Petition for Writ of Certiorari — Willie Seth Crain, Jr., Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections, et al.
Supreme Court briefAug 1, 2023
Ask Donna
What actually matters in this document.
Text
CAPITAL CASE
No. ______________
______________________________________________________________
IN THE
Supreme Court of the United States
______________________________________________________________
WILLIE SETH CRAIN, JR.
Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, AND
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents.
_____________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________________________________
APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI
DEATH PENALTY CASE
______________________________________________________________
ANN MARIE MIRIALAKIS
Counsel for Petitioner
Florida Bar No. 0658308
Office of Capital Collateral Regional
Counsel - Middle Region
12973 N. Telecom Parkway
Temple Terrace, Florida 33637
813-558-1600
mirialakis@ccmr.state.fl.us
support@ccmr.state.fl.us
INDEX TO APPENDICES
A. United States Court of Appeals for the Eleventh Circuit March 31, 2023
Order denying a certificate of appealability. ........................................ APP 001
B. United States District Court for the Middle District of Florida, Tampa
Division September 30, 2022 Order denying Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. Sec. 2254. .............................................. APP 004
C. United States District Court for the Middle District of Florida, Tampa
Division November 25, 2022 Order denying Motion to Alter or Amend
Judgment. ............................................................................................... APP 078
D. Eleventh Circuit Court of Appeals May 11, 2023 Order denying Motion for
Reconsideration. ..................................................................................... APP 085
E. Crain v. State, 894 So.2d 59, 76 (Fla. 2004). ........................................ APP 089
F. State v. Crain, No. 98-17084, Sentencing Order at 2 (Fla. 13th Cir. Ct. order
filed Nov. 19, 1999). ............................................................................... APP 114
G. Crain v. State, 78 So.3d 1025,1035 (Fla. 2011). ..................................... APP 125
H. Petitioner’s Motion to Alter or Amend Judgment filed October 26, 2022. .........
.............................................................................................................. APP 143
I. Respondent’s Response to Motion to Alter or Amend Judgment filed
November 9, 2022................................................................................... APP 164
J. Application for a Certificate of Appealability filed in the United States Court
of Appeals for the Eleventh Circuit on December 22, 2022. ................ ….. ........
.............................................................................................................. APP 181
CAPITAL CASE
No. ______________
______________________________________________________________
IN THE
Supreme Court of the United States
______________________________________________________________
WILLIE SETH CRAIN, JR.
Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, AND
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents.
_____________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________________________________
APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI
DEATH PENALTY CASE
______________________________________________________________
Appendix A
United States Court of Appeals for the Eleventh Circuit
March 31, 2023 Order denying a certificate of appealability.
APP 001
Case 8:12-cv-00322-KKM-AAS Document 149 Filed 03/31/23 Page 1 of 2 PageID 2373
USCA11 Case: 22-13693 Document: 19-1 Date Filed: 03/31/2023 Page: 1 of 1
APP 002
Case 8:12-cv-00322-KKM-AAS Document 149 Filed 03/31/23 Page 2 of 2 PageID 2374
USCA11 Case: 22-13693 Document: 19-2 Date Filed: 03/31/2023 Page: 1 of 1
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
David J. Smith
Clerk of Court
For rules and forms visit
www.ca11.uscourts.gov
March 31, 2023
Ann Marie Mirialakis
Capital Collateral Regional Counsel
12973 N TELECOM PKWY
TEMPLE TERRACE, FL 33637
Appeal Number: 22-13693-P
Case Style: Willie Seth Crain, Jr. v. Secretary, Florida Department of Corrections, et al
District Court Docket No: 8:12-cv-00322-KKM-AAS
The enclosed copy of this Court's order denying the application for a Certificate of
Appealability is issued as the mandate of this court. See 11th Cir. R. 41-4. Counsel and pro se
parties are advised that pursuant to 11th Cir. R. 27-2, "a motion to reconsider, vacate, or modify
an order must be filed within 21 days of the entry of such order. No additional time shall be
allowed for mailing."
Any pending motions are now rendered moot in light of the attached order.
Clerk's Office Phone Numbers
General Information:
404-335-6100
New / Before Briefing Cases:
404-335-6135
Cases in Briefing / After Opinion: 404-335-6130
Cases Set for Oral Argument:
404-335-6141
Attorney Admissions: 404-335-6122
Capital Cases:
404-335-6200
CM/ECF Help Desk: 404-335-6125
Enclosure(s)
DIS-4 Multi-purpose dismissal letter
APP 003
CAPITAL CASE
No. ______________
______________________________________________________________
IN THE
Supreme Court of the United States
______________________________________________________________
WILLIE SETH CRAIN, JR.
Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, AND
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents.
_____________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________________________________
APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI
DEATH PENALTY CASE
______________________________________________________________
Appendix B
United States District Court for the Middle District of Florida, Tampa Division
September 30, 2022 Order denying Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. Sec. 2254.
APP 004
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 1 of 73 PageID 1934
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WILLIE SETH CRAIN,JR.,
Petitioner,
v.
Case No. 8:12-cv-0322-KKM-AAS
SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.
ORDER
Willie Seth Crain,Jr., a Florida prisoner, filed an Amended Petition for Writ of Habeas
Corpus under 28 U .S.C . § 2254 challenging his conviction for first-degree murder and his
death sentence. He seeks habeas relief based on the alleged errors of the trial court, the State,
and his trial counsel. (Doc. 117.) Because Crain fails to show that he is entitled to such relief,
his Amended Petition is denied. Moreover, a certificate of appealability is not warranted.
1
APP 005
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 2 of 73 PageID 1935
APP 006
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 3 of 73 PageID 1936
that he had a large videotape collection and invited Hartman and Amanda to his trailer to
watch a movie." Id. Amanda asked Crain if his collection included "Titanic," and he confirmed
that it did. Id. She then pleaded with Hartman to "allow them to watch the movie" and
although Hartman was "initially reluctant because it was a school night," she eventually agreed.
Id. "Crain drove Hartman and Amanda approximately one mile to his trailer in his white
pickup truck." Id.
They started the movie in Crain's living room "but were interrupted by a telephone call
from Crain's sister." On Crain's request, Hartman spoke to his sister for him. See id. After a
twenty- to twenty-five-minute phone call, Hartman returned to find the living room empty.
See id. "Hartman opened a closed door at the rear of the trailer without knocking, and found
Amanda and Crain sitting on the bed in Crain's bedroom," continuing the movie. Id. They
both were dressed and Amanda sat "between Crain' s sprawled legs with her back to Crain' s
front." Crain had his arms wrapped around Amanda and "appeared to Hartman to be showing
Amanda how to work the remote control." Id. Hartman sat down on the bed and moved
Amanda to sit beside her. See id. According to Crain's testimony, the three of them watched
the movie "in his bedroom because it was the only air-conditioned room in the trailer." Id.
During the evening, "Amanda and Hartman used Crain's bathroom together." Id.
3
APP 007
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 4 of 73 PageID 1937
Hartman did not see Amanda bleeding anywhere that she could observe. Id. at 63-64.
According to Hartman, the toilet seat back had a blue cover. Id. at 64. "Amanda did not use
the bathroom at any other time that evening." Id.
When Hartman decided to leave, Crain drove both her and Amanda to their trailer and
went inside with them. See id. While Amanda was taking a shower, Hartman checked on her
and helped her get ready for bed. During that time, "Hartman did not notice any sores or cuts
on Amanda's body." Id. Crain then "blow-dried Amanda's hair in Hartman's bathroom
without Hartman present." Id. Hartman testified that around 2:15 a.m ., when Amanda went
to sleep, her "loose tooth was still in place and ... not bleeding." Id.
Around 2:30 a.m., Hartman told Crain "that he could lie down to sober up but that she
was going to bed." Id. Only five minutes later, Crain went to Hartman's bedroom and "lay
down on the bed with Hartman and Amanda. Hartman testified that she neither invited Crain
to lie in her bed nor asked him to leave. Crain was fully clothed and Amanda was wearing a
nightgown. Amanda was lying between Hartman and Crain." Id.
One of Hartman's neighbors testified that around midnight, "she saw a white truck
parked immediately behind Hartman's car in Hartman's driveway." Id. She saw that truck
parked on "the side of Hartman's residence with the lights on and the engine running" later
4
APP 008
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 5 of 73 PageID 1938
on, in "the early morning hours." Id. She "heard the truck leave after about five minutes." Id.
At the time of these events, Crain was a 52-year-old fisherman and crabber. Id. at 62.
According to Albert Darlington, a fisherman who knew Crain, Crain drove his boat to a
loading area around 6:15 a.m. that morning. Id. at 64. Darlington testified that Crain was
wearing "what appeared to be a two-tone maroon shirt and dark slacks[] and carrying what
appeared to be a rolled-up item of clothing." Id. According to Darlington, Crain launched his
boat "in an overall 'odd' manner." Id.
When Hartman awoke that morning at 6:12 a.m ., "she discovered that Amanda was
missing." Id. at 63. Hartman called Crain, who was "loading his boat," and he told her "that
he did not know where Amanda was." Id. She then "called the police and reported Amanda's
disappearance." Id.
At 8:30 a.m., a police detective found Crain in his boat. Id. at 65. Crain was wearing
rubber pants, "a blue t-shirt, and loafers." Id. While the two returned to the boat ramp, the
detective "noticed a small scratch on Crain's upper arm." Id. Back at the ramp, Crain took off
his rubber pants, "revealing jeans with the zipper down." Id. The detective took Crain to the
police station. Id.
During questioning at the police station, Crain explained "that he left Hartman's house
5
APP 009
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 6 of 73 PageID 1939
alone at about 1:30 in the morning, went home[,] and accidentally spilled bleach in his own
bathroom." Id. (footnote omitted). According to Crain, he spent the next four hours cleaning
his bathroom because "he did not like the smell of bleach." Id. "Later in the same interview,
Crain said he cleaned his bathroom with bleach, as was his custom, then cleaned the rest of
the house until 5:30 a.m., at which time he left to go crabbing." Id.
The police asked Crain about the multiple scratches they observed on his arms. Id.
"Crain claimed that he received the scratches while crabbing, but became defensive when [a
detective] asked him to demonstrate how the scratches were inflicted. Photographs of Crain' s
body were taken that morning. Id.
Later, the police searched Crain's home. They "noticed the strong smell of bleach" and
found an "empty bleach bottle." Id. According to police testimony, "there were obvious signs
of grime and dirt around the edges of the bathroom sink. Id. A blue fitted rug that would go
around the base of the toilet was found in Crain's dryer." Id. One of the detectives "applied
Luminol, a chemical that reacts both with blood and with bleach, to Crain's bathroom" and
later testified "that the floor, the bathtub, and the walls 'lit up."' Id. The police also found "two
pieces of toilet tissue [on] the inside rim of Crain' s toilet and observed what appeared to be a
small blood stain on the seat of the toilet." Id. at 65-66.
6
APP 010
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 7 of 73 PageID 1940
The police performed an "extensive, two-week search for Amanda." Id. at 66. They
never found Amanda's body. Id. Nor did the police ever find the "maroon shirt and dark pants
that Darlington saw Crain wearing" when he departed on his boat the morning of Amanda's
disappearance. Id.
The State charged Crain with two counts, one for first-degree murder and another for
kidnapping with intent to commit homicide. Id. at 62. At trial, the State introduced testimony
from Crain's neighbors and Crain's daughter about a conversation at Crain's daughter's home
soon after Amanda's disappearance. Id. Two of those neighbors testified that another neighbor
told Crain, "[d]on't worry, you don't have anything to worry about" and to "[i]ust remember,
you didn't do anything, you didn't hurt that little girl." Id. at 66. Those two neighbors also
testified that Crain responded, "[yJes, I did do it; yes, you're right, I didn't hurt her, I didn't
do anything." Id. Crain's daughter testified that Crain stuttered, "yes, I did ... did ... didn't
do it; yes, you're right, I didn't hurt her." Id.
A friend and in-law of Crain testified that around one month before Amanda
disappeared, he "helped Crain lay crab traps in a 'special' location." Id. Crain had told him at
that time that "other crabbers would steal the crab traps if they knew of the spot." Id. Then,
after Amanda disappeared, Crain told the friend that if the friend told anyone the location of
7
APP 011
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 8 of 73 PageID 1941
those traps, "it could bury [Crain]." Id.
Darlington, the fisherman who saw Crain bring his boat to the boat ramp the day
Amanda disappeared, also testified that Crain had told him on two occasions that he could
"get rid of a body where no one could find it." Id. at 65 . Nonetheless, it is undisputed that
Crain said this during a conversation about Crain's "disagreements with other crabbers about
Crain's claims that they had stolen from [his] crab traps." Id. at 65 n.4.
The State also introduced the photographs of the scratches on Crain's arms and the
testimony of a forensic pathologist opining on the photos. That pathologist "could not identify
the source of the scratches with certainty, [but] testified that all but two of the scratches were
more likely to be caused by the fingernails of a seven-year-old child than by another cause."
Id. at 65. He also testified that these scratches were likely inflicted within hours to days before
the photographs were taken. Id. Finally, he testified that there was a "cluster of small gouges
on Crain's arm" which was more likely caused "by the small grasping hand of a child about
seven years of age than by another cause." Id.
Finally, the State introduced the testimony of a forensic scientist who had analyzed the
tissue pieces from Crain' s toilet, the toilet seat, and the boxer shorts that Crain wore on the
morning of Amanda's disappearance. The scientist testified that "two blood stains were found
8
APP 012
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 9 of 73 PageID 1942
on the toilet seat, one blood stain was found on one of the pieces of toilet tissue, and one blood
stain was found on the boxer shorts." Id. at 66 (footnote omitted.) The scientist testified that
the blood stain on the boxer shorts and one of the toilet seat's blood stains "contained DNA
consistent with the DNA extracted from personal items belonging to Amanda." The second
toilet seat stain and the stain on the toilet tissue "contained DNA consistent with a mixture of
the DNA profiles of Amanda and Crain." Id. "Testimony established that the probability of
finding a random match between the DNA profile on the boxer shorts and Amanda's known
DNA profile is approximately 1 in 388 million for the Caucasian population." Id.
In testimony at trial, Crain denied any involvement in Amanda's death. Id. He testified
that the last time he saw Amanda was when she was "sleeping in her mother's bed" the
morning of her disappearance. Id.
At the close of the case, the trial court instructed the jury on the charges. See id.
Regarding "the first-degree murder charge in count I," the court instructed the jury that the
State could prove its case for felony murder based on kidnapping by proving "intent to commit
or facilitate the commission of homicide or to inflict bodily harm upon the victim." Id.
Regarding "the kidnapping charge in count II, the court instructed the jury that the State had
to prove that Crain acted 'with intent to commit or facilitate the commission of a homicide."'
9
APP 013
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 10 of 73 PageID 1943
APP 014
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 11 of 73 PageID 1944
First, Crain appealed his convictions and sentences. He argued on appeal that there was
insufficient evidence to establish either that the murder of Amanda was intentional or that the
kidnapping was committed with "intent to commit or facilitate commission of a homicide,"
that the trial court erred in its jury instructions on felony murder and kidnapping, that the
kidnapping conviction relied on as an aggravating circumstance was unsupported by the
evidence, and that Florida's death penalty statutory scheme was unconstitutional. See Crain,
894 So. 2d at 67. The Florida Supreme Court affirmed his murder conviction and death
sentence, concluding that the trial court did not commit "fundamental error" in its instructions,
that the evidence was sufficient to establish intent to inflict bodily harm, that Florida's death
penalty scheme was constitutional, and that any error in relying on the kidnapping conviction
as an aggravating circumstance was "harmless beyond a reasonable doubt." Crain, 894 So. 2d
at 71, 75, 77, 78. But it concluded that there was insufficient evidence to support the jury's
conviction of kidnapping with intent to commit homicide and thus reduced his kidnapping
conviction to false imprisonment. See id. at 76. Crain filed a petition with the United States
Supreme Court for a writ of certiorari, which the Court denied on October 3, 2005. Crain v.
Florida, 546 U .S. 829 (2005) (table).
Crain then moved for postconviction relief on September 7, 2006, under Florida Rule
11
APP 015
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 12 of 73 PageID 1945
of Criminal Procedure 3.851. (Ex. C-2 at 229-95.) First, he raised several ineffective assistance
of counsel claims premised on the following alleged failures of counsel: (1) to challenge the
state's circumstantial evidence; (2) to seek exclusion of evidence; (3) to retain a medical expert
on the scratch marks; (4) to obtain expert psychological evaluation and to present mitigation
evidence through testimony and "otherwise challenge the prosecution's case for the death
sentence"; and (5) to cross examine witnesses effectively. (Id. at 232-63.) He next claimed that
his execution would violate both the Florida and United States Constitutions because the
method was cruel and unusual and because he "may be incompetent at time of execution." (Id.
at 263, 265.) He claimed that the rules prohibiting his lawyers from interviewing jurors after
the trial violated the Florida and United States Constitutions. (Id. at 266.) Finally, he claimed
that the "combination of procedural and substantive errors deprived [him] of a fundamentally
fair trial" as guaranteed by those Constitutions. (Id. at 269.) Following multiple evidentiary
hearings, the state postconviction court denied relief on all counts. (Ex. C-5 at 903 .) The
Florida Supreme Court affirmed the denial of postconviction relief on October 13, 2011. Crain
v. State (Crain II), 78 So. 3d 1025 (Fla. 2011).
Several months later, on February 15, 2012, Crain filed his initial petition under§ 2254
in this case, raising several grounds for relief. (Doc. 1.) As the case proceeded, the United
12
APP 016
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 13 of 73 PageID 1946
APP 017
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 14 of 73 PageID 1947
APP 018
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 15 of 73 PageID 1948
APP 019
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 16 of 73 PageID 1949
APP 020
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 17 of 73 PageID 1950
APP 021
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 18 of 73 PageID 1951
identifies "acts or omissions [of counsel that] were outside the wide range of professionally
competent assistance." Id. at 690. A court "must judge the reasonableness of counsel's
challenged conduct on the facts of the particular case, viewed as of the time of counsel's
conduct." Id. "[C]ounsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment." Id. When a
petitioner's counsel is experienced, the presumption of competent representation is even
higher. See Chandler v. United States, 218 F.3d 1305, 1316 (11th Cir. 2000), cert. denied,
531 U.S. 1204 (2001) .
To show prejudice from deficient counsel, a petitioner must show "a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 694. "An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment." Id. at 691.
Finally, the petitioner must show that the state court's determination of whether the
petitioner suffered prejudice from deficient counsel was unreasonable. "The question 'is not
whether a federal court believes the state court's determination' under the Strickland standard
18
APP 022
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 19 of 73 PageID 1952
APP 023
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 20 of 73 PageID 1953
APP 024
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 21 of 73 PageID 1954
stipulating to all the DNA coming from a blood stain," that he "did not state [in his testimony]
that he saw the victim's blood placed on his underwear or in the toilet," and that he did not
insist on offering innocent explanations of blood. (Doc. 123 at 20-22.) But his arguments fail
to show either that the court made an "unreasonable determination" or based any decision on
incorrect facts .
First, Crain fails to explain how the court's "fail[ ure ]" to consider the prejudice he would
face from the stipulation rendered its factual findings "unreasonable." (Id. at 21.) He cites his
appellate brief to the Florida Supreme Court and explains that he offered a "scenario of
innocence," but he offers no specific factual findings that were unreasonable. (Id.) To the
extent his argument is that the court found there was no innocent explanation for the blood or
that his attorneys never offered one, the argument fails because the court never made such a
finding.
Second, Crain argues that the Florida Supreme Court made an unreasonable factual
determination because he never said he "saw the victim's blood placed on his underwear or in
the toilet." (Id.) As a preliminary matter, Crain does not specify what factual finding the
Florida Supreme Court incorrectly made. But it appears that Crain takes issue with the court's
statement that "Crain took the stand in his own defense, [where] he appeared to offer an
21
APP 025
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 22 of 73 PageID 1955
innocent explanation for the blood inside his bathroom." Crain II, 78 So. 3d at 1035.
To the extent that Crain takes this line from the court as a factual finding that Crain
admitted that he "saw the victim's blood placed on his underwear or in the toilet," the
surrounding context of the court's opinion indicates it made no such affirmative finding. (Doc.
123 at 21.) Instead, the court found that he offered explanations for the presence of both his
and the victim's blood. Crain II, 78 So. 3d at 1035. The victim's blood was present because
she was "wiggling her tooth around" and the tooth was "bleeding and getting [blood] on her
finger." Id. His blood was present because he "suffers from hemorrhoids and bleeds almost all
the time when he tries to use the bathroom." Id. Just several paragraphs later, the court relied
on "Crain's continued insistence that ifblood was found inside his bathroom or on his clothes,
it was due to Amanda's loose tooth." Id. at 1037 (emphasis added). Thus, the court's finding
that Crain offered explanations for the blood does not entail a finding that Crain admitted
that blood was present.
And even if the court found as a factual matter that Crain admitted that he saw blood
m his bathroom, the Florida Supreme Court did not "base" its decision on this fact.
§ 2254(d)(2); see Wiggins, 539 U .S. at 552 (Scalia, J., dissenting) (explaining that an error
was immaterial when the state court's decision "was not 'based on' this mistaken factual
22
APP 026
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 23 of 73 PageID 1956
determination"). Instead, the court concluded that Crain's attorneys made a reasonable
decision given "Crain' s continued insistence that if the blood was found inside his bathroom
or on his clothes," there was an innocent explanation. Crain II, 78 So. 3d at 1037 (emphasis
added). The court thus relied on a fact that Crain does not contest: he had innocent
explanations if there was blood in his bathroom.
Third, Crain attacks the court's finding that he risked losing credibility if he did not
concede that there was blood. (Doc. 123 at 22.) The court reasoned that Crain's attorneys
made the reasonable decision to stipulate because challenging the existence of blood risked
presenting inconsistent statements from Crain to the jury. The court found this based on Crain
making "prior statements to the media" about the existence of blood, his "continued insistence
that if blood was found inside his bathroom or on his clothes, it was due to Amanda's loose
tooth," and his "testimony to this effect at trial." Crain II, 78 So. 3d at 1037. Crain argues that
these were unreasonable factual findings because he "hardly mentioned anything about the
victim bleeding." (Doc. 123 at 22.)
Although Crain is correct that his statements on the stand about the presence of blood
were minimal, that is relevant only to whether the court unreasonably found that he "testi[fied]
to this effect"-that is, innocent explanations ofblood-"at trial." Crain II, 78 So. 3d at 1037.
23
APP 027
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 24 of 73 PageID 1957
APP 028
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 25 of 73 PageID 1958
APP 029
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 26 of 73 PageID 1959
description of the biological substance on Crain's boxer shorts as blood was scientifically
inaccurate or misleading. (Id. at 7426-28.)
Second, Crain had offered a reasonable explanation for the presence of the victim's
blood inside his residence in pretrial statements to the police and the media. (Id. at 7388-89,
7392, 7428, 7435.) And Crain insisted on testifying at trial to explain why the victim's blood
may have been in his residence. (Id. at 7429-30.) Counsel did not want to present a position
inconsistent to that which Crain had previously stated. (Id. at 7388.) It was not unreasonable
for the Florida Supreme Court to conclude that it was reasonable for the attorneys to decide
that these alternative positions would have presented a less forceful and less credible position
to the jury than simply admitting that there was blood present and giving innocent
explanations for its presence. Counsel does not give ineffective assistance simply because they
could have but chose not to "present[] an alternative ... theory of the case." Dill v. Allen, 488
F .3d 1344, 1357 (11th Cir. 2007) .
Finally, because Crain had the benefit of experienced trial counsel, the Court applies
an extra layer of deference to their decisions. See Chandler, 218 F.3d at 1316. Crain was
represented by Charles Traina and Daniel Hernandez. Traina had practiced law for nearly
fifteen years, working his first ten years at the Public Defender's Office where he became chief
26
APP 030
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 27 of 73 PageID 1960
of the capital division and the remaining years in private practice where he practiced primarily
criminal defense. Traina had been involved in approximately 100 to 150 jury trials, four of
which were death penalty cases that were tried to their conclusion. (Ex. C-55 at 7376-77.) At
the time of Crain's 1999 trial, Hernandez had practiced law for nearly twenty-two years,
working at the State Attorney's Office, in private practice as a criminal defense attorney, and
had been involved in approximately 200 felony jury trials, fifteen or twenty of which were firstdegree murder trials, including death penalty cases. (Id. at 7283-84.)
Therefore, the Florida Supreme Court did not unreasonably decide that Crain's
attorneys made a reasonable decision to not contest the State's DNA evidence, stipulate that
the stains in Crain's bathroom and on his boxer shorts were blood, and have Crain explain why
the victim's blood was present. Crain's other arguments are unavailing.
In his reply, Crain argues that "[m]ore testing than what was done in this case was
necessary before the defense could conclude that the DNA came from blood rather than
another source." (Doc. 123 at 24.) But Dr. Shields did not advise counsel that it was inaccurate
or misleading to describe the stain on Crain's boxer shorts as blood, and he "didn't give
[counsel] any reason for [independent testing]." (Ex. C-55 at 7391.) Crain's attorneys' decision
to rely on his expert and not pursue independent testing was not deficient. See Harvey v.
27
APP 031
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 28 of 73 PageID 1961
Warden, Union Corr. Inst., 629 F.3d 1228, 1262 (11th Cir. 2011) (stating that "Strickland
allows attorneys to limit investigations ifit would be reasonable to do so" and holding that trial
counsel's performance in choosing to rely on his expert, rather than obtain a second opinion,
did not constitute ineffective assistance).
Crain disagrees, contending that norms of professional conduct required his attorneys
to "reasonably investigate" before deciding to stipulate. Crain argues that a reasonable
investigation required independent testing of the evidence. As support, he cites the ABA
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty
Cases, which states that counsel in death penalty cases should "request [from the government]
any physical evidence ... relevant to the offense or sentencing, as well as the underlying
materials," and then, "[w]ith the assistance of appropriate experts ... aggressively re-examine
all of the government's forensic evidence, and conduct appropriate analyses of all other
available forensic evidence." 31 HOFSTRA L. REV. 913, 1020 (2003). Crain is right that the
ABA Guidelines are "guides to determining what is reasonable" attorney performance.
Strickland, 466 U.S. at 688. "[B]ut they are only guides." Id. It is easy to conclude in the
abstract that counsel should always examine the forensic evidence, but the abstract "can[not]
satisfactorily take account of the variety of circumstances faced by defense counsel or the range
28
APP 032
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 29 of 73 PageID 1962
of legitimate decisions regarding how best to represent a criminal defendant." Id. at 688-89.
Here, counsel had engaged an expert, provided that expert with all of the reports-if not the
forensic evidence itself-and that expert told Crain's attorneys that he could not find anything
"inconsistent .. . about the findings" from the State's experts and did not give his attorneys
"any reason to think that [h]is findings would be significantly different or in any way, shape[,]
or form measurably different than what the State was" going to tell the jury. (Ex. C-55 at
7392.) "[R]easonably diligent counsel may draw a line when they have good reason to think
further investigation would be a waste." Rompilla v. Beard, 545 U .S. 374, 383 (2005) . Crain
fails to show that his counsel unreasonably decided to draw their line after consulting with an
expert.
Crain also contends that his lawyers should have objected to the State arguing that the
underwear lacked blood anywhere "except where the victim's DNA was found" when it failed
to test a "dark stain in the rear area of the boxers" that "possibly contain[ed] a mixture of blood
and feces." (Doc. 123 at 26.) But he does not indicate when the State said this. If the State
said this after the stipulation, then it is unclear how the statement could prejudice him in the
light of the fact that the jury already heard a stipulation that the boxers contained a bloodstain
with the victim's DNA. The presence or nonpresence of other bloodstains would be
29
APP 033
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 30 of 73 PageID 1963
APP 034
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 31 of 73 PageID 1964
Crain disagrees. He cites his expert's testimony at the postconviction evidentiary
hearing to argue that a jury would have heard about sources other than blood that could have
been the source of the victim's DNA in his boxer shorts and that the jury would have heard
his expert's testimony about the problems that may have contaminated the test results. (Doc.
123 at 20.) Crain is of course correct that there is a possibility that the testimony would have
created some doubt in jurors' minds about the reliability of the evidence, but the evidence he
presents would create only that: a possibility of doubt. As the Florida Supreme Court noted,
the jury would have also undoubtedly heard from Florida's expert about his thirty-five years of
using his testing method and that the method always correctly identified blood. See Crain II,
78 So. 3d at 1038; see also Whatley v. Warden, Ga. Diagnostic & Classiflcation Ctr., 927
F.3d 1150, 1176 (11th Cir. 2019) (requiring courts to "anticipate what a retrial of the penalty
phase would look like" by considering, among other evidence, the "evidence the state presented
to the state habeas court"). They would have also heard from that expert that "proper safety
protocols were in place to detect and avoid cross-contamination." Crain II, 78 So. 3d at 1038.
In the face of this counterevidence, Crain fails to provide anything more than a possibility that
his trial would have gone differently had his counsel taken the actions he identifies. See
Bennett v. Fortner, 863 F.2d 804, 809 (11th Cir. 1989) (concluding that the lack of test results
31
APP 035
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 32 of 73 PageID 1965
APP 036
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 33 of 73 PageID 1966
sun-damaged" skin would have enabled an expert to undermine Dr. Vega's opinion. (Doc. 117
at 12.) But because the Florida Supreme Court did not unreasonably reject his claim, Crain's
second ineffective assistance of counsel claim fails .
The Florida Supreme Court concluded that Crain's attorneys did not perform
deficiently by deposing Dr. Vega, obtaining significant concessions regarding the scratch
marks, and making the strategic decision to confront him through cross-examination instead
of retaining an expert to challenge Dr. Vega's findings. Crain II, 78 So. 3d at 1040-41. The
court specifically noted Dr. Vega's concession "that he was unable to reach any conclusions as
to the precise origin of the scratch marks." Crain II, 78 So. 3d at 103 9-40. The court concluded
that Crain's attorneys' decision to use such "significant concessions regarding the nature of the
scratch-marks testimony" to challenge Dr. Vega's testimony instead of retaining an expert was
reasonable because "[i]n many instances cross-examination will be sufficient to expose defects
in an expert's presentation." Id. at 1040 (quoting Richter, 562 U .S. at 111 (2011)).
Crain fails to show that the Florida Supreme Court unreasonably determined that his
attorneys acted reasonably. "Strickland does not enact Newton's third law for the presentation
of evidence, requiring for every prosecution expert an equal and opposite expert from the
defense." Richter, 562 U .S. at 111. In many cases, "cross-examination will be sufficient to
33
APP 037
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 34 of 73 PageID 1967
expose defects in an expert's presentation." Id. Crain's attorneys "elicited concessions" from
Dr. Vega in his deposition and made a strategic decision to highlight those concessions in
cross-examination instead of retaining a separate expert. Id.; Crain II, 78 So. 3d at 1040. The
Florida Supreme Court did not unreasonably apply Strickland in concluding that Crain
received adequate counsel. See Richter, 562 U .S. at 111 (concluding that "it would have been
reasonable to find that [the petitioner] had not shown his attorney was deficient" when the
attorney engaged in vigorous cross-examination).
Crain disagrees, citing a litany of secondary sources arguing that cross-examination of
an opposing expert witness is less persuasive than the testimony of a favorable expert witness.
(Doc. 123 at 44-50.) Even assuming that cross examination is ordinarily inferior, that does
not render the Florida Supreme Court's determination that Crain's attorneys were not
deficient unreasonable. In preparing his defense, Crain's attorneys necessarily balanced
competing strategies and were entitled to "balance limited resources in accord with effective
trial tactics and strategies." Richter, 562 U .S. at 107; see also Adams v. Wainwright, 804 F.2d
1526, 1536 (11th Cir. 1986) (holding that defense counsel was not ineffective for failing to
obtain expert pathologist, where defense counsel cross-examined state expert and argued
weaknesses in testimony to jury in closing argument), rev'd on other grounds sub nom. Dugger
34
APP 038
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 35 of 73 PageID 1968
v. Adams, 489 U.S. 401 (1989).
In affirming the denial of the claim, the Florida Supreme Court also concluded that
Crain failed to demonstrate prejudice. Although Dr. Wright, a forensic pathologist called by
Crain's postconviction counsel, testified that some of the scratch marks were "quite old" and
concluded that some were inconsistent with fingernails, he could not rule out fingernails as the
cause of the scratches and admitted that "it was not unprofessional or outside the normal
permissible mode of expression within forensic pathology for Dr. Vega to indicate that Crain's
scratch marks were consistent with being caused by human fingernails ." Crain II, 78 So. 3d at
1041-42. Because Dr. Wright's testimony fails to establish a reasonable probability that the
outcome would have been different had the jury heard it, Crain also fails to prove that the
Florida Supreme Court unreasonably determined that he failed to establish prejudice regarding
his counsel's choice not to retain an expert to challenge the State's scratch mark evidence.
Crain fails to show that the Florida Supreme Court unreasonably rejected his claim that
he received ineffective assistance of counsel when his trial attorneys failed to retain a medical
expert to opine on the scratch marks. Accordingly, Crain's second claim fails.
35
APP 039
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 36 of 73 PageID 1969
APP 040
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 37 of 73 PageID 1970
contends that the Florida Supreme Court improperly denied his claim because it unreasonably
determined that Crain's trial expert was credible and unreasonably applied Strickland. But
Crain shows no unreasonable determination of facts nor any unreasonable application of law.
During the penalty phase of the trial, Crain's attorneys called Dr. Robert Berland, an
experienced board-certified expert in forensic psychology, to testify about Crain's mental
illnesses. (Ex. A-22 at 3334-3411.) He had evaluated whether Crain suffered any mental
illness and whether any such "mental health problem ... meet[s] any ... legal criteria that
involve mental health issues." (Id. at 3341-42.) In this process, he gave Crain two kinds of
tests, a Minnesota Multiphasis Personality Inventory (MMPI) test and a Wechsler Adult
Intelligence Scale (WAIS) test. (Id. at 3345.) Based on the MMPI, Dr. Berland found that
Crain suffered from delusional and paranoid thinking. (Id. at 3372.) Based on the WAIS, Dr.
Berland found that Crain had an I.Q of approximately 85, was not mentally "retarded," and
showed evidence of impaired functioning due to a brain injury. (Id. at 3386-93.) Dr. Berland
also testified he was confident Crain was psychotic. (Id. at 3392.)
Dr. Stein, a board certified clinical and forensic psychiatrist, testified for the State
during the penalty phase. (Ex. A-24 at 3526-91.) She testified that Crain's history gave no
indication of psychosis. (Id. at 3540-41.) Dr. Stein also testified that the WAIS test "is an
37
APP 041
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 38 of 73 PageID 1971
intelligence test" and not considered "a test that can be used to detect brain injury." (Id. at
3586.)
Crain then sought postconviction relief in state court on the basis that his attorneys
failed to provide a better expert, one who would have used the correct tests and obtained history
to support a finding of psychosis. During the postconviction hearings, Dr. Stein testified that
there was no evidence that Crain was suffering from a psychotic disorder, the WAIS and
MMPI were "outdated tests," the WAIS "is not a test that is used to diagnose brain injury,"
and neuropsychological testing should be used when "you suspect that someone has any type
of brain disorder." (Ex. C-60 at 7855-56.) Crain's postconviction relief expert, Dr.
Cunningham, testified that the WAIS test was "obsolete," and the MMPI test was
"antiquated." (Ex. C-57 at 7597, 7600.) He also testified that Dr. Berland had an "adequate
basis" for his diagnosis that Crain was psychotic. (Id. at 7600.) Finally, he testified that Crain's
counsel should have obtained a neuropsychological assessment of Crain. (Id. at 7626.)
The postconviction court denied Crain's claim, finding Dr. Berland's testimony
credible and holding that Crain's attorneys did not unreasonably rely on his testimony. The
Florida Supreme Court affirmed, reasoning that Crain "essentially challenge[d] the
postconviction court's credibility determinations." Crain II, 78 So. 3d at 1044. The court
38
APP 042
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 39 of 73 PageID 1972
explained that it reviewed credibility findings under a highly deferential standard and then
concluded that the postconviction court's determination that Dr. Berland was credible was
"sufficiently supported by the record." Id. Moreover, the court concluded that Crain's attorneys
were not ineffective in relying on Dr. Berland's testimony "even if, in retrospect, [Dr.
Berland's] evaluations may not have been [as] complete as others may desire." Id. (quoting
Darling v. State, 966 So. 2d 366, 377 (Fla. 2007)). Crain fails to show that the court
unreasonably determined facts or unreasonably applied Strickland to his case.
First, Crain fails to show that the Florida Supreme Court unreasonably determined the
facts of his case in affirming the lower court's finding that Dr. Berland credibly testified about
his testing methods. Crain contends that Dr. Stein and Dr. Cunningham's testimony that Dr.
Berland used outdated tests "should have diminished the value of Dr. Berland's penalty phase
testimony" and perhaps his "credibility in total." (Doc. 123 at 56.) As an initial matter, Crain
and the Florida Supreme Court correctly frame this issue as "essentially [a] challenge[ to] the
postconviction court's credibility determinations." Crain II, 78 So. 3d at 1044. After all,
"[w ]hen there is conflicting testimony by expert witnesses," determining the value of testimony
"constitutes a credibility determination." Bottoson v. Moore, 234 F .3d 526, 534 (11th Cir.
2000) .
39
APP 043
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 40 of 73 PageID 1973
Because Crain challenges the Florida courts' credibility determinations, he carries a
heavy burden under § 2254(d)(2). As a general matter, "the credibility of witnesses is the
province and function of the state courts, not a federal court engaging in habeas review" and
federal courts reviewing a habeas petition "have no license to redetermine credibility of
witnesses whose demeanor has been observed by the state trial court." Nejad v. Atty Gen., 830
F.3d 1280, 1292 (11th Cir. 2016) (quotations omitted). To show that the Florida court
unreasonably determined Dr. Berland's credibility, Crain must present "clear and convincing
evidence" that he was not credible. Bishop v. Warden, GDCP, 726 F.3d 1243, 1259 (11th
Cir. 2013).
Crain proffers no clear and convincing evidence showing that Dr. Berland was not a
credible expert witness regarding the reliability of the tests he used. Although two experts
testified that Dr. Berland should not have used the tests he used, Dr. Berland gave several
reasons for his decision to use those tests. He explained that he used the original WAIS test
because he was primarily concerned with finding brain damage in Crain, and the original
WAIS "has been determined by neuropsychological research to be a better measure than the
subsequent versions of the test of impairment from brain injury." (Ex. C-59 at 7783-85 .) Dr.
Berland explained that because the WAIS indicated brain impairment from brain injury, he
40
APP 044
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 41 of 73 PageID 1974
recommended a PET scan rather than neuropsychological testing to verify brain injury. (Id. at
7786-87.) In his experience, Dr. Berland was always asked at trial whether any medical brain
scans were performed to verify brain injury, and jurors believe neuropsychological testing
results can be "faked" because the testing requires a voluntary response by the defendant. (Id.)
Finally, Dr. Berland explained that he used the MMPI rather than the MMPI-2 because the
MMPI was "clinically and statistically equivalent to the" MMPI-2, and "a much bigger
research history" supported using the MMPI. (Id. at 7791.) Crain fails to provide clear and
convincing evidence that the Florida Supreme Court was wrong to find substantial evidence
supporting the lower state court's finding that Dr. Berland credibly testified about his testing
methods. See United States v. Stein, 964 F.3d 1313, 1322 (11th Cir.) (reasoning that a
decision to credit one among multiple "dueling experts" is not clear error if the "decision is
reasonably based on evidence found in the record"), cert. denied, 141 S. Ct. 954 (2020).
Crain also argues, albeit obliquely, that the Florida Supreme Court unreasonably
affirmed the postconviction court's finding that Dr. Berland credibly testified that Crain
suffered psychosis. Crain contends that "Dr. Berland failed to obtain data to support his
conclusion" that Crain suffered from psychosis. (Doc. 123 at 56.) It is unclear whether the
Florida Supreme Court addressed this argument, but it is immaterial. Even assuming that the
41
APP 045
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 42 of 73 PageID 1975
Florida Supreme Court unreasonably found Dr. Berland credibly testified that Crain suffered
psychosis, Crain must still show that he is entitled to relief under a de novo review of the claim.
See Jones v. Walker, 540 F .3d at 1288 (stating that federal courts review a claim de novo if the
petitioner shows that "the state courts made an unreasonable factual determination") . And he
has not done so.
Crain fails to show that his attorneys were unreasonable in relying on an expert's noncredible testimony that Crain suffered from psychosis. More specifically, he fails because he
offers no evidence that he suffered from psychosis. And if no evidence exists of Crain' s
psychosis, Crain's attorneys had no other evidence of psychosis on which to rely, thus they
were not ineffective for relying on an expert who testified, even if not persuasively, that he was
psychotic. Instead of providing evidence of psychosis, he alleges that Dr. Berland should have
obtained "a history from [Crain] of his mental state at the time of the offense" and should not
have relied on the "rationale that [Crain] would not have told him about it." (Doc. 117 at 15.)
But Dr. Berland testified that he attempted to obtain this history, but Crain was unwilling to
discuss the events that occurred the night the victim disappeared. (Ex. A-23 at 3498-99.) And
if Crain refused to discuss these events, Dr. Berland was not inadequate for failing to obtain
the data, nor were Crain's attorneys ineffective for relying on Dr. Berland. See Knowles v.
42
APP 046
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 43 of 73 PageID 1976
Mirzayance, 556 U.S. 111, 125 (2009) ("Competence does not require an attorney to browbeat
a reluctant witness into testifying, especially when the facts suggest that no amount of
persuasion would have succeeded.").
Second, Crain fails to show that the Florida Supreme Court unreasonably applied
Strickland. Because that court found the postconviction court's finding that Dr. Berland was
credible to be supported by substantial evidence, it concluded that Crain's attorneys were not
deficient in relying on him. Crain disagrees.
He argues that his attorneys were ineffective in failing to order a neuropsychological
assessment. (Doc. 123 at 52.) But, in preparing for the penalty phase, his attorneys relied on
the evaluation and advice of Dr. Berland, a highly qualified and experienced expert. One of
Crain's attorneys testified that he relied on Dr. Berland when he informed counsel that the
WAIS was a legitimate tool to detect possible brain injury, the test revealed Crain may have a
brain injury, and obtaining a PET scan to attempt to supplement the test results was better
than obtaining a neuropsychological evaluation. (Ex. C-55 at 7411.) Defense counsel is
entitled to rely on the evaluations conducted by qualified mental health experts, even if, in
hindsight, those evaluations may not have been as complete or successful as others may desire.
See Harvey, 629 F.3d at 1262 (holding that attorneys may limit investigations if reasonable to
43
APP 047
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 44 of 73 PageID 1977
APP 048
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 45 of 73 PageID 1978
APP 049
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 46 of 73 PageID 1979
adequate to support the judgment and the rule is firmly established and consistently followed."
Martinez, 566 U .S. at 9. First, the Florida Supreme Court clearly rested its decision on waiver,
which is a nonfederal ground. See Crain II, 78 So. 3d at 1044 n.13; see also Judd v. Haley,
250 F .3d 1308, 1313 (11th Cir. 2011) (requiring that the state court judgment "clearly and
expressly state that it is relying on state procedural rules" and must not be "intertwined with
an interpretation of federal law" (quotation omitted)). Second, appellate waiver is a "firmly
established and regularly followed" requirement under Florida law. See Doorbal v. Dep 't of
Corr., 572 F .3d 1222, 1228 (11th Cir. 2009) (quotations omitted). Finally, the state grounds
are adequate because they are "faithfully and regularly applied," Card v. Dugger, 911 F.2d
1494, 1517 (11th Cir. 1990); see Doorbal, 572 F.3d at 1228 (citing many examples of Florida
courts enforcing its appellate waiver rule), and because Crain has pointed to nothing in the
record showing that the postconviction court's application of the procedural waiver rules was
applied "in an arbitrary or unprecedented fashion," nor was it "manifestly unfair." Judd, 250
F .3d at 1313 (quotation omitted).
Moreover, even if Crain's claim was not procedurally barred, Crain fails to offer more
than a conclusory allegation that his attorneys could have presented additional mitigating
evidence at his sentencing. Specifically, Crain alleges that "[a]t the [postconviction] evidentiary
46
APP 050
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 47 of 73 PageID 1980
APP 051
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 48 of 73 PageID 1981
The trial court found three statutory aggravators: the victim was under the age of twelve
at the time of the offense; the murder was committed while Crain was committing a
kidnapping; and Crain was previously convicted of felonies (multiple sexual batteries of young
children) involving the use or threat of violence to the person. The court gave great weight to
each of these aggravators. (Ex. A-2 at 310-12.) Although Dr. Berland found that Crain
qualified for two statutory mitigators-that Crain was under the influence of extreme mental
or emotional disturbance at the time of the crime and he was substantially impaired in his
capacity to conform his conduct to the requirements oflaw, (Ex. A-23 at 3427-28)-the trial
court rejected those findings, (Ex. A-23 at 315-16). The trial court nonetheless found that
Dr. Berland provided evidence of numerous nonstatutory mitigators to which the court gave
some or modest weight, including that Crain: (1) had a mental health impairment (some
weight); (2) had mental problems exacerbated by the use of alcohol and drugs, both legal and
illegal (some weight); (3) was an uncured pedophile (some weight); (4) had a history of abuse
and an unstable home life (modest weight); (5) was deprived of the educational benefits and
social learning that one would normally obtain from public education (modest weight); (6) had
a history of hard, productive work (some weight); (7) had a good prison record (modest
weight); and (8) Crain had the capacity to form loving relationships (modest weight). (Ex.
48
APP 052
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 49 of 73 PageID 1982
A-2 at 315-18). But the court determined that the aggravating circumstances "far
outweigh[ed]" the mitigating circumstances; indeed, the court ruled that each aggravating
circumstance "standing alone" was sufficient to outweigh the mitigation. (Id. at 318).
During the postconviction proceedings, Crain presented additional mitigation evidence
from another forensic psychologist, Dr. Cunningham, and a neuropsychologist, Dr. Sestra.
Dr. Sestra testified during a deposition that Crain probably had mild brain impairment and
an antisocial personality disorder. (Ex. C-35 at 6877-78, 6895.) Dr. Sestra had no criticism of
Dr. Berland's testimony or methodology and believed Dr. Berland's findings were "consistent"
with his own findings and "reasonable." (Id. at 6904, 6906.) Dr. Cunningham testified during
the postconviction evidentiary hearing and prepared an extensive report that identified and
discussed developmental risk factors that may have minimized Crain's "moral culpability,"
Crain' s
possible
fetal
alcohol
exposure,
Crain's
.
.
micropems
disorder
or
penile
dysmorphophobia, and Crain's likely positive adjustment to prison. (Ex. C-57 at 7547-7646;
Ex. C-20 at 3792-3851.)
Dr. Stein, the State's expert, testified during the postconviction evidentiary hearing that
nothing Dr. Sestra or Dr. Cunningham presented changed the opinions she gave at trial. (Ex.
C-60 at 7822-23 .) She testified that there was no evidence that Crain suffered from fetal
49
APP 053
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 50 of 73 PageID 1983
alcohol syndrome, there was no way to determine whether the developmental risk factors Dr.
Cunningham identified caused Crain' s criminal conduct at the time of the victim's kidnapping
and murder, there was no evidence of brain damage, and micropenis disorder is not even a
condition recognized in the guidebook used by all mental health professionals when applying
clinical information to diagnostic categories. (Id. at 7823-41.)
Crain has not demonstrated prejudice because he has not shown that, if trial counsel
had introduced at the penalty phase all of the mental health evidence presented during the
postconviction proceedings, the outcome of the penalty phase would have been different. Dr.
Sestra's findings were consistent with Dr. Berland's findings. And much like Dr.
Cunningham, Dr. Berland testified to Crain' s long history of mental health and substance
abuse issues, his pedophilia, and the extensive physical and sexual abuse Crain suffered at the
hands of his own family, including beatings and perverse sex acts such as being forced to have
sex with his own mother and witnessing her having sex with numerous men and a dog. (See
Ex. A-22, pp. 3334-3411; Ex. A-23, pp. 3416-3474.) In sum, there is no reasonable
probability that the jury would have recommended, or the judge would have imposed, a life
sentence if they had been presented with the new and cumulative mitigation evidence
presented during the postconviction proceedings. See Robinson v. Moore, 300 F .3d 1320,
50
APP 054
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 51 of 73 PageID 1984
APP 055
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 52 of 73 PageID 1985
Although he lists more than "equal protection" in his petition and reply, he offers
argument only for his equal protection claim, thereby abandoning claims under the other
constitutional provisions. See Sapuppo v. Allstate Floridian Ins. Co., 739 F .3d 678,681 (11th
Cir. 2014) (noting that, on appeal, a party "abandons a claim when he either makes only
passing references to it or raises it in a perfunctory manner without supporting arguments and
authority"); Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d
1301, 1325-26 (11th Cir. 2000) (holding that "[t]he appellants' failure to brief and argue this
issue during the proceedings before the district court is grounds for finding that the issue has
been abandoned" and therefore the district court did not err by failing to consider it). To the
extent that Crain attempted to allege constitutional violations beyond the Equal Protection
Clause in this claim, he has abandoned them.
The Florida Supreme Court rejected Crain's jury interview claim, citing multiple cases
where it had previously rejected "similar constitutional challenges to these rules." Crain II, 78
So. 3d at 1045. Because the Florida Supreme Court did not discuss Crain's equal protection
claim directly, the Court "employs a 'look through' presumption." See Wilson v. Sellers, 138
S. Ct. 1188, 1193 (2018). Under this approach, the Court "look[s] through a silent higher
state court decision to an explicitly reasoned lower court one in determining the reasons for
52
APP 056
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 53 of 73 PageID 1986
the decision" and "give[s] appropriate deference to that decision." Meders v. Warden, Ga.
Diagnostic Prison, 911 F .3d 1335, 1349-50 (11th Cir. 2019) .
Crain's claim fails because he identifies no "clearly established law" that the Florida
courts "unreasonably appli[ed]" or contravened, nor does he even contend that the Florida
Supreme Court unreasonably determined the facts for this claim. § 2254(d) . Crain cites two
Supreme Court opinions. Neither the Florida Supreme Court's decision nor the
postconviction court's decision under the "look through" approach was contrary to those
opinions, nor did they "involve[] an unreasonable application" of either. § 2254(d)(1) .
The postconviction court rejected Crain's jury interview claim because it was "both
legally insufficient and procedurally barred" because it was not raised on direct appeal and he
failed to make a showing of any juror misconduct. (Doc. 117-3 at 48.) Like his mitigation
argument, the lower court's finding that this claim was procedurally barred was a "nonfederal
ground adequate to support the judgment and the rule is firmly established and consistently
followed." Martinez, 566 U .S. at 9; see also Arbelaez v. State, 775 So. 2d 909, 919 (Fla. 2002)
(declining to provide relief for a similar claim because they were "not raised on direct appeal").
First, Crain argues that the Florida Supreme Court's decision was contrary to or
involved an unreasonable application of Wellons v. Hall, 558 U .S. 220 (2010). There, the
53
APP 057
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 54 of 73 PageID 1987
Court held that a claim is not procedurally barred when the "state court declines to review the
merits of [the claim] on the ground that it ha[d] done so already." Wellons v. Hall, 558 U .S.
220,222 (2010) (quoting Cone v. Bell, 556 U.S. 449, 466 (2009)). The petitioner in Wellons
alleged "unreported ex parte contacts between the jury and the judge" and other "unusual
events going on behind the scenes," but those facts were irrelevant to the Court's decision. See
id. at 220-21 (vacating the decision below because it improperly concluded the claim was
procedurally barred and because it gave only "perfunctory consideration," in the alternative, to
the claim). The dispositive facts in Wellons were that the state court had declined to review
the claim because "it ha[d] done so already," that the Eleventh Circuit concluded that the state
court's decision procedurally barred review in federal court, and that the Eleventh Circuit gave
only a perfunctory consideration to whether the petitioner was entitled to an evidentiary
hearing. 558 U.S. at 222.
The postconviction court's rejection of Crain's jury interview claim was not "contrary
to" Wellons's requirement that federal courts give more than perfunctory consideration to
whether a claim is entitled to an evidentiary hearing even if a state court had declined to review
the merits of a claim because it "ha[d] done so already." Wellons, 558 U .S. at 222. Nor was it
54
APP 058
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 55 of 73 PageID 1988
an unreasonable application of Wellons. After all, a fairminded jurist would not think Wellons
even relevant. See Whatley, 927 F.3d at 1188 ("[W]e must respect the state court's decision
'so long as "fairminded jurists could disagree" on the correctness of it." (quotations omitted)) .
Second, Crain argues that the court's decision was an unreasonable application of Bush
v. Gore, 531 U .S. 98 (2000). The Court in Bush v. Gore held that the Equal Protection Clause
prohibits the States from "valu[ing] one person's vote over that of another" through "arbitrary
and disparate treatment." 531 U.S. at 104-05. And it held that certain measures "implemented
in response to the decisions of the Florida Supreme Court do not satisfy" that "minimum
requirement." Id.
After citing Bush v. Gore for the first time in his Amended Petition for Habeas Corpus
before this Court (Doc. 123 at 63), Crain does not appear to argue that the postconviction
court's decision was contrary to Bush v. Gore-nor could he successfully do so, given the
immense factual differences between that case and his-and thus abandons any argument
under that clause. See Sapuppo, 739 F.3d at 681. Moreover, Crain fails to argue how the
postconviction court failed to reasonably apply Bush v. Gore to his case. But presumably he
likens the right to interview jurors to the right to vote-state legislatures are required to give
neither but, once one is given, it must not be withheld from anyone through "arbitrary and
55
APP 059
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 56 of 73 PageID 1989
APP 060
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 57 of 73 PageID 1990
APP 061
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 58 of 73 PageID 1991
verdict was based on premediated or felony murder." Id. at 73. But the court explained that
Florida law permits a conviction of first-degree murder to be upheld "where the evidence is
sufficient to establish either felony murder or premeditation." Id. The court concluded the
evidence sufficiently "establish[ed] first-degree felony murder based on kidnapping with the
intent to inflict bodily harm" and affirmed the conviction. Id. at 73, 75 (emphasis added).
Because the court affirmed the conviction on felony-murder grounds, the court "decline[d] to
directly address Crain' s argument that the evidence [was] insufficient to establish first-degree
premediated murder." Id. at 75 n.16.
The court proceeded to reduce Crain's conviction for kidnapping to false imprisonment.
Id. at 75-76. In Count I, the State charged Crain with first-degree murder, "subsum[ing] all
valid felony murder theories." Id. at 75. In contrast, the State charged Crain with "kidnapping
with intent to commit a homicide" in Count IL Id. The State could not "rely on the unpled
alternative of [kidnapping with] intent to inflict bodily harm," the theory which the Florida
Supreme Court used to affirm Crain's first-degree murder conviction. Id. And the court
concluded that there was insufficient evidence that Crain intended to commit a homicide,
reducing his conviction on Count II to false imprisonment. See id. at 76.
In his petition, Crain claims that the State's evidence was insufficient to establish
58
APP 062
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 59 of 73 PageID 1992
premeditation. (Doc. 117 at 19.) Crain' s argument fails because the Florida Supreme Court
never concluded that there was sufficient evidence of premeditation. Instead, it declined to
address whether sufficient evidence supported such a finding and concluded that sufficient
evidence supported a conviction for felony-murder premised on kidnapping with intent to
inflict bodily harm.
Crain appears to reframe his claim as instead contending that the Florida Supreme
Court's conclusion that sufficient evidence supported a felony-murder conviction was
unreasonable because it later concluded that insufficient evidence supported a conviction for
kidnapping with intent to commit homicide. (Doc. 123 at 64.) But even under this reframing,
Crain's argument still fails. The court reduced Crain's kidnapping conviction because it
concluded insufficient evidence supported finding that he intended to commit homicide. The
court affirmed the felony-murder conviction because it concluded sufficient evidence
supported finding that he intended to commit bodily harm. See Crain I, 894 So. 2d at 74, 76.
Despite Crain's arguments, the court's holdings were not "incongruent." (Doc. 123 at 64.)
Crain also argues that there was "no evidence of the use of a weapon to kill Amanda, of
previous difficulties between the parties, of the presence or absence of provocation at the time
of Amanda's death, of the manner in which the homicide was committed, nor of the nature
59
APP 063
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 60 of 73 PageID 1993
and manner of the wounds inflicted." (Doc. 123 at 66.) But the absence of this evidence does
not render the Florida Supreme Court's finding "so insupportable as to fall below the threshold
of bare rationality." Coleman, 566 U .S. at 656. In finding the evidence sufficient for a jury to
convict Crain for felony-murder "based on kidnapping with the intent to inflict bodily harm,"
the court relied on several pieces of evidence. Crain I, 894 So. 2d at 73 . First, Crain had "several
instances of close[] contact" with Amanda and the last time that Hartman saw Amanda was
when Amanda "was sleeping next to Crain." Id. Second, a witness living near Amanda's home
saw a vehicle "that matched the description of Crain's truck" running with "its lights on" for
nearly five minutes before it drove away. Id. Third, "blood consistent with Amanda's DNA
was found on Crain' s boxer shorts and taken from the toilet tissue found in Crain' s toilet bowl."
Id. Fourth, "multiple scratches and one cluster of gouges were observed and photographed on
Crain's arms" and the cluster of gouges and "all but two of the scratches" were consistent with
the fingernails and hands of a seven-year-old child. Id. at 73-74; see Crain II, 78 So. 3d at
1031 n.2, 1041-42 (explaining that "any statement in [ Crain I] to the effect that the marks on
Crain's body were 'more likely' caused by the hand or fingernails of a seven-year-old child"
mischaracterized evidence that showed only that the marks were consistent with having been
caused by such fingernails or hands but holding that its confidence in Crain's "guilt-phase
60
APP 064
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 61 of 73 PageID 1994
APP 065
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 62 of 73 PageID 1995
When the trial court judge instructed the jury on the separate kidnapping charge in
Count II, he explained that "the State must prove ... Crain acted with the intent to commit
or facilitate the commission of homicide." (Id. at 3157-8.) Crain contends that this instruction
was a violation of due process because the instructions permitted the jury to base a felonymurder conviction on kidnapping with intent to inflict bodily harm when the indictment's
kidnapping count charged Crain only with intent to commit homicide. (Doc. 117 at 21.) Such
an error would violate due process, according to Crain, because "[i]t is a violation of due process
of law to convict the accused of a crime not charged." (Doc. 123 at 67 (citing Jackson v.
Virginia, 443 U.S. 307, 314 (1979)).
The Florida Supreme Court rejected Crain's claim, reasoning that it was waived under
state law because his trial counsel failed to object to the jury instructions and because any error
was not "fundamental error." Crain I, 894 So. 2d at 68, 70. Respondent contends that this
rejection was based on a nonfederal ground that was independent and adequate to support the
judgment. But even assuming that the ground was not independent and adequate, Crain's
claim still fails on de novo review because the jury instructions did not deprive him of due
process.
Of course, Crain is correct that "a conviction upon a charge not made or upon a charge
62
APP 066
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 63 of 73 PageID 1996
not tried constitutes a denial of due process." Jackson, 443 U.S. at 314. But he was not
convicted of a "charge not made" in the Indictment. Id. The Indictment charged Crain with
first-degree premeditated murder. (Ex. A-1 at 31.) Although the State used the term
"premediated murder," Florida law permits a "premeditated murder" charge to be used
interchangeably with a felony-murder charge. See Weatherspoon v. Florida, 214 So. 3d 578,
584 (Fla. 2017) (stating that the commission of a felony in the first-degree murder statute
"stands in lieu of and is the legal equivalent of' premeditation (quoting Sloan v. Florida, 69
So. 871, 872 (Fla. 1915))). And "[i]f a State's courts have determined that certain statutory
alternatives are mere means of committing a single offense, rather than independent elements
of the crime, [this Court] simply [is] not at liberty to ignore that determination and conclude
that the alternatives are, in fact, independent elements under state law." Schad v. Arizona, 501
U.S. 624, 636 (1991). Thus, even though the Indictment nominally charged Crain with
premediated murder, felony-murder alternatives "are mere means of committing" the single
offense of murder. Id.
Assuming that Crain's claim is not procedurally barred and that the claim should receive
de novo consideration, Crain nonetheless fails to show that the jury instructions deprived him
of due process. As such, his sixth claim fails .
63
APP 067
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 64 of 73 PageID 1997
APP 068
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 65 of 73 PageID 1998
APP 069
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 66 of 73 PageID 1999
even addresses the issue [of whether aggravating factors must be charged in the indictment],
much less decides it." Grim v. Secretary, Florida Dep't of Corrections, 705 F .3d 1284, 1289
(11th Cir. 2013).
And as to Crain's second argument, he cites Ring, Apprendi, and Hurst for his
contention that Florida's capital sentencing scheme was unconstitutional because it did not
require a jury to find the aggravating circumstances beyond a reasonable doubt. (Doc. 123 at
70-71 nn. 1, 6.) The Florida Supreme Court held that the sentencing statute was not
unconstitutional in the light of Ring and Apprendi, citing two of its former decisions. Those
decisions upheld the sentencing statute because the United States Supreme Court had
expressly upheld Florida's capital sentencing statute in the past and did not expressly overrule
those decisions when it decided Ring. See Bottoson v. Moore, 833 So. 2d 693, 695 (Fla. 2002),
abrogated by Hurst v. Fla., 577 U.S. 92 (2016); King v. Moore, 831 So. 2d 143, 144 (Fla.
2002) . The Eleventh Circuit has affirmed elsewhere that this was not an unreasonable
application of Ring and Apprendi because the Supreme Court has been "perfectly consistent"
in holding that if one of its precedents "has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions," the lower court "should follow the case which
directly controls, leaving to [the Supreme] Court[] the prerogative of overruling its own
66
APP 070
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 67 of 73 PageID 2000
decisions." Evans v. Sec'y, Fla. Dep't of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012)
(quotations omitted) (second alteration added). Accordingly, it was not unreasonable for the
Florida Supreme Court to hold that Ring and Apprendi did not undermine the
constitutionality of its capital sentencing statute. And it was not unreasonable, as discussed
below in Ground Eight, for the Florida Supreme Court to fail to apply Hurst because it is not
retroactive to cases on collateral review.
But even if Hurst was retroactively applicable, the only rule announced by the Supreme
Court in Hurst v. Florida is that the Sixth Amendment requires a jury, not a judge, to find the
existence of an aggravating circumstance. Hurst v. Florida, 577 U.S. at 102-03. Crain's jury
unanimously found the existence of an aggravating circumstance when they found him guilty
of felony murder committed during the course of a kidnapping. See Crain, 246 So. 3d at 210
("The kidnapping aggravating factor in Crain's case remains valid because kidnapping with
the intent to inflict bodily harm underlies Crain's first-degree felony murder conviction. See
§ 921.141(5)(d), Fla. Stat. (1997) (including "any: ... kidnapping"). Therefore, the jury
properly considered this aggravating factor in making its sentencing recommendation.
Crain raised his final argument in his successive postconviction relief motion. The court
denied his claim because he should have "raised [it], if at all, on direct appeal" and concluded
67
APP 071
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 68 of 73 PageID 2001
it was "procedurally barred." (Doc. 117-5.) Although he raised the claim again on appeal, the
Florida Supreme Court did not address it. See Crain, 246 So. 3d at 206.
Crain's final argument is procedurally barred because the last Florida court-the lower
postconviction court-to address it decided it on an independent and adequate nonfederal
ground. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (holding that federal courts
"can[not] ordinarily" review claims when a lower state court held they were defaulted under
state law and the highest court did not address them). First, the Florida court rested its decision
on a procedural bar. (Doc. 117-5 at 16-17.) Although the court also found "the jury was
instructed that it must find each aggravating circumstance," (id. at 17), its minor foray into the
merits "is of no moment." Spencer v. Secy, Dep't of Corr., 609 F.3d 1170, 1179 n.1 (11th Cir.
2010). When a state "court makes an alternative merits determination, [the federal court]
remains bound by the application of the procedural bar." Id. Second, Florida's requirement
that petitioners raise all available claims on direct review is "firmly established and regularly
followed" under Florida law. Id. at 1179 ("There is no doubt that, under Florida law, a claim
is procedurally barred from being raised on collateral review if it could have been, but was
not[,] raised on direct appeal."); Deparvine v. State, 146 So. 3d 1071, 1106 (Fla. 2014), as
revised (Aug. 28, 2014) (holding a claim "procedurally barred because it was not raised on
68
APP 072
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 69 of 73 PageID 2002
APP 073
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 70 of 73 PageID 2003
1338.
First, Crain's conviction became final on direct review when the Supreme Court denied
his petition for writ of certiorari on October 3, 2005 . Crain v. Florida, 546 U .S. 829 (2005)
(table) . That date well preceded the United States Supreme Court's decision in Hurst on
January 12, 2016. Thus, Hurst is eleven years too late to help Crain. Hurst, 577 U .S. at 92.
Second, Hurst does not apply retroactively. See McKinney v. Arizona, 140 S. Ct. 702,
708 (2020) ("Ring and Hurst do not apply retroactively on collateral review.").
Accordingly, any error the Florida Supreme Court may have made in applying Hurst
can provide no grounds for relief to Crain. He cannot receive a writ of habeas corpus premised
on the Florida Supreme Court's failure to correctly apply a case that was not retroactive on
collateral review. See Edwards v. Vannoy, 141 S. Ct. 1547, 1554 (2021) ("[A] new rule of
criminal procedure ordinarily does not apply retroactively to overturn final convictions on
federal collateral review." (emphasis omitted)) . "[A federal court's] ability to consider whether
Florida applied Hurst correctly depends entirely on whether [the court] can apply Hurst
[itself]." Knight, 936 F.3d at 1332. Because Hurst was not retroactive and Crain's conviction
was final before the Supreme Court decided Hurst, "consideration of ... whether any such
[Hurst] error was harmless would be a prohibited and pointless exercise for both the petitioner
70
APP 074
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 71 of 73 PageID 2004
and this Court. [This Court] therefore cannot grant [Crain] relief on his Hurst claim, whether
or not it is cloaked in the garb of harmless error." Id. at 1338.
As part of Crain's argument that the Florida Supreme Court erred in its harmless error
analysis, Crain contends the court "contravened the Eighth Amendment under Caldwell v.
Mississippi." (Doc. 123 at 79.) As concluded above, this argument fails because Crain contends
the Caldwell error rendered the Hurst error harmful. But even if Crain had raised the Caldwell
error independently, it would still fail. Caldwell held that "it 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." Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985). But the Supreme Court
later clarified that a trial only suffers a Caldwell error when "remarks to the jury improperly
described the role assigned to the jury by local law." Romano v. Oklahoma, 512 U.S. 1, 9
(1994).
Crain identifies no instruction that misled the jury as to its role in the sentencing
process under Florida law. Although the trial court instructed the jury that "the final decision
as to what punishment shall be imposed, is my responsibility[,]" the court immediately
thereafter instructed "[h]owever, your advisory sentence as to what sentence should be imposed
71
APP 075
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 72 of 73 PageID 2005
APP 076
Case 8:12-cv-00322-KKM-AAS Document 135 Filed 09/30/22 Page 73 of 73 PageID 2006
APP 077
CAPITAL CASE
No. ______________
______________________________________________________________
IN THE
Supreme Court of the United States
______________________________________________________________
WILLIE SETH CRAIN, JR.
Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, AND
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents.
_____________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________________________________
APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI
DEATH PENALTY CASE
______________________________________________________________
Appendix C
United States District Court for the Middle District of Florida, Tampa Division
November 25, 2022 Order denying Motion to Alter or Amend Judgment.
APP 078
Case 8:12-cv-00322-KKM-AAS Document 146 Filed 11/25/22 Page 1 of 6 PageID 2267
APP 079
Case 8:12-cv-00322-KKM-AAS Document 146 Filed 11/25/22 Page 2 of 6 PageID 2268
APP 080
Case 8:12-cv-00322-KKM-AAS Document 146 Filed 11/25/22 Page 3 of 6 PageID 2269
APP 081
Case 8:12-cv-00322-KKM-AAS Document 146 Filed 11/25/22 Page 4 of 6 PageID 2270
APP 082
Case 8:12-cv-00322-KKM-AAS Document 146 Filed 11/25/22 Page 5 of 6 PageID 2271
APP 083
Case 8:12-cv-00322-KKM-AAS Document 146 Filed 11/25/22 Page 6 of 6 PageID 2272
APP 084
CAPITAL CASE
No. ______________
______________________________________________________________
IN THE
Supreme Court of the United States
______________________________________________________________
WILLIE SETH CRAIN, JR.
Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, AND
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents.
_____________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________________________________
APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI
DEATH PENALTY CASE
______________________________________________________________
Appendix D
Eleventh Circuit Court of Appeals May 11, 2023
Order denying Motion for Reconsideration.
APP 085
rstuÿwxyz{|}{~~zz{{ÿÿÿ |uÿy~ÿÿÿuÿ~yyzÿÿÿsuÿyÿÿÿsuÿz
RSTUVVÿTXYZ[ÿ\\]V^_`^ÿÿÿÿÿabcdeZfg[ÿ\V]VÿÿÿÿÿaXgZÿhijZk[ÿlmnVVn\l\^ÿÿÿÿÿoXpZ[ÿVÿbqÿ^ÿ
ÿ
12ÿ456ÿ
ÿ
728469ÿ446ÿ4ÿÿ6ÿ
ÿ
ÿ456ÿ66245ÿ884ÿ
ÿ
ÿ !"ÿ
ÿ
ÿ
#$%%$&ÿ'&()ÿ*+,$-ÿ.+ -ÿÿ
ÿ/01212304 ,55066731-ÿ
89:;<;ÿ
'&*+&(,+>-ÿ?%@+$A,ÿA&/,+(B&(ÿ@?ÿ*@++&*($@'-ÿÿ
,((@+&>ÿC&&+,%-ÿ'(,(&ÿ@?ÿ?%@+$A,-ÿÿ
ÿ
ÿ+0D53E031D ,5506600D ÿ
ÿ
ÿ
,55076ÿF4Gÿ1H0ÿI3210Eÿ'1710DÿA2D142J1ÿ*K41ÿ
F4ÿ1H0ÿB2EE60ÿA2D142J1ÿFÿ?642E7ÿ
A * ÿAJL01ÿ ÿMN JO PP QQB ,,'ÿ
ÿ
ÿ
ÿ
APP 086
defgÿijklmnomppqllmrrsmttuÿÿÿvwnxygz{ÿk|pÿÿÿ}~gÿp|kklqÿÿÿegÿlÿwÿÿegvÿlq
DEFGHHÿFJKLMÿNNOHPQRPÿÿÿÿÿSTUVWLXYMÿNHOHÿÿÿÿÿSJYLÿZ[\L]Mÿ^_H̀HǸ^NPÿÿÿÿÿaJbLMÿNÿTcÿPÿ
0ÿ
23453ÿ67ÿ895ÿ638ÿ
00 ÿ
57635ÿÿ2ÿ957ÿ 4 5ÿ 4ÿ !ÿ "ÿ# $ÿÿ
3%8ÿ 4 5&'ÿ
ÿ(!)ÿ2#(*ÿ
++5ÿ,589ÿ3 ÿ 3'ÿ ÿ-+634 ÿ.3&6 53ÿ&53/ ÿ ÿ45 89ÿ
&5 85 %5ÿ.35/6&+0ÿ&6 98ÿ ÿ%5387% 85ÿ67ÿ ..5 + 1+80ÿ23245ÿ
ÿ89&ÿ638ÿ6 ÿ ++ÿ5 98ÿ 36 4&ÿ3 &54ÿ ÿ9&ÿ06ÿ#',''ÿ7ÿ0089ÿ
.5886 ÿ:9%9ÿ895ÿ4&83%8ÿ%638ÿ45 54'ÿÿÿ& +5ÿ;4 5ÿ67ÿ89&ÿ
638ÿ45 54ÿ3 ÿ ÿ2ÿ6 ÿ ++ÿ5 98ÿ%+ <&ÿ15% &5ÿ3 ÿ44ÿ
ÿ
ÿ3 ÿ3 &54ÿ895ÿ76++6: ÿ%+ <&*ÿ25ÿ9&ÿ83 +ÿ%6 &5+ÿ: &ÿ 5775%8/5ÿ763ÿ
7 + ÿ86ÿ%9 ++5 5ÿ895ÿ&8 85=&ÿ%3%<&8 8 +ÿ% &5>ÿ205ÿ9&ÿ83 +ÿ%6 &5+ÿ: &ÿ
5775%8/5ÿ763ÿ7 + ÿ86ÿ358 ÿ ÿ4575 &5ÿ<54% +ÿ5?.538ÿ86ÿ%9 ++5 5ÿ895ÿ&8 85ÿ
<54% +ÿ5? < 53=&ÿ85&8<6 0ÿ35 34 ÿ&%3 8%9ÿ< 3@ÿ5/45 %5ÿ.35&5 854ÿ 8ÿ
83 +>ÿ25ÿ9&ÿ83 +ÿ%6 &5+ÿ: &ÿ 5775%8/5ÿ763ÿ7 + ÿ86ÿ.36/45ÿ ÿ%6<.585 8ÿ
5?.538ÿ.&0%96+6 % +ÿ5/ + 86 ÿ 4ÿ85&8<6 0ÿ7 + ÿ86ÿ 45A 85+0ÿ
/5&8 85ÿ.35. 35ÿ 4ÿ.35&5 8ÿ / + 1+5ÿ<8 86 ÿ5/45 %5ÿ8936 9ÿ5?.538ÿ
63ÿ68953ÿ85&8<6 0ÿ 4ÿ763ÿ7 + ÿ86ÿ68953:&5ÿ%9 ++5 5ÿ895ÿ.36&5%86 =&ÿ
% &5ÿ763ÿ895ÿ45 89ÿ&5 85 %5>ÿ295ÿ895ÿ-+634 ÿ3+5&ÿ.36918 ÿ3 =&ÿ+ :053&ÿ
736<ÿ 853/5: ÿ;363&ÿ86ÿ45853< 5ÿ7ÿ%6 &8886 +ÿ53363ÿ: &ÿ.35&5 8ÿ
/6+ 854ÿ2 5ÿ5A +ÿ.3685%86 ÿ.3 %.+5&ÿ215ÿ895ÿ-3&8ÿ,?89ÿ) 989ÿ 4ÿ
-63855 89ÿ<5 4<5 8&ÿ2%5ÿ895ÿ%6335&.6 4 ÿ.36/&6 &ÿ67ÿ895ÿ-+634 ÿ
6 &8886 ÿ 4ÿ245ÿ45 54ÿ9<ÿ 45A 85ÿ &&&8 %5ÿ67ÿ%6 &5+ÿ ÿ.3& ÿ
9&ÿ.6&8%6 /%86 ÿ35<545&>ÿ285ÿ895ÿ&8 85ÿ44ÿ 68ÿ.36/5ÿ89 8ÿ895ÿ@++ ÿ67ÿ895ÿ
/%8<ÿ: &ÿ.35<548 854>ÿ25ÿ895ÿ75+6 0ÿ< 3453ÿ;30ÿ &83%86 ÿ457 ÿ
@4 .. ÿ/6+ 854ÿ 3 =&ÿ3 98ÿ86ÿ45ÿ.36%5&&ÿ15% &5ÿ8ÿ.53<8854ÿ
%6 /%86 ÿ.6 ÿ.3667ÿ67ÿ ÿ 85 8ÿ 68ÿ ++5 54ÿ ÿ895ÿ 4%8<5 8>ÿ2B5ÿ-+ 'ÿ,8 8'ÿ
'ÿ7ÿ0'9ÿ2B5ÿ: &ÿ %6 &8886 +ÿ15% &5ÿ8ÿ/6+ 854ÿ3 =&ÿ3 98ÿ86ÿ
45ÿ.36%5&&ÿ 453ÿ895ÿ-789ÿ 4ÿ-63855 89ÿ<5 4<5 8&ÿ 4ÿ9&ÿ,?89ÿ
<5 4<5 8ÿ3 98ÿ86ÿ ÿ;30ÿ83 +ÿ:9%9ÿ35A35ÿ89 8ÿ 3 / 8 ÿ%3%<&8 %5&ÿ
15ÿ ++5 54ÿ ÿ895ÿ 4%8<5 8ÿ 4ÿ76 4ÿ10ÿ895ÿ;30ÿ86ÿ9 /5ÿ155 ÿ.36/5 ÿ1506 4ÿ
ÿ35 &6 1+5ÿ4618>ÿ 4ÿ265ÿ&5 85 % ÿ3 ÿ 453ÿ-+ 'ÿ,8 8'ÿ 'ÿ7ÿ0'9ÿ
20CC5ÿ: &ÿ %6 &8886 +ÿ 4ÿ895357635ÿ 68ÿ9 3<+5&&ÿ53363'ÿ
APP 087
opqrÿtuvwxyzx{{|wwx}}~xÿÿÿyr ÿv{ÿÿÿrÿ{vvw|ÿÿÿprÿ|ÿÿÿprÿw|
OPQRSSÿQUVWXÿYYZS[\][ÿÿÿÿÿ^_`abWcdXÿYSZSÿÿÿÿÿ^UdWÿefgWhXÿijkSSkYiY[ÿÿÿÿÿlUmWXÿ[ÿ_nÿ[ÿ
00123453ÿÿ
7898ÿ ÿÿ 8ÿ
3ÿ
ÿÿÿ8ÿ8ÿ 9ÿ9ÿ9ÿ ÿ2ÿÿ
8ÿÿÿ98 ÿ ÿ9ÿ0ÿÿ 8 98ÿÿÿÿ
ÿ ÿ8ÿÿ!""ÿ0$ÿ%&ÿ'ÿ00(3 0)ÿ!*+,-ÿ./ÿ0,1+23"*4ÿ(05ÿ
%&ÿ5634ÿ5$5ÿ0777ÿÿ8ÿ 8ÿ 894ÿ8ÿ9ÿ ÿÿÿ
98ÿÿ8ÿ 9ÿ9 8 ÿÿÿ98 ÿ 8:ÿ8ÿ
ÿÿ ÿ ÿ 8ÿÿÿÿ 9ÿ 9ÿÿÿ
8 9ÿ; 8<ÿ9= ÿ ÿ98>ÿ 8 ÿ ÿ 8 9ÿ
88?ÿÿ@A,-ÿ./ÿ1+.3B4ÿ($7ÿ%&ÿ2774ÿ22(ÿ0726ÿ= ÿ
9ÿ
8ÿÿÿ9ÿÿ ÿ 8ÿ8 98ÿ ÿÿ
898ÿ9 ÿÿ ÿ8ÿÿ7Cÿÿ% ÿ8>4ÿ8ÿ 8 ÿ
=88ÿÿÿ ÿ9ÿ88 ÿÿ8ÿ ÿÿ
>ÿÿ7Cÿÿ88 9ÿÿÿ ÿÿDÿ8 ÿ9ÿ
ÿ88ÿ8 98ÿ ÿÿ 8:ÿ 88ÿ898ÿÿ!""ÿ
E3,F+GHBI2ÿ./ÿJIF2BI24ÿ(5$ÿK39ÿ6354ÿ657ÿ22ÿ8ÿ0727ÿ9Cÿ ÿ
8ÿ8 98ÿ ÿÿ9ÿ ÿ8 ÿ9ÿ 84ÿ8ÿ
8 ÿ8ÿ 8ÿ>9 ÿÿ 9ÿ>ÿ ÿ89ÿ 88ÿÿ
ÿ8 ÿ ÿ9 ?ÿ= ÿ 9ÿC 89 4ÿÿ
ÿ8ÿ8 98ÿÿLMN8MLÿ ÿÿÿ 89ÿÿ
88ÿ8 ÿÿ88ÿ8 ÿÿÿ
APP 088
CAPITAL CASE
No. ______________
______________________________________________________________
IN THE
Supreme Court of the United States
______________________________________________________________
WILLIE SETH CRAIN, JR.
Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, AND
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents.
_____________________________________________________________
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________________________________________
APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI
DEATH PENALTY CASE
______________________________________________________________
Appendix E
Crain v. State, 894 So.2d 59, 76 (Fla. 2004).
APP 089
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
Wells, J., filed opinion concurring in part and dissenting
in part.
894 So.2d 59
Supreme Court of Florida.
Willie Seth CRAIN, Appellant,
v.
STATE of Florida, Appellee.
West Headnotes (23)
No. SC00–661.
|
Oct. 28, 2004.
|
Rehearing Denied Jan. 25, 2005.
[1]
Criminal Law
Custody and conduct of jury
Homicide
Killing in Commission of or with Intent to
Commit Other Unlawful Act
Instruction for felony murder based on
kidnapping that allowed jury to find defendant
guilty if it found that he kidnapped victim with
intent to facilitate homicide or, in alternative, to
inflict bodily harm upon victim, was not
fundamental error based on claim that separate
kidnapping count alleged only that he acted with
the intent to facilitate homicide; defendant was
indicted for first degree premeditated murder,
and thus, State was not required to charge felony
murder to be entitled to felony murder
instruction, jury was presumed to have applied
instructions and independently assessed guilt as
to each count, and there was no indication that
defendant was surprised by instruction. West’s
F.S.A. § 787.01(1)(a) 2, 3.
Synopsis
Background: Defendant was convicted in the trial court
of capital murder and kidnapping, and was sentenced to
death by unanimous jury. Defendant appealed.
Holdings: The Supreme Court held that:
instruction for felony murder based on kidnapping that
was inconsistent with separate kidnapping offense as
charged was not fundamental error;
[1]
evidence was sufficient to establish corpus delicti for
murder;
[2]
evidence was sufficient to support conviction for
first-degree felony murder based on kidnapping;
[3]
21 Cases that cite this headnote
evidence did not support conviction for kidnapping
with intent to facilitate homicide;
[4]
[5]
death sentence was proportional to offense;
[2]
any error in finding that murder was committed in
course of kidnapping was harmless; and
[6]
defendant was not entitled to relief based on claim that
capital sentencing scheme violate Ring/Apprendi.
[7]
Affirmed.
Quince, J., specially concurred, with opinion in which
Pariente, C.J., and Cantero, J., concurred.
Criminal Law
Constitutional questions
When constitutional rights are implicated, the
Supreme Court considers issues for the first time
on appeal as fundamental error where the error
goes to the foundation of the case or the merits
of the cause of action and is equivalent to a
denial of due process. U.S.C.A. Const.Amend.
14.
1 Cases that cite this headnote
Lewis, J., concurred in result only, with opinion.
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 090
1
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
[3]
14 Cases that cite this headnote
Constitutional Law
Relation between allegations and proof;
variance
Due process prohibits a defendant from being
convicted of a crime not charged in the
information
or
indictment.
U.S.C.A.
Const.Amend. 14.
[7]
As long as the definition of the underlying
felony provided to the jury in the context of a
felony murder instruction is sufficiently definite
to assure the defendant a fair trial, it is not
necessary to instruct on the elements of the
underlying felony with the same particularity as
would be required if the defendant were charged
with the underlying felony.
10 Cases that cite this headnote
[4]
Kidnapping
Intent
Modern, statutory kidnapping differs from its
lesser included offense of false imprisonment in
its requirement of proof by the State of one of
the four intent elements set out in the statute.
West’s F.S.A. § 787.01.
3 Cases that cite this headnote
1 Cases that cite this headnote
Criminal Law
Hearing and determination
Kidnapping
Intent
Kidnapping
Confinement, restraint, or detention
In cases in which the evidence of guilt is wholly
circumstantial, it is the trial judge’s task to
review the evidence in the light most favorable
to the State to determine the presence of
competent evidence from which the jury could
infer guilt to the exclusion of all other
inferences.
[8]
[5]
The gist of the offense of kidnapping is the
felonious act of a confinement or abduction with
a specific intent. West’s F.S.A. § 787.01.
7 Cases that cite this headnote
2 Cases that cite this headnote
[6]
Homicide
Killing in Commission of or with Intent to
Commit Other Unlawful Act
[9]
Criminal Law
Weight of Evidence in General
In reviewing a challenge to the sufficiency of
the evidence, the reviewing court must assess
the record evidence for its sufficiency only, not
its weight.
Homicide
Killing in Commission of or with Intent to
Commit Other Unlawful Act
If an indictment charges premeditated murder,
the State need not charge felony murder or the
particular underlying felony to receive a felony
murder instruction.
2 Cases that cite this headnote
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 091
2
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
[10]
Criminal Law
Substantial evidence
Cases that cite this headnote
Although the jury is the trier of fact, a
conviction of guilt must be reversed on appeal if
it is not supported by competent, substantial
evidence.
[11]
[14]
6 Cases that cite this headnote
The corpus delicti of murder can be proven
circumstantially, even without any evidence of
the discovery of the victim’s body.
Homicide
Infanticide cases
1 Cases that cite this headnote
Circumstantial evidence was sufficient to show
that child victim was dead and that defendant
killed her, as required to establish corpus delicti
for murder, despite evidence that child’s body
was never found; child was last seen alive in
defendant’s presence at mother’s home, child’s
blood was found on defendant’s boxer shorts
and on toilet tissue and toilet seat in defendant’s
bathroom, scratch marks consistent with child’s
fingernails were found on defendant, and
defendant bleached and scrubbed bathroom for
several hours on night child disappeared.
[15]
Cases that cite this headnote
Sentencing and Punishment
Scope of review
In capital cases, the Supreme Court
independently assesses the sufficiency of the
evidence to determine if it is legally sufficient.
[16]
Homicide
Form and requisites in general
A general guilty verdict rendered by a jury
instructed on both first-degree murder with
premeditation or felony murder alternatives may
be upheld on appeal where the evidence is
sufficient to establish either felony murder or
premeditation.
1 Cases that cite this headnote
[13]
Homicide
Intent or mens rea
Evidence was sufficient to show that defendant
kidnapped seven-year-old child with intent to
inflict great bodily harm, as required to support
conviction for first degree felony murder based
on kidnapping; child’s mother last saw child
asleep in mother’s bed next to defendant, mother
never gave defendant permission to take child,
child’s blood was discovered on defendant’s
boxer shorts, mixture of defendant’s and child’s
blood was found in defendant’s bathroom, and
scratches on defendant’s arm were consistent
with child’s fingernails.
3 Cases that cite this headnote
[12]
Homicide
Sufficiency of circumstantial evidence
Homicide
Corpus delicti
25 Cases that cite this headnote
The corpus delicti for murder consists of the
victim’s death via the criminal agency of
another.
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 092
3
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
[17]
prior felony convictions for sexual battery and
aggravated child abuse involving children
between ages of seven and nine, assaults were
repetitive and occurred over extended period of
time, and defendant had threatened children with
bodily harm or death if they revealed abuse to
anyone.
Kidnapping
Weight and sufficiency
Evidence that traces of child victim’s blood was
found on toilet tissue and on toilet seat of
defendant’s bathroom, that her blood was found
on defendant’s shorts, that luminol test indicated
that defendant had cleaned bathroom with
bleach around time child disappeared, and that
defendant’s truck was left running outside
mother’s trailer and that he exhibited unusual
behavior morning after child disappeared,
without more, was insufficient to show that
defendant kidnapped child from mother’s home
with intent to facilitate homicide; blood
evidence did not establish what caused child to
bleed, how much she bled, or where she was
killed, it was impossible to tell from luminol test
how much “glow” was attributable to blood and
how much was attributable to bleach, and
evidence regarding defendant’s behavior
evinced only plan to remove child from
mother’s presence and did not support inference
of intent to kill child. West’s F.S.A. §
787.01(1)(a) 2.
Cases that cite this headnote
[20]
The Supreme Court has an independent duty to
perform a proportionality review of all death
sentences.
Cases that cite this headnote
[21]
1 Cases that cite this headnote
[18]
[19]
Sentencing and Punishment
Proportionality
Sentencing and Punishment
Proportionality
False imprisonment does not require specific
intent. West’s F.S.A. § 787.02.
Proportionality review of a death sentence is not
a comparison between the number of
aggravating and mitigating circumstances;
rather, it requires the Supreme Court to consider
the totality of the circumstances in each case,
and to compare these circumstances with other
capital cases to determine whether death is
warranted.
Cases that cite this headnote
1 Cases that cite this headnote
False Imprisonment
Offenses
[22]
Sentencing and Punishment
Proportionality in general
Sentencing and Punishment
Nature, degree, or seriousness of other
offense
Sentencing and Punishment
Harmless and reversible error
Any error in finding of aggravating factor that
child’s murder was committed in course of
kidnapping, in light of reduction of conviction
for kidnapping to lesser offense of false
imprisonment, was harmless, in sentencing for
capital murder, in view of finding of other
aggravating factors that defendant had prior
convictions for violent felony offenses, and that
Death sentence was proportional to murder of
seven-year-old child; death sentences were
imposed in other similar cases involving murder
of children under age twelve, defendant had
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 093
4
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
Willie Seth Crain, a then fifty-two-year-old Hillsborough
County fisherman and crabber, was charged with the
September 1998 kidnapping and first-degree murder of
seven-year-old Amanda Brown. At the time, Amanda was
three feet, ten inches tall and weighed approximately
forty-five pounds.
victim was under age of twelve.
Cases that cite this headnote
[23]
*63 The evidence introduced at trial establishes that on
September 9, 1998, Crain’s daughter, Cynthia Gay,
introduced Crain to Amanda’s mother, Kathryn Hartman,
at a bar in Hillsborough County. Crain and Hartman
danced and talked for four hours, until 1:30 or 2:00 in the
morning, then went to Hartman’s residence, a trailer
located in Hillsborough County, where they remained for
approximately thirty minutes. Amanda was spending the
night with her father and was not present. However, two
photographs of Amanda and some of her toys were visible
in the trailer. Before Crain left, Hartman made it clear to
Crain that she wanted to see him again.
Jury
Death penalty
Defendant was not entitled to relief from death
sentence imposed for capital murder of
seven-year-old child based on claim that capital
sentencing scheme violated Ring/Apprendi;
defendant had prior convictions for violent
felonies, and jury’s vote for death sentence was
unanimous.
7 Cases that cite this headnote
Attorneys and Law Firms
*62 James Marion Moorman, Public Defender and Paul
C. Helm, Assistant Public Defender, Tenth Judicial
Circuit, Bartow, FL, for Appellant.
Charles J. Crist, Jr., Attorney General and Scott A.
Browne, Assistant Attorney General, Tampa, FL, for
Appellee.
Opinion
PER CURIAM.
This is a direct appeal of convictions of first-degree
murder and kidnapping and a sentence of death. We have
jurisdiction.1 For the reasons that follow, we conclude that
the State presented legally sufficient evidence of
first-degree felony murder based on kidnapping with
intent to inflict bodily harm, and therefore affirm the
murder conviction and the sentence of death.
I. FACTS AND PROCEDURAL HISTORY
The next afternoon, September 10, 1998, Crain returned
to Hartman’s trailer. Hartman testified that Crain smelled
of alcohol and carried a cup with a yellow liquid in it.
Amanda was present. Crain began talking to Amanda
about her homework. He pulled some money out and told
Amanda that if she got her homework right, he would
give her a dollar. He eventually gave her two dollars.
Crain and Amanda sat at the kitchen table playing games
and working on her homework. At some point during the
afternoon, Crain became aware that Amanda had a loose
tooth. After wiggling the tooth, Crain offered Amanda
five dollars to let him pull the tooth out, but she refused.
Hartman testified that the tooth was not ready to be pulled
out. Crain remained at Hartman’s residence for
approximately one hour. Before he left early in the
afternoon, Crain accepted Hartman’s invitation to return
for dinner that evening.
Crain returned to Hartman’s trailer shortly after 7 p.m.
Crain still smelled of alcohol and carried the same or a
similar plastic cup with a colored liquid. After dinner,
Hartman and Crain played more games with Amanda. At
some point, Crain mentioned that he had a large videotape
collection and invited Hartman and Amanda to his trailer
to watch a movie. Amanda asked if he had “Titanic,”
which she stated was her favorite movie. Crain stated that
he did have “Titanic” and Amanda pleaded with her
mother to allow them to watch the movie. Hartman was
initially reluctant because it was a school night, but she
finally agreed. Crain drove Hartman and Amanda
approximately one mile to his trailer in his white pickup
truck.
They began watching the movie in Crain’s living room
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 094
5
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
but were interrupted by a telephone call from Crain’s
sister. Crain said he did not get along with his sister and
asked Hartman to speak to her. At the conclusion of a
twenty- to twenty-five-minute phone conversation with
Crain’s sister, Hartman found the living room
unoccupied. Hartman opened a closed door at the rear of
the trailer without knocking, and found Amanda and
Crain sitting on the bed in Crain’s bedroom, watching the
movie “Titanic.” Both were dressed and Amanda was
sitting between Crain’s sprawled legs with her back to
Crain’s front. Crain’s arms were around Amanda and he
appeared to Hartman to be showing Amanda how to work
the remote control. Hartman testified that although she
was not overly concerned about what she observed at that
time, she nevertheless picked Amanda up and sat Amanda
beside her on the bed. Crain, Hartman, and Amanda then
watched the movie together in Crain’s bedroom. Crain
testified at trial that they watched the movie in his
bedroom because it was the only air-conditioned room in
the trailer.
At some point in the evening, Amanda and Hartman used
Crain’s bathroom together. While they were in the
bathroom, Hartman did not notice Amanda bleeding from
any location that Hartman could observe. *64 Hartman
did notice a blue cover on the back of the toilet seat.
Amanda did not use the bathroom at any other time that
evening.
At another point in the evening, Hartman asked Crain if
he had any medication for pain. Crain offered her Elavil
and Valium. He also offered her some marijuana, which
she declined. Crain told Hartman that the Elavil would
“really knock the pain out” and would make her sleep for
a long time. Hartman elected to take five, five-milligram
Valium tablets.2 Crain took one Valium tablet.
Eventually, Hartman decided that it was time to leave.
Crain drove Hartman and Amanda back to their residence
and accompanied them inside. Amanda took a shower.
While checking on Amanda during the shower and
helping her dry off and get ready for bed, Hartman did not
notice any sores or cuts on Amanda’s body. According to
Hartman, Crain suggested that Amanda should not go to
sleep with wet hair, so Crain blow-dried Amanda’s hair in
Hartman’s bathroom without Hartman present. According
to Hartman, when Amanda went to sleep in Hartman’s
bed around 2:15 a.m., the loose tooth was still in place
and it was not bleeding.
According to Hartman, she told Crain, who appeared to
be intoxicated at that time, that he could lie down to sober
up but she was going to bed. The time was approximately
2:30 a.m. Within five minutes of Hartman going to bed,
Crain entered Hartman’s bedroom and lay down on the
bed with Hartman and Amanda. Hartman testified that she
neither invited Crain to lie in her bed nor asked him to
leave. Crain was fully clothed and Amanda was wearing a
nightgown. Amanda was lying between Hartman and
Crain.
Penny Probst, a neighbor of Hartman, testified that at
approximately 12 midnight on September 10–11, 1998,
she saw a white truck parked immediately behind
Hartman’s car in Hartman’s driveway. In the early
morning hours of September 11, Probst observed the
truck parked at the side of Hartman’s residence with the
lights on and the engine running.3 Probst heard the truck
leave after about five minutes.
Hartman slept soundly through the night. When she
awoke in her bed alone the next morning, she discovered
that Amanda was missing. Hartman testified her alarm
clock read 6:12 a.m. when she awoke. Hartman
immediately called Crain on his cell phone. At that time,
he was at the Courtney Campbell boat ramp in
Hillsborough County loading his boat. He told Hartman
that he did not know where Amanda was. Hartman then
called the police and reported Amanda’s disappearance.
At trial, the State presented the testimony of fisherman
Albert Darlington, who witnessed Crain towing his boat
into the Courtney Campbell loading area at approximately
6:15 a.m. on September 11, 1998. Darlington testified that
Crain pulled up to the boat ramp and backed his boat
trailer and truck into the water until the truck’s front tires
were halfway submerged. Crain then got out of his truck
*65 and boarded his boat wearing what appeared to be a
two-tone maroon shirt and dark slacks, and carrying what
appeared to be a rolled-up item of clothing. Crain
unhooked his boat and launched it in an overall “odd”
manner. Darlington further testified that in the eighteen
months prior to Amanda’s disappearance, on two
occasions Crain told Darlington that Crain had the ability
to get rid of a body where no one could find it.4
At around 8:30 a.m. on September 11, Detective Mike
Hurley located Crain in his boat in Upper Tampa Bay.
Crain was dressed in “slickers” (rubber pants fisherman
wear over their clothes), a blue t-shirt, and loafers. Crain
and Hurley returned to the boat ramp in Crain’s boat. On
the ride back, Hurley noticed a small scratch on Crain’s
upper arm. At the boat ramp, Crain removed his slickers,
revealing jeans with the zipper down. Hurley took Crain
to the police station for questioning. Crain was
cooperative but denied having anything to do with
Amanda’s disappearance.
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 095
6
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
At the police station, Detective Al Bracket interviewed
Crain. Crain told Bracket that he left Hartman’s house
alone at about 1:30 in the morning,5 went home and
accidentally spilled bleach in his own bathroom. Crain
claimed that he did not like the smell of bleach, so he
spent four hours cleaning his bathroom from about 1:30 to
5:30 in the morning. Later in the same interview, Crain
said he cleaned his bathroom with bleach, as was his
custom, then cleaned the rest of the house until 5:30 a.m.,
at which time he left to go crabbing.6
During the questioning, Bracket noticed multiple
scratches on Crain’s arms and asked Crain how he got
them. Crain claimed that he received the scratches while
crabbing, but became defensive when Bracket asked him
to demonstrate how the scratches were inflicted.
Photographs of Crain’s body were taken on the morning
of September 11, 1998. A forensic pathologist testified at
trial that the scratches on Crain’s arms probably occurred
within a few hours to a day before the photos were taken.
Although the pathologist could not identify the source of
the scratches with certainty, he testified that all but two of
the scratches were more likely to be caused by the
fingernails of a seven-year-old child than by another
cause. The pathologist also testified that there was one
cluster of small gouges on Crain’s arm, and it was more
likely that these gouges were caused by the small
grasping hand of a child of about seven years of age than
by another cause.
During a search of Crain’s residence, Bracket noticed the
strong smell of bleach and recovered an empty bleach
bottle. Bracket testified that there were obvious signs of
grime and dirt around the edges of the bathroom sink. A
blue fitted rug that would go around the base of the toilet
was found in Crain’s dryer. Another detective applied
Luminol, a chemical that reacts both with blood and with
bleach, to Crain’s bathroom. The detective testified that
the floor, the bathtub, and the walls “lit up.”
Bracket also recovered two pieces of toilet tissue from the
inside rim of Crain’s *66 toilet and observed what
appeared to be a small blood stain on the seat of the toilet.
The tissue pieces, the toilet seat, and the boxer shorts that
Crain was wearing on the morning of September 11, 1998
were collected and analyzed for DNA evidence. A
forensic scientist for the Florida Department of Law
Enforcement (FDLE) testified at trial that two blood
stains were found on the toilet seat, one blood stain was
found on one of the pieces of toilet tissue,7 and one blood
stain was found on the boxer shorts. The FDLE forensic
scientist testified that the blood stain on the boxer shorts
and one of the stains from the toilet seat contained DNA
consistent with the DNA extracted from personal items
belonging to Amanda Brown. The second stain on the
toilet seat and the stain on the tissue contained DNA
consistent with a mixture of the DNA profiles of Amanda
and Crain. Testimony established that the probability of
finding a random match between the DNA profile on the
boxer shorts and Amanda’s known DNA profile is
approximately 1 in 388 million for the Caucasian
population.
Detective Hurley supervised an extensive, two-week
search for Amanda in Upper Tampa Bay, the land
surrounding Upper Tampa Bay (including the Courtney
Campbell Causeway), and the land area surrounding the
Crain and Hartman residences. Amanda’s body was never
found. The maroon shirt and dark pants that Darlington
saw Crain wearing on the morning of September 11,
1998, also were never recovered.
At trial, the State introduced the testimony of Linda
Miller, Maryann Lee, and Frank Stem. Miller and Lee,
who were neighbors of Crain’s daughter, Gay, testified
about a conversation with Crain that occurred at Gay’s
home on the first Saturday after Amanda’s disappearance.
Miller and Lee both testified that Miller said to Crain,
“Don’t worry, you don’t have anything to worry about,”
and “Just remember, you didn’t do anything, you didn’t
hurt that little girl.” According to the testimony of Miller
and Lee, Crain responded, “Yes, I did do it; yes, you’re
right, I didn’t hurt her, I didn’t do anything.” Gay testified
that Crain said, stuttering, “yes, I did ... did ... didn’t do it;
yes, you’re right, I didn’t hurt her.”
Frank Stem, Crain’s friend and in-law,8 testified that
about one month prior to Amanda’s disappearance, Stem
helped Crain lay crab traps in a “special” location. At that
time, Crain told Stem that other crabbers would steal the
crab traps if they knew of the spot. After Amanda
disappeared and during a conversation regarding
competing crabbers finding his crab traps, Crain told
Stem that if Stem revealed the location of the traps “that it
could bury him,” meaning Crain, or that Stem had enough
“evidence to bury him.”
At the conclusion of the State’s case, Crain moved for
judgments of acquittal of first-degree murder and
kidnapping based on the insufficiency of the evidence.
The trial court denied Crain’s motion. Crain then testified
in his defense and denied that he was involved in
Amanda’s death. He stated that he last saw Amanda while
she lay sleeping in her mother’s bed in the early morning
hours of September 11, 1998.
*67 On the first-degree murder charge in count I, the trial
court instructed the jury on the dual theories of
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 096
7
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
premeditated murder and felony murder based on
kidnapping “with intent to commit or facilitate the
commission of homicide or to inflict bodily harm upon
the victim.” On the kidnapping charge in count II, the
court instructed the jury that the State had to prove that
Crain acted “with intent to commit or facilitate the
commission of a homicide.” The jury found Crain guilty
of first-degree murder on a general verdict form. The jury
also found Crain guilty of kidnapping as charged. In the
penalty phase, the jury unanimously recommended the
death sentence. The trial court found three aggravators:
(1) prior violent felonies (great weight), (2) the murder
was committed during the course of a kidnapping (great
weight), and (3) the victim was under the age of twelve
(great weight). The court found no statutory mitigators
and eight nonstatutory mitigators,9 and imposed the death
sentence.
(1)(a) The term “kidnapping” means forcibly, secretly,
or by threat confining, abducting, or imprisoning
another person against her or his will and without
lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or
another person.
*68 4. Interfere with the performance of any
governmental or political function.
The trial court instructed the jury on first-degree felony
murder in count I as follows:
Before you can find the defendant guilty of First
Degree Felony Murder, the State must prove the
following three elements beyond a reasonable doubt:
Crain raises five issues on appeal: (1) the evidence was
insufficient to establish that the murder of Amanda was
premeditated; (2) the evidence was insufficient to
establish an essential element of kidnapping, that Amanda
was abducted with the intent to commit or facilitate
commission of a homicide; (3) the trial court committed
fundamental error by giving different jury instructions in
the felony murder and kidnapping counts as to the
elements of kidnapping; (4) the kidnapping conviction
relied on by the State for an aggravating circumstance
was not supported by the evidence; and (5) Florida’s
death penalty scheme is unconstitutional.
We address those issues that are necessary to our
resolution of this case. Because our analysis regarding the
sufficiency of the evidence to sustain Crain’s conviction
is dependent upon our determination of whether the
felony murder jury instruction constituted fundamental
error, we discuss that issue first.
One, that Amanda Victoria Brown is dead; two, that the
death occurred as a consequence of and while Willie
Seth Crain was engaged in the commission of
Kidnapping; three, that Willie Seth Crain was the
person who actually killed Amanda Victoria Brown.
“Kidnapping” is the forcible or secret confinement,
abduction or imprisonment of another, against that
person’s will and without lawful authority.
The Kidnapping must be done with the intent to commit
or facilitate the commission of homicide or to inflict
bodily harm upon the victim.
(Emphasis added.) On the separate kidnapping charge in
count II, the court gave the following instruction:
Before you can find the defendant guilty of
Kidnapping, the State must prove the following three
elements beyond a reasonable doubt:
One, that Willie Seth Crain forcibly, secretly or by
threat confined, abducted or imprisoned Amanda
Victoria Brown, a child under the age of 13 years,
against her will; two, that Willie Seth Crain had no
lawful authority; three, that Willie Seth Crain acted
with the intent to commit or facilitate the commission
of homicide.
II. FELONY MURDER JURY INSTRUCTION
The indictment on which Crain was tried and convicted
charged him in count I with the premeditated murder of
Amanda Brown between September 10 and 11, 1998.
Count II of the indictment charged Crain with kidnapping
Amanda on the same dates “with the intent to commit or
facilitate the commission of a felony, to wit, homicide” in
violation of section 787.01(1)(a)(2), Florida Statutes
(1997). The kidnapping statute found in section 787.01,
Florida Statutes (1997), defines the offense in pertinent
part as follows:
[1]
(Emphasis added.) Thus, while the trial court instructed
the jury only on the intent to commit or facilitate the
commission of homicide under section 787.01(1)(a)(2) as
to the kidnapping charge in count II, the trial court
instructed the jury that it could find Crain guilty of felony
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 097
8
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
murder based on kidnapping in count I if it found that he
abducted Amanda with either the intent to commit or
facilitate the commission of homicide or the intent to
inflict bodily harm upon her under section
787.01(1)(a)(3).
Crain argues that because kidnapping with intent to
commit homicide was the kidnapping specifically charged
in count II of the indictment, the trial court erred in
instructing the jury on kidnapping with intent to inflict
bodily harm as an alternate method of establishing felony
murder based on kidnapping. The State asserts that the
trial court did not commit reversible error in instructing
the jury on the latter element under an indictment
charging premeditated murder. On the facts of this case,
we agree.
Although Crain asserts on appeal that this instruction
was in error, his trial counsel did not object to the
instruction when presented with a packet of corrected jury
instructions before closing arguments in the guilt phase of
the case. With regard to claims of error pertaining to jury
instructions, we have held that “[i]ssues pertaining to jury
instructions are not preserved for appellate review unless
a specific objection has been voiced at trial.” Overton v.
State, 801 So.2d 877, 901 (Fla.2001); see also Urbin v.
State, 714 So.2d 411, 418 n. 8 (Fla.1998). Because this
issue was not preserved by an objection, Crain argues that
the felony murder instruction constitutes fundamental
error. When constitutional rights are implicated, we have
considered issues for the first time on appeal as
fundamental error where the error “goes to the foundation
of the case or the merits of the cause of action and is
equivalent to a denial of due process.” J.B. v. State, 705
So.2d 1376, 1378 (Fla.1998).
[2]
*69 [3] To determine whether the felony murder
instruction based on kidnapping with intent to inflict
bodily harm constitutes fundamental error, we must
consider two lines of precedent. First, due process
prohibits a defendant from being convicted of a crime not
charged in the information or indictment. See Aaron v.
State, 284 So.2d 673, 677 (Fla.1973) (“The right of
persons accused of serious offenses to know, before trial,
the specific nature and detail of crimes they are charged
with committing is a basic right guaranteed by our
Federal and State Constitutions.”); Long v. State, 92 So.2d
259, 260 (Fla.1957) (“[W]here an offense may be
committed in various ways, the evidence must establish it
to have been committed in the manner charged in the
indictment.”); Lewis v. State, 53 So.2d 707, 708
(Fla.1951) (“No principle of criminal law is better settled
than that the State must prove the allegations set up in the
information or the indictment.”). Consistent with this
principle, the Third District Court of Appeal has held that
a kidnapping conviction cannot be sustained on evidence
of an intent element not charged in the indictment. See
Mills v. State, 407 So.2d 218 (Fla. 3d DCA 1981).
The significance of the intent element flows from the
status of kidnapping as a specific intent crime. See Sochor
v. State, 619 So.2d 285, 290 (Fla.1993). Modern, statutory
kidnapping as codified in section 787.01, Florida Statutes,
differs from its lesser included offense of false
imprisonment in its requirement of proof by the State of
one of the four intent elements set out in the statute. See
Sean v. State, 775 So.2d 343, 344 (Fla. 2d DCA 2000). As
stated in Keith v. State, 120 Fla. 847, 163 So. 136 (1935),
the “gist of the offense” is the felonious act of a
confinement or abduction with a specific intent. Id. at
138–39.
[4] [5]
On the other hand, it is well settled that if an
indictment charges premeditated murder, the State need
not charge felony murder or the particular underlying
felony to receive a felony murder instruction. See Woodel
v. State, 804 So.2d 316, 322 (Fla.2001); Gudinas v. State,
693 So.2d 953, 964 (Fla.1997); Kearse v. State, 662 So.2d
677, 682 (Fla.1995). We have held that in felony murder
situations the notice required by due process of law and
supplied by the charging document as to other offenses is
provided instead by our State’s reciprocal discovery rules
and by the enumeration in section 782.04(1)(a)(2), Florida
Statutes (2003), of the felonies on which the State may
rely to establish first-degree felony murder. See Kearse,
662 So.2d at 682; see also O’Callaghan v. State, 429
So.2d 691, 695 (Fla.1983). As long as the definition of the
underlying felony provided to the jury is sufficiently
definite to assure the defendant a fair trial, “[i]t is not
necessary ... to instruct on the elements of the underlying
felony with the same particularity as would be required if
the defendant were charged with the underlying felony.”
Brumbley v. State, 453 So.2d 381, 386 (Fla.1984); see
also Gudinas, 693 So.2d at 964 (“We have repeatedly
rejected claims that it is error for a trial court to allow the
State to pursue a felony murder theory when the
indictment gave no notice of the theory.”).
[6] [7]
In this case, the State relied on kidnapping to support the
felony murder theory of first-degree murder and also
charged kidnapping in a separate count of the indictment.
However, the instruction on the offense of kidnapping
relied upon for felony murder and the instruction on the
separate count of kidnapping do not correspond. In the
absence of an objection to these divergent instructions,
the question becomes whether it was fundamental error
for the trial court to give an instruction on *70 the
kidnapping underlying felony murder in count I different
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 098
9
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
from the instruction given on kidnapping as charged in
count II. We resolve this issue by examining the rationale
behind case law allowing instruction on felony murder
based on an indictment charging premeditated murder, by
looking to the instruction given to Crain’s jury on the
relationship between the two counts, and finally by
looking for any indications in the record that Crain was
surprised or prejudiced by the divergent instructions.
First, as we have previously explained, the State need not
charge felony murder in a first-degree murder indictment.
Second, separate treatment of felony murder and the
underlying felony comports with the standard jury
instructions which were given in this case:
unfair surprise, failure of notice, or denial of due process
as to the felony murder instruction on kidnapping. In light
of these considerations, we conclude that the trial court
did not commit fundamental error in instructing the jury
on “intent to inflict bodily harm” as an alternative to
“intent to commit homicide” in defining the underlying
felony of kidnapping. *71 11 In light of this conclusion, we
next determine whether the evidence is sufficient to
sustain Crain’s convictions.
III. SUFFICIENCY OF EVIDENCE
A separate crime is charged in each count of the
indictment and while they’ve been tried together, each
crime and the evidence applicable to it, must be
considered separately and a separate verdict returned as
to each.
A verdict of guilty or not guilty as to one crime, must
not affect your verdict as to the other crime charged.
The jury did not request clarification of the felony murder
or kidnapping instructions. Accordingly, we assume that
the jury understood and properly applied the instructions,
and independently assessed Crain’s guilt on each count.
See Burnette v. State, 157 So.2d 65, 70 (Fla.1963) (stating
that an appellate court must assume that a juror, if
properly instructed, will comply with the obligations of
the oath and render a true verdict according to the law and
the evidence); see also Sutton v. State, 718 So.2d 215, 216
& 216 n. 1 (Fla. 1st DCA 1998), and cases cited therein,
(“applying the well-established presumption that juries
follow trial court instructions”).
A. Applicable Law
[8] [9]
In cases in which the evidence of guilt is wholly
circumstantial, it is the trial judge’s task to review the
evidence in the light most favorable to the State to
determine the presence of competent evidence from
which the jury could infer guilt to the exclusion of all
other inferences. See State v. Law, 559 So.2d 187, 189
(Fla.1989). A reviewing court must assess the record
evidence for its sufficiency only, not its weight. We
explained in Tibbs v. State, 397 So.2d 1120 (Fla.1981),
aff’d, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652
(1982):
Third, we note that Crain’s argument on appeal that the
indictment gave him constitutionally insufficient notice of
felony murder resting on kidnapping with intent to inflict
bodily harm is not compelling on these facts. The record
contains no indication that Crain was surprised or
otherwise prejudiced at trial by the felony murder
instruction. The proposed jury instructions provided to
Crain’s attorney included the alternative of intent to inflict
bodily harm as an element of felony murder based on
kidnapping. Not only did defense counsel fail to object or
otherwise claim surprise, but Crain’s attorney specifically
referred to the wording of the felony murder instruction in
his closing argument.10 Moreover, Crain’s defense at trial
in this case was that he was in no way responsible for the
disappearance and death of Amanda, not that he lacked
the requisite intent.
On this record, we cannot conclude that there was any
The weight and the sufficiency of evidence are, in
theory, two distinct concepts most often relevant at the
trial court level. Sufficiency is a test of adequacy.
Sufficient evidence is “such evidence, in character,
weight, or amount, as will legally justify the judicial or
official action demanded.” In criminal law, a finding
that the evidence is legally insufficient means that the
prosecution has failed to prove the defendant’s guilt
beyond a reasonable doubt. Weight, at least in theory,
is a somewhat more subjective concept. The “weight of
the evidence” is the “balance or preponderance of
evidence.” It is a determination of the trier of fact that a
greater amount of credible evidence supports one side
of an issue or cause than the other.
As a general proposition, an appellate court should not
retry a case or reweigh conflicting evidence submitted
to a jury or other trier of fact. Rather, the concern on
appeal must be whether, after all conflicts in the
evidence and all reasonable inferences therefrom have
been resolved in favor of the verdict on appeal, there is
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 099
10
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
substantial, competent evidence to support the verdict
and judgment. Legal sufficiency alone, as opposed to
evidentiary weight, is the appropriate concern of an
appellate tribunal.
Id. at 1123 (citations and footnotes omitted) (quoting
Black’s Law Dictionary 1285, 1429 (5th ed.1979)).
Although the jury is the trier of fact, a conviction of
guilt must be reversed on appeal if it is not supported by
competent, substantial evidence. See Long v. State, 689
So.2d 1055, 1058 (Fla.1997). In this regard, we have
explained:
[10]
A judgment of conviction comes to
this Court with a presumption of
correctness and a defendant’s claim
of insufficiency of the evidence
cannot prevail where there is
substantial competent evidence to
support the verdict and judgment.
The fact that the evidence is
contradictory does not warrant a
judgment of acquittal since the
weight of the evidence and the
witnesses’ credibility are questions
solely for the jury. It is not this
Court’s function to retry a case or
reweigh
conflicting
evidence
submitted to the trier of fact.
Donaldson v. State, 722 So.2d 177, 182 (Fla.1998)
(quotation marks and citations omitted).
The State acknowledges that the evidence of intent in this
case is entirely circumstantial. In Law, this Court
reiterated the standard of review in circumstantial
evidence cases: “Where the only proof of guilt is
circumstantial, no matter how strongly the evidence may
suggest guilt, a conviction cannot be sustained unless the
*72 evidence is inconsistent with any reasonable
hypothesis of innocence.” 559 So.2d at 188 (citing
McArthur v. State, 351 So.2d 972 (Fla.1977), and Mayo v.
State, 71 So.2d 899 (Fla.1954)).
B. Corpus Delicti
Crain assumes for the purposes of argument that
there is sufficient evidence to support the jury conclusion
that Amanda is dead and that he killed her.12 However, in
capital cases, this Court independently assesses the
sufficiency of the evidence to determine if it is legally
sufficient. See Mansfield v. State, 758 So.2d 636, 649
(Fla.2000). Thus, we must determine whether there was
sufficient evidence to establish that the alleged victim is
dead and that the defendant killed her.
[11] [12]
Despite the inability of authorities to find the
victim’s body, there is competent, substantial evidence,
inconsistent with any reasonable hypothesis of innocence,
to establish that Amanda is dead and that Crain killed her,
establishing two of the three essential elements of
first-degree murder. See Fla. Std. Jury Instr. (Crim.) 7.2.
These elements subsume the corpus delicti for murder,
which consists of the victim’s death via the criminal
agency of another. See Meyers v. State, 704 So.2d 1368,
1369 (Fla.1997). The corpus delicti of murder can be
proven circumstantially, even without any evidence of the
discovery of the victim’s body. See id.; see also Bassett v.
State, 449 So.2d 803, 807 (Fla.1984). In this case, the
extraordinary unlikelihood that a seven-year-old child
would voluntarily disappear from her sleeping mother’s
side in the middle of the night and remain alive but never
be seen or heard from again is strong circumstantial
evidence of her death. See Epperly v. Commonwealth, 224
Va. 214, 294 S.E.2d 882 (1982) (establishing corpus
delicti based on evidence of eighteen-year-old victim’s
character, traits, habits, and relationships, which negated
theories of suicide, natural death, accidental death,
justifiable, or excusable homicide, or continuing life in
absentia).
[13] [14]
In addition to the abrupt and permanent disappearance of
a young child supporting the inference that Amanda is
dead, there is also evidence that Amanda was last seen
alive in the presence of Crain, that Amanda’s blood was
found on Crain’s boxer shorts, and that scratch marks
consistent with a young girl’s fingernails were found on
Crain’s body. Finally, although not independently
determinative, we note that Crain’s oddly targeted
bleaching of his bathroom in the middle of the night along
with his unusual behavior the next morning support a
conclusion that Crain’s actions with Amanda the previous
evening were unlawful and resulted in her death. Thus,
we conclude that the totality of these circumstances
constitutes substantial, competent evidence from which
the jury could reasonably have excluded all inferences
other than that Amanda is dead and that Crain killed her.
Cf. Meyers, 704 So.2d at 1370 (concluding that the State
presented sufficient circumstantial evidence of corpus
delicti
in
case
involving
disappearance
of
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 100
11
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
fourteen-year-old victim, and evidence of injuries to
defendant including fingernail scratches).13
*73 C. First–Degree Murder
The jury found Crain guilty of first-degree murder
on a general verdict form that did not specify whether the
verdict was based on premeditated or felony murder. A
general guilty verdict rendered by a jury instructed on
both first-degree murder alternatives may be upheld on
appeal where the evidence is sufficient to establish either
felony murder or premeditation. See Jones v. State, 748
So.2d 1012, 1024 (Fla.1999); Mungin v. State, 689 So.2d
1026, 1029–30 (Fla.1995). We conclude that the evidence
is sufficient to establish first-degree felony murder based
on kidnapping with the intent to inflict bodily harm.
[15] [16]
Crain, a fifty-two-year-old man who met Amanda at her
mother’s house on the day before she disappeared,
showed an immediate interest in the child. Crain played
games with Amanda and gave her money for her
homework, drew with her, and told her about his
collection of movies. This initial, apparently benign
conduct led to several instances of closer contact,
including Crain and Amanda disappearing into his
bedroom to watch “Titanic,” Hartman subsequently
discovering Amanda sitting between Crain’s legs, and
Crain insisting on blow-drying Amanda’s hair. Perhaps
most significantly, the last time Hartman saw Amanda,
she was sleeping next to Crain in Hartman’s bed.
Although Hartman did not prevent any of these close
contacts, it is reasonable for the jury to have inferred from
the evidence of Crain’s conduct that Crain had taken steps
to ingratiate himself to Amanda.
In addition, the evidence showed that on the night of
Amanda’s disappearance, a witness living near Amanda’s
trailer saw a vehicle that matched the description of
Crain’s truck with its lights on and engine running for
approximately five minutes before she heard the truck
being driven away. From the evidence of Crain’s interest
in Amanda, the fact that he was present when Amanda
was last seen asleep in her mother’s bed, Hartman’s
testimony that she slept through the night, and the
neighbor’s observations of Crain’s truck, the jury could
reasonably have inferred to the exclusion of all other
hypotheses that Crain took Amanda from the trailer
without the consent of her mother. This conduct
establishes an unlawful confinement under the kidnapping
statute. See § 787.01(1)(b) (“Confinement of a child under
the age of 13 is against her or his will within the meaning
of [kidnapping] if such confinement is without the
consent of her or his parent or legal guardian.”).
However, as noted above, in order to establish a
kidnapping the State must also prove that the unlawful
confinement occurred with a specific intent. In this regard
we note that the Second District Court of Appeal has
affirmed a conviction of attempted kidnapping with intent
to inflict bodily harm or terrorize the victim in reliance on
evidence similar to that in this case, specifically that the
defendant took a young, sleeping child from his bed in the
middle of the night. See Sean, 775 So.2d at 344. Here, in
addition to circumstances similar to Sean, the State also
presented evidence that blood consistent with Amanda’s
DNA was found on Crain’s boxer shorts and taken from
the toilet tissue found in Crain’s toilet bowl. Further,
multiple scratches and one cluster of gouges were
observed and photographed on Crain’s arms. All but two
of the scratches were more likely to have been caused by
the fingernails of a seven-year-old child than by any other
cause. The *74 cluster of small gouges was more likely to
have been caused by a small grasping hand consistent
with that of a seven-year-old child than by another cause.
Based on this evidence, we conclude that the State
presented legally sufficient evidence of a kidnapping with
the intent to inflict bodily harm. The DNA blood evidence
linked to Amanda that was found on Crain’s boxer shorts
tends to establish that Amanda bled while Crain was
wearing his boxer shorts. Moreover, the DNA evidence
indicating a mixture of blood from Crain and Amanda
found on the toilet seat and tissue in Crain’s bathroom
establishes that Amanda and Crain both bled at some
point during the kidnapping. When considered in light of
the DNA evidence, the scratch and gouge marks on
Crain’s arms are indicative of a struggle between Crain
and Amanda.14 We note that at the time of her death
Amanda was three feet ten inches tall and weighed
approximately forty-five pounds. Crain was a
fifty-two-year-old man of normal height and weight,15
engaged in a physically demanding profession. Combined
with the disparate height and weight, we conclude that the
evidence that a struggle occurred between Amanda and
Crain which resulted in both parties’ blood loss and
numerous scratches and gouges to Crain’s arms is a
compelling indication of Crain’s intent to inflict bodily
harm on Amanda.
Our conclusion in this case is consistent with a Virginia
Supreme Court decision on analogous facts. In Epperly,
the Supreme Court of Virginia considered whether, in the
absence of a body and a confession, the evidence was
sufficient to support a jury verdict of first-degree
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 101
12
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
premeditated murder. In that case, the defendant and the
victim met at a bar and went to a lake house that belonged
to a friend of the defendant. The victim’s sister reported
her missing the next evening. The police ultimately
arrested the defendant for her murder despite the fact that
the victim’s body was never found. In affirming the
defendant’s conviction for first-degree murder the
Virginia Supreme Court noted that a “spattering of tiny
droplets of blood through two rooms, the bloodstained
clothing, the broken ankle bracelet, the large bloodstain
on the carpet, and the disparity of size and strength
between [the victim] and the defendant are all
circumstances from which the jury could properly infer
that she was subjected to a savage beating, resulting in her
death.” Epperly, 294 S.E.2d at 892.
In this case, we determine that the circumstantial evidence
supports a verdict of first-degree murder based on felony
murder with the underlying felony being kidnapping with
intent to inflict bodily harm. The evidence of an
abduction, the drops of *75 blood, the DNA evidence, the
disparity of size and strength, and the evidence of a
struggle between Amanda and Crain are all circumstances
from which a jury could properly infer, to the exclusion of
any reasonable hypothesis of innocence, that Crain
abducted and intentionally harmed Amanda before her
death. The fact that we cannot pinpoint when the actual
bodily harm and subsequent killing occurred in relation to
the time Crain first kidnapped Amanda does not
undermine this conclusion. See Van Gotum v. State, 569
So.2d 773, 776 (Fla. 2d DCA 1990) (holding that the
continuing unlawful confinement and the intent to commit
grand theft existed simultaneously and involved the same
victim and established a confinement with the intent to
commit theft). It is sufficient if the State establishes that
the unlawful confinement and the specific intent at some
point existed simultaneously and involved the same
victim. See id.
Accordingly, we find sufficient evidence of a killing in
the course of a kidnapping with the intent to inflict bodily
harm.16 On this basis, we affirm the first-degree murder
conviction.
valid felony murder theories, the State cannot rely on the
unpled alternative of intent to inflict bodily harm as to this
count.
The State argues that the luminol evidence demonstrates
that a large amount of blood was spilled in the bathroom
and therefore establishes that the kidnapping was
committed with an intent to kill. The State’s argument on
this point invites this Court to stack inferences, which we
decline to do. As we stated in Miller v. State, 770 So.2d
1144, 1149 (Fla.2000), “the circumstantial evidence test
guards against basing a conviction on impermissibly
stacked inferences.”
The reaction to luminol in Crain’s bathroom may support
an inference that Crain was attempting to cover something
up rather than cleaning his bathroom in the middle of the
night. However, there is no evidence from which the jury
could have inferred that there was ever a substantial
quantity of blood indicative of a prolonged attack and,
therefore, a killing with premeditated intent. Although the
DNA blood evidence found on the tissue and the toilet
seat in Crain’s bathroom independently establishes that
Amanda’s blood was deposited in Crain’s bathroom, it
does not establish how much she bled, what caused her to
bleed, or where she was killed. Because of the presence of
bleach, it is impossible to tell how much of the luminol
“glow”—if any—was attributable to blood and how much
was attributable to bleach.
To support its theory that the murder was committed with
premeditation, the *76 State also relies on evidence that
Crain left his truck running outside Hartman’s trailer on
the night of Amanda’s disappearance, exhibited unusual
behavior the next morning, and attempted to conceal his
crime. These facts evince a plan to remove Amanda from
her mother’s residence and to eliminate all evidence of
her presence at his residence, but do not support an
inference that Crain’s intent at any specific point in time
was to kill her. See generally Norton v. State, 709 So.2d
87, 93 (Fla.1997) (“Efforts to conceal evidence of
premeditated murder are as likely to be as consistent with
efforts to avoid prosecution for any unlawful killing.”);
Hoefert v. State, 617 So.2d 1046, 1049 (Fla.1993); see
also Smith v. State, 568 So.2d 965, 968 (Fla. 1st DCA
1990).
The impossibility of better reconstructing the
circumstances of Amanda’s death leaves us unable to
conclude that the State presented legally sufficient
evidence of a specific intent to kill. Therefore, we
conclude that competent, substantial evidence does not
exist to support the jury verdict of kidnapping with intent
to commit homicide. Accordingly, pursuant to
[18]
D. Kidnapping
[17]
We next address whether the evidence is legally
sufficient to support the conviction of kidnapping with the
intent to commit a homicide as charged in count II of the
indictment. Unlike the murder charge, which subsumes all
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 102
13
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
924.34, Florida Statutes (1997),17 we reverse the judgment
of guilt of kidnapping and direct the trial court on remand
to enter judgment for false imprisonment, and to
resentence Crain accordingly.18
IV. PROPORTIONALITY OF DEATH SENTENCE
Although Crain does not raise the
proportionality of his death sentence as a separate issue
on appeal, this Court has an independent duty to perform
a proportionality review of all death sentences. See
Rimmer v. State, 825 So.2d 304, 331 (Fla.2002).
Proportionality review “is not a comparison between the
number of aggravating and mitigating circumstances.”
Terry v. State, 668 So.2d 954, 965 (Fla.1996) (quoting
Porter v. State, 564 So.2d 1060, 1064 (Fla.1990)). Rather,
our proportionality review requires us to consider the
totality of the circumstances in each case, and to compare
these circumstances with other capital cases to determine
whether death is warranted. See Rimmer, 825 So.2d at
331; Porter, 564 So.2d at 1064.
[19]
[20]
[21]
In this case, Crain’s death sentence was supported by
three aggravating factors found by the trial court: the
murder was committed during the commission of a felony
(kidnapping), the defendant was convicted of prior violent
felonies (sexual battery and aggravated child abuse), and
the victim was under the age of twelve. The trial court
rejected statutory mitigating *77 factors, and the
nonstatutory mitigation is far from compelling. First, the
trial court’s finding of nonstatutory mental health
impairment was based on the fact that Crain was a
pedophile and substance abuser. Second, as noted by the
State, the trial court’s finding that Crain had the capacity
to form loving relationships with his children was a
“charitable” finding as none of Crain’s children testified
during the penalty phase and the defense filed a motion in
limine prior to trial to prohibit the State from eliciting
testimony concerning Crain’s sexual abuse of his own
children. The trial court also found that Crain had an
abusive childhood, was deprived of educational benefits,
and had a good prison record.
In his fourth issue, Crain asserts that the trial court
erred in relying on the aggravator of murder in the course
of a felony under section 921.141(5)(d), Florida Statutes
(1997), because the evidence of the crime of kidnapping
is legally insufficient. Assuming without deciding that
Crain is correct in light of this Court’s reduction of the
separate kidnapping conviction to false imprisonment, we
[22]
conclude that any error in finding the “murder in the
course of a felony” aggravator is harmless beyond a
reasonable doubt. This case is analogous to Geralds v.
State, 674 So.2d 96, 104 (Fla.1996), in which this Court
concluded that the erroneous finding of the “cold,
calculated, or premeditated” aggravator was harmless
based on two valid aggravators—that the murder was
heinous, atrocious, or cruel, and that the murder was
committed during a robbery/burglary—three mitigators
that the trial court gave little weight, and a unanimous
death recommendation.
Moreover, we conclude that any error in finding the
aggravator of murder in the course of a felony does not
affect our proportionality review based on the weight of
the two remaining valid aggravators under the
circumstances of this case. In making this determination,
we remain mindful that proportionality review is not a
simple comparison of aggravators and mitigators, and we
look to other capital cases involving child victims under
twelve in which we have found death sentences
proportional. In Lukehart v. State, 776 So.2d 906
(Fla.2000), this Court affirmed a death sentence for the
murder of a five-month-old child. We determined that the
murder was “significantly aggravated by the existence of
the prior conviction for felony child abuse,” in which
Lukehart caused a closed-head injury to his girlfriend’s
eight-month-old daughter by shaking her, and concluded
that the “prior felony aggravator is an exceptionally
weighty aggravating factor under the circumstances of the
present case.” Id. at 926. In Stephens v. State, 787 So.2d
747 (Fla.2001), we found a death sentence proportional
for the murder of a child aged three years, four months.
We concluded that “like Lukehart, Stephens’ prior violent
felony was given great weight and is similar to the events
which led to the present murder.” Id. at 760. This Court
further observed that the record demonstrated that the
defendant “was indifferent to the fate of [the] helpless
child” and, therefore, concluded that the death penalty
was proportional under the circumstances. Id. at 760.
During the penalty phase in this case, the State submitted
copies of judgments and sentences for five counts of
sexual battery and one count of aggravated child abuse.
The State also offered the testimony of three child victims
of Crain’s previous sexual assaults. The three female
victims all testified that Crain began abusing them when
they were between the ages of seven and nine years of
age. One of the victims endured Crain’s repetitive abuse
on a monthly basis for five years. The *78 victims also
testified that Crain threatened them with extensive bodily
harm or death should they reveal his abuse to anyone.
Thus, as we found in Lukehart, the prior felony
aggravator is an exceptionally weighty aggravating factor
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 103
14
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
under the circumstances of the present case, and as we
concluded in Stephens, Crain’s history of victimization of
children similar in age to the victim in this case increases
the magnitude of the prior violent felony aggravator.
In light of the strength of the aggravating factors, the
relatively weak mitigation, and our affirmance of death
sentences in comparable cases, we conclude that the death
penalty is a proportional punishment.
VI. CONCLUSION
For the foregoing reasons, we affirm the conviction of
first-degree murder and sentence of death in this case, and
reduce the conviction of kidnapping to false
imprisonment.
It is so ordered.
V. CONSTITUTIONALITY OF DEATH PENALTY
In a supplemental brief, Crain raises the issue of the
constitutionality of Florida’s death penalty scheme in the
wake of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428,
153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This
Court addressed the contention that Florida’s capital
sentencing scheme violates the United States Constitution
under Apprendi and Ring in postconviction appeals in
Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v.
Moore, 831 So.2d 143 (Fla.2002), and denied relief. We
have also denied relief in direct appeals where, as in this
case, the trial judge has found the aggravating factor of
previous conviction of a violent felony. See Duest v.
State, 855 So.2d 33, 49 (Fla.2003), cert denied, 541 U.S.
993, 124 S.Ct. 2023, 158 L.Ed.2d 500 (2004); see also
Doorbal v. State, 837 So.2d 940, 963 (Fla.) (stating that
prior violent felony aggravator based on contemporaneous
crimes charged by indictment and on which defendant
was found guilty by unanimous jury “clearly satisfies the
mandates of the United States and Florida Constitutions”),
cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d
663 (2003). Additionally, the advisory sentence of death
in this case was by a unanimous vote. In Anderson v.
State, 863 So.2d 169, 189 (Fla.2003), cert. denied, 541
U.S. 940, 124 S.Ct. 1662, 158 L.Ed.2d 363 (2004), we
pointed to the unanimous death recommendation as well
as a prior violent felony aggravator in rejecting an
Apprendi/Ring claim in direct death appeal. We have also
rejected Apprendi/Ring claims in other direct death
appeals involving unanimous death recommendations. See
Conahan v. State, 844 So.2d 629, 642 n. 9 (Fla.), cert.
denied, 540 U.S. 895, 124 S.Ct. 240, 157 L.Ed.2d 172
(2003); Chavez v. State, 832 So.2d 730, 767 (Fla.2002),
cert. denied, 539 U.S. 947, 123 S.Ct. 2617, 156 L.Ed.2d
637 (2003). Accordingly, we conclude that Crain is also
not entitled to relief.
[23]
PARIENTE, C.J., and ANSTEAD, QUINCE, and
CANTERO, JJ., concur.
QUINCE, J., specially concurs with an opinion, in which
PARIENTE, C.J., and CANTERO, J., concur.
LEWIS, J., concurs in result only with an opinion.
WELLS, J., concurs in part and dissents in part with an
opinion.
QUINCE, specially concurring.
I concur in the majority’s decision to affirm the jury’s
verdict for first-degree *79 murder because the evidence
demonstrates beyond a reasonable doubt that Amanda
Brown is dead and that her death occurred during criminal
activity, a kidnapping, perpetrated by Willie Seth Crain.
My agreement with the majority is based on both the
absence of evidence which would suggest some other
person is responsible for the disappearance and death of
Amanda and the circumstances surrounding Crain’s
interaction with this seven-year-old victim. Thus, the
circumstantial evidence in this case leads to the
inescapable conclusion that Crain and no one else
abducted and murdered Amanda Brown. See Cox v. State,
555 So.2d 352, 353 (Fla.1989) (holding that the
circumstantial evidence must lead “to a reasonable and
moral certainty that the accused and no one else
committed the offense charged”).
The time frames involved in this murder indicate there
was only a short period of time (at most four hours)
between the time that the mother went to sleep and when
Crain left her residence, and the discovery that Amanda
was not at home. From the testimony of Crain, Kathryn
Hartman (Amanda’s mother), Penny Probst, a neighbor,
and Michelle Rogers, another neighbor, the earliest Crain
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 104
15
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
could have left Hartman’s trailer is 2:30 a.m. The
neighbors indicated they observed Crain’s vehicle on the
side of the trailer with the lights on and the engine
running at 2:30 a.m. When Hartman awoke at 6:12 a.m.,
Amanda was not in the bed or in the house. Both Hartman
and Roy Brown, Amanda’s father, testified that Amanda
was afraid of the dark and never wandered outside alone
at night. Moreover, there was no indication that there was
any type of forced entry into the trailer. The back door to
the trailer was kept locked and was locked on September
9, 10 and 11. There was also no evidence that any of
Amanda’s clothes or toys were missing. Hartman testified
that nothing of value was missing from the trailer.
In addition, the circumstances of this case weave a pattern
that leads to the inescapable conclusion that Amanda
Brown is dead and that Willie Seth Crain caused that
death. After meeting Amanda for the first time on the
afternoon of September 10, Crain showed a pointed
interest in this seven-year-old child. He talked to her
about her homework and offered her money if she got the
homework correct.19 He also sat at the kitchen table and
played games with her. At some point in the afternoon
Crain noticed that Amanda had a loose tooth, and he
offered her money if she would let him pull it.20
On the evening of September 10, Crain returned to the
Hartman residence and again played games with Amanda.
At some point in the evening he told them he had a large
video collection and invited them to his trailer. Once at
Crain’s trailer, they began watching a movie in the living
room. However, while the mother was on the telephone
talking to Crain’s sister, Crain took the child into his
bedroom to watch the movie. When the mother came in,
Amanda was sitting between his legs with his arms
around her. Even after Amanda and her mother returned
home, Crain continued to show a marked interest in the
child when he offered to and did blow dry her hair after
she took a shower.21
After Amanda and her mother were in bed, Crain laid
down in his clothing on the *80 same bed occupied by the
females. Less than four hours later, when Hartman got up,
both Amanda and Crain were no longer in the residence.
When Crain was called by Hartman to see if Amanda was
with him, he simply said she was not with him, and he
continued to take his boat out. There was no offer of
assistance.
The circumstantial evidence produced by the State
indicates that after removing Amanda from her home,
Crain took her to his trailer and committed acts of
violence against her. Blood consistent with Amanda
Brown’s DNA was found on the toilet seat, on a piece of
toilet tissue22 from Crain’s bathroom, and on Crain’s
boxer shorts. Hartman indicated that she and Amanda
used Crain’s bathroom when they were there on the
evening of the 10th; however, the child was not bleeding
during that time. Even more telling is the fact that, after
coming home after 2:30 a.m., Crain spent the rest of the
early morning hours scrubbing down his bathroom with
bleach. He then went out to the Courtney Campbell
Causeway and took out his boat.
Amanda’s death occurred only one day after Crain was
introduced into her life. Hartman met Crain on the night
of September 9, 1998. Amanda was not at home when
Crain came to the trailer that night or early morning of the
10th. However, he met Amanda on the afternoon of
September 10, and she was killed on September 11. Both
the jury and this Court would have to engage in sheer
speculation to conclude that some other person entered
the Hartman dwelling and abducted Amanda during this
four-hour window of opportunity.
I believe these facts and circumstances lead to the
inescapable conclusion that Amanda Brown is dead and
Crain murdered her. Therefore, I concur in the majority’s
decision affirming Crain’s conviction for first-degree
murder. See, e.g., Johnston v. State, 863 So.2d 271
(Fla.2003).23
PARIENTE, C.J., and CANTERO, J., concur.
LEWIS, J., concurring in result only.
Although I concur in result, it is not without considerable
concern and reservations. I have concerns with not only
the legal theories and applications, but also with
overstatements of facts. We review very tragic
circumstances here involving a child, but I cannot agree
with characterizations of much of the evidence and
inferences upon which others rely for legally sufficient
evidence. In my view, the majority and others rely upon
strained and improper expanded inferences drawn from
the actual evidence presented, which ultimately determine
that Crain’s intent can be ascertained from far less actual
evidence. In my view, it is the actual physical evidence
(blood and scratches) along with the actual physical
location of such evidence (boxer shorts and arms) that tips
the evidentiary balance to support a finding of felony
murder based upon kidnapping with the intent to commit
bodily harm. Therefore, I cannot fully agree with the
majority’s decision and discussion of the evidence.
Prior to addressing the ultimate issue in this case,
© 2019 Thomson Reuters. No claim to original U.S. Government Works.
APP 105
16
Crain v. State, 894 So.2d 59 (2004)
29 Fla. L. Weekly S635
however, I must also initially voice my concern regarding
our determination *81 that Crain’s death sentence may
rest upon a conviction of felony murder, where the
underlying felony is kidnapping with intent to commit
bodily harm.
Crain
was
indicted
on
two
counts—premeditated murder and kidnapping with intent
to commit a homicide. Pursuant to the majority’s holding,
however, Crain’s conviction and sentences are being
affirmed based only upon convictions for f
This text is long and has been trimmed here. Open the source document for the complete record.
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.