State v. Poole

297 So.3d 487

STATE of Florida, Appellant/Cross-Appellee,

v.Mark Anthony POOLE, Appellee/Cross-Appellant.

No. SC18-245

Supreme Court of Florida.

January 23, 2020

Rehearing Denied April 2, 2020

Ashley Moody, Attorney General, Tallahassee, Florida, and Scott A. Browne, Chief Assistant Attorney General, Tampa, Florida, for Appellant/Cross-Appellee

Eric Pinkard, Capital Collateral Regional Counsel, and James L. Driscoll Jr., David Dixon Hendry, and Rachel P. Roebuck, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida; and Mark J. MacDougall and Z.W. Julius Chen, Washington, District of Columbia, and Parvin Daphne Moyne of Akin Gump Strauss Hauer & Feld LLP, New York, New York, for Appellee/Cross-Appellant

PER CURIAM.

The State of Florida appeals from a postconviction order setting aside Mark Anthony Poole's 2011 death sentence for the 2001 murder of Noah Scott. The sentence became final in 2015. Poole v. State (Poole II) , 151 So. 3d 402 (Fla. 2014), cert. denied , ––– U.S. ––––, 135 S. Ct. 2052, 191 L.Ed.2d 960 (2015).¹ The trial court set aside the sentence and ordered a new penalty phase proceeding after finding the sentence to have been imposed in violation of the United States and Florida Constitutions as interpreted and applied in Hurst v. State , 202 So. 3d 40 (Fla. 2016). Arguing that Poole suffered no constitutional deprivation in his sentencing proceeding, the State requests that we reexamine and partially recede from Hurst v. State .

Poole filed a cross-appeal, arguing that his trial counsel's concession of guilt on related non-homicide offenses violated his Sixth Amendment right to counsel and constituted structural error requiring reversal of his convictions and a new guilt phase trial.

We address the cross-appeal first because relief on Poole's guilt phase postconviction claim would moot the sentencing issue. The trial court rejected the guilt phase claim, and we affirm the trial court as to this issue because Poole did not preserve the issue for review on appeal. As for the sentencing issue, we agree with the State that we must recede from Hurst v. State except to the extent that it held that a jury must unanimously find the existence of a statutory aggravating circumstance beyond a reasonable doubt. Accordingly, we reverse the portion of the trial court's order setting aside Poole's sentence.

BACKGROUND

The opinion on direct appeal set out the following facts:

Mark Anthony Poole was convicted of the first-degree murder of Noah Scott, attempted first-degree murder of Loretta White, armed burglary, sexual battery of Loretta White, and armed robbery. Poole was convicted based on the following facts presented at trial. On the evening of October 12, 2001, after playing some video games in the bedroom of their mobile home, Noah Scott and Loretta White went to bed sometime between 11:30 p.m. and 12 a.m. Later during the night, White woke up with a pillow over her face and Poole sitting on top of her. Poole began to rape and sexually assault her as she begged Poole not to hurt her because she was pregnant. As White struggled and resisted, Poole repeatedly struck her with a tire iron. She put her hand up to protect her head, and one of her fingers and part of another finger were severed by the tire iron. While repeatedly striking White, Poole asked her where the money was. During this attack on White, Scott attempted to stop Poole, but was also repeatedly struck with the tire iron. As Scott struggled to defend White, Poole continued to strike Scott in the head until Scott died of blunt force head trauma. At some point after the attack, Poole left the bedroom and White was able to get off the bed and put on clothes but she passed out before leaving the bedroom. Poole came back in the bedroom and touched her vaginal area and said "thank you." White was in and out of consciousness for the rest of the night. She was next aware of the time around 8 a.m. and 8:30 a.m. when her alarm went off.

When her alarm went off, White retrieved her cell phone and called 911. Shortly thereafter, police officers were dispatched to the home. They found Scott unconscious in the bedroom and White severely injured in the hallway by the bedroom. White suffered a concussion and multiple face and head wounds and was missing part of her fingers. Scott was pronounced dead at the scene. Evidence at the crime scene and in the surrounding area linked Poole to the crimes. Several witnesses told police officers that they saw Poole or a man matching Poole's description near the victims’ trailer on the night of the crimes. Stanley Carter stated that when he went to the trailer park around 11:30 that night, he noticed a black male walking towards the victims’ trailer. Carter's observations were consistent with that of Dawn Brisendine, who knew Poole and saw him walking towards the victims’ trailer around 11:30 p.m. Pamela Johnson, Poole's live-in girlfriend, testified that on that evening, Poole left his house sometime in the evening and did not return until 4:50 a.m.

Poole was also identified as the person selling video game systems owned by Scott and stolen during the crime. Ventura Rico, who lived in the same trailer park as the victims, testified that on that night, while he was home with his cousin's girlfriend, Melissa Nixon, a black male came to his trailer and offered to sell him some video game systems. Rico agreed to buy them for $50, at which point the black male handed him a plastic trash bag. During this exchange, Nixon got a good look at the man and later identified Poole when the police showed her several photographs. Nixon testified that the next morning, when her son was going through the trash bag, he noticed that one of the systems had blood on it.

Pamela Johnson also testified that on the same morning, she found a game controller at the doorstep of Poole's house, she handed it to Poole, and Poole put it in his nightstand. She indicated that she had never seen that game controller before that morning and did not know what it would be used for because neither she nor Poole owned any video game systems. During the search of Poole's residence, the police retrieved this controller. In addition, the police retrieved a blue Tommy Hilfiger polo shirt and a pair of Poole's Van shoes, shoes Poole said he had been wearing on the night of the crimes. A DNA analysis confirmed that the blood found on the Sega Genesis box, Super Nintendo, Sega Dreamcast box and controller matched the DNA profile of Scott. Also, a stain found on the left sleeve of Poole's blue polo shirt matched White's blood type. The testing of a vaginal swab also confirmed that the semen in White was that of Poole. A footwear examination revealed that one of the two footwear impressions found on a notebook in the victims’ trailer matched Poole's left Van shoe. The tire iron used in the crimes was found underneath a motor home located near the victims’ trailer. A DNA analysis determined that the blood found on this tire iron matched Scott's DNA profile.

Poole v. State (Poole ), 997 So. 2d 382, 387-88 (Fla. 2008) (footnote omitted).

The trial began on April 21, 2005, and the jury returned a verdict six days later finding Poole guilty of all charges, namely first-degree murder of Noah Scott, attempted first-degree murder of Loretta White, armed burglary, sexual battery of Loretta White, and armed robbery. The penalty phase began on May 2, 2005. The jury recommended death by a vote of twelve to zero two days later, which allowed the trial court to consider a death sentence under section 921.141, Florida Statutes (2005). On August 25, 2005, the trial court sentenced Poole to death.

On direct appeal Poole raised a number of challenges to his convictions and death sentence, including that his death sentence violated the dictates of Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), because Florida's statutory sentencing scheme did not require the jury to unanimously find all of the aggravators necessary to impose a death sentence. Poole , 997 So. 2d at 396. This Court rejected that argument, holding that Florida's capital sentencing scheme was not unconstitutional pursuant to Ring . Id. Alternatively, we held that Poole's case fell outside the scope of Ring because the jury had unanimously found that Poole committed other violent felonies during the murder—specifically attempted first-degree murder, sexual battery, armed burglary, and armed robbery. Id. Those convictions unanimously found by Poole's jury formed the basis of one of the statutory aggravators found by the trial court—that Poole had prior violent felony convictions. Id. Thus, this case fell "outside the scope of Ring ." Id. However, this Court determined that Poole was entitled to a new penalty phase proceeding because the prosecutor improperly introduced inadmissible nonstatutory aggravation by cross-examining witnesses about unproven prior arrests and the unproven content of a tattoo on Poole's body. Id. at 393-94. We vacated Poole's sentence of death and remanded for a new penalty phase. Id. at 394.

On June 29, 2011, following a new penalty phase, the jury recommended death by a vote of 11 to 1. Poole II , 151 So. 3d at 408. The trial court found four aggravating circumstances: (1) the contemporaneous conviction for the attempted murder of Loretta White (very great weight); (2) the capital felony occurred during the commission of burglary, robbery, and sexual battery (great weight); (3) the capital felony was committed for financial gain (merged with robbery but not burglary or sexual battery) (less than moderate weight); and (4) the capital felony was committed in a heinous, atrocious, or cruel (HAC) manner (very great weight). Id. Again, three of these four aggravators were found unanimously by the jury because the jury found Poole guilty of the other charged crimes on which these aggravators are based.

The trial court found two statutory mitigating circumstances: (...