SC07-647 – Michael A. Hernandez, Jr. v. State of Florida

SUPREME COURT CASES

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State: Florida

Court: Supreme Court

Docket No: sc07-647

Case Date: 01/30/2009

Plaintiff: SC07-647 – Michael A. Hernandez, Jr.

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC07-647
MICHAEL A. HERNANDEZ, JR.,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 30, 2009]
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the
death penalty upon Michael Albert Hernandez Jr.  We have jurisdiction.   See art.
V, § 3(b)(1), Fla. Const.  For the reasons expressed below, we affirm Hernandez’s
convictions and sentences.
FACTS AND PROCEDURAL HISTORY
According to the testimony at trial, in the fall of 2004, Hernandez and his
wife, Stephanie Hernandez, moved from Murfreesboro, Tennessee, to Milton,

Florida.  In Milton, Hernandez worked with Richard Hartman Sr.,1 one of his
mother’s former husbands, and with Christopher Shawn Arnold, who was dating
and had a baby with the daughter of Richard Sr.’s wife, Daveine (Tammy)
Hartman.
On the morning of November 18, 2004, Arnold left the home he shared with
Richard Sr.’s stepdaughter, Michelle Rose, in his car and returned an hour later
with Hernandez.  Arnold and Hernandez then left in Arnold’s car, bought crack
cocaine, and smoked it.  Arnold had a crack addiction, and his primary connection
for crack was David Everett, who was also known as “Snapper.”  David lived with
his mother, Ruth Everett, who drove him to work before 8 a.m. on the morning of
November 18.  That same morning, Hernandez and Arnold later drove to the
Everett house, looking for more crack or money.
Hernandez and Arnold went up to the door, knocked, and started talking
with Ruth.  They asked if David was home, and Ruth told them that he was not
there.  After finding out that David was not there, they decided to get money from
her.  Arnold told Hernandez to “grab her,” and Hernandez grabbed Ruth and took
her inside the house.  Arnold made up a story about her son owing him money in
1.   Because several individuals in this case share the same surnames, those
individuals—with the exception of the defendant—will be referred to by their
given names, and “Jr.” or “Sr.” will be used for further identification when
necessary.
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an attempt to get money from her, and she told them that all she had was $20.
Arnold then asked to use the bathroom and came back with a pillow.  Arnold stuck
the pillow over Ruth’s face, and Arnold told Hernandez to grab Ruth’s hands,
which he did.  Hernandez later told different stories about what happened next.
Ultimately, Ruth’s neck was broken, and Hernandez stabbed her in the neck with a
pocket knife.
Arnold then took Ruth’s purse, and they left.  They found Ruth’s debit card
and PIN in her purse, and they used her debit card at several ATMs.  In all, they
took $500, which they spent on crack.  They also stopped at Arnold’s house and
cleaned out his car, and Arnold threw the purse away in a dumpster near his house.
David, who had finished up work, called his house at noon.  After he did not
get an answer, he received a ride home from a coworker.  When he entered his
home, he saw his mother lying on the couch and called 911.  Deputy Charles
Stephens of the Santa Rosa County Sheriff’s Office responded.  The victim was
pronounced deceased at the scene.
Meanwhile, Hernandez and Arnold spent all of the money from the ATMs
on crack.  Arnold then dropped Hernandez off at Hernandez’s home and returned
to his own home that evening.
The next morning, November 19, 2004, Arnold had a conversation with
Rose, after which Rose called Tammy, who came over and spoke with Arnold.
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After they spoke, they went outside to Arnold’s car, and Arnold pulled a pocket
knife from under the passenger seat.  Tammy placed the knife in a white cloth and
observed a brown substance on the knife that she thought was blood.  Arnold also
told her that he had thrown the victim’s purse in the dumpster and showed Tammy
a trash bag with the purse in it.  Tammy took the bag (with the purse in it) and the
knife to the bed of Richard Sr.’s truck, which she had driven there.  Tammy then
drove to her home to get Richard Sr.
She and Richard Sr. then drove to Hernandez’s house, where Hernandez was
with his wife and children.  Tammy asked Hernandez if “he wanted to talk to [her]
about the crack party he just went on” and if he wanted to tell her “about the lady,”
and she told him that she had “the bloody knife and her purse.”  Hernandez told
Tammy that “[h]e was hoping [she] only knew about the crack.”  He also said that
the lady “was old and it was her time to go.”
At some point while the Hartmans were at the Hernandezes’ house, Tiffany
Telin, Stephanie’s sister, and her husband walked into the house.  Hernandez and
his wife had left their two children in Tennessee with Telin and her husband for a
visit, and Telin and her husband had brought the children to Florida to be reunited
with the Hernandezes the night before.   Telin observed Stephanie crying and asked
Stephanie what had happened.  Stephanie said that Hernandez and Arnold had
killed a woman.  Telin then asked Hernandez what had happened.  Hernandez told
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her that he and Arnold had gone over to the house of Arnold’s friend, trying to get
crack.  Hernandez told Telin that Arnold had come up with the idea to get some
money for crack when the friend was not there.   Hernandez also told Telin that
Arnold got a pillow and “stuck it over the lady’s face.”  Hernandez told Telin that
Hernandez killed the lady when she was “almost dead” by stabbing her in the
throat.  Hernandez also said that he and Arnold went to ATMs to get money with
the lady’s ATM card.
The Hartmans, the Hernandezes and their children, and the Telins then drove
over to Arnold and Rose’s house.  After discussing it with his wife, Hernandez had
decided to turn himself in and was going over there so he and Arnold could turn
themselves in.  Inside the house, Arnold, Hernandez, and the Hartmans began
arguing, and somebody called the police.  Hernandez and his wife left, passing the
police in their car on their way out.  Arnold turned himself in to law enforcement at
the house.  Richard Sr., who had moved the trash bag with the knife and purse in it
from his truck back into the dumpster, got it out, and the bag was turned over to
law enforcement.
Later that day, Hernandez drove to the Milton Police Department and turned
himself in.  His wife also brought to the police station the clothing, including a
grey T-shirt, which Hernandez had been wearing on November 18.  Detective
Jeffrey Shuler of the Santa Rosa County Sheriff’s Office Major Crime Unit
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transported Hernandez to his office, and he and Detective Lawrence Tynes
interviewed Hernandez.  An audio recording of Hernandez’s statements was
introduced at Hernandez’s trial.
According to Hernandez’s statements, the following events occurred on
November 18 and 19, 2004.  Hernandez left his house at 8:30 a.m. on November
18 to go to work, but he and Arnold instead “went to a crack friend’s house and got
some crack . . . with the gas money and cigarette money [Hernandez] had for the
day.”  Although he had used crack before moving to Florida, Hernandez had not
used it since moving to Florida.  They were “doing crack,” and Arnold suggested
going to the house of “Snapper,” an individual whom Arnold knew.  Arnold had
done cocaine with “Snapper” before, but Hernandez did not know him.  Arnold
told him “he was going to try and get some money.”   Hernandez and Arnold drove
to “Snapper’s” house in Arnold’s car.  They went to the door and spoke with an
“old lady” at the house.  Arnold told Hernandez to “grab her,” and Hernandez
grabbed the lady by the mouth and pulled her into the house.  Hernandez “got her
quiet” and told her, “shh, calm down, calm down.  We ain’t going to hurt you.”
The lady sat down in a chair.  Arnold told the lady that “Snapper” owed him $300
and that Arnold had a gun put to his head over this money.  Arnold had made up
this story.  Arnold told her that they would try to get the money from her and that
they would leave her son alone if they got the money.  The lady told them that all
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she had was $20.  Arnold said, “All right,” and then asked to use the bathroom and
came back with a pillow.  Arnold stuck the pillow over the lady’s face while she
was still in the chair.  Arnold told Hernandez to grab the lady’s hands, and
Hernandez did.  Hernandez and Arnold were “suffocating her” and she was
“struggling.”  While Hernandez and Arnold were “choking her,” “she stopped
moving for a minute.”  Hernandez said the following then occurred:   “And we let
her up and tried to drag her over to the couch and lay her down.  And she drops,
and I go to grab her, and I grab her head.  And her head cracked.  And Shawn
helped me get her on the couch.  And I . . . got the knife from him and cut her
neck. . .                                                                              . After she was dead.”  Hernandez had grabbed Arnold’s pocket knife
before entering the house and had used it to “chop up a crack block earlier.”
Hernandez said he did not know why he cut the lady’s neck.
According to Hernandez’s statements, Arnold then took the lady’s purse,
and they left carrying it as well as the pillow.   They threw the pillow away on the
highway.2   Hernandez and Arnold also went through the lady’s purse together,
finding only $40.  Hernandez remembered seeing that the lady’s name was “Ruth
something.”  Hernandez and Arnold then went to get some crack and tried to use
the debit card in the purse.  Arnold found the PIN written on a card in the wallet,
and Hernandez and Arnold then stopped at several ATMs.   Arnold obtained money
2.   The pillow was never recovered.
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from one of the ATMs, and Hernandez obtained money from the others.  They
spent the money on crack.  They also stopped at Arnold’s house and cleaned out
his car, and Arnold threw the purse away in a dumpster near his house.  They then
went back out and got more crack, using the money taken from the lady’s account.
They spent all of the money, and Arnold dropped off Hernandez at his home after
they took a last hit of crack that afternoon.  The next day, Richard Sr. showed up at
Hernandez’s house, and Hernandez told him and Stephanie what had happened.
After Hernandez and Arnold were arrested, Tammy visited them both in jail.
Hernandez told her that they went to the lady’s house to “get some more crack.”
Hernandez told her that they had gone to the door and asked if “Snapper” was
home, and the lady told them that he was not home.  Hernandez said he thought he
heard Arnold say, “Grab her,” so Hernandez “got a hold of her in a choke hold”
and brought her in the house.  Hernandez told her that Arnold went to the
bathroom and came back with a pillow, which he put over the lady’s face.
Hernandez said that “the woman just wouldn’t die” when Arnold put the pillow
over her face.  Hernandez told Tammy that Arnold then took a baggy and tried to
help the lady breathe because she was hyperventilating and “so she could calm
herself down.”  Hernandez said Arnold “was a pussy; he couldn’t do it.”
Hernandez told Tammy that Arnold said to him, “I told you we weren’t going to do
this.”  Hernandez said that he knocked Arnold back.  Hernandez told Tammy that
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he then snapped the lady’s neck, and he demonstrated to Tammy how he did it.
Hernandez told Tammy that “she was grabbing him, trying to scratch him, and she
just wouldn’t die and he snapped her neck.”  Hernandez said that he and Arnold
then put the lady on a chair, and Hernandez stuck a knife in her neck.  Hernandez
told Tammy that he killed the lady and cut her throat “[b]ecause she’d seen their
faces.”
On December 13, 2004, Hernandez was indicted with one count of
premeditated or felony murder while carrying a knife and one count of robbery
with a deadly weapon.  Hernandez was later charged by information with one
count of burglary with an assault or battery.  The court consolidated these charges,
over defense objection.
At Hernandez’s trial, the jury heard testimony from Deputy Stephens, David
Everett, Michelle Rose, Tammy Hartman, Tiffany Telin, Detective Shuler, and
other witnesses (including crime scene technicians and a representative from the
victim’s bank), in addition to hearing Hernandez’s statements about the matters
discussed above.  Hernandez did not present any witnesses.
Dr. Andrea Minyard, the medical examiner who had performed the autopsy
of Ruth Everett, also testified.  Minyard testified that the victim had a wound on
her neck that was between one-half-inch and one-inch deep and four-and-a-half-
inches across.  She testified that the victim’s fifth cervical vertebra was fractured
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and that she had a laceration to her spinal cord beneath the fracture.  Minyard also
testified that the victim had bruising on her face and body.  She testified that some
of the bruising on the victim’s face could have been from being smothered, and
some of it could have been caused by a person grabbing her across the face.  She
also testified that bruising to the victim’s body was consistent with her having been
grabbed and forced upon.  She testified that the victim’s broken neck was
consistent with having been caused by an upward motion.  However, she also
testified on cross-examination that a pillow being pushed against the victim’s face
could have caused a fracture to her neck or that she could have fractured her neck
if she had been dropped.  Minyard testified that the wound on the victim’s neck
appeared to have been caused by a knife being taken across her neck from right to
left and that the knife that had been obtained by law enforcement at Arnold’s house
was capable of causing the wound.
Minyard testified that the victim’s cause of death was “combined effects of
blunt and sharp force injuries of the neck.”  Minyard explained that either the
broken neck with the laceration of the spinal cord or the slash through the neck
could have been fatal.  Minyard testified that the victim possibly could have
survived either the broken neck and lacerated spinal cord or the slashed neck if she
had received medical intervention.  Minyard testified that there would have been
some loss of function from the ruptured spinal cord, but how much was unclear.
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Minyard testified that the victim could have been seeing and hearing what
happened to her after her neck was broken and could have felt pain if she was
conscious when her neck was cut.   However, she also testified on cross-
examination that she could not say whether the victim was conscious after her neck
was broken.  Minyard testified that based on the amount of blood, she concluded
that the victim’s heart was still beating and that she was still alive when her neck
was cut.
Curtis Browning, a crime laboratory analyst, also testified.  He testified that
blood on the knife recovered by law enforcement had DNA that matched Ruth’s
DNA.  He also testified that Hernandez was a possible contributor of DNA found
under the victim’s fingernails and that Arnold’s DNA was not present.  Browning
also testified that DNA obtained from blood found on Hernandez’s grey T-shirt
also matched the victim’s DNA.
On February 6, 2007, the jury found Hernandez guilty on all three counts:
first-degree murder while using, carrying, or possessing a weapon;3 robbery with a
deadly weapon; and burglary of a dwelling with assault or battery.4
3.   The jury did not specify whether it found Hernandez guilty of first-degree
premeditated murder or first-degree felony murder.
4.   On the burglary count, the jury found the following: Hernandez
committed an assault or battery in the course of committing a burglary; Hernandez
was armed with a dangerous weapon; and the dwelling was occupied by Ruth
Everett during the commission of the burglary.
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During the penalty phase, the State presented victim impact evidence
through Elaine Simpson and Judy Morrissey, friends of Ruth.  They testified that
Ruth was a supportive friend and a hard worker, who was concerned about her son
David’s drug use.
The State also presented testimony from Santa Rosa County detention
deputies concerning Hernandez’s behavior while he was incarcerated.  Deputy
Matthew Bartley testified about Hernandez’s attack on his codefendant while they
were housed in the same cell.  The State introduced into evidence Arnold’s
medical records concerning his treatment as a result of the altercation and a copy
of the judgment of Hernandez’s conviction and sentence for battery upon a jail
detainee.   The State also presented testimony from Deputy John Wade Jarvis, who
testified about being attacked by Hernandez while transporting him to a doctor’s
office for a psychological evaluation.  The State introduced into evidence a copy of
the judgment of Hernandez’s conviction and sentence for aggravated battery on a
law enforcement officer.
The State also presented testimony from the defendant’s wife.  Stephanie
testified that when the Hartmans came to their house on November 19, 2004,
Hernandez told them that he cut the victim’s throat “[t]o make sure she was dead.”
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The defense then presented testimony from Hernandez’s half-brother,
Richard Hartman Jr., and Hernandez’s mother, Cheryl Walker,5 about Hernandez’s
dysfunctional childhood in which he was exposed to drugs and violence from a
young age.  According to their testimony, Cheryl and Hernandez’s father, Michael
Hernandez Sr., used marijuana on a regular basis in Hernandez’s presence when he
was a child and also used crystal methamphetamine and cocaine.   They wandered
around the country and were in hiding from the Bandidos, a motorcycle group
from which they had fell out of favor.  Cheryl later left Michael Sr. and relocated
to California with Hernandez.  In California, Cheryl, who was no longer using
methamphetamines but was drinking heavily, briefly reunited with Michael Sr.
They later separated, and Cheryl left Hernandez, who was approximately three
years old at the time, with his father while she sold drugs.  Michael Sr. lived with
the Esterbrooks, who were also using and dealing drugs.
Richard Jr. and Cheryl testified that Hernandez returned to live with Cheryl
several years later after she met and married Michael Murphy.  Murphy, who also
abused drugs, beat Cheryl in front of her children and was jailed for putting a gun
in her mouth.  Cheryl sent Hernandez back to his father because she was afraid for
5.   Cheryl testified through a videotaped deposition because she was serving
a sentence in a correctional facility for killing her husband, Anthony Walker.
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his life when she was with Murphy.  Hernandez lived with his father in a hotel
room until his father’s death from a drug overdose.
Richard Jr. and Cheryl also testified that Hernandez lived with Cheryl and
her new husband, Anthony Walker.  Anthony was verbally and physically abusive,
and Hernandez witnessed him choke, beat, and shake Cheryl.  Anthony also once
punched Hernandez so hard that he needed an appendectomy.  Furthermore, both
Cheryl and Anthony used alcohol and marijuana.
According to the testimony of Hernandez’s relatives, Cheryl later sent
Hernandez to live with the Esterbrooks once more, and Hernandez never lived with
her again.  Hernandez reported being beaten and molested at the Esterbrooks’
home, and he eventually left their home and was in the custody of the state.
In addition, Richard Jr. and Cheryl testified that Hernandez’s paternal
grandparents, Al and Barbara Hernandez, later took him to live with them, and he
never saw his mother again until he testified for her at her trial for killing Anthony.
Hernandez then stayed with Richard Jr. as well as with his other half-brother,
Shawn Hartman.  Hernandez also lived on the streets.   After Richard Jr. found this
out, he talked Hernandez into living with him again in Florida, where Hernandez
alternated living with Richard Jr. and Richard Sr.  Hernandez used cocaine during
this time and smoked marijuana.  Hernandez later moved to Tennessee with his
wife.
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The defense also presented testimony from Dr. John Bingham, a mental
health counselor.  Bingham testified that Hernandez met the diagnostic criteria for
a chemical dependency to marijuana and cocaine.   Bingham also testified that he
believed that Hernandez and Arnold’s actions on November 18, 2004, appeared to
reflect “an absence of thinking and more reaction to the situation as it unfolded. . .
All they were interested in is responding in the sense of getting crack cocaine.”
Bingham testified that he believed that Hernandez’s ability to appreciate the
criminality of his conduct or conform his conduct to the requirements of law was
substantially impaired as a result of his chronic cocaine use and being under the
influence at the time as well as because of the psychological and physical abuse he
had experienced.
The defense also presented testimony from Dr. Brett Turner, a
neuropsychologist.  Turner testified that because of Hernandez’s “lack of
participation” and lack of motivation several of the tests he had performed were
invalid, including the neurological testing.  However, Turner testified that
Hernandez’s IQ score was accurate; Hernandez’s full scale IQ score was 89, which
was in the low-average range.   Turner also testified that Hernandez’s achievement
testing, which also was valid, identified a learning disability for spelling and
written expression.  Moreover, Turner testified that while he was not able to
substantiate damage to Hernandez’s frontal lobe because of the invalid
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neurological test score, he believed that Hernandez’s history suggested it.  Turner
also had several diagnoses, including polysubstance dependence disorder,
depressive disorder, posttraumatic stress disorder, impulse control disorder or
cognitive disorder not otherwise specified, and antisocial personality disorder.
Turner also opined that Hernandez was “under extreme emotional disturbance at
the time of the offense as a result of a chronic history of emotional instability
deficits and behavior control and deficits in his reasoning and cognitive abilities all
acutely exacerbated by the effects of cocaine intoxication.”  In addition, Turner
opined that Hernandez’s capacity to appreciate the criminality of his conduct was
substantially impaired “because appreciate actually means to be fully aware, and I
do not believe that he was fully aware at the time of the incident offense.  I believe
he was engaged in a string of behavioral responses, one leading to the next . . .         .”
The defense also offered into evidence Arnold’s judgment and sentence for
the crimes.  Arnold pleaded nolo contendere to felony murder with a deadly
weapon and was sentenced to a term of life imprisonment without the possibility of
parole.
The State then presented testimony from Dr. Harry McClaren, a forensic
psychologist.  McClaren testified that one of the two psychological tests he had
administered was invalid due to an overreporting of psychopathology and that the
other one was technically valid but also was exaggerated by Hernandez.  McClaren
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also noted that the IQ test showed that Hernandez had a full scale IQ of 89, which
was in the upper bounds of the low-average range.   McClaren also opined that
Hernandez suffered from posttraumatic stress disorder and some form of
depression, which was compounded by polysubstance dependence.  McClaren also
testified that based on a history of head injuries and records indicating a learning
disability, Hernandez might have some degree of brain dysfunction, which
McClaren characterized as a cognitive disorder not otherwise specified.  McClaren
also testified that Hernandez had antisocial personality disorder and borderline
personality disorder.  When asked if the mental health disorders had a causal effect
on Hernandez’s conduct in the murder of Ruth Everett, McClaren said no.  He
testified that posttraumatic stress disorder, depression, antisocial personality
disorder, and borderline personality disorder might heighten the risk of substance
abuse, which “would be an indirect rather than a direct link” to his criminal
conduct.  McClaren also opined that Hernandez was not under extreme mental or
emotional disturbance.  McClaren explained that Hernandez was intoxicated on
cocaine, which in McClaren’s belief, did not give rise to the level of the statutory
mitigating circumstance.  McClaren also opined that Hernandez was not acting
under extreme duress or under the substantial domination of another person.
McClaren further testified that Hernandez’s ability to appreciate the criminality of
his conduct or conform his conduct to the requirements of law was not
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substantially impaired.  McClaren testified that while Hernandez was impaired
from cocaine at the time, he was not substantially impaired and was able to engage
in “goal-oriented behavior.”
The State also entered into evidence a copy of Hernandez’s judgment and
sentence in Tennessee for misdemeanor theft.
On February 9, 2007, the jury recommended the death penalty by a vote of
eleven to one.  The court then held a Spencer6 hearing on March 9, 2007.  As
rebuttal to the statutory mitigator of lack of significant prior criminal history, the
State offered testimony regarding Hernandez’s conviction for petit theft.  The
defense then offered unsworn testimony from Barbara Hernandez (Hernandez’s
step-grandmother) and Richard Jr., and defense counsel read a statement that
Hernandez had prepared.
At the sentencing hearing held on March 22, 2007, the court sentenced
Hernandez to death.  The court found four aggravating circumstances: (1)
Hernandez was previously convicted of another felony involving the use or threat
of violence to the person, namely aggravated battery on a law enforcement officer
with great bodily harm and with a weapon and battery upon a jail detainee (great
weight); (2) the capital felony was committed while Hernandez was engaged in the
commission of the crimes of robbery with a deadly weapon and burglary of a
6.   Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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dwelling with assault or battery while armed with a dangerous weapon and while
the dwelling was occupied by a person (great weight); (3) the capital felony was
committed for the purpose of avoiding or preventing lawful arrest or effecting an
escape from custody (great weight); and (4) the capital felony was especially
heinous, atrocious, or cruel (HAC) (great weight).7   The trial court found the
statutory mitigator of lack of significant history of prior criminal activity (some
weight).8   The court also evaluated the nonstatutory mitigating circumstances
offered by Hernandez.9
7.   The court rejected the aggravating circumstance that the victim of the
capital felony was particularly vulnerable due to advanced age or disability.
8.   The court rejected the following statutory mitigators: the crime was
committed while Hernandez was under the influence of extreme mental or
emotional disturbance; Hernandez’s capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was substantially
impaired; Hernandez acted under extreme duress or under the substantial
domination of another person; and Hernandez’s age, twenty-three, at the time of
the crime.
9.   Hernandez offered twenty-eight circumstances, and the court added the
twenty-ninth circumstance. The court found the following: (1) “He lived in
dysfunctional, neglectful, and impoverished childhood circumstances” (some
weight); (2) “He had essentially no family home with anything normal in it; he did
not have any regular schooling; his parents were separated and he was bounced
from parent to parent, to abusive foster homes, and to abandonment” (substantial
weight); (3) “His parents were outlaws, motorcycle gang members, hard drug
dealers and abusers, who were under threat of death from the motorcycle gang”
(substantial weight); (4) “His parents introduced Defendant to narcotics at an early
age” (substantial weight); (5) “His mother had many live-in paramours, who were
physically, mentally, and emotionally abusive to her and to Defendant” (some
weight); (6) “Defendant witnessed physical abuse of mother on many occasions”
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(some weight); (7) “Defendant was abandoned by mother on more than several
occasions and placed in foster care, where he was further mentally, physically, and
emotionally abused” (substantial weight to the abandonment aspect, but no weight
to the rest because it was addressed in factor (9)); (8) “Defendant’s father was
overdosed by drugs at the hands of his girlfriend, while Defendant was living with
him” (some weight); (9) “The Defendant was mentally, physically, emotionally,
and sexually abused in foster care over a four year period as a pre-teen/early teen”
(some weight); (10) “The Defendant ran away because of the abuse and because
his mother would not come to his aid; his mother also told him goodbye, and that
she was going to commit suicide” (some weight); (11) “The Defendant was
dysfunctional by this time, and began to live on the streets and continue in drug
usage” (some weight); (12) “The Defendant lived with his 1/2 brother for a period
of time, but was subjected to continued drug exposure and use at the hands of his
1/2 brother’s father, Richard Hartman” (some weight); (13) “The Defendant
attended learning disabled classes in school when he attended” (some weight); (14)
“The Defendant was able to marry and supported his family for two years” (some
weight); (15) “The Defendant has been characterized as a loving person, loving
father and husband” (some weight); (16) “The Defendant has a life-long addiction
to controlled substances due to his involuntary exposure to them at an early age”
(some weight); (17) “The Defendant was enticed into binging on cocaine at the
time of the instant offense by the co-Defendant” (no weight); (18) “The Defendant
had been drinking the night before and was still under the influence of alcohol on
the morning of the offense” (some weight); (19) “The offense was unplanned, and
was initiated by the co-Defendant” (no weight); (20) “The resulting homicide was
a spontaneous, unplanned act” (no weight); (21) “The co-Defendant actually took
the property of the decedent in hopes of finding money or means to get money to
purchase cocaine” (no weight); (22) “When confronted, the Defendant accepted
responsibility for taking part in the offense” (substantial weight); (23) “The
Defendant has continuously shown remorse for his conduct” (slight weight); (24)
“The Defendant has cooperated with the police to resolve the offense” (some
weight); (25) “The Defendant has two documented suicide attempts” (some
weight); (26) “The co-Defendant was offered a life sentence and was equally
culpable, and actually initiated the entire episode” (no weight); (27) “The
Defendant is not worthy of the death penalty for his participation in this crime” (no
weight); (28) “Defendant has other mental and cognitive disorders that do not
qualify as statutory mitigating circumstances” (some weight); and (29)
“Defendant’s family members have given sworn and unsworn testimony and
provided letters attesting to Defendant’s good character” (some weight).
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The court gave great weight to the jury’s recommendation and found that
“[a]lthough mitigating circumstances exist in this case, the serious aggravating
circumstances which have been proven beyond a reasonable doubt greatly
outweigh the mitigating circumstances.”  The court sentenced Hernandez to death
for the first-degree murder and sentenced him to consecutive life sentences for the
robbery and burglary.
ANALYSIS
Hernandez raises eight claims on appeal.  We will discuss each of these
issues in turn below as well as the sufficiency of the evidence and the
proportionality of Hernandez’s death sentence.
SUFFICIENCY OF THE EVIDENCE
Although Hernandez does not raise the issue of sufficiency of the evidence
on appeal, we have an obligation to independently review the record to determine
whether sufficient evidence exists to support Hernandez’s convictions.  See Bevel
v. State, 983 So. 2d 505, 516 (Fla. 2008); see also Fla. R. App. P. 9.142(a)(6) (“In
death penalty cases, whether or not insufficiency of the evidence or proportionality
is an issue presented for review, the court shall review these issues and, if
necessary, remand for the appropriate relief.”).
Hernandez was convicted of first-degree murder, robbery with a deadly
weapon, and burglary of a dwelling with assault or battery.  The jury was
- 21 -

instructed on both premeditated and felony murder, and the jury found Hernandez
guilty on a general verdict form.  Because the jury was instructed on both theories
of first-degree murder and found Hernandez guilty on a general verdict form, the
evidence must support either premeditated or felony murder.  See Dessaure v.
State, 891 So. 2d 455, 472 (Fla. 2004).
We have reviewed the record, and we find the evidence, as detailed above,
sufficient to support Hernandez’s murder conviction on either theory of first-
degree murder as well as his convictions of robbery and burglary.
MOTION TO STRIKE THE VENIRE
Hernandez argues that the trial court erred by denying his motion to strike
the venire and motion for a mistrial after a prospective juror, Kevin Mancusi, saw
Hernandez in shackles.  He argues that the court failed to protect his right to a fair
trial and right to the presumption of innocence.  However, Hernandez does not
challenge the trial court’s determination that shackling was necessary.
First, it is well accepted that shackling a defendant during a criminal trial is
“inherently prejudicial.”   Holbrook v. Flynn, 475 U.S. 560, 568 (1986); see Bello
v. State, 547 So. 2d 914, 918 (Fla. 1989).  Visible shackling interferes with the
accused’s presumption of innocence and the fairness of the fact-finding process.
Deck v. Missouri, 544 U.S. 622, 630 (2005); Bryant v. State, 785 So. 2d 422, 428
(Fla. 2001).  For that reason, visible shackles must not be used unless “justified by
- 22 -

an essential state interest” specific to the defendant on trial.   Deck, 544 U.S. at 624
(quoting Holbrook, 475 U.S. at 569).
But though it is widely recognized that visible shackling is inherently
prejudicial to a defendant, it is just as accepted that the right to be free of shackles
is not absolute; shackles may be used when warranted by the circumstances.   See
Deck, 544 U.S. at 633; Bryant, 785 So. 2d at 428.  The right may be overcome by
considerations such as “physical security, escape prevention, or courtroom
decorum.”  Deck, 544 U.S. at 628; see also Bryant, 785 So. 2d at 428.  For
example, the necessity of shackles may be sufficiently shown “where there is a
history or threat of escape, or a demonstrated propensity for violence.”   Jackson v.
State, 698 So. 2d 1299, 1303 (Fla. 4th DCA 1997).  Shackling is a permissible tool
to be exercised in the judge’s sound discretion under such circumstances.  Bryant,
785 So. 2d at 428.
Furthermore, to determine whether shackles are necessary to ensure the
safety and security of the defendant and the other individuals present during trial,
the trial court must hold a hearing if the defendant objects and requests an inquiry
into the necessity for shackling.   See Bryant, 785 So. 2d at 429.
In this case, the State sought to have Hernandez shackled on request of the
sheriff’s office.  Upon objection by defense counsel, the trial court conducted the
required evidentiary hearing to determine the necessity of shackling.  Based on the
- 23 -

testimony and arguments presented, the trial court found that shackling Hernandez
was necessary and ordered Hernandez shackled.  The trial court based its
determination on the fact that Hernandez had twice committed a battery against
law enforcement officers, had been convicted of battery on his codefendant after
fighting with him in their jail cell, had threatened a law enforcement officer when
she did not provide him with a razor after one of the attacks on a law enforcement
officer, had self-mutilated with a razor during a previous trial, and was indicted for
capital murder which could result in the imposition of a death sentence.  The trial
court also determined that a stun belt would not be as effective as shackles, as it
could malfunction and might not prevent Hernandez from suddenly engaging in an
act of violence against himself or others.
Furthermore, upon determining that shackling was necessary but aware of its
obligation to ensure that Hernandez receive a fair trial, the trial court immediately
ordered that precautions be implemented to prevent the jury from seeing
Hernandez’s shackles.  The trial court ordered that the counsel tables be formed
into “L” shapes to block the shackles from the jury, that no “All rise” instruction
would be given when the jury entered or left the courtroom, that the State stack
boxes under chairs parallel with the jury box to form an additional visual barrier
between the jury and Hernandez, that bunting be placed around the bottom of the
- 24 -

counsel tables to keep the jury from seeing beneath them, and that a podium be
used as a visual block in the courtroom.
Despite the trial court’s efforts, one prospective juror, Kevin Mancusi,
informed the court during individual voir dire that during a break, he saw the
shackled ankles of a person whom he believed to be Hernandez underneath a
chalkboard set up in the hallway outside the courtroom.   Mancusi indicated
difficulty in maintaining a presumption of innocence after seeing the shackles.
However, Mancusi did not know whether any other prospective jurors present in
the hallway at the time saw the shackled individual, and he did not discuss it with
any other members of the venire.  He also stated that he did not see anything inside
the courtroom that led him to the conclusion that Hernandez was shackled but that
the measures that had been taken were obvious to him “after the fact.”  The trial
court excused Mancusi for cause.
After Mancusi’s individual voir dire, the defense moved to strike the venire
and for a mistrial.  Even though the trial court agreed with defense counsel that
shackling was “inherently prejudicial,” it denied the defense’s motions, explaining
that it was aware of the possibility that members of the jury would eventually
become aware that Hernandez was shackled, despite the steps taken by the court,
and noting that it did what was necessary under the circumstances.
- 25 -

This Court reviews a trial court’s ruling on a motion for mistrial under an
abuse of discretion standard.   England v. State, 940 So. 2d 389, 402 (Fla. 2006)
(citing Perez v. State, 919 So. 2d 347 (Fla. 2005)).  A trial court’s decision on
whether to dismiss a venire is also reviewed for an abuse of discretion.
Valderrama v. State, 816 So. 2d 1143, 1144 (Fla. 4th DCA 2002).
We have long held that a juror’s or prospective juror’s brief, inadvertent
view of a defendant in shackles is not so prejudicial as to warrant a mistrial.   See,
e.g., Singleton v. State, 783 So. 2d 970, 976 (Fla. 2001) (explaining that the jurors’
brief glances of the defendant while he was being transported in prison garb and
shackles, standing alone, were not so prejudicial as to require a mistrial); Stewart
v. State, 549 So. 2d 171, 174 (Fla. 1989) (finding that a new trial was not
warranted where the defendant’s shackles were ruled unobtrusive and necessary by
the trial court and were only barely visible beneath the table); Heiney v. State, 447
So. 2d 210, 214 (Fla. 1984) (holding that the jurors’ possible inadvertent and brief
sight of the defendant being transported into the courtroom in chains did not justify
a mistrial); Neary v. State, 384 So. 2d 881, 885 (Fla. 1980) (concluding that the
jurors’ inadvertent sight of the defendant being brought into the courtroom in
handcuffs was not so prejudicial as to require a mistrial).  Thus, the mere fact that a
prospective juror saw the shackled ankles of a person whom he believed to be
- 26 -

Hernandez underneath a chalkboard set up in the hallway outside the courtroom is
not sufficient, standing alone, to warrant a mistrial or dismissal of the venire.
Moreover, the fact that Hernandez’s shackles may have become visible to
even all of the jurors does not mean that the court should have granted his motion
for a mistrial or motion to strike the venire.  Although a court cannot place a
defendant in visible restraints as a routine matter, the Constitution “permits a
judge, in the exercise of his or her discretion, to take account of special
circumstances, including security concerns, that may call for shackling.”  Deck,
544 U.S. at 633.  Shackles are permissible if the trial court determines that such
restraints are necessary to ensure the safety and security of those present during
trial.  See Bryant, 785 So. 2d at 428.  This clearly suggests that a trial court, in its
discretion, may legitimately deny a motion for mistrial or motion to strike the
venire that may have seen a defendant shackled, provided that it has made the
requisite findings that such shackles are necessary.  As explained above, the trial
court found that shackles were necessary and gave multiple, case-specific
justifications for its decision.  Furthermore, the trial court made extensive efforts to
prevent the jury from seeing Hernandez’s shackles.
In sum, we find that the trial court did not abuse its discretion in denying the
motion for mistrial and motion to strike the venire, given that the record merely
indicates that one prospective juror saw the shackled ankles of a person whom he
- 27 -

believed to be Hernandez underneath a chalkboard set up in the hallway outside the
courtroom, the trial court took numerous precautions to reduce the visibility of the
shackles, and the trial court had a substantial foundation to find that shackles were
necessary and relied on that foundation to justify their use.
JUROR CHALLENGE FOR CAUSE
Hernandez argues that the trial court erred in refusing to grant Hernandez’s
challenge for cause to juror Martina Lindquist.10   Hernandez contends that because
there was a reasonable doubt about Lindquist’s ability to render an impartial
verdict, the trial court violated his constitutional rights by not excusing her.
Hernandez argues that a reasonable doubt existed because Lindquist had personal
encounters with substance abuse through family members’ drug addictions and had
extensive contacts with law enforcement and the criminal justice system.
The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a defendant the right to an impartial jury.   Ross v. Oklahoma, 487 U.S.
81, 85 (1988) (citing Wainwright v. Witt, 469 U.S. 412 (1985), and Irvin v. Dowd,
366 U.S. 717, 722 (1961)).  Under Florida law, “juror impartiality is a firm basis
for excusing a prospective juror for cause.”  Busby v. State, 894 So. 2d 88, 99 (Fla.
2004).   “The test for determining juror competency is whether the juror can lay
10.   When Hernandez challenged Lindquist for cause, he had exhausted his
peremptory challenges.  The trial court denied Hernandez’s challenge to Lindquist
for cause and denied Hernandez’s request for an additional peremptory challenge
to use on Lindquist.  Thus, Lindquist served on the jury.
- 28 -

aside any bias or prejudice and render his verdict solely upon the evidence
presented and the instructions on the law given to him by the court.”   Lusk v. State,
446 So. 2d 1038, 1041 (Fla. 1984) (citing Singer v. State, 109 So. 2d 7 (Fla.
1959)).   If any reasonable doubt exists as to whether a juror possesses an impartial
state of mind, the juror must be excused for cause.   Busby, 894 So. 2d at 95.
“In reviewing a claim of error such as this, we have recognized that the trial
court has a unique vantage point in the determination of juror bias.  The trial court
is able to see the jurors’ voir dire responses and make observations which simply
cannot be discerned from an appellate record.”  Smith v. State, 699 So. 2d 629,
635-36 (Fla. 1997) (citing Taylor v. State, 638 So. 2d 30, 32 (Fla. 1994)).  Thus, it
is within the province of the trial court to determine whether a challenge for cause
is proper.  Busby, 894 So. 2d at 95 (quoting Fernandez v. State, 730 So. 2d 277,
281 (Fla. 1991)).  The decision whether a challenge for cause is proper presents a
mixed question of fact and law that will not be overturned in the absence of
manifest error.  See Smith, 699 So. 2d at 636.
While the record reflects that Lindquist had experience with substance abuse
through family members’ addictions and had connections with law enforcement,
the record does not support Hernandez’s claim that her background and her
responses during voir dire raised a reasonable doubt about her impartiality.
- 29 -

With regard to questions about how substance abuse and alcohol abuse had
impacted her life, Lindquist indicated that it had affected her life in “numerous
ways through numerous family members.”  Lindquist explained that her first
husband’s abuse of marijuana caused her first marriage to end.  She also explained
that her oldest son had been addicted to marijuana and that she had two cousins
with substance abuse issues, which caused stress on the family.  Lindquist also
stated that her ex-brother-in-law’s fiancée had a substance abuse problem and
overdosed and died.  However, when the States asked, “Do you think if drug
addiction or the use of drugs becomes an issue in this case that, that you can put
aside you family’s involvement with substance abuse, and base your verdict solely
on the evidence and the law in this trial?”  Lindquist responded, “Yes, I do.”
Furthermore, when asked by defense counsel about whether the ingestion of
alcohol or cocaine could rise to the level of a mitigating factor in her mind,
Lindquist responded affirmatively.  In sum, while Lindquist indicated that her life
had been affected by substance abuse, she did not give an equivocal response about
her ability to base her verdict solely on the evidence and law, and she never
indicated that her experience would play a role in how she decided the case.
With regard to her connections with law enforcement, Lindquist indicated
that she was a probation office supervisor for the Department of Juvenile Justice
(DJJ) of Santa Rosa County.  As Hernandez concedes, this fact, alone, would be
- 30 -

insufficient grounds for a cause challenge.  Cf. Busby, 894 So. 2d at 95 (explaining
that the mere fact that someone is a correctional officer is not per se grounds for a
challenge for cause).
Lindquist also agreed with the State’s assertion that she knew a lot of people
in law enforcement.  For example, she said that she was engaged to a former
deputy and law enforcement officer in the Air Force, who was employed with the
DJJ.  She said that she knew three people in law enforcement personally and
between fifty-five and sixty individuals professionally in Escambia and Santa Rosa
Counties.  Among those people, she said that she knew Detective Shuler, one of
the investigators in Hernandez’s case who later testified at the trial.  She said that
she had worked with him approximately five times in the previous ten years,
mostly over the phone.  She unequivocally stated that her knowledge of him would
not prohibit her from being fair and impartial in a case where he was the case
agent, that she could weigh his credibility the same as any other witness, and that
she did not know anything about him that would give her reason to give him more
credibility.
Significantly, the State also asked her if her knowledge of persons in law
enforcement or her work would prejudice her in any way in deciding the case.  She
responded, “I don’t believe so.”  The State then asked, “Can you assure Mr.
Hernandez that you can listen to the evidence in this case and the law that the
- 31 -

judge instructs, and base your verdict solely on the evidence and the law?”
Lindquist responded:
Yes, I can.  I work for a neutral agency, and we work with all
parties involved.  But we are very neutral.  We don’t work for the
Public Defender, the State Attorney or law enforcement.  And we look
at the totality of the big picture.   And I am also a Quality Assurance
Reviewer for the Department of Juvenile Justice.  And I review our
policy and procedure on that, as well as a Regional Administrative
Review Liaison from Tallahassee with the Department of Juvenile
Justice.  So I look at facts.
Although Lindquist initially responded, “I believe so,” rather than
responding “Yes” to the question of whether her employment and knowledge of
persons in law enforcement would prejudice her in deciding the case, this response
was not equivocal enough, in light of the entirety of her questioning, to generate a
reasonable doubt about her fitness as a juror.  As this Court explained in Busby,
“The mere fact that a juror gives equivocal responses does not disqualify that juror
for service. . .                                                                       ‘In evaluating a juror’s qualifications, the trial judge should
evaluate all of the questions and answers posed to or received from the juror.’ ”
894 So. 2d at 96 (quoting Parker v. State, 641 So. 2d 369, 373 (Fla. 1994)).
Lindquist gave unequivocal responses to other questions regarding her possible
prejudices and biases and regarding her understanding of and ability to follow the
law.  A review of the entirety of her voir dire supports the court’s denial of the
cause challenge.
- 32 -

Accordingly, we find that the trial court did not err in denying Hernandez’s
challenge for cause to juror Lindquist.
WITNESS’S EXEMPTION FROM SEQUESTRATION
Hernandez argues that the trial court erred by excusing the State’s mental
health expert from the rule of sequestration and allowing the expert to remain
through the presentation of lay and expert testimony during the penalty phase of
his trial.  Hernandez asserts that this error unfairly allowed the State’s expert to
specifically tailor his testimony to do the most damage to Hernandez’s case.
Hernandez argues that the trial court abused its discretion and that the court’s error
was inherently prejudicial.
At the beginning of his trial, Hernandez invoked the rule of sequestration.
Then, after the presentation of victim impact evidence during the penalty phase,
the State requested that Dr. Harry McClaren, a licensed forensic psychologist who
was appointed by the court as the State’s mental health expert before trial and who
examined Hernandez after the jury returned a guilty verdict, remain in the
courtroom during the presentation of evidence by the State and defense:
MR. ELMORE [prosecutor]:  Judge, the State has—as the
Court is aware, has secured the services of Doctor Harry McClaren, a
licensed forensic psychologist for possible rebuttal testimony in this
case.   He has requested of me leave of the Court to sit in on the
information that comes before the Court from this point forward
concerning Michael Albert Hernandez, Junior.
- 33 -

THE COURT:   He’s an expert.  Do you have any problem
with that?
MR. ROLLO [defense counsel]:   I think he’s entitled to sit
through the presentation of our experts, but I don’t know that he can
gather facts that go into—that help him base his opinion on whatever
their rebuttal opinion is, which by the way I haven’t had a chance to
talk to him about.  Based on the factual presentation of evidence
expert opinion is one thing and fact witnesses I think are another.
THE COURT:   Are you objecting?
MR. ROLLO:  I am.
MR. ELMORE:   Judge, the factual witnesses, such as the
State’s aggravating evidence, as well as the background evidence that
will be presented concerning the defendant, are the very type things
that a psychologist bases their expert opinion on.  And that’s why he’s
asked to be allowed to—
THE COURT:   Either of you have any law on this?  Do you
think it’s discretionary?
MR. ELMORE:   Judge, the law is that it’s discretionary with
the Court.
THE COURT:   I think it’s discretionary.  He’s an expert and
subject to cross.  I’ll permit it.
Dr. McClaren stayed in the courtroom during the penalty phase and testified.
The practice of sequestering witnesses has been used for centuries, and it
came to the United States as part of our inheritance of the common law.   See 6
John Henry Wigmore, Evidence in Trials at Common Law § 1837, at 455-56
(James H. Chadbourn rev., 1976).  The United States Supreme Court has described
its purpose as two-fold:   “It exercises a restraint on witnesses ‘tailoring’ their
- 34 -

testimony to that of earlier witnesses; and it aids in detecting testimony that is less
than candid.”   Geders v. United States, 425 U.S. 80, 87 (1976); see also Knight v.
State, 746 So. 2d 423, 430 (Fla. 1998) (“The purpose of the rule of sequestration is
‘to avoid a witness coloring his or her testimony by hearing the testimony of
another,’ thereby discouraging ‘fabrication, inaccuracy and collusion.’ ” (quoting
Charles W. Ehrhardt, Florida Evidence § 616.1, at 506 (1998 ed.))).
Under the common law, this Court emphasized the discretionary nature of
the trial court’s decision to exclude witnesses from the rule of sequestration.   See,
e.g., Randolph v. State, 463 So. 2d 186, 191 (Fla. 1984) (“The trial judge is
endowed with a sound judicial discretion to decide whether particular prospective
witnesses should be excluded from the sequestration rule.”).  Thus, while
recognizing that some cases had approved an exception for expert witnesses from
the general rule of sequestration, we held that the exception of an expert witness
from the rule was a matter within the trial court’s discretion.  See McVeigh v.
State, 73 So. 2d 694, 696 (Fla. 1954).  Moreover, we applied an abuse of discretion
standard when reviewing a trial court’s decision to exempt a witness from the rule.
See, e.g., Spencer v. State, 133 So. 2d 729, 731 (Fla. 1961) (“Unless a trial judge
can be said to have abused the discretion which is his to exercise in such situations,
then his judgment will not be disturbed.”).   Furthermore, we placed the burden on
- 35 -

the complaining party to demonstrate an abuse of discretion with resultant injury.
See, e.g., id.
In Burns v. State, 609 So. 2d 600 (Fla. 1992), we addressed the exemption of
the State’s mental health expert witness under the common law.  In Burns, the trial
court first ruled that the State’s psychologist would be allowed to remain in the
courtroom during testimony by the defendant and the defense’s psychologist, and
the trial court later ruled that the experts for both the State and the defense would
be allowed to remain in the courtroom for the entire penalty phase of the
defendant’s capital trial.  Id. at 606.  The trial court determined that these
exemptions from the rule of sequestration were necessary because it had
determined that the defendant was not required to submit to an examination by the
State’s expert.  Id.  We held that because “this was the only avenue available for
the state to offer meaningful expert testimony to rebut the defense’s evidence of
mental mitigation,” the trial court did not abuse its discretion in exempting the
expert witnesses from the rule.  Id.11
11.   After Burns was decided, we adopted Florida Rule of Criminal
Procedure 3.202.  See Amendments to Florida Rule of Criminal Procedure 3.220—
Discovery (3.202—Expert Testimony of Mental Health Mitigation During Penalty
Phase of Capital Trial), 674 So. 2d 83, 84 (Fla. 1995).  Rule 3.202 provides that
where the death penalty is sought, the court shall order that the defendant be
examined by the State’s mental health expert within forty-eight hours of a capital
murder conviction.  Fla. R. Crim. P. 3.202(d).
- 36 -

In 1990 (before we decided Burns but apparently after the case was tried),
the Florida Legislature codified the rule of sequestration in section 90.616, Florida
Statutes.   See ch. 90-174, § 2, at 743, Laws of Fla.  Section 90.616, Florida
Statutes (2006), states in pertinent part:
(1)   At the request of a party the court shall order, or upon its
own motion the court may order, witnesses excluded from a
proceeding so that they cannot hear the testimony of other witnesses
except as provided in subsection (2).
§ 90.616(1), Fla. Stat. (2006).  While our decisions under the common law
emphasized the discretionary nature of the decision to sequester witnesses, section
90.616 adopts the view that sequestration is demandable as a matter of right.
Charles W. Ehrhardt, Florida Evidence § 616.1, at 655 (2008 ed.).  Nevertheless,
the codified rule of sequestration also includes categories of witnesses who may
not be excluded.   See § 90.616(2), Fla. Stat. (2006).  As one of those categories,
section 90.616(2)(c) provides that a court may not exclude “[a] person whose
presence is shown by the party’s attorney to be essential to the presentation of the
party’s cause.”   § 90.616(2)(c), Fla. Stat. (2006).
We have recognized that in applying the exception in section 90.616(2)(c)
for those persons whose presence is shown to be essential to the presentation of the
cause of one of the parties, “the trial court ‘has wide discretion in determining
which witnesses are essential.’ ”   Knight, 746 So. 2d at 430 (quoting Charles W.
Ehrhardt, Florida Evidence § 616.1, at 509 (1998 ed.)); see also Strausser v. State,
- 37 -

682 So. 2d 539, 541 (Fla. 1996) (citing § 90.616(2)(c) and finding no abuse of
discretion in allowing the mental health expert to remain present in the courtroom
while the defendant testified).  Under section 90.616(2)(c), the burden is on the
party seeking to avoid sequestration of a witness to demonstrate why the presence
of the witness is essential.
In Strausser, we addressed the exemption of the State’s mental health expert
witness under the codified rule.  In Strausser, the defense attempted to show that
the defendant was insane at the time of the murder, and the trial court permitted the
State’s mental health expert to remain in the courtroom to hear the defendant’s
testimony.   682 So. 2d at 540-41.  We reasoned that because a main issue in
Strausser was the sanity of the defendant at the time of the crime, the trial court
may have reasonably concluded that the expert’s presence during the defendant’s
testimony was “essential to the presentation of the . . . cause.”  Id. at 541 (quoting
§ 90.616(2)(c), Fla. Stat. (1993)).  We also noted that the State’s expert was only
present for the direct examination of the defendant.   Id.  Thus, we held that there
was no abuse of discretion.   Id.
Hernandez argues that because the State did not demonstrate a need for Dr.
McClaren to sit through the entire penalty phase, his case is distinguishable from
Burns and Strausser.  However, we need not resolve that issue, because we
conclude that any error did not result in prejudice to Hernandez.
- 38 -

Hernandez contends that the State bears the burden of proving that prejudice
did not result from the trial court’s ruling.   He contends that this Court should use
the harmless-error analysis under State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986),
which places the burden on the State to prove beyond a reasonable doubt that the
error complained of did not contribute to the outcome.   See id. at 1135.  Hernandez
also relies on federal case law interpreting Federal Rule of Evidence 615, the
federal codification of the rule of sequestration, to argue that the prosecution has
the burden to show that the accused was not prejudiced by the witness’s exception
from the rule of sequestration. 12
Accepting appellant’s contention that we should apply the harmless-error
test of DiGuilio, we conclude that Hernandez was not prejudiced by the trial
court’s decision to allow Dr. McClaren to remain in the courtroom during the
penalty phase.  Importantly, Dr. McClaren did not directly rebut any factual
assertions made by lay witnesses during the penalty phase, including the abuse
12.   Specifically, Hernandez cites United States v. Jackson, 60 F.3d 128 (2d
Cir. 1995), and United States v. Farnham, 791 F.2d 331 (4th Cir. 1986).  In
Farnham, the Fourth Circuit held, “Although Rule 615 does not require that [the
defendant] show prejudice, we remain bound by the harmless error rule.”   791 F.2d
at 335.  In Jackson, the Second Circuit held that “the burden to demonstrate lack of
prejudice, or harmless error, properly falls on the party that had opposed
sequestration.”                                                                          60 F.3d at 136.  However, rather than using the harmless-beyond-
a-reasonable-doubt standard, the Second Circuit explained, “[A] new trial is in
order ‘unless it is manifestly clear from the record that the error was harmless or
unless the prosecution proves harmless error by a preponderance of the evidence.’
”  Id. at 137 (quoting United States v. Brewer, 947 F.2d 404, 411 (9th Cir. 1991)).
- 39 -

Hernandez suffered as a child or his history of drug abuse.  In fact, Dr. McClaren
acknowledged the abuse endured by Hernandez as a child and Hernandez’s
extensive history of substance abuse.  Furthermore, his testimony correlated with
that of the other experts regarding Hernandez’s diagnoses, the tests administered,
and Hernandez’s past.  Moreover, while his testimony correlated with the other
experts’ testimony regarding these matters, there is no indication that his expert
opinion was based upon the other experts’ testimony.  Dr. McClaren’s testimony
mainly differed from the testimony of the other experts with regard to the mental
mitigators.  He disagreed with Drs. Bingham and Turner on whether Hernandez’s
capacity to appreciate the criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired.  Dr. McClaren also disagreed
with Dr. Turner regarding whether the crime was committed while Hernandez was
under the influence of extreme mental or emotional disturbance.
While Dr. McClaren’s testimony may have differed from the other experts’
testimony regarding the existence of mental mitigators, the jury was aware that this
difference was solely the result of a difference in professional opinion rather than a
disagreement with any of the factual circumstances related to the case or
appellant’s life.  For example, on cross-examination, the following exchange
occurred:
Q [defense counsel]   No.   And just as you said, all of those
factors, a person can be suffering from multiple mental disorders,
- 40 -

disabilities, brain trauma, PTSD, and a person can know the
difference between right and wrong.   But similarly a person could not.
And you just happen to disagree in this case, right?
A [Dr. McClaren]   Yes, I do.
Q  But that’s your professional opinion.  Your professional
opinion is that you disagree.  Not that it is impossible that Michael
Hernandez was in fact meeting the statutory criteria.   You disagree
professionally with Drs. Bingham and Turner?
A  Absolutely.  Yes.
Furthermore, the jury was aware at all times that Dr. McClaren had listened to the
testimony of the other witnesses during the penalty phase.  On both direct and
cross-examination, Dr. McClaren explained that he listened to testimony of the
witnesses during the penalty phase, including Hernandez’s mother, half-brother,
and wife.   Further, defense counsel was free at all times to explore this fact with
Dr. McClaren during cross-examination and there is no suggestion on appeal that
defense counsel was limited in any way during this examination.
In sum, Dr. McClaren did not refute the factual testimony of the witnesses
during the penalty phase and admitted that he had observed the testimony of other
witnesses during the penalty phase.  Only his professional opinions differed from
those of the defense expert witnesses.  Further, there is no suggestion that either his
opinions or the factual predicates upon which those opinions were based would
have been different if he had not been allowed direct access to the other testimony
elicited during the penalty phase.  In fact, Dr. McClaren was presented with a view
- 41 -

of the defendant’s background that the defense itself relied upon for its case in
mitigation.  Therefore, we conclude that Dr. McClaren’s presence throughout the
penalty phase was harmless beyond a reasonable doubt.
FAILURE TO DISMISS THE INDICTMENT
Hernandez next argues that the trial court erred in failing to dismiss the
indictment.
Before trial, Hernandez filed a motion to dismiss with prejudice the

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