SC07-2412 – Charles Grover Brant v. State of Florida

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State: Florida

Court: Supreme Court

Docket No: sc07-2412

Case Date: 11/12/2009

Plaintiff: SC07-2412 – Charles Grover Brant

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC07-2412
CHARLES GROVER BRANT,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[November 12, 2009]
PER CURIAM.
Charles Grover Brant was convicted of first-degree murder, sexual battery,
kidnapping, grand theft of a motor vehicle, and burglary with assault or battery
arising from the 2004 strangulation of Sara Radfar.  Brant was sentenced to death.
This case is before the Court on appeal from the convictions and death sentence.
We have jurisdiction.  See art. V, § 3(b)(1), Fla. Const.  For the reasons that
follow, we affirm the convictions and sentences.
I.  BACKGROUND
On May 25, 2007, Brant pleaded guilty to first-degree murder, sexual
battery, kidnapping, grand theft of a motor vehicle, and burglary with assault or

battery.  The prosecutor recited a lengthy factual basis for the pleas, establishing
that Brant sexually battered and strangled Radfar in her home on July 1, 2004.  The
trial court found that there was a sufficient factual basis for the pleas and that the
pleas were knowingly, intelligently, and voluntarily entered.  On August 13, 2007,
the trial court adjudicated Brant guilty.
On August 22, 2007, Brant waived his right to a penalty-phase jury.
Accordingly, a penalty-phase proceeding was conducted before the trial court on
August 22-24, 2007.  Both the State and the defense presented evidence.  The
evidence established the following.
On July 2, 2004, law enforcement officers found Radfar dead in her home.
A rear window of her duplex was open, and the front door was locked from the
inside.  Radfar was in her bathtub with water running over her.  Jacqueline Lee,
M.D., Associate Medical Examiner for the Hillsborough County Medical
Examiner’s Department, testified that while performing the autopsy, she found a
plastic bag over the victim’s head, and she also found a dog leash, an electrical
cord from a heating pad, and a woman’s stocking around the victim’s neck.  Dr.
Lee stated that bruises on the victim’s body could be interpreted as defensive
wounds and that hemorrhages involving the eyes and eyelids were indicative of
strangulation.  She testified that the cause of death was strangulation and
suffocation.
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Deputy Rodney Riddle of the Hillsborough County Sheriff’s Office and
Kathy Frank Smith, previously a homicide detective for the Hillsborough County
Sheriff’s Office, testified that on July 2, 2004, they each spoke with Brant, who
lived near Radfar, as part of neighborhood surveys.  Brant told the officers that on
the night of the homicide, he saw a man with long hair in a white button-down shirt
with the victim and that the next day he saw a man in a yellow raincoat and black
pants running behind his residence.  Deputy Riddle testified that during their
conversation, Brant was calm, cordial, and coherent and did not appear to be under
the influence of drugs or alcohol.  Smith likewise testified that during their
conversation, Brant was coherent and that she did not notice any signs of the
influence of drugs or alcohol.  One of Brant’s neighbors, who spoke briefly with
Brant around 5 p.m. on July 2, 2004, similarly testified that Brant did not appear to
be under the influence of drugs or alcohol during their conversation.
Detective Smith also testified that as part of the homicide investigation, law
enforcement officers collected garbage from Brant’s porch and from a garbage can
by Brant’s mailbox.  The officers retrieved, among other items, a debit card with
the victim’s name and photograph on it, a man’s white cotton shirt, a yellow
raincoat, a pair of black pants, a mass of long, brown hair, four latex gloves, and a
box that had contained women’s stockings.  Smith stated that Brant had short, dark
hair when he spoke with her.
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Detective Frank Losat of the Hillsborough County Sheriff’s Office testified
that he interviewed Brant during the early morning hours on July 4, 2004.
Detective Losat stated that Brant was cooperative and spoke willingly.  Detective
Losat testified that at first, Brant repeated the story he had told Officers Riddle and
Smith about a person running through his backyard wearing a raincoat.  After
being informed that law enforcement officers had discovered items in his trash
belonging to the victim, Brant changed his story, admitting his involvement in the
homicide.
Detective Losat testified that Brant explained that he went to Radfar’s home
on July 1, 2004, to take pictures of her tile floor, which he had installed, for his
portfolio.  Radfar let him in, and while he was taking photographs of the tile,
Radfar walked into the bathroom.  Brant grabbed Radfar, dragged her into one of
the bedrooms, and sexually assaulted her.  Brant stated that he put a sock in
Radfar’s mouth to quiet her and then started to choke and suffocate her.  He
explained that when he thought Radfar had either lost consciousness or died, he
started walking around in the house.  When she regained consciousness and ran to
the front door, Brant dragged her back into the bedroom.  At that point, Brant again
began to choke and suffocate her.  He stated that the choking and suffocation went
on for some time.  Brant next took Radfar to the bathroom.  He said that she was
hiccupping and breathing a little bit as he put her in the tub.  Brant then grabbed a
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stocking, a dog leash, and an electrical cord from a heating pad, and wrapped those
items around Radfar’s neck.  Brant told the officers that Radfar died while in the
tub.  He also stated that after her death, he started to clean up the duplex, changed
into clothing he found in the home, left through the front door, moved Radfar’s car,
and walked home.  Brant further explained that on the next day, he went back into
Radfar’s residence and tried to wipe down any fingerprints that he may have left.
Brant stated that he was going to leave through the front door when he observed a
deputy approaching the door.  He then turned the deadbolt on the door, fled
through a rear window, and jumped the privacy fence to go back to his house.
Detective Losat testified that during the interview, he did not detect any
evidence that Brant was under the influence of drugs, alcohol, or medication.
Brant was coherent.  Christi Esquinaldo, a corporal for the Hillsborough County
Sheriff’s Office, testified that she was present during Detective Losat’s July 4,
2004, interview with Brant.  She stated that she did not observe any evidence that
Brant was intoxicated at that time.
In addition to hearing testimony from Detective Losat and Corporal
Esquinaldo, the trial court accepted into evidence a transcript of the July 4, 2004,
interview.  The trial court also accepted a stipulation from the parties regarding
DNA evidence collected during the homicide investigation.  The stipulation
provided that ―analysis of Sara Radfar’s vaginal swab taken from the rape kit at the
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Medical Examiner’s Office demonstrated the presence of semen.  The DNA
analysis of the semen revealed that it matched the defendant’s DNA.  In other
words, Charles Brant was the source of the semen.‖
The State also called Melissa Ann McKinney, Brant’s former wife, who
testified that she and Brant were married from June 1991 until December 2004 and
that they have two sons together.  McKinney explained that she and Brant met in
1990 when they were students at a Bible college in Virginia but left the school
voluntarily before either graduated.  McKinney testified that at the time of Brant’s
arrest, Brant did not have a full-time job but did renovation and maintenance work
for their landlord.  McKinney confirmed that Brant installed tile in the duplex
occupied by Radfar and that in July 2004, he began compiling a portfolio in an
effort to get more tile work.
McKinney explained that she and Brant separated eight or nine times during
their thirteen-year marriage due to Brant’s drug use.  Brant used marijuana
continuously and began using ecstasy around 1999.  McKinney testified that Brant
began using methamphetamine about six months before the murder.  He obtained a
package of it ―like every week.‖  McKinney explained that while using
methamphetamine, Brant would stay up for four or five nights in a row without
sleep and then crash.  During the first few days of a cycle, he would be very
productive and ―cheerful . . . in a better mood but he was always fidgety.‖  When
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Brant would start coming off the drug, he would not finish tasks because he was
looking for more drugs.  By day four or five, he was ―[i]rritable, snappy.‖
McKinney explained that during the six months Brant was using
methamphetamine, ―he became a different person‖ and ―it seemed like he didn’t
care anymore.  He didn’t—all he wanted was that drug, and he didn’t care if he
finished jobs.  He didn’t care about his family.  I mean, he just he became obsessed
with sex.‖  Beginning about two weeks before the murder, McKinney noticed
Brant talking to himself while he worked.
McKinney also testified that in approximately 2000, Brant asked her to
participate in sex games involving force.  About two years before the murder, the
games became rougher, and because she was afraid she would be hurt, McKinney
began to object.  Brant would surprise McKinney by hiding in the house, wearing a
mask and latex gloves, and grabbing her from behind.  McKinney stated that she
believed Brant sometimes would even hide his car to give the impression that he
was not at home in order to surprise her more effectively.  She explained that
during that two-year period, they had intercourse almost daily and that Brant
―would get violent‖ and ―do the scaring‖ every couple of weeks.
McKinney testified that Brant became sneakier and more violent when he
began using methamphetamine.  For example, on Wednesday, June 30, 2004, the
night before the murder, Brant hid in a closet and attacked McKinney when she
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came into the room.  He put her on her stomach on the bed, bound her hands, and
attempted to put a sock in her mouth.  McKinney explained that she was able to get
away from Brant and stayed in the bathroom that night.  McKinney stated that she
believed Brant was on methamphetamine when he attacked her.  He had started
staying up on Sunday of that week and had ―been up for quite a few days.‖
McKinney further explained that on the morning of Thursday, July 1, 2004, she
threatened to go to the police if the games did not stop.
McKinney further testified that on Thursday, Brant was at home when she
returned from work at around 6 or 6:30 p.m.  McKinney took their sons to see a
movie that evening.  Brant was invited to attend, but he declined.  McKinney stated
that they returned home at around 11 p.m.  Brant was in the kitchen washing
dishes.  He was acting nice, which surprised McKinney because they had been
angry with each other for a few days.  McKinney testified that Brant seemed to be
under the influence of drugs when she returned—he was ―speedy‖ and ―fidgeting.‖
Brant asked McKinney to cut his hair, which she did.  McKinney testified that
Brant slept in the bed with her that night, but they did not have sex.  McKinney
testified that she next saw Brant between 6 and 7 p.m. on Friday.  Brant was
writing a statement for the police.  McKinney testified that he appeared to be under
the influence of drugs at that time.  She said that ―[h]e was acting nervous.  He was
just acting all over the place, like he was on the drug.‖
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The defense called several lay witnesses and two mental health experts to
establish mitigating circumstances.
Crystal Florence Coleman, Brant’s mother, testified that their family had a
history of depression and other mental health conditions.  She also testified about
Brant’s childhood.  She stated that once Brant could walk, ―he started beating his
head against the floor‖ and ―pounding holes in the walls.‖  She stated that Brant ate
plaster and fertilizer as a child.  When Brant was around five, Crystal married
Marvin Coleman.  Crystal testified that Marvin, who drank heavily, would spank
or whip Brant over trivial matters until he bled, would threaten Brant, and ―was
very derogatory toward‖ Brant.
Sherry Lee Brant-Coleman, Brant’s older sister, similarly testified that
Brant’s stepfather was an alcoholic and ―a bully‖ to Brant.  Sherry testified that
Marvin singled Brant out from the other children for more criticism and physical
abuse.  Sherry also testified about Brant’s behavior shortly after the murder.  She
saw Brant at their mother’s Orlando home in early July 2004.  She was informed
that Brant had told their half-brother, Garrett Coleman, that he was involved in
what happened to Radfar and ―that he was hallucinating and he had—was going to
turn himself in.‖  Sherry explained that she and several family members and
friends went with Brant to a police substation, which was closed because it was a
holiday weekend.  They then drove to another station.  Brant and Garrett went into
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the station but returned twenty minutes later.  They claimed that the law
enforcement officers told them there was no information at that station about the
Radfar homicide and that Brant would have to go to a Tampa area station.
Two witnesses, Reverend John Hess, III, a minister affiliated with Blue
Ridge Bible College in Rocky Mount, Virginia, and Pastor Leon Wendall Jackson,
of the Faith Family Worship Center Assembly of God Church in Citrus Park,
testified that Brant had spoken to them about having a drug use problem.
Reverend Hess testified that Brant was a student at the Bible college, then known
by a different name, for one semester in 1990.  Reverend Hess explained that in
approximately 1997, Brant contacted Hess about reapplying to the school, stating
that he had gotten reinvolved in drugs and was looking to straighten out his life.
Hess assured Brant that he could reapply, but Brant did not pursue the option.
Pastor Jackson met with Brant and McKinney in 2003 when they were having
marital troubles and Brant was having problems with drugs, particularly cocaine.
Pastor Jackson counseled Brant about his drug problem and looked into placing
Brant in an eighteen-month treatment program.  Brant declined to enter treatment
because he did not think that he could afford to not work.
Other witnesses testified that they had known Brant to be a nonviolent
person, a good father to his children, and a good craftsman.  Still other witnesses
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testified about the grief and remorse that Brant had expressed since being
incarcerated.
Defense expert witness Michael Scott Maher, M.D., a physician and
psychiatrist, diagnosed Brant as suffering from severe methamphetamine
dependence associated with psychotic episodes, sexual obsessive disorder, and
chronic depression.  Dr. Maher described Brant as a lifestyle user of
methamphetamine and explained that lifestyle users begin using methamphetamine
to support working long hours but that the use ―almost inevitably results in a
dependency and a deterioration,‖ ultimately leading to psychosis.  Dr. Maher
opined that Brant’s dependency had reached the point of causing psychosis:
I’m not suggesting that he was legally insane; but I am certainly
suggesting that he had—I’m offering the opinion that he had periods
of psychosis associated with his methamphetamine use and that those
periods were a significant part of his experience at and around the
time of the offense.
Dr. Maher explained that during a period of methamphetamine-induced psychosis,
Brant would be highly energized, would have a pattern of irritability and
behavioral fidgetiness, and would hear, see, or feel things that he was not entirely
sure were real.  Dr. Maher identified poor impulse control as ―a substantial
hallmark of methamphetamine abuse.‖  Dr. Maher further explained that because
Brant’s ―purpose and motivation for using the drugs was to work and ultimately to
promote and participate in his idea of being a good husband and a good father and
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a good worker,‖ Brant would have been ―making a very substantial effort to use
the mental functioning that he still had in a way to appear normal.‖  Dr. Maher
testified that after his arrest, Brant was given ―antipsychotic medications and some
other medications to help him calm down.‖
Dr. Maher concluded that Brant suffered from sexual obsessive disorder
based on descriptions of the ―psychological force of those sexual urges‖ provided
by Brant and McKinney.  Dr. Maher stated that Brant’s ―pattern of sexual behavior
with his wife which predated this incident and . . . his severe use of
methamphetamines . . . are consistent with an obsessive pattern of sexual interest.‖
Dr. Maher explained that the sex games between Brant and his wife had ―a general
effect of creating lower inhibitions to this kind of link between surprise, violence
and sex‖ and that these lowered inhibitions were ―clinically significant in
understanding‖ Brant’s behavior at the time of the sexual battery and murder.
Dr. Maher further testified that Brant had a history of depression and
relationship problems going back into childhood.  Dr. Maher opined that Brant’s
relationships with his mother, grandmother, stepfather, and wife all showed
significant patterns of pathology.  Dr. Maher testified that Brant began to use
marijuana and alcohol as an adolescent to self-medicate and ―escape from his
chronically depressed and anxious state of mind.‖
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Finally, Dr. Maher testified that Brant might suffer from abnormal brain
functioning.  Dr. Maher explained that the twenty-five point difference between
Brant’s verbal and performance IQs was indicative of abnormal brain functioning.
He also stated that a PET scan of Brant’s brain showed four areas of suppressed
glucose uptake that could indicate underactivity in those parts of the brain.  Dr.
Maher identified those portions of the brain as being important to impulse control
and good judgment.  Dr. Maher stated that while Brant previously was diagnosed
with attention deficit disorder, he did not think a diagnosis of adult attention deficit
disorder was warranted.
Based on the foregoing, Dr. Maher opined that Brant, while legally sane at
the time of the sexual battery and murder, ―had, as a result of mental disease,
defect, a substantial impairment and limitation in his ability to conform his
behavior to the requirements of the law.‖
Another defense witness, Dr. Valerie R. McClain, a psychologist, testified as
an expert in forensic neuropsychology.  Dr. McClain diagnosed Brant with
polysubstance dependence, major depression recurrent, and cognitive disorder not
otherwise specified.  Dr. McClain explained that Brant’s overall intellectual
functioning was in the ―low average‖ range.  She testified that school records
documented signs of a learning disorder and that Brant’s language skills were in
the sixteenth percentile compared to other students and his non-language skills
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were in the sixth percentile.  She explained that Brant had problems in the areas of
learning, memory, and executive planning or organizational skills.  Psychological
testing showed signs of depression, pessimism, suicidal ideation, preoccupation
with health problems, problems with poor judgment, passive, dependent style in
relationships, and problems with insecurity, inadequacy, and a sense of inferiority.
The testing also indicated that Brant was quick-tempered and may have had ―some
tendency to magnify or exaggerate his current difficulties.‖  Dr. McClain further
testified that at the time of their interview in October 2005, Brant was being
prescribed Benadryl, Haldol, Pambalor, and Wellbutrin.
Dr. McClain testified that Brant stated that before the sexual battery and
murder, he had consumed alcohol and had been ―doing significant amounts‖ of
crystal methamphetamine for approximately eight days and ecstasy for two days.
Brant also told Dr. McClain that he had not been sleeping well before the murder.
Dr. McClain explained that in people such as Brant, who already have underlying
anger problems, methamphetamine use is going to make them more likely to be
―[i]mpulsive or to not be able to control their anger.‖  Dr. McClain opined that due
to Brant’s deficits in brain functioning, Brant’s capacity to conform his conduct to
the requirements of law was substantially impaired on July 1, 2004.
After the defense rested, the State presented a witness to rebut witness
McKinney’s claim that she and Brant left college voluntarily.  The State’s witness
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established that Brant and McKinney may have been asked to leave the school for
violating the school’s policy against sexual activity among students.  The State also
presented a mental health expert and victim impact statements.
Specifically, Donald R. Taylor, Jr., M.D., an expert in forensic psychiatry,
testified that in July 2004, Brant suffered from substance dependence disorder
(primarily involving alcohol, cannabis, ecstasy, and methamphetamine), a learning
disorder, and sexual sadism.  Aside from rough sex with McKinney, Dr. Taylor
was not aware of Brant acting violently prior to July 1, 2004.  Dr. Taylor testified
that during the first several days or weeks after arrest, Brant experienced symptoms
of alcohol and drug withdrawal and that during the first several weeks or months,
Brant experienced symptoms of anxiety or depression.  Dr. Taylor stated that Brant
was treated with psychotropic medications beginning after his arrest in July 2004
until May 2007.  Dr. Taylor defined sexual sadism as a ―type of sexual disorder in
which somebody derives sexual arousal or pleasure from causing physical
humiliation or suffering to a person that is not consenting to the sexual act.‖  Dr.
Taylor explained that in most cases, sexual sadism arises out of a genetic
predisposition and unhealthy childhood environment.  Dr. Taylor testified that
Brant’s childhood contained factors that can contribute to a diagnosis of sexual
sadism.
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Concerning the sexual battery, Dr. Taylor opined that Brant did have ―a
substantial impairment in his ability to conform his conduct with the requirements
of the law‖ due to his sexual sadism and the influence of methamphetamine.  Dr.
Taylor explained that due to a sexual disorder, Brant had sexual impulses that were
difficult for him to control and that this difficulty would have been exacerbated by
the use of methamphetamine.  With regard to the murder, in contrast, Dr. Taylor
opined that Brant was not ―substantially‖ impaired.  He explained that there was no
―similar disorder that was causing [Brant] any type of uncontrollable or difficult to
control urges to kill.‖  Moreover, Dr. Taylor stated that Brant’s actions of
preventing the victim from leaving the duplex, putting on gloves, putting the body
in the tub and turning on the water, and changing clothes before leaving were not
consistent with substantial impairment.  Still, Dr. Taylor testified that there was
―some level of impairment related to being under the influence of
methamphetamines‖ during the murder.  Dr. Taylor summarized that Brant ―did
have a mental disorder, which in my opinion substantially impaired his ability to
refrain from committing rape but that he did not have any similar corresponding
mental disorder which . . . caused a similar type of impairment in his able [sic] to
refrain from committing murder.‖
After conducting a hearing pursuant to Spencer v. State, 615 So. 2d 688 (Fla.
1993), during which McKinney testified and statements from Garrett Coleman
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were introduced into evidence, the trial court sentenced Brant to death for the
murder, concurrent sentences of life in prison for the sexual battery, kidnapping,
and burglary convictions, and a sentence of five years’ imprisonment for the grand
theft conviction.  The trial court found two aggravating circumstances applicable to
the murder: (1) the murder was heinous, atrocious, or cruel (HAC); and (2) the
capital felony was committed while engaged in the commission of a sexual battery.
Each aggravating factor was given great weight.  The trial court found three of the
mitigating factors specifically enumerated in section 921.141(6), Florida Statutes
(2007): (1) Brant had no significant history of prior criminal activity, given little
weight; (2) Brant’s capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was substantially impaired, given
moderate weight; and (3) Brant was thirty-nine years old at time of the offense,
given little weight.  The trial court also found numerous nonstatutory mitigating
factors: (1) Brant is remorseful (little weight); (2) he cooperated with law
enforcement officers, admitted the crimes, pleaded guilty, and waived a penalty-
phase jury (moderate weight); (3) he has borderline verbal intelligence (little
weight); (4) he has a family history of mental illness (little weight); (5) he is not a
sociopath or psychopath and does not have antisocial personality disorder (little
weight); (6) he has diminished impulse control and exhibits periods of psychosis
due to methamphetamine abuse, recognized his drug dependence problem, sought
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help for his drug problem, and used methamphetamine before, during, and after the
murder (moderate weight); (7) he has been diagnosed with chemical dependence
and sexual obsessive disorder, and he has symptoms of attention deficit disorder
(moderate weight); (8) he is a good father (little weight); (9) he is a good worker
and craftsman (little weight); and (10) he has a reputation of being a nonviolent
person (little weight).
II.  ANALYSIS
On appeal, Brant argues that his death sentence is disproportionate.  He does
not raise any claims regarding the propriety of his pleas or his penalty-phase trial.
After addressing Brant’s proportionality argument, we review the sufficiency of
Brant’s guilty plea to the offense of first-degree murder.
A.  Proportionality
To ensure uniformity of sentencing in death penalty proceedings, this Court
considers the totality of circumstances and compares each case with other capital
cases.  The Court does not simply compare the number of aggravating and
mitigating circumstances.  Taylor v. State, 937 So. 2d 590, 601 (Fla. 2006); see
also Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990) (―Because death is a unique
punishment, it is necessary in each case to engage in a thoughtful, deliberate
proportionality review to consider the totality of circumstances in a case, and to
compare it with other capital cases.  It is not a comparison between the number of
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aggravating and mitigating circumstances.‖   (citation omitted)).  Having reviewed
the record and other factually similar capital cases, we conclude that Brant’s death
sentence is proportionate.
In this case, the trial court found two aggravating circumstances applicable
to Radfar’s murder—HAC and that the murder was committed while engaged in
the commission of a sexual battery—each given great weight.  The defense
conceded that these factors were applicable to the murder, and both factors are
supported by the record.  As stated above, the trial court also found three statutory
mitigating factors and ten nonstatutory mitigating factors.  Brant argues that the
mitigation in his case outweighs the aggravation.  Specifically, he contends that
because his mental illness and drug addiction were causally related to his attack on
the victim, his responsibility for his violent actions is substantially diminished and
his death sentence is disproportionate.
Brant cites numerous cases to support his claim that his death sentence is
disproportionate.  Brant’s argument is best supported by this Court’s decision in
Crook v. State, 908 So. 2d 350 (Fla. 2005).  Crook sexually battered and fatally
stabbed a bar owner during a robbery.  Crook had consumed beer, crack cocaine,
and marijuana laced with heroin before the murder.  On resentencing, the trial
court found three aggravating factors: commission during a sexual battery;
pecuniary gain; and HAC.  The trial court also found statutory mitigation: age of
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twenty at the time of the offense, which was supported by expert testimony that
Crook had the personality development of a three- or four-year-old; the influence
of extreme mental or emotional disturbance; and substantially impaired capacity.
In addition, the trial court found nonstatutory mitigating circumstances including
brain damage, borderline intelligence, and an abusive childhood.  Id. at 355-56.
On appeal, this Court held the death sentence disproportionate, explaining:
Most persuasive in the mitigation evidence is the unrefuted
testimony of Drs. McCraney, McClain, and McMahon directly tying
Crook’s impairments to his functioning at the time of the murder—
which clearly supports the trial court’s attribution of ―significant
weight‖ to the statutory mitigators involving Crook’s diminished
mental capacity.  These circumstances, especially the testimony
linking the combination of Crook’s brain damage and substance abuse
to his behavior at the time of the murder, counterbalance the effect of
the aggravating factors.  We also find it compelling that the unrefuted
expert testimony indicated that Crook would be especially uninhibited
when his already damaged brain was exposed to the negative effects
of alcohol and drugs.  As our cases demonstrate, the existence of this
mitigation, and especially that evidence connecting the mental
mitigation to the crime, prevents us from classifying this case as
among the most aggravated and least mitigated.
Id. at 359 (footnote omitted).
The mitigation in Brant’s case is similar in some respects.  All three mental
health experts, including the mental health expert called by the State, agreed that
Brant had a substance abuse problem and that his methamphetamine use
aggravated his preexisting difficulties with impulse control.  All agreed that the
combination of Brant’s mental makeup, his childhood abuse, and his drug use
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substantially impaired his capacity to conform his conduct at the time of the sexual
battery, and the experts called by the defense opined that Brant’s capacity to
control his conduct at the time of the murder was substantially impaired.  However,
the mitigation in Brant’s case is materially distinguishable from that in Crook’s
case.  The trial court in Brant’s case did not find the mitigating evidence to carry
―significant weight‖ as the trial court did in Crook.  While there was evidence that
Brant suffered from a learning disorder and had borderline language skills, there
was no evidence of borderline mental retardation, stunted personality development,
and increased sensitivity to intoxication as in Crook.  An additional distinguishing
factor is that Brant was thirty-nine years old at the time of the offense, while Crook
was merely twenty years old.
Brant also relies on Cooper v. State, 739 So. 2d 82 (Fla. 1999), in which this
Court held that the death sentence was disproportionate.  Cooper killed a pawnshop
owner during a robbery.  The trial court found three aggravating factors: prior
violent felony, based on another robbery-murder committed several days after the
charged offense; commission during a robbery/pecuniary gain; and cold,
calculated, and premeditated.  In mitigation, the trial court found the no significant
history of prior criminal activity and age (Cooper was eighteen) statutory factors
and nonstatutory mental health mitigation based on Cooper’s brain damage,
borderline-mental retardation, paranoid schizophrenia, and abusive childhood.
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Despite the substantial aggravation in Cooper, this Court held that the death
sentence was disproportionate because the crime was not one of the least mitigated
murders.  Id. at 86.  While Brant likewise had no significant history of prior
criminal activity, an abusive childhood, and some impaired intellectual
functioning, the degree of mental health mitigation in Brant is not as compelling as
that in Cooper.  There was no evidence that Brant suffered from borderline mental
retardation or schizophrenia.  And again, we consider it significant that despite his
drug dependence, depression, and other mental or emotional impairments, Brant
functioned in society for thirty-nine years prior to his offense.  Cooper was
eighteen when he committed murder.
The remaining precedents cited by Brant are likewise distinguishable
because they are more mitigated, less aggravated, or simply too factually dissimilar
to Brant’s case.  See, e.g., Morgan v. State, 639 So. 2d 6 (Fla. 1994) (holding death
sentence disproportionate despite HAC and commission during a felony
aggravating factors where defendant was sixteen years old and had a history of
substance abuse problems); Kramer v. State, 619 So. 2d 274, 278 (Fla. 1993)
(holding death sentence disproportionate where the ―evidence in its worst light
suggests nothing more than a spontaneous fight . . . between a disturbed alcoholic
and a man who was legally drunk‖); Nibert v. State, 574 So. 2d 1059 (Fla. 1990)
(holding death sentence disproportionate where HAC was sole aggravating factor
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and trial court should have found both mental health mitigating factors and given
more weight to the mitigating circumstance of Nibert’s childhood).
Considering the totality of the circumstances, we conclude that Brant’s case
is more similar to cases in which this Court has held that the death sentence is
proportionate.  We consider Brant’s case particularly analogous to Orme v. State,
677 So. 2d 258 (Fla. 1996).  Orme had a history of substance abuse.  One morning,
Orme appeared at a recovery center where he had previously sought treatment.  He
tested positive for cocaine, appeared disoriented, was unable to respond to
questions, and displayed symptoms of acute cocaine withdrawal.  Orme wrote the
message: ―LEE’S MOT RM15.‖  Shortly thereafter, Lisa Redd was found beaten
and strangled to death in room fifteen of Lee’s Motel.  Orme explained that he
summoned his friend Redd, who was a nurse, to the motel room because he was
experiencing a bad high but did not admit to killing her.  The trial court found three
aggravating factors: capital felony committed in the course of a sexual battery;
capital felony committed for pecuniary gain; and HAC.  The trial court also found
both mental health statutory mitigating factors.  Id. at 260-61.
Orme argued that his death sentence was disproportionate because his will
was overborne by the effects of his drug abuse.  This Court rejected the argument,
explaining that ―the State submitted competent substantial evidence that, despite
his addiction, Orme was able to hold down a job and hide his drug abuse from his
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family‖ and that ―[o]n the night of the murder he was able to drive a car without
incident and talked in a normal manner with persons he encountered.‖  Id. at 263.
This Court also rejected Orme’s argument that the murder arose from a ―lover’s
quarrel,‖ instead concluding that the killing was ―designed to further both a sexual
assault and a robbery.‖  Id.
Here too we reject the contention that Brant’s will was so overborne by his
drug abuse as to render the death penalty disproportionate.  Like Orme, Brant was
able to arrange to be alone with his victim and drove a car immediately after the
murder despite his drug use.  According to McKinney, Brant’s ex-wife, Brant
appeared to be under the influence of methamphetamine on the evening of the
murder but he nevertheless was able to interact pleasantly with her, wash dishes
and clean up the kitchen, watch the evening news, and sleep in bed next to her.
Two law enforcement officers and a neighbor testified that Brant did not appear to
be intoxicated the day after the murder, and McKinney testified that Brant was able
to find work doing home maintenance and repairs during the week of the murder.
In addition, although the three mental health experts agreed that Brant’s behavior
on the night of the murder was affected by his methamphetamine use and two
experts discussed the effect of Brant’s sexual urges on his behavior, none opined
that the extreme mental or emotional disturbance mitigating factor was applicable
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to Brant’s case.  Overall, the balance of aggravation and mitigation in Brant’s case
is qualitatively similar to that in Orme.
The balance of aggravation and mitigation is also similar in Rogers v. State,
783 So. 2d 980 (Fla. 2001).  Rogers and the victim left a bar together.  The victim
was found stabbed to death in a motel room.  The trial court found two aggravating
circumstances, pecuniary gain and HAC; the statutory mitigating circumstance of
substantially impaired capacity; and several nonstatutory mitigating circumstances
such as alcohol consumption before the crime and a difficult childhood.
Testimony by mental health experts established that Rogers suffered from brain
damage and mental illness, including a rare genetic mental disease called
porphyria, which may cause psychosis and strokes.  Psychological testing indicated
that Rogers suffered from schizophrenia, mania, and paranoia.  Id. at 995.  The trial
court found that Rogers’ mental illness ―which may be exacerbated by alcohol‖
substantially impaired his capacity to conform his conduct to the requirements of
law at the time of the murder.  Id. at 996.  Despite this evidence of substantial
mental impairment, this Court held that Rogers’ death sentence was proportionate.
Here too, we conclude that Brant’s impairment due to abnormal brain functioning
and drug use, while mitigating, is not so mitigating as to make his death sentence
disproportionate.
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Next, Brant’s case is factually similar to Blackwood v. State, 777 So. 2d 399
(Fla. 2000).  Blackwood and the victim dated on and off for approximately ten
years.  The relationship ended in October 1994.  In January 1995, Blackwood went
to the victim’s home.  Blackwood and the victim engaged in consensual sexual
intercourse but then began to argue.  The victim was found with a washcloth and
bar of soap lodged in the back of her mouth.  Markings on her neck indicated both
ligature and manual strangulation, and the evidence suggested that there had been a
struggle in the room.  A mental health expert testified that Blackwood was
emotionally disturbed at the time of the offense but declined to categorize the
disturbance as ―extreme.‖  Id. at 405.  The trial court found the aggravating factor
of HAC, the statutory mitigating factor of no significant history of prior criminal
conduct, and numerous nonstatutory mitigating factors, including emotional
disturbance at the time of the crime.  In reviewing proportionality, this Court
explained:
The record here shows that the appellant manually strangled the
victim, strangled her with wire, lodged a bar of soap and washcloth in
the back of her throat, and smothered her with a pillow.  Extensive
petechia hemorrhaging in the victim’s eyes indicates that the appellant
applied pressure to her neck, released it, and then reapplied it.  There
is also evidence that the victim struggled for her life during this
attack. . .                                                                            .  In light of this evidence, we cannot conclude that the trial
court abused its discretion in determining that the HAC aggravator
outweighed the mitigators.  Thus, we uphold the imposition of the
death sentence in this case.
Id. at 413.
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The showing of mitigation in Brant’s case is arguably more compelling than
that presented in Blackwood.  While both defendants were in their late thirties and
had never committed a violent crime prior to the murders, the cases differ in that
the trial court found that Brant had a substantially impaired capacity to conform his
conduct to the requirements of law, diminished impulse control, and periods of
psychosis due to methamphetamine abuse.  The Blackwood trial court did not find
any statutory mental health mitigation.  Despite the additional mitigation in Brant’s
case, the cases are nevertheless comparable for purposes of proportionality review
because Brant’s case is also more heavily aggravated.  Both murders were drawn-
out processes during which the defendant used several items to eventually
effectuate death.  Brant admitted that the victim regained consciousness after he
once choked her and that he then strangled and suffocated her more.  But in the
instant case, there is an additional aggravating factor—unlike in Blackwood, the
murder was committed during the course of a sexual battery.
Finally, Brant’s case is similar to Spencer v. State, 691 So. 2d 1062 (Fla.
1996).  Spencer beat and stabbed his wife after having previously attacked her on
several occasions.  The trial court found two aggravating factors: prior violent
felony (based on contemporaneous convictions for aggravated assault, aggravated
battery, and attempted second-degree murder) and HAC.  The trial court found
both statutory mental health mitigating factors—the murder was committed while
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Spencer was under the influence of extreme mental or emotional disturbance and
his capacity to appreciate the criminality of his conduct or to conform his conduct
to the requirements of law was substantially impaired—and numerous nonstatutory
mitigating factors, including drug and alcohol abuse and paranoid personality
disorder.  Id. at 1063.  The trial court gave ―some weight‖ to the statutory
mitigating factors but did not assign them great weight due to ―Spencer’s ability to
function in his job and his capacity to plan and carry out his wife’s murder.‖  Id. at
1064-65.  On appeal, this Court concluded that Spencer’s death sentence was
proportionate despite the statutory mental health mitigation.  As in Spencer, the
record demonstrates that Brant was able to function in most aspects of his life
despite his drug dependence and his sexual obsessive disorder.
Based on the cumulative pattern of the cases discussed above, we conclude
that Brant’s death sentence is proportionate.  While there is substantial mitigation
in Brant’s case, there is also weighty aggravation—HAC and that the murder was
committed during the commission of a sexual battery.  The trial court did not err in
imposing the death sentence.
B.  Sufficiency of Plea
Brant does not challenge the sufficiency of the evidence of his guilt or the
validity of his guilty plea.  However, in all direct appeals where the death penalty
has been imposed, this Court reviews the record to determine whether the evidence
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is sufficient to support the murder conviction.  Fla. R. App. P. 9.142(a)(6); see also
Winkles v. State, 894 So. 2d 842, 847 (Fla. 2005) (citing Fla. R. App. P. 9.140(i)).
In Winkles, this Court explained:
―[W]hen a defendant has pled guilty to the charges resulting in a
penalty of death, this Court’s review shifts to the knowing, intelligent,
and voluntary nature of that plea.‖  Lynch v. State, 841 So. 2d 362,
375 (Fla. 2003); see Koenig v. State, 597 So. 2d 256, 257 n.2 (Fla.
1992) (stating that where a death-sentenced defendant pled guilty,
―[i]n order to review the judgment of conviction . . . , we must review
the propriety of [the defendant’s] plea, since it is the plea which
formed the basis for his conviction‖).   ―Proper review requires this
Court to scrutinize the plea to ensure that the defendant was made
aware of the consequences of his plea, was apprised of the
constitutional rights he was waiving, and pled guilty voluntarily.‖
Ocha v. State, 826 So. 2d 956, 965 (Fla. 2002).
894 So. 2d at 847.  The record in this case contains competent, substantial evidence
showing that Brant’s plea was knowingly, intelligently, and voluntarily made.
The trial court conducted an extensive colloquy in which the trial court
explained each count and the possible sentences to Brant.  The trial court
repeatedly informed Brant that his pleas were ―open guilty pleas which means that
. . . there is no agreement or understanding between you and the State as to what
sentence I will impose when you come back for sentencing.‖  The trial court
explained to Brant his constitutional right to be tried by a jury, his right to call and
confront witnesses, and, if convicted, his right to present mitigating evidence and
receive an advisory sentence from a jury.  Brant answered that he understood the
consequences of his pleas and the rights he was waiving.  The trial court also
- 29 -

informed Brant that the pleas could subject Brant to involuntary commitment as a
sexually violent predator and that by entering guilty pleas, Brant would waive all
appellate issues except the expressly reserved issue of the trial court’s denial of
Brant’s motion to dismiss the kidnapping count.  Again, Brant answered that he
understood.
After the factual basis for the pleas was established, the trial court inquired
whether Brant was satisfied with the advice, investigation, and representation
provided by defense counsel.  When asked if there was anything Brant thought
counsel should do, he answered, ―No sir.  They have done everything.‖  Finally,
the trial court inquired about Brant’s health and education.  Brant answered that he
had taken Wellbutrin for depression at 3 a.m. that morning.  When asked if the
medication affected his ability to communicate and understand anything discussed
that day, Brant answered that it did not, and his counsel confirmed that they were
able to adequately communicate with Brant that morning.  When asked about his
ability to read the plea form, Brant stated that he dropped out a ―month until [high
school] graduation‖ and assured the court that he could read and write.
Based on the thorough discussion between the trial court, Brant, and Brant’s
counsel, we conclude that Brant knowingly, intelligently, and voluntarily entered
his plea to first-degree murder, and the trial court properly accepted it.
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III.  CONCLUSION
Based on the foregoing, we affirm Brant’s conviction for first-degree murder
and his sentence of death.
It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Hillsborough County,
William Fuente, Judge - Case No. 04-CF-12631
James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public
Defender, Tenth Judicial Circuit, Bartow, Florida,
for Appellant
Bill McCollum, Attorney General, Tallahassee, Florida, and Katherine V. Blanco,
Assistant Attorney General, Tampa, Florida,
for Appellee
- 31 -

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