Cox v. State

390 So.3d 1189

Allen Ward COX, Appellant/Cross-Appellee,

v.STATE of Florida, Appellee/Cross-Appellant.

No. SC2022-1553

Supreme Court of Florida.

July 11, 2024

An Appeal from the Circuit Court in and for Lake County, James R. Baxley, Judge, Case No. 351999CF000249AXXXXX

Matthew J. Metz, Public Defender, and Nancy Ryan and Robert J. Pearce III, Assistant Public Defenders, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant/Cross-Appellee

Ashley Moody, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Senior Assistant Attorney General, Tampa, Florida, for Appellee/Cross-Appellant

SASSO, J.

Allen Ward Cox appeals a sentence of death imposed during a resentencing that this Court ordered as a result of Hurst error.¹ For the reasons that follow, we affirm.

I.

Cox, then an inmate in Lake Correctional Institute ("LCI"), was indicted in 1999 for the premeditated murder of fellow inmate Thomas Baker. The charges against Cox resulted from a chain of events within LCI that culminated in the death of Baker and an assault upon Lawrence Wood. We described the evidence presented at Cox’s guilt phase trial in Cox v. State, 819 So. 2d 705 (Fla. 2002), as follows:

At trial, the State presented the testimony of numerous corrections officers and inmates regarding the circumstances surrounding the murder of Baker, who was also a LCI inmate. On December 20, 1998, the appellant discovered that someone had broken into his personal footlocker and stolen approximately $500. Upon making this discovery, Cox walked out onto the balcony of his dorm and announced that he would give fifty dollars to anyone willing to identify the thief. He also indicated that when he discovered who had stolen from him, he would stab and kill that person, and that he did not care about the consequences.

During the prison’s lunch period on December 21, the appellant called Baker over to him, and then hit him with his fists to knock him down. During the attack, the victim continuously attempted to break free from Cox, and also denied stealing from him multiple times. At a lull in the beating, the appellant said, "This ain’t good enough," and stabbed Baker with an icepick-shaped shank three times. After the stabbing, Appellant walked away stating, "It ain’t over, I’ve got one more … to get." He then walked behind the prison pump house and hid the shiv in a pipe. Cox proceeded from the pump house to his dorm, where he encountered Donny Cox (unrelated to the appellant). There, Appellant questioned him about his stolen money and told him that if Cox had his money, he would kill him also. Following this exchange, the appellant returned to his cell, where he next attacked his cellmate, Lawrence Wood, advising him that Wood was "lucky I put it up, or I’d get [you]."

While the appellant was returning to his cell, the stabbing victim fled the attack scene and ran to corrections officers in a nearby building. The officers present at the time testified at trial that Baker had blood coming from his mouth, and that he was hysterically complaining that his lungs were filling with blood. Baker also responded to the prison officials’ questions regarding who had attacked him by saying, "Big Al, Echo dorm, quad three." Although the corrections officers attempted to expedite emergency treatment of the victim by placing him on a stretcher and carrying him on foot to the prison medical center, Baker died before arriving at the hospital.

Doctor Janet Pillow testified that upon her autopsy of the victim, she found that the victim had been stabbed three times. Two of the wounds inflicted were shallow punctures of the lower torso, but the fatal wound had entered the victim’s back and traveled through the chest cavity, between two ribs, and finally pierced the lungs and aorta. She testified that a conscious person with this wound would suffer from "air hunger,"and would be aware of the "serious danger of dying." She described the wound as being approximately 17.5 centimeters deep, although only two millimeters wide. Doctor Pillow verified that the shank found by the pump house was consistent with the victim’s injuries, despite the fact that the wound was deeper than the length of the weapon. She attributed the discrepancy between the length of the weapon and the depth of the wound to the elasticity of human tissue.

The appellant also testified, contending that all of the previous witnesses were correct, except that they had not seen what truly happened when he, Baker, and Vincent Maynard, a third inmate, were close together. According to Cox, it was he who had in fact dodged Baker and Maynard’s attempts to stab him, and it was Maynard who actually stabbed Baker in the back accidentally. In Cox’s version of the events, he had only struck the victim because he was defending himself from both of the other attacking men.

Id. at 709-10 (alteration in original) (footnote omitted). The jury found Cox guilty of first-degree murder, and the trial court sentenced him to death. Id. at 710. In 2002, we affirmed his conviction and death sentence. Id. at 725.

After exhausting his initial state and federal postconviction proceedings, Cox filed a second successive motion for postconviction relief based on Hurst v. Florida.² In 2017, the circuit court granted his motion, vacated his sentence, and ordered a new penalty phase.

At the conclusion of his new penalty phase trial, the jury voted unanimously to recommend that Cox be sentenced to death. In doing so, the jury found the State proved two aggravators beyond a reasonable doubt: imprisonment and a prior violent felony. The jury further found that the aggravating circumstances outweighed the mitigating circumstances.

Cox waived his right to a Spencer³ hearing. On October 24, 2022, after reviewing both the State and defense sentencing memorandums, the trial court sentenced Cox to death. The trial court contemporaneously issued a written sentencing order detailing its consideration of both the aggravating and mitigating factors at issue.

In its order, the trial court found that both aggravating factors had been established beyond any doubt, and that 57 non-statutory mitigating factors had been established and were entitled to weight.⁴

However, because it determined the mitigating circumstances were outweighed by the two significant aggravating circumstances, the trial court sentenced Cox to death for the murder of Baker.

Cox appeals that determination, raising seven issues: (1) the trial court erred in rejecting the nonstatutory mitigating circumstance that Cox suffers from the early signs of dementia, (2) the trial court erred in rejecting two of the proposed nonstatutory mitigators, (3) the cumulative effect of the prosecutor’s comments during closing was so prejudicial as to taint the jury’s recommended sentence, (4) the trial court erroneously placed the burden of showing mitigating circumstances on the defendant, (5) executing an offender with brain damage violates the Eighth Amendment, (6) Florida’s capital punishment scheme violates the Eighth Amendment, and (7) the death penalty itself violates the Eighth Amendment. The State filed a cross-appeal, which presents a single issue.

We address each issue raised by Cox in turn.

II.

A.

[1–4] Cox’s first two arguments on appeal concern the trial court’s rejection of certain nonstatutory mitigating factors proposed by Cox. In evaluating mitigating circumstances, a trial court must find as mitigating "each proposed factor that has been established by the greater weight of the evidence and that is truly mitigating in nature." Ault v. State, 53 So. 3d 175, 186 (Fla. 2010) (quoting Coday v. State, 946 So. 2d 988, 1003 (Fla. 2006)). And in its written sentencing order, the trial court must expressly evaluate each statutory and nonstatutory mitigating circumstance proposed by the defendant. Id.; see also Smiley v. State, 295 So. 3d 156, 176-77 (Fla. 2020) (providing that a "trial court may comply with this requirement by bundling proposed mitigating circumstances into categories of related conduct or issues and addressing them accordingly"). "However, a trial court may reject a proposed mitigator if the mitigator is not proven or if there is competent, substantial evidence to support its rejection." Ault, 53 So. 3d at 186 (quoting Coday, 946 So. 2d at 1003). And "[e]ven expert opinion evidence may be rejected if that evidence cannot be reconciled with other evidence in the case." Id. (quoting Coday, 946 So. 2d at 1003).

[5, 6] We review a court’s decision as to whether a mitigating circumstance is established for abuse of discretion. See Foster v. State, 679 So. 2d 747, 755 (Fla. 1996); Harris v. State, 843 So. 2d 856, 868 (Fla. 2003). In doing so, we will uphold the trial court’s findings where there is competent, substantial evidence in the record to support each finding. See Lebron v. State, 982 So. 2d 649, 660 (Fla. 2008).

1.

Cox first argues that the trial court erred in rejecting the nonstatutory mitigating circumstance that Cox suffers from the early signs of dementia. Specifically, Cox argues that the nonstatutory mitigator was definitively established by the expert testimony of Dr. Mark Rubino.⁵ We disagree.

At resentencing, Dr. Rubino testified that dementia is a term for cognitive impairments that cause functional impairment, but dementia can be static and/or progressive. He explained that static dementia refers to severe brain damage, while progressive dementia refers to progressive diseases like Alzheimer’s disease. Noting this distinction in its sentencing order, the trial court explained that Dr. Rubino recognized that Cox has dementia, but Dr. Rubino could not say that Cox’s dementia is progressive in nature. As a result, the trial court determined there was no evidence that Cox suffered from the early signs of progressive, rather than static, dementia.

[7] We conclude that the trial court acted within its discretion, both in characterizing the proposed mitigator as one directed...