the charge in reaching their verdict, and

given the fact that juries are no longer instructed on the

law of circumstantial evidence, it no longer makes

sense for appellate courts to use the circumstantial

evidence “construct” to review the jury’s verdict and to

determine, thereby, whether the jurors acted

“rationally.” To do so evaluates the jurors’ rationality

by a different standard than that by which they were

instructed to reach their verdict.

Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App.

1991) (citations omitted), overruled in part on other

grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim.

App. 2000).

The special standard is most often articulated by Florida’s

appellate courts this way: “Where the only proof of guilt

is circumstantial, no matter how strongly the evidence

may suggest guilt, a conviction cannot be sustained unless

the evidence is inconsistent with any reasonable

hypothesis of innocence.” Knight, 107 So. 3d at 457

(quoting State v. Law, 559 So, 2d 187, 188 (Fla. 1989)).

In Knight, the Fifth District fully explained why this

standard is confusing and incorrect as both a jury

instruction and an appellate standard of review, id. at

Bush v. State, 295 S$o.3d 179 (2020)

45 Fla. L. Weekly $145

457-61, and we see no need to repeat that explanation

here. However, it should be obvious that it wholly defies

reason to suggest that a standard for determining whether

evidence is sufficient for conviction is incorrect if used by

a juror, as we concluded in Standard Jury Instructions in

Criminal Cases, 431 So. 2d at 595 (quoting Holland, 348

USS. at 139-40, 75 S.Ct. 127), but appropriate for use by a

judge to determine whether the verdict complies with the

law.

The standard of review historically applied to a

determination of the legal sufficiency of evidence to

support a criminal conviction, at least where there is some

direct evidence, is simply whether the State presented

competent, substantial evidence to support the verdict.

Tibbs v. State, 397 So. 2d 1120, 1123 (Fla. 1981);

Spinkellink v. State, 313 So, 2d 666, 671 (Fla. 1975). To

apply this standard to a criminal case, an appellate court

must “view[ ] the evidence in the light most favorable to

the State” and, maintaining this perspective, ask whether

“a rational trier of fact could have found the existence of

the elements of the crime beyond a reasonable doubt.”

Rogers v. State, 285 So. 3d 872, 891 (Fla. 2019) (quoting

Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)); see

also Tibbs, 397 So. 2d at 1123 (“[T]he concern on appeal

must be whether, after all conflicts in the evidence and all

reasonable inferences therefrom have been resolved in

*201 favor of the verdict on appeal, there is substantial,

competent evidence to support the verdict and the

judgment.”); accord De Groot v. Sheffield, 95 So. 2d 912,

916 (Fla. 1957) (defining “[s]ubstantial evidence” as

“such relevant evidence as a reasonable mind would

accept as adequate to support a conclusion” and

instructing that evidence is “competent” if it is

“sufficiently relevant and material’). This standard should

now be used in all cases where the sufficiency of the

evidence is analyzed.’

b. Application

Turning now to the evidence presented in this case and

viewing it in the light most favorable to the State as the

prevailing party, we readily conclude that “a rational trier

of fact could have found the existence of the elements of

the crime beyond a reasonable doubt.” Rogers, 285 So. 3d

at 891 (quoting Bradley, 787 So. 2d at 738). Indeed, if we

were to reject the jury’s verdict and the reasonable

inferences the jury must have drawn from the evidence to

reach that verdict, we would, in effect, be saying that a

jury is required to entertain “a mere possible doubt, a

speculative, imaginary, or forced doubt,” contrary to the

standard jury instructions given in all criminal cases. See

Fla. Std. Jury Inst. (Crim.) 3.7.

According to evidence presented in this case, a few

months before the murder, Bush began researching how

to make silencers and homemade suppressors for a .22

caliber weapon—the same caliber of weapon that the

firearms examiner testified “almost certainly” fired. Bush

unsuccessfully tried to delete evidence of his searches and

initially tried to avoid submitting his laptop for

examination.

The murder occurred in Nicole’s home without any signs

of forced entry during a time when Bush knew the

children and family dog would not be home to witness it

or intervene. Bush would not have needed to force entry

into the home, as he knew the passcode to enter the

garage, the whereabouts of the spare house key, and how

to operate the alarm panel. Bush knew the children and

dog would not be home at the time of the murder because

he was keeping them for the long weekend through the

time the children were due back at school, an arrangement

that testimony from a school employee suggested was

unusual for the Bush family.

On top of these highly suspicious circumstances, Bush’s

landlord, who lived in the same home with Bush, testified

that she did not see either Bush or his van when she left

for work between 6:15 and 6:20 a.m. on the morning of

the murder—approximately thirty minutes after Nicole’s

alarm panel was disabled. Thus, evidence was presented

that Bush was absent from his home around the time of

the murder, which was also early on a school morning

when his two young sons were staying with him. Not only

was Bush absent from home at that time, but he first said

that he was home and later gave inconsistent accounts of

his whereabouts outside the home. One of those accounts

was that he went to see if Daniels was home, but she was

not. Bush said that Daniels’s home was a ten-minute drive

away but that he was away from his home for a couple of

*202 hours. As a result, Bush created a two-hour window

of time for which he could not account. During that time,

Bush had ample time to drive to and from Julington Creek

to carry out the murder.

Further, five bloody shoeprints on the floor in Nicole’s

living room were consistent with the soles of Bush’s

favorite pair of shoes, which was never found by law

enforcement and which, according to Sharon Bennett,

Bush did not wear after the murder.

Several days after the murder, Bush returned to Nicole’s

townhome and went to two locations in the home that

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly S145

would have been significant only to the person who

murdered her: the sofa where the baseball bat had been

hidden and the dresser below which the laptop and

jewelry were hidden. Moreover, Bush’s DNA was found

in the sofa crevice where the murderer hid the baseball

bat, one of the three murder weapons.

Most tellingly, Bush’s DNA was the minor profile

identified on the baseball bat used in the murder, which

Bush claimed to have never touched.

During the months leading up to the murder, Bush was in

severe financial distress, unable to pay his rent on time,

responsible for paying child support, and asking others for

money. Bush expressed that he was “broke as a joke” and

low on cash. Bush was the beneficiary of Nicole’s

$815,240 life insurance policy, and he was aware for

some time prior to the murder that he had been designated

as the policy beneficiary. Several weeks after the murder,

Bush called to confirm his beneficiary status and

subsequently submitted a claim for the policy proceeds.

Because a rational trier of fact could, and did, find from

this evidence that Bush committed the first-degree murder

of Nicole under both premeditated and felony murder

theories, Bush is not entitled to relief.

2. Richardson Hearing

Bush argues that testimony offered by the State’s DNA

expert, Emily Martin, constituted a discovery violation

under Richardson v. State, 246 So. 2d 771 (Fla. 1971). At

trial in 2017, Martin testified regarding the results of

DNA testing conducted in 2011 and 2012 on Nicole’s

laptop and on a towel found in her bathroom, Martin

testified that each item contained a major and a minor

DNA profile; the major profile belonged to Nicole, and

the minor profile contained male DNA that was foreign to

the entire Bush family. While Martin indicated that there

was no test available to determine when the DNA was left

on the towel, she testified that the results conclusively

excluded Bush as a contributor to the minor profile.

Martin’s deposition testimony was consistent with these

conclusions.

The testing conducted in 2011 and 2012 was the only

DNA testing done on the laptop and the towel. After

Martin testified to those results, the prosecutor asked

Martin whether, using current methods of reporting DNA

results, she would reach a different conclusion with

respect to the minor profile. Martin stated that due to the

limited amount of DNA that was available for analysis,

she would report the minor DNA profile results as

uninterpretable. Nonetheless, Martin testified that under

either the earlier or the later reporting standards, Bush

was excluded from the minor DNA profile because the

DNA contained an allele that was foreign to the entire

Bush family. In light of Martin’s testimony regarding the

revised reporting methods, defense counsel objected and

asserted a discovery violation. The trial court then

conducted a limited Richardson inquiry and ultimately

concluded that no discovery violation occurred.

*203 We agree with the trial court and conclude that no

discovery violation occurred because the trial testimony

did not constitute a material change to Martin’s deposition

testimony. Martin’s conclusion about the testing

conducted in 2011 and 2012—that Bush was excluded as

a contributor to the minor profile—did not change. Martin

testified as to the reliability of those results and did not

waver from that conclusion. While Martin did state that if

evaluated at the time of trial the results would have been

reported as inconclusive, she reaffirmed that those

reporting methods would not change the conclusion that

Bush remained excluded as a contributor. Bush is not

entitled to relief.

3. Dying Declaration

Bush argues that the trial court erred when it excluded

from evidence, as inadmissible hearsay, see §§

90,802-.803, Fla. Stat. (2017), a statement Nicole made to

a first responder on the scene of the attack. Specifically,

Nicole told the first responder that her children were with

their father, and Bush contended that this statement met

the exception to the hearsay rule for a statement made

“under belief of impending death,” § 90,804(2)(b), Fla.

Stat. (2017), also known as a dying declaration. We

review the trial court’s ruling for abuse of discretion, see

Williams v. State, 967 So. 2d 735, 746 (Fla. 2007), and

find none.

A dying declaration is “a statement made by a declarant

while reasonably believing that his or her death was

imminent, concerning the physical cause or

instrumentalities of what the declarant believed to be

impending death or the circumstances surrounding

impending death.” § 90.804(2)(b). “The deceased must

have known and ‘appreciated his condition as being that

of an approach to certain and immediate death,’ although

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it is not necessary that the declarant ‘make express

utterances’ that he would never recover.” Hayward vy.

State, 24 So. 3d 17, 30 (Fla. 2009) (quoting Henry v.

State, 613 So. 2d 429, 431 (Fla. 1992)).

There is no dispute that Nicole reasonably believed that

her death was imminent, as she had been grievously

wounded and did indeed die approximately three hours

after the attack. The issue is whether the statement that

the boys were with their father concerned the physical

cause or instrumentalities of what Nicole believed to be

impending death or the circumstances surrounding her

impending death. § 90.804(2)(b). We agree with the trial

court that it did not.

The trial court considered the admissibility of this

statement at a pretrial evidentiary hearing. Nicole made

the statement in question to Deputy Harris after he

entered the townhouse as the first officer on the scene. He

made sure there was no one on the first floor of the home

and then went upstairs, where he saw Nicole in the master

bedroom. He asked her questions, communicated with

dispatch, and then returned to clearing the house so that

fire and rescue personnel could safely enter. At some

point during this process, he asked Nicole where her

children were, and she said they were with their father.

Although Nicole was gravely injured and asking for

medical help at the time of this statement, there was no

indication in Deputy Harris’s testimony that Nicole’s

statement as to her children’s whereabouts related to, or

was intended to relate to, the physical cause,

instrumentality, or circumstances surrounding her

impending death. Rather, Deputy Harris’s testimony

indicates that this statement was a response to a logistical

question. Therefore, it was reasonable for the trial court,

who had the benefit of Deputy Harris’s live explanation

of how the statement came to be made, to find that this

statement did not meet the dying *204 declaration

exception and exclude it as inadmissible hearsay.

Bush contends that when viewed together with another

statement that the trial court did find to be a dying

declaration, Nicole’s statement that the children were with

their father is indeed a statement related to the cause of

her impending death and the circumstances surrounding

it. Specifically, the trial court ruled that Nicole’s

statement to Deputy Harris that she did not know who

attacked her qualified as a dying declaration, and this

statement was admitted into evidence. Bush contends that

Nicole’s statement that her children were with him, which

was made shortly before the statement that she did not

know who attacked her, establishes the significance of the

second statement by showing that she was fully conscious

and capable of memory at the time. Further, and by

extension, he contends that the two statements, when

considered together, raise the inference that he, the

children’s father, was not the attacker.

However, we do not agree that these two statements are

so related that the trial court had to consider them together

for the purpose of deciding whether they meet the dying

declaration exception to the hearsay rule. Cf

Torres-Arboledo v. State, 524 So. 2d 403, 407 (Fla. 1988)

(holding that only one half of a statement made by the

decedent was admissible under the hearsay exception for

a statement made for the purpose of medical diagnosis or

treatment), Each statement was in response to a separate

question asked by Deputy Harris and each was properly

analyzed based upon the theory of admissibility Bush

argued. Nicole’s statement that she did not know her

attacker was clearly related to the physical cause or

instrumentalities of death or circumstances surrounding

impending death and, therefore, was properly admitted as

a dying declaration. However, her statement that the boys

were with their father was not so related. Bush is not

entitled to relief on this issue.

4. Law Enforcement Officer Testimony

Bush argues that the trial court: (1) should not have

allowed the jury to hear Detective Tice’s views on Bush’s

guilt, and (2) should have permitted the defense’s

proposed jury instruction instead of the standard

instructions related to the testimony of law enforcement

officers. At trial, multiple recordings of interviews with

Bush were published to the jury. During some of these

interviews, Detective Tice included false information. For

instance, Tice told Bush that the surveillance video from

the townhome was enhanced by NASA and clearly

showed Bush reaching into the sofa and looking under the

dresser. Tice also told Bush there was proof that he turned

off his cell phone locator on May 28 before the murder

and turned it back on afterward on June |. On

cross-examination, Tice conceded that he misled Bush

about the NASA enhancement of the video in order to get

a reaction from Bush. He also conceded that his assertion

regarding the cell phone locator was undermined by

another detective’s trial testimony that the download of

phone information was incomplete.

Defense counsel filed a pretrial motion to prohibit the

publication of any statements by prosecutors or law

enforcement relating to Bush’s guilt. The trial court held a

pretrial hearing on the issue and ruled that the statements

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were admissible because law enforcement may “bluff” to

elicit responses from an individual.

At trial, a total of four recorded interviews between Bush

and Detective Tice were published to the jury. Before the

first recorded statement was published, another discussion

was held regarding the defense’s proposed jury

instruction. The trial court placed the instruction in the

record *205 but ruled that standard jury instructions 2.2

(Instruction on Edited Recording), 2.6 (Use of Transcripts

and Recordings), and 2.8 (Recorded Interview (Effect of

Law Enforcement Statements on the Defendant)), would

be read to the jury.

Statements expressing “a witness’ opinion as to the

credibility, guilt, or innocence of the accused” are

generally inadmissible. Jackson v. State, 107 So. 3d 328,

339 (Fla. 2012) (citing Seibert v. State, 923 So. 2d 460,

472 (Fla. 2006)). Because of their potential prejudice,

such statements are inadmissible except to place the

defendant’s statements in context. However, where

Detective Tice’s statements did not amount to improper

personal opinion and were designed to elicit relevant

responses from Bush, Bush is not entitled to relief.

The discussion about the video and Detective Tice’s

statements suggesting that Bush behaved suspiciously

when he entered the townhome were a part of reasonable

questioning by a law enforcement officer. Investigators

were aware of bloody footprints that were consistent with

shoes seized from Bush’s bedroom. They were aware of

his re-entry into the townhome, the movement of the sofa

cushion, and the lights having been turned off while he

was there. In the interview, Bush’s description of his

actions evolved from him denying looking in the sofa, to

being “pretty sure” that he did not reach in the sofa, to

saying that he may have looked under the sofa or the chair

for a telephone that was not sitting on its receiver.

The exchange between Bush and Detective Tice did not

involve personal opinions or prejudicial expressions of

guilt. The questioning obtained relevant responses

because Bush’s account of what he did in the townhome

evolved throughout the conversation from no contact with

the sofa to looking under it. Additionally, on

cross-examination, Detective Tice admitted that he was

bluffing about the NASA enhancement. Thus, the jury

was aware that he was not telling the truth about Bush

being seen on the video.

Similarly, Detective Tice’s statement in an earlier

interview about Bush turning off the cell phone locator

was intended to elicit responses from Bush about his

manipulation of electronic equipment. Bush denied

turning off his cell phone locator but admitted to

installing updates on his phone. Defense counsel

cross-examined Detective Tice and was able to undermine

the suggestion that Bush turned off his cell phone locator.

However, the conversation about the cell phone locator

immediately preceded a discussion during the interview

about Bush’s laptop where Bush admitted that it was not

out for repair when Detective Tice came to pick it up the

day after the murder.

The statements made by Detective Tice fall far short of

the prejudicial statements in Jackson v, State, 107 So. 3d

328 (Fla. 2012). In Jackson, this Court held that the

admission of Jackson’s videotaped interrogation

constituted harmful error because the extended interview

contained repeated statements by the detective that

Jackson was guilty. This Court observed that much of the

interview did not result in obtaining any relevant

responses from Jackson. /d. at 341, In determining that

the admission of the interview constituted harmful error,

this Court identified “some of the most problematic and

prejudicial assertions” made by the detectives:

(1) “the only question I have is: Why did you kill her”;

(2) “I know you did it. You used a fire extinguisher. |

know you did it”; (3) “No. I’m saying something that

you did do and you know in your heart you did it”; (4)

“There’s no doubt in my mind you did it, okay?

There’s no doubt’; (5) “You have no explanation of

*206 how you could have come inside her other than

being there raping her and then consequently she dies”;

(6) “Well now we’re—you’re putting us—you in a

position where we’re not—we don’t have any answers

for anybody other than 100 percent without a shadow

ofa doubt you killed Andrea Boyer and you raped her”;

and (7) “Michael, you went to the clinic. You brutally

raped this girl and you hit her multiple times in the

head with a fire extinguisher. You left her there

bleeding, half dressed for an employee to find her ....”

Additionally, the detectives stated that Boyer “[wanted]

to start a family,” “her parents were very well-to-do,”

this is not the type of case where the victim “is a

nobody,” and Boyer was a “rising star in the

community.”

ld.

The statements in Bush’s case do not rise to the level of

prejudice established in Jackson. Detective Tice did not

offer personal opinions of Bush’s guilt. Rather, Tice

asked Bush questions, presented Bush with some of the

information he had, and confronted Bush with

inconsistencies in an attempt to have Bush explain them.

Not only was the admission of the interviews proper, the

trial court did not err in giving the series of standard jury

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instructions instead of the one requested by the defense.

“In order to be entitled to a special jury instruction, [the

defendant] must prove: (1) the special instruction was

supported by the evidence; (2) the standard instruction did

not adequately cover the theory of defense; and (3) the

special instruction was a correct statement of the law and

not misleading or confusing.” Stephens v. State, 787 So.

2d 747, 756 (Fla. 2001) (footnotes omitted). Here, Bush

has not shown how the standard instructions failed to

“cover the theory of defense” against what he considered

to be loaded and prejudicial questions by Detective Tice.

The standard jury instruction adequately provided that

“opinions and statements [by law enforcement officers to

the defendant] are pertinent only to explain the reactions

and responses they elicit. You are not to consider these

opinions and statements by the police officer as true, but

only to establish the context of the defendant’s reactions

and responses.” Fla. Std. Jury Instr. (Crim.) 2.8.

Moreover, the requested defense instruction contained

inflammatory language in the form of multiple references

to “false or misleading verbal subterfuge,” which could

confuse the jury and be considered a comment on the

credibility of the law enforcement witness. Bush is not

entitled to relief.

3. Photographic Exhibit

Bush argues that the trial court erred in admitting the

photo overlay exhibit of Nicole’s sofa. The exhibit was

introduced to demonstrate the placement of the sofa

cushion before and after Bush re-entered the townhome

on the night of June 5 or early morning hours of June 6.

Bush argues that the exhibit was improperly used as direct

evidence of his guilt and was manipulated to lead the

jurors to believe that the movement of the sofa cushion

occurred in real time. The trial court’s decision to admit

the exhibit is subject to the abuse of discretion standard.

See Cole v. State, 701 So, 2d 845, 854 (Fla. 1997). The

trial court did not abuse its discretion, and Bush is not

entitled to relief.

The exhibit used two still photo images—the first

captured on June 5 at 23:22:22, and the second captured

on June 6 at 07:30:40—to illustrate that the sofa cushion

was moved during the time that Bush had access to the

townhome. Both images indicated the time and the date,

*207 and the jury saw each of these images first. Then, to

illustrate the difference between the before and after

images of the sofa, the jury was shown a brief video

which shifts from the image captured on June 5 to the one

captured on June 6.

Despite Bush’s argument, the juxtaposition of the still

images did not amount to an alteration or enhancement of

what was originally visible, and the exhibit did not

attempt to portray real-time movement. The images

constitute true representations of the sofa on both the

evening of June 5 and the morning of June 6 and were not

misleading.

Additionally, the conclusion that the sofa cushion was

moved was further substantiated by the testimony of Jim

Stafford. Stafford, the managing member of Eclipse

Forensics, used an arithmetic function within a program

called Ocean Systems to evaluate whether any objects in

the surveillance video moved.’ Using the before and after

images of the sofa as well as measurements of the sofa,

Stafford was able to determine that the sofa cushion had

been moved 11 pixels, which translated into 2.31 inches.

The trial court did not abuse its discretion in admitting the

exhibit.

6, Spoliation Instruction

Bush sought a special jury instruction on spoliation of

evidence because the underpants that Nicole wore at the

time of the attack were not preserved as evidence and

submitted for testing. Deputy Harris and paramedic

Michelle Grant testified that when they arrived at the

crime scene, Nicole was wearing only a bra and torn

underpants.’ Bush’s requested jury instruction stated:

“Evidence that Nicole Bush's undergarments were lost or

not preserved by the State or its agents, including hospital

staff and all police agencies, may be considered by a jury

as sufficient and exculpatory evidence that would have

shown that Sean Bush is not guilty of the crime charged.”

The trial court ruled that the instruction would not be

given.

Bush is not entitled to relief because he is unable to

demonstrate that: “(1) the special instruction was

supported by the evidence; (2) the standard instruction did

not adequately cover the theory of defense; and (3) the

special instruction was a correct statement of the law and

not misleading or confusing.” Stephens, 787 So. 2d at

756.

Bush’s requested instruction was not supported by the

evidence, nor was it a correct statement of the law. While

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45 Fia. L. Weekly S145

the underpants were not preserved, this point alone would

not have been “sufficient and exculpatory evidence” of

Bush’s innocence. Moreover, the requested instruction is

misleading because the term “sufficient” would have

suggested to the jury that the State’s failure to preserve

the underpants overrode all other evidence presented at

trial. Further, any argument that the underpants would

have provided additional evidentiary benefit is

speculative. Results from the sexual assault kit were

negative both for DNA foreign to Nicole and for the

presence of semen. Bush was not entitled to the special

instruction.

7. Guilt Phase Closing Argument

During closing argument, defense counsel attempted to

argue that the anonymous call Bush received about

Nicole’s insurance *208 policy might not have been

placed by a coworker, but rather by detectives who

needed a financial motive to establish their case against

Bush. Upon the State’s objection and following a sidebar,

the trial court determined that the evidence presented at

trial did not support the defense claim that the anonymous

call was made by law enforcement. The court prohibited

defense counsel from proceeding with the argument, and

it instructed the jury to disregard it. On appeal, Bush

contends that the trial court denied him an adequate

opportunity to challenge during closing the State’s theory

of his motive to kill Nicole.

“[T]he role of counsel in closing argument is to assist the

Jury in analyzing [the] evidence” presented at trial. Ruiz v.

State, 743 So. 2d 1, 4 (Fla. 1999). Attorneys are permitted

wide latitude in closing arguments but are not permitted

to make improper argument, Gore v. State, 719 So, 2d

1197, 1200 (Fla. 1998); see Bigham v. State, 995 So. 2d

207, 214 (Fla. 2008) (holding that arguments on matters

outside the evidence are improper). It is within the trial

judge’s discretion to determine when an attorney’s

argument is improper, and such determination will not be

upset absent abuse of discretion by the lower court judge.

Bigham, 995 So. 2d at 215. “A trial court has discretion in

controlling opening and closing statements, and its

decisions will] not be overturned absent an abuse of

discretion.” Merck v. State, 975 So. 2d 1054, 1061 (Fla.

2007) (citing Dufour v. State, 905 So, 2d 42, 64 (Fla.

2005)).

The trial court did not abuse its discretion by limiting

counsel’s argument. There was no evidence from which a

jury could reasonably connect the detectives, or the

investigation into Nicole’s murder, to the phone call.

Moreover, the defense had ample opportunity to rebut the

State’s theory of financial motive throughout the trial and

at closing. Defense counsel cross-examined Kristi

Nieman, the records custodian for Securian Financial

Group, which is affiliated with Minnesota Life Insurance

Company. The cross-examination elicited testimony about

Nicole’s ability and opportunity to change the beneficiary

of the life insurance policy after her separation from

Bush. Nieman’s testimony on this point questioned

whether Bush knew that he was still a beneficiary of the

life insurance policy. During closing, defense counsel

noted that several weeks passed before Bush made the

claim against Nicole’s insurance policy. Defense counsel

argued, without objection from the State, that Bush filed

the claim after he received the anonymous phone call

regarding Nicole’s policy.

The trial court did not abuse its discretion in limiting the

scope of Bush’s closing argument.

&. Penalty Phase Jury Instructions

In April 2017, following this Court’s decision in Hurst v.

State, 202 So. 3d 40 (Fla. 2016), receded from by State v.

Poole, 292 So.3d 694 (Fla. Jan. 23, 2020), clarified, 292

So.3d 659 (Fla. Apr. 2, 2020), this Court authorized

interim jury instructions to be used in the penalty phase of

capital cases. See In re Std. Crim. Jury Insirs. in Capital

Cases, 214 So. 3d 1236 (Fla. 2017). These instructions

were given at Bush’s trial in August 2017. This Court

further amended the instructions in 2018. See In re Std.

Crim. Jury Instrs. in Capital Cases, 244 So. 3d 172 (Fla.

2018). Bush now challenges the use of the 2017 interim

instructions during his penalty phase. As we explain

below, his claims regarding the 2017 interim instructions

are without merit.

A. Language Regarding the Jury's Recommendation

Bush’s first challenge involves language contained in

interim instruction 7.11, Preliminary *209 Instructions in

Penalty Proceedings—Capital Cases. In two places during

the initial penalty phase instructions, the language

contained a reference to a jury recommendation: (1) “An

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45 Fla. L. Weekly $145

aggravating factor is a standard to guide the jury in

making the choice between recommending _ life

imprisonment without the possibility of parole or death.”;

(2) “Should you find sufficient aggravating factors do

exist to justify recommending the imposition of the death

penalty, it will then be your duty to determine whether the

aggravating factors that you unanimously find to have

been proven beyond a reasonable doubt outweigh the

mitigating circumstances that you find to have been

established.” Additionally, the prosecutor said the

following during closing arguments: “So let’s talk about

aggravating factors. An aggravating factor is a standard to

guide the jury in making the choice between

recommending life imprisonment without the possibility

of parole or death.” Bush argues that this language did not

adequately inform the jury of its responsibility in deciding

Bush’s sentence. This argument has no merit.

Bush’s argument is consistent with similar challenges

based on Caldwell v. Mississippi, 472 U.S. 320, 328-29,

105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) (“[I]t is

constitutionally impermissible to rest a death sentence on

a determination made by a sentencer who has been led to

believe that the responsibility for determining the

appropriateness of the defendant’s death rests

elsewhere.”), This Court has repeatedly held that claims

challenging the constitutionality of Florida’s standard jury

instructions given in capital cases that refer to the jury’s

advisory role and to their sentencing verdict as a

recommendation under Caldwell are meritless:

“Hurst-induced Caldwell claims against the standard jury

instruction do not provide an avenue for Hurst relief.”

Reynolds v. State, 251 So. 3d 811, 828 (Fla. 2018)

(concluding “beyond a reasonable doubt that the jury was

properly instructed under the existing law in a manner

that underscored ‘their power to determine the

appropriateness of death as an “awesome responsibility.”

>” (quoting Caldwell, 472 U.S. at 330, 105 S.Ct. 2633)).

The limited references to a jury recommendation were

insufficient to diminish the jury’s understanding of its role

in the sentencing process. The jury was instructed: “It’s

now your duty to make a decision as to the appropriate

sentence that should be imposed upon the defendant for

the crime of first-degree murder. There are two possible

punishments: life imprisonment without the possibility of

parole or death.” There is no merit in Bush’s argument

that the jury was misled as to its role in his sentencing.

What is more, unlike Reynolds, where the pre-Hurst jury

instructions stated that the sentence was advisory, the

interim instructions used during Bush’s post-Hurst

penalty phase did not refer to an advisory sentence. Thus,

Bush’s argument is even weaker than that which we have

consistently rejected under the old jury instructions, As a

result, Bush is not entitled to relief.

B. Sympathy and Mercy Instructions

Bush’s second argument is twofold: (1) that he was

deprived of a jury consideration of sympathy, and (2) the

jury did not receive a mercy instruction. Neither argument

has merit.

During the final jury instructions, as provided in interim

jury instruction 7.11(a), the jury was told: “Your

decisions should not be influenced by feelings of

prejudice, racial or ethnic bias, or sympathy. Your

decisions must be based on the evidence and law

contained in these instructions.” See Fla. Std. Jury Instr.

(Crim.) 7.1 1{a) (2017). However, the instruction *210 as

amended in 2018 did not include the word “sympathy.”

Bush argues that because his jury was instructed to not

consider sympathy, he is entitled to relief. However, his

argument that his jury was deprived of an opportunity to

consider sympathy is without merit. As Bush concedes,

defense counsel was permitted to argue sympathy during

the penalty phase closing arguments.

Similarly, Bush's argument that he was entitled to a jury

instruction on mercy is also without merit. Before trial,

defense counsel filed a written motion seeking a mercy

instruction, and the trial court held an evidentiary hearing.

The court entered a written order denying the motion,

concluding that the standard jury instruction on

nonstatutory mitigating circumstances was adequate.

The trial court’s ruling is consistent with this Court’s

precedent rejecting claims of entitlement to an instruction

on mercy. See Downs v, Moore, 801 So. 2d 906, 913 (Fla.

2001) (rejecting Downs’ claim that he was entitled to a

mercy instruction and stating that “[t]his Court has held

that the ‘catch-all’ standard jury instruction on

nonstatutory mitigation when coupled with counsel’s right

to argue mitigation is sufficient to advise the jury on

nonstatutory mitigating circumstances”).

C. Burden-Shifting Argument

Bush v. State, 295 So.3d 17 (2020)

45 Fla. L. Weekly S145

Bush’s third argument suggests that this Court may wish

to reconsider whether the penalty phase jury instructions

improperly shift the burden to the defense. This Court has

previously addressed this issue, and we decline to

reconsider it. See Rogers v. State, 957 So. 2d 538, 555

(Fla. 2007) (“[T]he standard penalty phase jury

instructions do not ‘impermissibly shift the burden to the

defense to prove that death is not the appropriate

sentence.’ ” (quoting Taylor v. State, 937 So. 2d 590, 599

(Fla. 2006)). Bush is not entitled to relief.

9, Fundamental Error in Penalty Phase Jury Instructions

Bush also claims that his penalty phase instructions were

fundamentally erroneous. However, this argument is

without merit. His first argument regarding the definition

of mitigation merely speculates that a juror’s views might

be trampled upon by others if not deemed reasonable by

the other jurors. This argument does not demonstrate any

error—~let alone fundamental error—sufficient to vitiate

Bush’s death sentence. Bush’s second argument, that the

interim instructions did not require individual findings on

mitigating circumstances, is also without merit. In fact,

even though the jury was not required to make individual

findings as to mitigating circumstances, the verdict form

in this case did require the jury to indicate the jury vote

for each mitigating circumstance. The record

demonstrates that the jury understood its responsibility in

considering the mitigating circumstances that Bush sought

to prove. Bush’s claim of fundamental error does not

warrant relief.

10. Penalty Phase Closing Arguments

Bush argues that the trial court erred in overruling defense

counsel’s objections during the State’s closing argument,

and he also raises a claim of fundamental error based on a

prosecutorial comment that was not objected to. In this

case, neither the objected-to nor the unobjected-to

comments entitle Bush to relief.

A. Objected-to Comments

We first turn to the closing argument claims that Bush

preserved for appellate review by raising

contemporaneous objections. Throughout the State’s

closing argument, defense counsel made repeated

objections to the prosecutor’s comments. Most

commonly, the defense argued that *211 the State

improperly characterized various mitigating

circumstances as aggravation. With one exception where

a curative instruction was given, the trial court overruled

the defense objections. On appeal, Bush argues that the

trial court erred in overruling the objections. However,

our careful review of the prosecutor’s closing argument

reveals that when analyzing various mitigating

circumstances, the prosecutor consistently framed his

comments in terms of the amount of weight that the jury

should assign. For example:

Prosecutor: He had a strong work ethic, useful

occupation, and a strong skill set.

See, all of this, ladies and gentlemen, when you’re back

there, you’re deciding, number one, is this a mitigating

circumstance.

And then the second part of that is, how much weight

should I give it?

So when you consider the evidence, how much weight

you should give, you may—you may find that all of the

stuff from his childhood, that’s a mitigator. I agree.

That’s a mitigator.

But when you—how much weight do you give it when

you know that the defendant pulled himself up out

of-—he had the ability to pull himself out of all of that

stuff from his childhood and graduate from high

school, get an—a certificate in IT, and have a good job,

consistently employed, strong work ethic?

Those are the things that you can consider in deciding

how much weight to give those mitigating

circumstances. Leadership qualities, we heard

testimony he can help mentor others to take different

paths or improve themselves, that he was helpful to

other inmates in the St. Johns County Jail, and that he

was a positive influence on others.

One of the things that you can consider in how much

weight to give those mitigators is why wasn’t he doing

that before?

Defense Counsel: Objection, your Honor. Arguing an

aggra~—a mitigator is an aggravator again.

US, Goveram

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The Court: Overruled.

Prosecutor: Again, how much weight do you give

this?

Such arguments, made in the context of the jury’s

weighing process, do not argue mitigating circumstances

as aggravation but instead comment on the appropriate

weight they should be assigned in light of the evidence

presented.

Additionally, Bush argues that the prosecutor made an

improper argument when he said, “That’s not fair to you

{the jury].” In context, the prosecutor was arguing against

the mitigating circumstance that Bush has a family that

loves and cares about him and supports him. The

prosecutor cautioned the jury against being concerned

about Bush’s family when considering this mitigation:

Defense Counsel: It is up to you to decide whether or

not that is a mitigating factor and, if it is, how much

weight to give it.

And here’s what’s going on with that argument because

what happens—what invariably happens when you’re

thinking about the family that’s damaged by his bad

choices, what begins to happen in the jury room is you

begin to think about your decision, about what

that’s—how that’s going to impact other people.

And, again, sympathy, as the judge says, cannot be a

part of this process.

And what happens is it shifts the responsibility of the

consequences of his decision from his shoulders to you.

Defense Counsel: Objection, your Honor. He’s arguing

a nonenumerated *212 aggravator, and he’s trying to

argue that the mitigation evidence is an aggravator in

the case.

The Court: Overruled. I just want to hear the legal

objections, not speeches. The objection is overruled.

Prosecutor: It shifts it to you, and that’s not fair to

you.

None of you asked to be here. You received a summons

from this Court to come for jury selection.

And you sat through two days of lawyers asking you

questions about your life to decide if you’re appropriate

for this jury.

And then you didn’t get a choice whether or not you

were on this jury. You were told you were the jury.

And you didn’t ask to have to come listen to evidence

of this crime and to sit here for days and weeks to listen

to the evidence in this case. You didn’t have a choice.

So it’s not fair to you to shift that burden to you.

Bush claims that these comments improperly denigrated

defense counsel as manipulative. However, these are not

inflammatory comments such as, “the defense using a

‘diversionary tactic,’ putting on a ‘magnificent display,’

or ‘cloud[ing}]’ and ‘muddlfing]’ the issues” that this

Court deemed improper in Cardona v. State, 185 So. 3d

S14, 524-25 (Fla. 2016). Rather, the comments,

cautioning the jury about feeling sorry for Bush’s family

or being concerned with the impact of Bush’s sentence

upon his family, fell within the scope of proper advocacy.

B. Unobjected-to Comments

Bush also challenges comments that were not objected to

during closing argument. In the absence of a

contemporaneous objection, relief is not appropriate

unless the complained-of comments constitute

fundamental error. Fundamental error “reaches down into

the validity of the trial itself to the extent that a verdict of

guilty or jury recommendation of death could not have

been obtained without the assistance of the alleged error.”

Card v. State, 803 So. 2d 613, 622 (Fla. 2001). As

explained below, fundamental error did not occur in this

case.

At the end of his closing argument, the prosecutor said:

For Nicole Bush, life did not get to mean life. Life did

not get to mean life.

I don’t pretend that it’s easy, but the right decisions in

life are not often easy.

The right decisions in life are often hard, and they

require courage to make them.

I ask each of you, each and every one of you, the 12

individuals who are going to decide this case, each and

every-—-all 12 of you, because that’s what is required. It

requires 12 of you.

If one of you decide[s] no, then Sean Bush does not get

the death penalty. That’s what the judge will tell you.

I'm asking each of you to do the hard thing, but the

right thing, to have the courage to return a verdict that,

yes, there are aggravating factors in this case that have

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Bush v. State, 295 So.3d 179 (2020)

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been proven beyond a reasonable doubt; that, yes, those

aggravating factors are sufficient to warrant imposition

of the death penalty; that, yes, those aggravating factors

outweigh the mitigating factors; and that, yes, the death

penalty should be imposed in this case.

Thank you.

Bush cites this Court’s decision in Urbin v. State, 714 So.

2d 411, 421 (Fla. 1998), in support of his claim that the

prosecutor’s statement amounted to fundamental error.

However, this case is distinguishable from Urbin, in

which this Court observed that “so many of these

instances *213 of misconduct are literally verbatim

examples of conduct we have unambiguously prohibited.”

Id, at 422. In Urbin, after suggesting that the jury should

not recommend a life sentence because the law might

change and Urbin might receive parole someday, the

prosecutor told the jury he was concerned “that some of

you may be tempted to take the easy way out, to not

weigh the aggravating circumstances and the mitigating

circumstances and not want to fully carry out your

responsibility and just vote for life” Jd at 421. The

prosecutor further engaged in the “same mercy”

argument, asking the jury to show Urbin the same mercy

that he showed the victim. /d. These comments led this

Court to engage in an extended discussion of the

prosecutor’s improper closing argument, although it

reversed Urbin’s death sentence on proportionality

grounds. /d. at 418-19.

In the present case, the prosecutor’s argument does not

rise to the level of fundamental error. Given the extremely

weighty aggravation in this case, the prosecutor’s

comments do not constitute fundamental error such that

Bush’s death sentence could not have been obtained

without them. However, we are concerned with the

prosecutor’s appeal to the jurors “to have the courage” to

impose the death penalty. In the strongest terms, we urge

prosecutors to avoid such argument, and we remind them

of their solemn obligation “to seek only justice when life

or death may be at stake.” Doorbal vy. State, 837 So. 2d

940, 957 (Fla. 2003).

11. Victim Impact Testimony

Bush further argues that the trial court erred when it

denied defense counsel’s motions to declare

unconstitutional the statute that permits victim impact

testimony, and to limit the amount of victim impact

evidence admitted. As a threshold matter, we reject

Bush’s claim that the statute permitting victim impact

evidence is unconstitutional. “Evidence of a family

member’s grief and suffering due to the loss of the victim

is evidence of ‘the resultant loss to the community’s

members by the victim’s death’ permitted by section

921.141(7), and the admission of such evidence is

consistent with the Supreme Court’s decision in Payne v.

Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d

720 (1991).” Victorino v. State, 127 So. 3d 478, 496 (Fla.

2013).!°

The United States Supreme Court held in Payne that “if

the State chooses to permit the admission of victim

impact evidence and prosecutorial argument on that

subject, the Eighth Amendment erects no per se bar.”

Payne, 501 U.S. at 827, 111 S.Ct. 2597. Moreover, this

Court concluded that “[s]uch evidence is also protected by

article I, section 16 of the Florida Constitution,” which

pertains to the rights of accused individuals and of crime

victims. Baker v. State, 71 So. 3d 802, 817 (Fla. 2011).

Having rejected Bush’s challenge to the constitutionality

of victim impact evidence, we now turn to his argument

regarding the victim impact evidence admitted during his

trial. Before the admission of the victim impact testimony

from Nicole’s mother, sister, and best friend, the trial

court carefully reviewed the contents of the proposed

statements in the presence of both parties. The trial court

sustained multiple objections and overruled others,

granting defense counsel’s requests for certain redactions.

The trial court instructed the jury with the standard jury

instruction on victim impact testimony, including the

instruction that victim *214 impact testimony was not to

be used for finding aggravation and was not to be

considered as an aggravating factor. The redacted

versions of the victim impact testimony that were

published to the jury described Nicole as a loving mother,

daughter, sister, aunt, friend, and coworker, and described

the impact of her loss.

Bush’s challenge is without merit. The victim impact

testimony stayed within its proper scope, describing

Nicole’s uniqueness as an individual and the resultant loss

to the community. Moreover, the penalty phase testimony

was limited to three witnesses: her mother, sister, and best

friend. In Deparvine v. State, 995 So. 2d 351, 378 (Fla.

2008), the testimony of five victim impact witnesses was

found admissible. See also Farina v. State, 801 So. 2d 44,

52 (Fla. 2001) (concluding no error in the admission of

victim impact testimony of twelve witnesses). Bush is not

entitled to relief.

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly $145

12. Cumulative Error

Bush claims that he was denied a fair penalty phase due to

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 y. State, 904 So. 2d 370, 380 (Fla.

2005)). Bush’s individual claims of penalty phase error

are without merit. Therefore, he is not entitled to relief.

13. Constitutionality of the Death Penalty

Citing the number of aggravating factors provided in

Florida’s death penalty scheme, Bush argues that

Florida’s death penalty statute is unconstitutional because

it does not sufficiently narrow the class of individuals

who are eligible to receive the death penalty. In particular,

he challenges the State’s ability to rely on a

contemporaneous crime to satisfy the prior violent felony

aggravator, and the ability to establish the CCP

aggravator with proof of premeditation formed shortly

before the murder.

This Court has rejected similar arguments. Specifically,

“[t]his Court has rejected the argument that Florida’s

capital sentencing scheme is unconstitutional because it

provides for an automatic aggravating circumstance and

neither ‘narrow[s] the class of persons eligible for the

death penalty’ nor ‘reasonably justif[ies] the imposition of

a more severe sentence on the defendant compared to

others found guilty of murder.’ ” Miller v. State, 926 So.

2d 1243, 1260 (Fla. 2006) (quoting Parker y. State, 873

So. 2d 270, 286 n.12 (Fla. 2004) (alterations in original);

see Blanco v, State, 706 So. 2d 7, 11 (Fla. 1997) (rejecting

Blanco’s argument that the

murder-in-the-course-of-a-felony aggravator does not

sufficiently narrow the class of death penalty-eligible

individuals), Bush is not entitled to relief.

Moreover, the instances that Bush uses to support his

argument are inapplicable in this case. Although felony

murder is a statutory basis for a conviction of first-degree

murder where a defendant is convicted of an underlying

predicate felony, Bush was convicted under both the

felony and premeditated murder theories. Also, while it is

true that contemporaneous crimes may be used to satisfy

the prior violent felony aggravator, the prior violent

felony in this case was Bush’s conviction for aggravated

assault after he threw an electrified rod into the

water-filled bathtub containing his unsuspecting

then-wife, Cherise Conte-Bush. Further, his argument that

the CCP aggravator cannot be based on premeditation

formed shortly before the murder is imapposite to this

case, where Bush researched silencers and .22 caliber

suppressors months before the *215 murder, coordinated

keeping his children and the family dog at his home so

that they would not be at the townhome during the attack,

drove thirty minutes to Nicole’s neighborhood, parked his

van in a location where he would avoid being seen,

walked to Nicole’s townhome, and disarmed the alarm

panel before attacking her. Bush’s argument is without

merit.

14, Proportionality

Although Bush does not argue proportionality, this Court

is required to conduct “a comprehensive analysis in order

to determine whether the crime falls within the category

of both the most aggravated and the least mitigated of

murders, thereby assuring uniformity in the application of

the sentence.” Offord v. State, 959 So. 2d 187, 191 (Fla.

2007) (quoting Anderson v. State, 841 So. 2d 390, 407-08

(Fla. 2003)). “This entails ‘a qualitative review ... of the

underlying basis for each aggravator and mitigator rather

than a quantitative analysis.’ ” /d. (quoting Urbin, 714 So.

2d at 417.

This five-aggravator death case (HAC, CCP, prior violent

felony, murder during the commission of a burglary, and

murder committed for pecuniary gain) is among the most

aggravated and least mitigated and is proportionate to

other cases where the death sentence has been imposed.

Three of the aggravating circumstances found in this case,

HAC, CCP, and prior violent felony, have repeatedly

been identified by this Court as among the most serious

aggravating factors. See Damas v. State, 260 So. 3d 200,

216 (Fla. 2018); Larkins v. State, 739 So. 2d 90, 95 (Fla.

1999). In particular, “when [HAC and CCP] are present,

the mitigating circumstances must be of considerable

weight to overcome them.” Brown v. State, 143 So. 3d

392, 405-06 (Fla.) (citing Abdool v. State, 53 So. 3d 208,

224 (Fla. 2010)), cert. denied, 574 U.S. 1034, 135 S.Ct.

726, 190 L.Ed.2d 453 (2014).

This Court upheld a defendant’s death sentence in Beasley

vy. State, 774 So. 2d 649 (Fla. 2000), where the victim also

IGUY LO On

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45 Fla. L. Weekly $145

suffered a sustained brutal attack. In Beasley, the victim

was viciously bludgeoned with a hammer, and she was

conscious while she tried to defend herself. This Court

upheld the defendant’s death sentence despite a lengthy

list of mitigating factors and “conclude[d] that the death

penalty imposed here for this particularly brutal murder is

proportionate when compared with other cases in which a

death sentence has been upheld.” /d. at 675.

Like the victim in Beas/ey, Nicole Bush was the victim of

a “particularly brutal murder.” Despite the six gunshots,

followed by being beaten with an aluminum baseball bat

and being stabbed multiple times, she somehow survived

for almost three hours. Moreover, the medical examiner

testified that Nicole would have been conscious through

much of her attack.

Although the trial court found and assigned varying

weight to all thirty-four of Bush’s nonstatutory mitigating

circumstances, they simply do not overcome the five

weighty aggravating circumstances, each of which was

assigned great weight. Bush’s death sentence is

proportionate.

CONCLUSION

For these reasons, we affirm Bush’s convictions and

sentence of death.

It is so ordered.

CANADY, CJ., and POLSTON, LAWSON, and

MUNIZ, JJ., concur.

LABARGA, J., concurs in part and dissents in part with

an opinion.

LABARGA, J, concurring in part and dissenting in part.

*216 Although 1 recognize that the majority’s

decision—to discard Florida’s long-settled heightened

standard of review in wholly circumstantial evidence

cases-—finds support in the law of other state courts and

the federal courts, I remain convinced that Florida’s

appellate courts should undertake the review of such cases

with as much caution as the law permits. I dissent to the

majority’s sweeping decision to abandon the heightened

standard of review in all criminal cases that are based

solely on circumstantial evidence.

For more than one hundred years, this Court has applied a

more stringent standard of review in reviewing

convictions supported only by circumstantial evidence.

We have explained:

Evidence which furnishes nothing stronger than a

suspicion, even though it would tend to justify the

suspicion that the defendant committed the crime, ... is

not sufficient to sustain [a] conviction. It is the actual

exclusion of the hypothesis of innocence which clothes

circumstantial evidence with the force of proof

sufficient to convict. Circumstantial evidence which

leaves uncertain several hypotheses, any one of which

may be sound and some of which may be entirely

consistent with innocence, is not adequate to sustain a

verdict of guilt. Even though the circumstantial

evidence is sufficient to suggest a probability of guilt, it

is not thereby adequate to support a conviction if it is

likewise consistent with a reasonable hypothesis of

innocence.

Ballard v, State, 923 So. 2d 475, 482 (Fla. 2006) (quoting

Davis v. State, 90 So, 2d 629, 631-32 (Fla. 1956)). This

heightened standard has proved workable as this Court

has conducted its mandatory review of sufficiency of the

evidence in death penalty cases and has not yielded

one-sided results. Indeed, if this standard were applied to

the facts currently before this Court, Bush’s conviction

for first-degree murder would be affirmed. Yet today, this

Court eliminates another reasonable safeguard in our

death penalty jurisprudence and in Florida’s criminal law

across the board.

Circumstantial evidence is a vital evidentiary tool, and the

admission of such evidence is commonly relied on by the

State to establish its case-in-chief. However,

circumstantial evidence is inherently different from direct

evidence in a manner that warrants heightened

consideration on appellate review. “Direct evidence is that

to which the witness testifies of his own knowledge as to

the facts at issue. Circumstantial evidence is proof of

certain facts and circumstances from which the trier of

fact may infer that the ultimate facts in dispute existed or

did not exist.” Davis, 90 So. 2d at 631. “While the two

types of evidence are equally probative, one requires a

leap in reasoning that the other does not. They are

fundamentally different.” Easlick v. State, 90 P.3d 556,

560 (Okla. Crim. App. 2004) (Chapel, J., dissenting). To

that end, applying a heightened standard of review to

wholly circumstantial cases is necessary to avoid what

this Court described as follows: “Only by pyramiding

assumption upon assumption and intent upon intent can

Bush v. State, 295 So.3d 179 (2020}

45 Fla. L. Weekly $145

the conclusion necessary for conviction be reached.”

Gustine v. State, 86 Fla. 24, 97 So. 207, 208 (1923).

Although this Court eliminated the standard criminal jury

instruction on circumstantial evidence in 1981, we have

since then expressly rejected the invitation to abandon the

heightened standard of review of sufficiency of the

evidence in wholly circumstantial cases because the

standard “guards against basing a conviction *217 on

impermissibly stacked inferences.” Miller v. State, 770

So. 2d 1144, 1149 (Fla. 2000); see also State v. Law, 559

So, 2d 187, 188-89 (Fla. 1989). “[W]hile the reasonable

doubt [jury] charge and the Jackson [v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)] sufficiency

standard may be all that is constitutionally required as a

matter of due process, the states are free to go above this

rudimentary constitutional floor in order to guard against

wrongful convictions.” Irene Merker Rosenberg & Yale

L. Rosenberg, “Perhaps What Ye Say Is Based Only On

Conjecture’’—Circumstantial Evidence, Then and Now,

31 Hous. L. Rev. 1371, 1421 (1995)." As this Court has

observed, “we have the duty to independently examine

and determine questions of state law so long as we do not

run afoul of federal constitutional protections or the

provisions of the Florida Constitution that require us to

apply federal law in state-law contexts.” State v. Kelly,

Footnotes

999 So. 2d 1029, 1043 (Fla. 2008). In applying the

heightened standard of review in wholly circumstantial

cases, this Court does neither.

The solemn duty imposed upon this Court in reviewing

death cases more than justifies the stringent review that

has historically been applied in cases based solely on

circumstantial evidence. In the present case, the evidence

relied on to convict Bush satisfies the more exacting

standard of review and is inconsistent with Bush’s

hypothesis of innocence that someone else committed the

murder. Thus, I concur in the result,

However, for the reasons expressed, I dissent to the

majority's decision to change settled Florida law in

criminal cases and abandon the reasonable safeguard

provided by the heightened sufficiency of the evidence

standard.

All Citations

295 So0.3d 179, 45 Fla. L. Weekly $145

1 At the time of trial, Brenda Eckling’s name was Brenda Daniels. To be consistent with the trial record, she will be

referred to by the last name “Daniels.”

2 On cross-examination, Gregory acknowledged that he did not have a close relationship with Bush and that he was

coordinating his phone calls with the St. Johns County Sheriff's Office.

3 “The First 48” is a television show that documents homicide investigations.

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

The trial court noted that improper doubling did not occur with the trial court’s finding of both murder in the course of a

burglary and pecuniary gain, because each was based on separate facts.

The following mitigating circumstances were unanimously found by the jury and given the following weights by the trial

court: (1) Bush was subjected to chronic poverty, improper clothing, homelessness including but not limited to sleeping

in a train station, and hunger; he had a chaotic and unstable childhood, in part because of evictions, fire, poverty, and

moving (moderate weight); (2) Bush experienced chaotic frequent changes of childhood homes and schools (moderate

weight), (3) Bush and his brother saw alcoholism firsthand (slight weight); (4) as a child, Bush suffered a major trauma

by being sexually molested by a juvenile in his neighborhood (moderate weight); (5) as a teenager, Bush worked to

support his mother and brother (slight weight); (6) adults, agencies, school systems, pediatricians, etc., that were

designed to protect Bush failed to intervene (slight weight); (7) Bush's family never owned a car (less than slight

weight); (8) Bush missed a great number of school days and received poor grades in elementary school and high

school, but went on to graduate from high school and obtain IT. certifications (slight weight); (9) Bush was abandoned

by his father and did not have a male role model as he grew up to set an example; Bush was present in his children’s

lives in ways he never experienced with his father (moderate weight); (10) Bush overcame a chaotic childhood and

dysfunctional family life to make real achievements in his own life; he provided emotional/financial support for his

children and achieved good employment and an education (moderate weight); (11) Bush had nearly consistent periods

Bush v. State, 295 So.3d 179 (2020)

45 Fla. L. Weekly $145

of employment since high school until he lost his job in 2010 (slight weight); (12) Bush was crushed when his mother

passed away and that he was not there for her (slight weight); (13) the passing of Bush’s aunt was difficuit for him; she

was his second mother, Bush tried to copy his aunt and bring the family together (slight weight); (14) Bush has family

(brother, children, cousin, and friends) who love and care about him; he has the capacity to form loving relationships

with family and friends; and he has the support of his family (slight weight); (15) Bush has provided mature advice to

friends and family (slight weight); (16) Bush has a special bond with and love for his children, treating both biological

and adopted children as equals, and ail four of his children have his last name (less than slight weight); (17) Bush

volunteered his time inside his son’s classroom; he was a positive influence in the classroom; he would assist with

dropping off misplaced homework for his son (slight weight); (18) Bush can continue a relationship with his children;

Amir Bush testified that he desires to have a relationship with his father while his father is incarcerated (slight weight);

(19) Bush has been a positive influence on county jail inmates like Daniel Lalonde with life advice to listen to his father

and by helping inmates with their paperwork (slight weight); (20) Bush participated in religious services at the St. Johns

County Jail (slight weight); and (21) Bush demonstrated appropriate courtroom behavior throughout the course of the

proceedings (less than slight weight).

The following circumstances were found by a majority of the jury by varying vote totals and given the following weights

by the trial court: (22) Bush was raised in and witnessed ongoing violence in drug- and crime-infested neighborhoods

of Newark, New Jersey, such that he often had to watch over his shoulder for crime (11-1 jury vote; moderate weight);

(23) Bush suffered from physical abuse and emotional deprivation and was emotionally abused by a mother who was

mentally il! and intentionally treated him with less love than his brother (10-2 jury vote; moderate weight); (24) Bush

was subjected to domestic violence and witnessed multiple events of domestic violence upon his mother (11-1 jury

vote; slight weight).

The following circumstances were rejected by the jury as not established by the greater weight of the evidence.

However, the trial court found the existence of each one and assigned weight accordingly: (25) Bush’s mother had to

turn to prostitution to provide shelter and food for him and his younger brother, and she brought the children with her to

a pimp’s house where she engaged in prostitution (slight weight); (26) Bush was known as an outcast as a child and

teen because he wore secondhand clothes and had a “techy/nerdy” personality (less than slight weight); (27) Bush had

a strong work ethic, useful occupation, and strong skill set in the area of technology (slight weight); (28) Bush is helpful

to people outside of his immediate family by providing advice to younger cousins and to the children of friends to live

lawful lives and respect their parents (slight weight); (29) Bush has many positive qualities, including (a) a sense of

humor and a caring nature toward friends and relatives; (b) being a good listener and able to provide sound advice;

and (c) caring about animals (less than slight weight); (20) Bush demonstrated good behavior in the St. Johns County

Jail for six years prior to this conviction; Bush had only one disciplinary report; in custody Bush is a nonviolent and

compliant inmate; he has had no problems with female staff; he will likely function well in the controlled environment

and he will adjust well to prison (moderate weight); (31) a life sentence without parole in a prison setting will protect

society from Bush (slight weight); (32) in a structured and controlled prison setting, Bush is not likely to engage in

criminal behavior (slight weight); (33) Bush has the potential for rehabilitation (slight weight); and (34) Bush is

amenable to a productive life in prison where he can help inmates with paperwork, assist other inmates to improve

themselves, teach illiterate inmates how to read, and mentor and encourage inmates to live law-abiding lives when

they leave prison (moderate weight).

Although we have sometimes explained the special standard for circumstantial cases in such a way as to indicate that

it is ultimately a mechanism for determining whether the evidence constitutes a competent, substantial basis for the

verdict, see Wright v. State, 221 So. 3d 512, 520-21 (Fla. 2017), for the reasons explained by the Fifth District in

Knight, 107 So. 3d at 458-61, in practice, this special standard is more likely to cloud the judgment of an appellate

court than to facilitate a proper analysis of whether the evidence is legally sufficient to support the verdict.

Ocean Systems is used by many law enforcement agencies, including the Federal Bureau of Investigation, Central

intelligence Agency, Drug Enforcement Agency, and National Geospatial-Intelligence Agency.

A sexual assault kit used to obtain evidence from Nicole’s body did not reveal DNA foreign to Nicole, nor did it reveal

the presence of semen.

The statute permitting victim impact evidence was renumbered in 2016 and is now codified in section 921.141(8),

Florida Statutes (2019). See ch. 2016-13, § 3, Laws of Fla.

In Jackson, the United States Supreme Court held that in a federal habeas proceeding reviewing a state criminal

conviction for sufficiency of the evidence, “if the settled procedural prerequisites for such a claim have otherwise been

satisfied—the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the

trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” 443 U.S. at 324, 99 S.Ct. 2781.

Florida has long applied this standard when reviewing sufficiency of the evidence in cases not based solely on

circumstantial evidence. See, e.g., Melendez v. State, 498 So. 2d 1258, 1261 (Fla. 1986).

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.