SC08-965 – Kirk Douglas Williams v. State of Florida

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State: Florida

Court: Supreme Court

Docket No: sc08-965

Case Date: 05/20/2010

Plaintiff: SC08-965 – Kirk Douglas Williams

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC08-965
KIRK DOUGLAS WILLIAMS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[May 20, 2010]
PER CURIAM.
This case is before the Court on appeal from a judgment of conviction of
first-degree murder and a sentence of death.  This Court has mandatory
jurisdiction.  See art. V, § 3(b)(1), Fla. Const.  The defendant raises issues related
only to the penalty phase: specifically, the trial court‘s findings of multiple
aggravating factors and the trial court‘s failure to find uncontroverted statutory
mitigation.

Williams is unquestionably guilty of first-degree murder and does not challenge his
conviction.1  As to the imposition of the death sentence, we conclude that this
crime is not one of the most aggravated and least mitigated of murders to qualify
for the ultimate penalty—death.  Rather than a carefully planned murder, the
evidence demonstrates that this murder occurred after an argument erupted with
the victim, with whom Williams lived.  For the reasons fully explained in this
opinion, we vacate the death sentence and remand the case for the imposition of a
sentence of life imprisonment without the possibility of parole.
FACTS AND PROCEDURAL HISTORY
The Guilt Phase
Kirk Douglas Williams, who was twenty-eight years old at the time of the
crime, was convicted of one count of first-degree murder for the murder of Susan
Littrell Dykes.  Williams had been living with Dykes for a period of time prior to
her murder.  The murder occurred some time between the late afternoon hours of
Tuesday, October 3, 2006, and the early morning hours of Wednesday, October 4,
2006.
1.  Under our mandatory obligation to review sufficiency of the evidence in
death penalty cases, we conclude that the record in this case contains competent,
substantial evidence to support the conviction of first-degree murder, including the
admissions that Williams made to three jailhouse witnesses.
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Williams was unemployed at the time and had a long history of substance
abuse.  He was on a crack cocaine binge during the period leading up to the crime
and following the crime.  In the early morning hours of Tuesday, October 3, 2006,
Williams used Dykes‘s ATM card to make the following withdrawals: $100 at
12:12 a.m., $100 at 1:49 a.m., $100 at 4:49 a.m., and $200 at 6:06 a.m.  These
withdrawals left Dykes‘s account $294.65 overdrawn.  Evidence was presented
that when Williams made these withdrawals, he was driving Dykes‘s vehicle.  He
had used Dykes‘s vehicle on several occasions over the past months and, at the
time of the murder, had no working vehicle of his own.
At 5:12 a.m. that same morning, before the last withdrawal from the bank
account, Williams purchased the following items from Walmart: a safety hasp,2 a
brass lock, a sponge, and a ―ring light.‖  A hasp similar to the hasp that Williams
purchased was found on the inside of the back door of Dykes‘s trailer after the
murder.  However, the evidence presented at trial did not conclusively establish
that the hasp and lock were the same hasp and lock purchased by Williams on
October 3.
The morning of October 3, Dykes went to work as a security officer.  She
called the main office of her employer at 9:30 a.m. to report that she had arrived at
2.  A hasp is ―a fastener esp. for a door or lid consisting of a hinged metal
strap that fits over a staple and is secured by a pin or padlock.‖  Merriam Webster‘s
Collegiate Dictionary 570 (11th ed. 2005).
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the remote job site and to express concern about whether her employment would
continue.  In the late afternoon of October 3, Dykes visited her landlord to
reimburse him for a water bill that he had paid.  This was the last time that Dykes
was seen alive by any of the witnesses testifying at trial.  Dykes did not show up to
work the next day.
Williams spent a large part of the day and evening of October 3 with Callie
Williams, using Callie‘s car to drive around.3  Although not living together,
Williams and Callie were married and had a child together.4  Callie testified that
she and Williams were together on October 3 from around noon until 9 p.m.  They
went to the junkyard to get a fuel pump for Williams‘s car and smoked crack
cocaine.  Callie testified that they also went somewhere else that she could not
remember.  Williams dropped her off at her house at 9 p.m.
She saw Williams again about an hour later at 10 p.m. when he brought
more crack cocaine to her house, which they smoked.  He drove Dykes‘s car and
parked it near the house.  Then, he left to obtain more drugs.  A short period of
time later, he came back a final time with more crack cocaine, which they smoked,
3.  It is unknown whether Dykes had contact with Williams prior to going to
work the morning of Tuesday, October 3, or at what time Williams returned
Dykes‘s vehicle.
4.  Williams had previously lived with Callie at her parents‘ house.
However, Callie‘s father had kicked Williams out of the house.  Callie continued to
live with her parents.
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and he stayed until 4:45 a.m. on Wednesday, October 4.  During this last visit, he
was wearing different clothing than before.  Additionally, instead of parking near
the house, he parked in the woods some distance away.
As to the actual circumstances of the crime, the State presented three
jailhouse inmates, who testified regarding admissions Williams made to them.  The
first, William Hawley, spoke to Williams at the jail.  Williams asked Hawley if he
knew anything about death penalty cases and showed Hawley the State‘s notice of
its intent to seek the death penalty.  Williams then explained to Hawley that ―he
was on a crack cocaine binge and that he was using and abusing [Dykes‘s] A.T.M.
or credit cards‖ and that ―he had a warrant for his arrest and that [Dykes]
threatened to turn him in on the warrant because he was using and abusing the
cards.‖  Dykes also threatened to press charges against him for using her ATM
cards.  Williams ―said that they got into a physical confrontation over it; that he
beat her with a baseball bat and she died.‖  Williams told Hawley that ―he had been
to prison twice before and knew he didn‘t want to go back to prison and he had to
kill her.‖
The second inmate to testify was Billie Franklin Shirah, II.  While
incarcerated at the Walton County Jail, Shirah spoke about his wife to Williams;
Shirah was angry at his wife and told Williams that he felt like killing her.
Williams responded: ―You don‘t want to do that. . .                                   . You don‘t know what it‘s
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like; what you have to live with, not being able to sleep or anything, when you kill
someone.‖  Shirah asked what Williams was talking about.  Shirah explained
Williams‘s response as follows: ―And he told me, he said, that Dykes woman.  He
told me she was coming in with $80 worth of crack every day; he didn‘t know
where she was getting it from.  And he told me he was on drugs and told me he
killed her with a ball bat for the drugs.‖  When asked on cross-examination
whether the extent of what Williams admitted was ―I killed her because of that
crack cocaine,‖ Shirah answered in the affirmative.
The third and final inmate to testify was Joseph Dewayne Cordell.  He and
Williams slept in the same cell at the Walton County Jail.  Williams relayed the
following account of the murder to Cordell:  Williams and Dykes were at a friend‘s
house.  They had bought pot and crack and were smoking pot.  They were going to
smoke the crack, but then Dykes refused and they started arguing because she was
not going to give him any crack.  They were asked to leave, so they went to
Dykes‘s house.  Dykes confronted Williams about using her ATM card or bank
account and said she was not going to smoke crack with him.  While they were
arguing, they knocked over some tools, and there was a bat.  Williams picked up
the bat and hit her in the head with it.
The three inmates were consistent in describing a confrontation and a
beating death with a bat.  Their testimony was inconsistent about the motive for the
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murder and whether Williams killed Dykes to avoid going to prison, as Hawley
stated, over crack cocaine, as Shirah testified, or over whether they were going to
smoke crack cocaine together, as Cordell testified.
Dykes‘s body was discovered on Saturday, October 7 floating in a nearby
lake in a badly decomposed state.  Her body was found tied to three
cinderblocks—one attached to her chest, one attached to her waist, and one
attached to her feet.  All of the cinderblocks were tied to the body with a flat, thin
nylon rope of the brand Nefco Incorporated, with the words ―1,800 LB
MULETAPE‖ stamped on it.  A piece of the same type of rope was also tied
through her mouth and around the back of her head with no cinderblock attached to
it.
Investigators observed the following at Dykes‘s trailer.  The back door of the
trailer‘s locking mechanism was flimsy and easily pried open, but the door was
additionally secured with a hasp and lock; the front door was securely locked and
did not have a hasp and lock on it.  Inside the trailer, investigators found blood in
the master bedroom and a small aluminum tee ball bat inside the closet in the
master bedroom, which had blood on it later identified as belonging to Dykes.5
5.  Photographs of the inside of the trailer introduced into evidence depict
clutter on the floor and on furniture, including toys, a baseball, and collectibles.
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As to the manner in which Dykes died, the medical examiner, Dr. Cameron
Francis Snider, testified to five injuries consistent with the head being struck by the
aluminum tee ball bat.  The medical examiner was unable to testify without
speculating about whether Dykes remained conscious after the first blow with the
bat and further stated that any of the blows could have caused unconsciousness and
death.
There was extensive evidence introduced at trial about Williams‘s post-
murder attempts to cover up the crime by cleaning up the crime scene and
disposing of the body in the lake.  In particular, Williams was seen by two of
Dykes‘s neighbors at around 6 or 6:30 a.m. on Wednesday, October 4, driving
Dykes‘s car with a flat-bottom aluminum boat tied to the top.  The boat was later
identified as belonging to Callie‘s father.  The aluminum boat, more of the same
brand of rope that was found on the body and cinderblocks were found at Dykes‘s
trailer.  A pair of Dykes‘s jeans with her blood on them was found in a clothes
hamper in the master bedroom.  Williams also apparently attempted to use carpet
cleaner to clean up blood in the master bedroom of the trailer.  Finally, as to
Williams‘s actions after the murder, Williams called Callie from jail on October 8
and asked her to go to Dykes‘s trailer, look underneath an aluminum boat leaned
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against the back of the trailer, retrieve a blanket and some ropes from underneath
the boat, and put the items in his car.6
The jury found Williams guilty of first-degree premeditated murder with a
weapon.
The Penalty Phase, Spencer Hearing, and Trial Court’s Order
During the penalty phase, the State presented no evidence, electing to rest
upon the evidence presented in the guilt phase.  The defense presented three
witnesses—one expert witness and two lay witnesses.  The expert witness was Dr.
James D. Larson, a licensed psychologist.  The penalty phase testimony will be
described in further detail in this Court‘s proportionality discussion.  Ultimately,
the jury recommended death by a vote of eleven to one.
Subsequently, the trial court held a Spencer7 hearing, at which time both
Williams and the State were given an opportunity to present additional evidence.
The State presented victim impact testimony from Dykes‘s son and daughter.
Williams also testified—he described his background and difficult childhood and
gave an account of the events surrounding the murder.  He denied killing Dykes.
Rather, he claimed that he found her dead the morning of October 3 when he
6.  Williams was in jail after being taken into custody by a bail bondsman on
October 6 on an unrelated matter after he missed a scheduled court appearance on
October 4.  No further details of the charge appear in the record.
7.  Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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returned to the trailer between ATM withdrawals.  He stated that there was already
a hasp and lock on the back door of the trailer and that he had bought the hasp and
lock for the front door after discovering Dykes‘s body, but never installed them.
He did admit, however, to obtaining Callie‘s father‘s boat and using it to dispose of
Dykes‘s body in the lake.
In sentencing Williams, the trial court found four aggravators: (1) the crime
was committed for the purpose of avoiding or preventing a lawful arrest or
effecting an escape from custody; (2) the crime was committed for pecuniary gain;
(3) the crime was especially heinous, atrocious, or cruel (HAC); and (4) the crime
was committed in a cold, calculated, and premeditated manner, without any
pretense of moral or legal justification (CCP).  The trial court did not assign any
weight to the aggravators that were found.
The trial court also rejected the only statutory mitigator requested by
Williams—that the capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was substantially
impaired.  However, the trial court found the following nonstatutory mitigators to
which it assigned moderate weight: (1) Williams had a history as a polysubstance
abuser, having used such substances as cocaine, crystal methamphetamine, and
prescription medication; Williams was on a crack cocaine binge at the time of the
murder and was chemically dependent at the time of the crime; and Williams
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participated in an outpatient substance abuse treatment program approximately ten
to twelve months before the murder; (2) Williams had a chaotic and unstable
childhood; and (3) Williams had good relationships with family members, had
exhibited a caring and loving attitude for his children, and desired to maintain good
father-child relationships during imprisonment.  The trial court found other
nonstatutory mitigators to which it assigned little weight: (1) psychological testing
showed that Williams would not likely cause any violence in a controlled
population such as prison; (2) Williams‘s psychological testing showed that he was
not a psychopath; (3) Williams appeared to have neuropsychological impairment,
which may be classifiable as fetal alcohol syndrome; and (4) Williams was a kind,
courteous, and gentle friend and hard worker for his employer, Pam Miller.
On appeal, Williams attacks each of the four aggravators found and the trial
court‘s failure to find the mitigating factor that Williams‘s addiction to crack
cocaine substantially impaired his ability to conform his behavior to the
requirements of the law at the time of the homicide, among other claims.8
8.  Williams makes the following claims: (1) the trial court erred in
instructing the jury on and in finding CCP; (2) the trial court erred in instructing
the jury on and in finding the avoid arrest aggravator; (3) the trial court erred in
instructing the jury on and in finding that the murder was HAC; (4) the trial court
erred in instructing the jury on and in finding pecuniary gain aggravator; (5) the
trial court erred in failing to find the mitigating factor that Williams‘s addiction to
crack cocaine substantially impaired his ability to conform his behavior to the
requirements of the law at the time of the homicide; (6) the death sentence is
inappropriate since no valid aggravating circumstances exist; and (7) the trial court
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ANALYSIS
Standard of Review as to Aggravating Circumstances
The State has the burden to prove beyond a reasonable doubt each and every
aggravating circumstance that it alleges.  In this case, Williams asserts there was
not competent, substantial evidence to support the findings of the trial court of
aggravating circumstances beyond a reasonable doubt and that the evidence is
speculative as to each of the aggravators.   ―The standard of review this Court
applies to a claim regarding the sufficiency of the evidence to support an
aggravating circumstance is that of competent, substantial evidence.‖  Guardado v.
State, 965 So. 2d 108, 115 (Fla. 2007).   ―When reviewing a trial court‘s finding of
an aggravator, ‗it is not this Court‘s function to reweigh the evidence to determine
whether the State proved each aggravating circumstance beyond a reasonable
doubt—that is the trial court‘s job.‘ ‖  Aguirre-Jarquin v. State, 9 So. 3d 593,
608 (Fla. 2009) (quoting Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997)), cert.
denied, 130 S. Ct. 1505 (2010).  Rather, it is this Court‘s task on appeal ―to review
erred in sentencing Williams to death because Florida‘s capital sentencing
proceedings are unconstitutional under the Sixth Amendment pursuant to Ring v.
Arizona, 536 U.S. 584 (2002).  Because we conclude that competent, substantial
evidence supports at least one aggravator, we do not discuss claim 6 (that the death
sentence is inappropriate on the basis that no valid aggravating circumstances
exist).  Because we determine that the death sentence is not proportionate, we do
not reach claim 7 (that Williams‘s death sentence is unconstitutional under Ring v.
Arizona).
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the record to determine whether the trial court applied the right rule of law for each
aggravating circumstance and, if so, whether competent substantial evidence
supports its finding.‖  Id. (quoting Willacy, 696 So. 2d at 695).  With this in mind,
we review each of the aggravating circumstances.
CCP Aggravator
In order to establish the CCP aggravator, the evidence must show:   (1) ―the
killing was the product of cool and calm reflection and not an act prompted by
emotional frenzy, panic, or a fit of rage (cold)‖; (2) ―the defendant had a careful
plan or prearranged design to commit murder before the fatal incident
(calculated)‖; (3) ―the defendant exhibited heightened premeditation
(premeditated)‖; (4) ―the defendant had no pretense of moral or legal justification.‖
Franklin v. State, 965 So. 2d 79, 98 (Fla. 2007).   ― ‗CCP involves a much higher
degree of premeditation‘ than is required to prove first-degree murder.‖  Deparvine
v. State, 995 So. 2d 351, 381-82 (Fla. 2008) (quoting Foster v. State, 778 So. 2d
906, 921 (Fla. 2001)).   ―Premeditation can be established by examining the
circumstances of the killing and the conduct of the accused.‖  Franklin, 965 So. 2d
at 98.  Further, ―the evidence must prove beyond a reasonable doubt that the
defendant planned or prearranged to commit murder before the crime began.‖
Thompson v. State, 565 So. 2d 1311, 1318 (Fla. 1990).   ―The CCP aggravator can
‗be indicated by circumstances showing such facts as advance procurement of a
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weapon, lack of resistance or provocation, and the appearance of a killing carried
out as a matter of course.‘ ‖  Franklin, 965 So. 2d at 98 (quoting Swafford v. State,
533 So. 2d 270, 277 (Fla. 1988)).
In finding that this aggravating circumstance had been proven beyond a
reasonable doubt, the trial court stated:
Kirk Williams‘ decision to kill Susan Dykes, however poorly
conceived, was made in the early morning hours of Tuesday, October
3rd, 2006, as he realized that he would be going to prison if she lived
to charge him with grand theft.  At about 5:12 a.m., on October 3rd,
2006, the defendant purchased the hasp and lock at Walmart with the
intent to secure the eventual crime scene.  The timing of the hasp and
lock purchase and its installation on the rear door of the trailer leads to
the conclusion that the defendant planned to commit the murder and
secure the crime scene.  The defendant had time to reflect on his
planned murder of Susan Dykes and did so.  The testimony of
William Hawley was that the defendant told him that he committed
the murder because he knew he would go back to prison.
The defendant (at the Spencer hearing) testified that he
purchased the hasp and lock for the purpose of securing the door to
Susan Dykes‘ trailer.  This admission by the defendant confirms that
the purchase of the hasp and lock was done with an intent to kill
Susan Dykes.
Williams argues that there was not competent, substantial evidence to support the
trial court‘s finding of this aggravator.  We agree.
In this case, virtually all of the evidence is inconsistent with the murder
being preplanned.  In fact, the direct evidence—the testimony of the three jailhouse
witnesses—was consistent in one important aspect.  The three jailhouse witnesses
all testified that Williams was on drugs at the time of the murder and that the
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killing occurred after Williams and Dykes got into an argument that ended with his
beating her with a bat.
The trial court found that Williams‘s decision to kill, ―however poorly
conceived, was made in the early morning hours of Tuesday, October 3rd, 2006, as
he realized that he would be going to prison if she lived to charge him with grand
theft.‖  However, there is no indication that Williams feared at the time that he was
withdrawing money that Dykes would charge him with grand theft.  In fact, the
record established that previously, in August 2006, Williams withdrew $200 from
Dykes‘s account, which left the account overdrawn.  Dykes did not press charges
against Williams for this withdrawal, and Williams and Dykes lived together after
that time.
All of the hallmarks of a killing that has been found to be CCP are missing
in this case, including ―such facts as advance procurement of a weapon, lack of
resistance or provocation, and the appearance of a killing carried out as a matter of
course.‖  Franklin, 965 So. 2d at 98 (quoting Swafford, 533 So. 2d at 277).  As to
the weapon, unlike other cases, in this case there was no evidence that the bat,
described alternatively as a ball bat or tee ball bat, was procured in advance.  See,
e.g., Wright v. State, 19 So. 3d 277, 300 (Fla. 2009) (upholding CCP where
defendant obtained firearm in advance, abducted and forced victims to drive to
remote area where there would be no witnesses, and shot the victims multiple
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times execution-style); Eaglin v. State, 19 So. 3d 935, 948 (Fla. 2009) (upholding
CCP where defendant obtained the murder weapon in advance and made
statements before the murder that indicated an intent to kill).
Further, the actions of Williams on the day and evening of the crime are not
indicative of a ―careful plan or prearranged design‖ or a heightened premeditated
intent to murder Dykes.  The trial court hinged its finding on the purchase of the
hasp and lock at 5:12 a.m.  However, at the time of purchasing the hasp and lock,
Williams also purchased two other common household items unrelated to the
murder: a sponge and a ring light.  After purchasing the hasp and the lock,
Williams did not return home and murder Dykes that morning.  Rather, Dykes
went to work later that morning, and Williams spent the day with his wife,
engaging in activities unrelated to planning the murder.  Additionally, although
there was extensive evidence of actions that Williams took after the murder, there
is no evidence that Williams procured any of the items he used to dispose of the
body prior to the murder.
While it is true that the hasp and lock could have been purchased with the
intent to secure the scene of a murder that had yet to occur, that conclusion is
speculative.  While circumstantial evidence can be used to support CCP, ―the
circumstantial evidence must be inconsistent with any reasonable hypothesis which
might negate the aggravating factor.‖  Harris v. State, 843 So. 2d 856, 866 (Fla.
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2003) (quoting Hildwin v. State, 727 So. 2d 193, 194 (Fla. 1998)).  In this case,
there was no proof, and certainly not proof beyond a reasonable doubt, that the
hasp and lock purchased by Williams were the same hasp and lock found securing
the back door after the murder.  In fact, the lead investigator in the case testified
that the presence of a hasp and lock on the door of the trailer was not unusual or
significant in and of itself because he had ―been to other scenes where [he had]
seen the same thing.‖
We recognize that the trial court also relied on the Spencer hearing
testimony of Williams in which he stated that he purchased the hasp and lock to
secure the trailer.  We begin by noting that since Williams testified at the Spencer
hearing, the jury was not presented with his testimony.  Further, even though the
trial court had Williams‘s testimony before it, the purchase of the hasp and lock is
the only piece of evidence that could be construed as evidence of advance
planning.  All of the other evidence presented establishes that the provocation for
the murder arose at the time of the argument.  In particular, the direct evidence of
the murder—the testimony of all three inmates—indicates that this was a
spontaneous murder that happened during the course of an argument between
Williams and Dykes over crack cocaine or when she confronted him about using
her ATM card.
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When examining Williams‘s Spencer hearing testimony, the trial court
considered Williams‘s statement that he purchased the hasp and lock in isolation.
Williams also testified that he purchased the hasp and lock after he found Dykes
already dead and, further, that he intended to use them to secure the front door but
never installed them.  Investigators did not find the front door secured with a hasp
and lock after the murder, but rather the back door.  Williams testified that the back
door was already secured with a hasp and lock prior to October 3.  In sum, his
testimony does not support a conclusion that the purchase was made with the intent
to kill and does not support a finding of CCP beyond a reasonable doubt.
Finally, although not dispositive, this was not an execution-style murder,
which is the classic situation in which CCP has been found.  See, e.g., Eutzy v.
State, 458 So. 2d 755, 757 (Fla. 1984) (finding CCP where defendant procured a
gun in advance and the victim was shot once in the head, execution-style).
The case of Mahn v. State, 714 So. 2d 391 (Fla. 1998), where this Court
struck the CCP aggravator, is instructive.  In that case, the defendant was convicted
of killing his father‘s live-in girlfriend and her son.  Id. at 393.  The defendant
confessed that he was on drugs at the time, that he entered the son‘s room, and that
he stabbed the son with a knife he had obtained from the kitchen.  Id. at 394.
When the son screamed, the defendant‘s father‘s girlfriend came into his room, and
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the defendant stabbed her also.  Id.  Then he fled the scene.  Id.  This Court found
insufficient evidence of the heightened premeditation required to establish CCP:
There is no evidence that Mahn acted in the deliberate, professional,
and coldly calculating manner that is required to establish this
aggravator.  The evidence reflects that Mahn, using hastily obtained
weapons of opportunity, carried out the attacks in a haphazard
manner, striking out at Debra, for example, when she confronted him
after the attack on Anthony, and then fled in a panic.
Id. at 398.
There are similarities between Mahn and the instant case.  In this case, the
testimony of the inmates shows that the intent to kill Dykes arose during an
argument with Dykes when she threatened to press charges and refused to share or
smoke crack cocaine with Williams, which is evidence that Williams did not act in
a ―deliberate, professional, and coldly calculating manner.‖  Id.  Further, like the
defendant in Mahn, Williams also used a ―weapon of opportunity‖—the aluminum
tee ball bat.  As Cordell testified, Williams ―said they were just arguing and then
he said they had knocked some tools or something over and there was a bat of
some kind.  And he said he picked it up and hit her in the head with it.‖
In sum, the direct evidence of the murder—the inmates‘ testimonies—shows
that this was not a preplanned killing that would meet the heightened premeditation
standard required for CCP.  Rather, the inmates‘ testimonies show that the murder
arose as part of a spontaneous and unplanned fight.  Further, in contrast to other
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cases where this Court has upheld CCP,9 there was no advance procurement of a
weapon or means to dispose of the body or other evidence of preplanning.  For all
of these reasons, we strike CCP as not being supported by competent, substantial
evidence in this case.
HAC Aggravator
This Court has explained the HAC aggravator as follows:
It is our interpretation that heinous means extremely wicked or shockingly
evil; that atrocious means outrageously wicked and vile; and, that cruel
means designed to inflict a high degree of pain with utter indifference to, or
even enjoyment of, the suffering of others.  What is intended to be included
are those capital crimes where the actual commission of the capital felony
was accompanied by such additional acts as to set the crime apart from the
norm of capital felonies—the conscienceless or pitiless crime which is
unnecessarily torturous to the victim.
Hernandez v. State, 4 So. 3d 642, 668-69 (Fla. 2009) (quoting State v. Dixon, 283
So. 2d 1, 9 (Fla. 1973)), cert. denied, 130 S. Ct. 160 (2010).  Further, ―[t]he HAC
aggravator focuses on the means and manner in which death is inflicted and the
immediate circumstances surrounding the death.‖  Id. at 669 (quoting Brown v.
State, 721 So. 2d 274, 277 (Fla. 1998)).
9.  See, e.g., Deparvine, 995 So. 2d at 381-82 (upholding CCP where
defendant ―executed a well-thought-out and time-consuming plan to acquire the
[victim‘s] truck‖); Diaz v. State, 860 So. 2d 960, 969-70 (Fla. 2003) (upholding
CCP where defendant ―purchased and took possession of a firearm with
ammunition several days before the murder,‖ ―outlined his plan in a letter to his
brother the previous night,‖ and ―then took his gun and several rounds of
replacement ammunition to [the victim‘s] house‖); Lawrence v. State, 846 So. 2d
440, 450 (Fla. 2003) (upholding CCP where defendant confessed and wrote ―notes
describing the planning of the murder‖).
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This Court has ―consistently upheld HAC in beating deaths.‖  Douglas v.
State, 878 So. 2d 1246, 1261 (Fla. 2004) (quoting Lawrence v. State, 698 So. 2d
1219, 1222 (Fla. 1997)); see, e.g., Dennis v. State, 817 So. 2d 741, 766 (Fla. 2002)
(upholding HAC where both victims suffered skull fractures and were conscious
for at least part of the attack as evidenced by defensive wounds to their hands and
forearms); Bogle v. State, 655 So. 2d 1103, 1109 (Fla. 1995) (upholding HAC
where the victim was struck seven times on the head, victim was alive during
infliction of most of the wounds, and the last blows caused death); Wilson v. State,
493 So. 2d 1019, 1023 (Fla. 1986) (upholding HAC where the victim was brutally
beaten while attempting to fend off the blows before being fatally shot).
However, in order to support a finding of this aggravator, ―the evidence
must show that the victim was conscious and aware of impending death.‖
Douglas, 878 So. 2d at 1261; see, e.g, Zakrzewski v. State, 717 So. 2d 488, 493
(Fla. 1998) (striking HAC where ―[m]edical testimony was offered during the trial
which established that [the victim] may have been rendered unconscious upon
receiving the first blow from the crowbar, and as a result, she was unaware of her
impending death‖); Simmons v. State, 419 So. 2d 316, 317, 319 (Fla. 1982)
(striking HAC where ―[d]eath was probably instantaneous or nearly so; an expert
testified that either of the two blows could have caused instantaneous death by
itself‖).
- 21 -

In finding that this aggravating circumstance had been proven beyond a
reasonable doubt, the trial court stated in relevant part:
The multiple lacerations and locations of the lacerations around the
head indicate that Susan Dykes‘ head was moving as the blows were
inflicted.  No other reasonable conclusion can be drawn other than
Susan Dykes was conscious and standing at least long enough for the
blood from her head injuries to reach both the front and back sides of
her jeans in the manner in which the jeans are blood-stained.  Susan
Dykes was without a doubt acutely aware of her impending death and
the pain associated with the terrible blows (which bent the aluminum
bat).  Then, while Susan Dykes was obviously still alive, the
defendant gagged her with some of the muletape rope; there is no
need to gag a dead person.
Williams argues that there was not competent, substantial evidence to support the
trial court‘s finding that Dykes was conscious during the attack.  An examination
of the record supports Williams‘s argument.
The trial judge‘s first finding that the multiple lacerations and locations of
the lacerations indicate that Dykes‘s head was moving as the blows were
inflicted—and thus she was conscious—is not supported by the record and appears
to be speculation.  The record reflects only where the blows were located and the
lengths of the lacerations.  There is no testimony in the record as to why the blows
were delivered to different parts of Dykes‘s head or what the pattern of blows
indicates.  The blows to different parts of her head could simply have been from
Williams swinging the bat from side-to-side or from her head being moved by the
- 22 -

force of the blows.  There is absolutely no expert testimony to support the trial
court‘s contrary conclusion.
The trial judge‘s second finding was that the blood on the jeans indicated
that Dykes was conscious and standing at least long enough for the blood to reach
both the front and back sides of her jeans.  This finding is also not supported by the
record and appears to be speculative.  The evidence established only that the jeans
had areas of blood on them—including ―in the crotch area on the outside that went
down around to the butt area of the jeans‖—and that the blood belonged to Dykes.
There was no testimony or evidence presented as to how the blood likely got on the
jeans, as to what the pattern of blood on the jeans indicated (i.e., whether it was
blood spatter consistent with blows being delivered to the head, whether it was
consistent with blood dripping from the head wounds, or whether the blood could
have been transferred to the jeans from other blood present at the crime scene), or
that the blood on the jeans indicated that Dykes was standing while the blows were
delivered.
Finally, the trial court found that ―while Susan Dykes was obviously still
alive, the defendant gagged her with some of the muletape rope; there is no need to
gag a dead person.‖  Once again, there is no evidence in the record that Dykes was
alive or conscious and the trial court‘s contrary conclusion is speculative and
unsupported by any expert testimony.  There was no testimony as to the purpose of
- 23 -

the rope through the mouth or that it could even be characterized as a ―gag,‖ aside
from the brief, interrupted questioning of Dr. Snider as to how many bodies he had
―examined that were supposed to be dead [that] have had a rope tied holding their
mouth in place.‖  However, neither Dr. Snider nor any other testifying witness ever
actually opined that the rope through Dykes‘s mouth was a gag or that it had been
placed there while she was still alive or even while she was still conscious.  The
only evidence presented at trial was an autopsy photograph depicting a rope
through Dyke‘s mouth.  However, there were various other ropes found tied to her
body, which matched the type of rope found through her mouth.  The rope through
the mouth could have been placed there for other reasons other than to constitute a
―gag‖ and could have been placed there after she was dead.
In further support of his argument, Williams points out that the medical
examiner testified that the first blow could have resulted in death or
unconsciousness and that the entire attack could have taken place in seconds.10  We
agree that the medical examiner‘s testimony does not support a finding of HAC.
Dr. Snider testified that the cause of death was ―blunt head trauma, or the
injuries of the head.‖  However, he testified that any of the five blows to the head
could have rendered Dykes unconscious or caused death.  Further, the evidence
10.  The trial court did not mention this aspect of the medical examiner‘s
testimony in its sentencing order.
- 24 -

presented did not establish the existence of any defensive wounds.  The existence
of a defensive wound is relevant to the HAC analysis—this Court has ―affirmed
findings of HAC where defensive wounds revealed awareness of impending
death.‖  Guardado, 965 So. 2d at 116 (―[T]he victim did not lose consciousness
quickly after the initial blows to her head.  The defensive wounds are indicative of
consciousness up to the time of the fatal stab wound to the heart.‖).  Here, Dr.
Snider was not able to conclude that Dykes sustained any defensive wounds during
the beating; rather, he was only able to state that an area of injury found on her
right hand could have been a defensive wound or just as likely could have been the
result of animal predation while the body was in the lake.
In sum, the evidence in this case does not establish whether Dykes was
killed or rendered unconscious by the first blow to the head or whether she
remained conscious throughout the attack.  The medical examiner testified that any
of the blows to the head could have rendered Dykes unconscious or caused death.
The findings relied upon by the trial court to determine that Dykes was conscious
during the attack—the blood on the jeans, the rope through Dykes‘s mouth, and the
locations of the lacerations on Dykes‘s head—were speculative.
The instant case is analogous to Zakrzewski v. State, where this Court struck
HAC.  In that case, the defendant murdered his wife, Sylvia, and his two children
after being notified that Sylvia wanted a divorce.  Zakrzewski, 717 So. 2d at 490.
- 25 -

After his family arrived home, the defendant approached Sylvia, who was sitting
alone in the living room, and hit her at least twice over the head with a crowbar.
Id.  The testimony at trial established that she ―may have been rendered
unconscious as a result of these blows, although not dead.‖  Id.  The defendant then
dragged her into the bedroom, where he hit her again and strangled her with rope.
Id.  This Court concluded that the trial court‘s finding of HAC was in error,
because ―[m]edical testimony was offered during the trial which established that
Sylvia may have been rendered unconscious upon receiving the first blow from the
crowbar, and as a result, she was unaware of her impending death.  We have
generally held awareness to be a component of the HAC aggravator.‖  Id. at 493.
Likewise, in this case, the medical examiner testified that Dykes could have been
rendered unconscious by the first blow and that the first blow could have caused
her death.  Additionally, there is no other evidence in the record that Dykes was
conscious during the beating and thus aware of her impending death.  For all these
reasons, we strike HAC as not being supported by competent, substantial evidence.
Pecuniary Gain Aggravator
We next discuss the pecuniary gain aggravator.  To establish the aggravator
that the murder was committed for pecuniary gain, ―the State must prove beyond a
reasonable doubt that the murder was motivated, at least in part, by a desire to
obtain money, property, or other financial gain.‖  Deparvine, 995 So. 2d at 382
- 26 -

(quoting Finney v. State, 660 So. 2d 674, 680 (Fla. 1995)).   ―The pecuniary gain
factor is permitted where the murder ‗is an integral step in obtaining some sought-
after specific gain.‘‖  Brooks v. State, 918 So. 2d 181, 206 (Fla. 2005) (quoting
Hardwick v. State, 521 So. 2d 1071, 1076 (Fla. 1988)).
Neither the State nor the trial court relied on the ATM withdrawals as a
motive for the murder.  The factors relied on by the trial court to support the
pecuniary gain aggravator—that Williams continued to use Dykes‘s car, home, and
personal property in her home after her death, that he was destitute with no job, no
money, no home, and no operable vehicle, and that he was anxious to satisfy his
crack cocaine addiction—are purely circumstantial.   ―[A]lthough an aggravating
factor may be supported entirely by circumstantial evidence, ‗the circumstantial
evidence must be inconsistent with any reasonable hypothesis which might negate
the aggravating factor.‘ ‖  Harris, 843 So. 2d at 866 (quoting Hildwin, 727 So. 2d
at 194).
The circumstantial evidence is consistent with the reasonable hypothesis that
after Dykes‘s murder, Williams simply continued to use her vehicle, home, and
personal property within the home without having considered the use of those
items as a motivation for the murder.  In this case, Williams was living with Dykes
prior to her death and already had the use of her vehicle and personal property
within her home.  Several witnesses testified that Williams was allowed to use
- 27 -

Dykes‘s vehicle on prior occasions.  In fact, Williams had used Dykes‘s vehicle in
the early morning hours of October 3 but then spent the day with Callie using her
vehicle.  Although Williams depleted Dykes‘s bank account, the evidence
established that this was done before her death and was not a motive for the
murder.
Rather, as explained in the facts and in our discussion of the avoid arrest
aggravator, the motivation for the murder arose at the time that a spontaneous fight
erupted, and the trial court found that the dominant motive for the murder was to
avoid arrest, a conclusion with which we agree.  Although avoid arrest was the
dominant motive for the murder, this does not negate the possibility that there was
also another motive for the crime.  However, none of the inmates‘ testimony
indicated a pecuniary gain motive for this crime and, while Williams may have
received a pecuniary benefit from the murder, there is not competent, substantial
evidence that pecuniary gain was a motive for the murder.
This case is distinguishable from the cases cited by dissent, dissenting op. at
43-45, all of which contained facts indicating that the defendant was motivated, at
least in part, by pecuniary gain.  See Orme v. State, 25 So. 3d 536, 550 (Fla. 2009)
(―Orme‘s motivation to kill Redd was, at least in part, due to his desire to obtain
her money, jewelry, and car so he could ride around town, purchase more drugs,
and party with the another [sic] woman all night.  Moreover, the trial court
- 28 -

convicted Orme of robbery, which was affirmed by this Court on direct appeal.
The robbery conviction coupled with the evidence presented by the State that
Orme took Redd‘s purse and keys to joyride in her car all night after he murdered
her provides competent, substantial evidence to affirm the trial court‘s finding of
the pecuniary gain aggravator.‖); Deparvine v. State, 995 So. 2d 351, 377, 382
(Fla. 2008) (stating that defendant ―executed a well-thought out and time-
consuming plan to acquire the [victim‘s] truck‖ and the ―victim‘s truck was
discovered in Deparvine‘s possession after the murders‖); Huggins v. State, 889
So. 2d 743, 770 (Fla. 2004) (―[T]he evidence established that Huggins did not own
a car during the relevant time period and utilized the victim‘s vehicle for over two
weeks after her murder.  Furthermore, Huggins and Larson were strangers to each
other, and nothing in the evidence suggests Huggins was motivated to commit the
crime for another reason.  Finally, the jury unanimously convicted Huggins of
carjacking and petit theft.‖); Rogers v. State, 783 So. 2d 980, 990, 993 (Fla. 2001)
(holding that evidence that defendant took the victim‘s vehicle, wallet, purse, and
jewelry supported robbery conviction as well as pecuniary gain aggravator); Jones
v. State, 690 So. 2d 568, 570 (Fla. 1996) (―Although Jones already had physical
possession of the car at the time of the crimes, based on the evidence in this case
there is no reasonable hypothesis other than that Jones murdered Monique Stow
and attempted to murder Ezra Stow in order to obtain ownership of the car and to
- 29 -

resolve the problem over the dishonored check.  The fact that the car papers were
missing from Ezra Stow‘s desk after the murder and attempted murder support this
finding as does the fact that after committing the crimes Jones disposed of the car
papers and the gun and hid the car.‖); Lambrix v. State, 494 So. 2d 1143, 1145
(Fla. 1986) (upholding pecuniary gain where defendant met victim in a tavern,
murdered the victim, and stole her car after the murder).  We conclude that the
mere fact that Williams ―retained pecuniary benefits by killing Ms. Dykes,‖
dissenting op. at 46, without more, does not support a conclusion that pecuniary
gain was a motive for the murder.
Avoid Arrest Aggravator
We finally discuss the avoid arrest aggravator.   ―To establish the avoid arrest
aggravating factor where the victim is not a law enforcement officer, the State
must show beyond a reasonable doubt that the sole or dominant motive for the
murder was the elimination of a witness.‖  Connor v. State, 803 So. 2d 598, 610
(Fla. 2001) (citing Alston v. State, 723 So. 2d 148, 160 (Fla. 1998)).  Unless the
victim is a law enforcement officer, the State must prove beyond a reasonable
doubt that the sole or dominant motive for the murder was to avoid arrest, and
―proof of the intent to avoid arrest or detection must be very strong.‖  Hernandez, 4
So. 3d at 667 (citing Riley v. State, 366 So. 2d 19, 22 (Fla. 1978)).  This Court has
explained that ―[m]ere speculation on the part of the state that witness elimination
- 30 -

was the dominant motive behind a murder cannot support the avoid arrest
aggravator.‖  Id. (quoting Consalvo v. State, 697 So. 2d 805, 819 (Fla. 1996)).
This Court has approved the finding of the avoid arrest aggravator based on
admissions of the defendant in some cases, such as where a defendant makes
statements indicating his fear of arrest.  Hernandez, 4 So. 3d at 667.  Such
admissions constitute direct evidence of the motive for the murder.  Williams
argues that the evidence in this case shows that the primary reason for the murder
was an argument over drugs or Williams‘s use of Dykes‘s ATM card.  For the
reasons that follow, we conclude that competent, substantial evidence supports the
finding of this aggravator.
The trial court relied on the testimony of jailhouse witness Hawley, who
testified regarding his conversation with Williams regarding the motive for the
murder:
Q.      Mr. Hawley, what did he tell you about what happened to
Susan Dykes?
A.      He explained to me that—what he was charged with.  He
was on a crack cocaine binge and that he was using and abusing her
A.T.M. or credit cards.  He said that he was wanted; he had a warrant
for his arrest and that she threatened to turn him in on the warrant
because he was using and abusing the cards.  He said she was
threatening to have him prosecuted for that as well; press charges on
him.
Q.      What did he say he did to her?
A.      He said that they got into a physical confrontation over it;
that he beat her with a baseball bat and she died.  And he said he took
the body out to Lake Cassy or Cassidy—I‘m not from this area; I have
- 31 -

no clue; I just wrote it down a day later—that he wrapped her up in a
rope and blanket and he threw her in a lake.  I guess she floated up.
I‘m trying to think what else he told me.  That he had been to prison
twice before and knew he didn‘t want to go back to prison and he had
to kill her.
Q.      All right.  Mr. Hawley, you said that he characterized it as
a confrontation between he and Susan Dykes; is that correct?
A.      Yes, sir.
Q.      Was that the word he used; ―confrontation‖?
A.      I honestly don‘t remember.  I‘m not going to say that
precise.  I don‘t know exactly how he put it, but he said they got into
it over him using the credit cards and he was on a crack cocaine binge.
Q.      Did he claim in any way to you that it was a self-defense
act?
A.      No.
Q.      Did he claim that she struck him in any way?
A.      No.
Q .    So he claimed only that he feared her charging him with
the A.T.M. transactions?
A.      Right.  And he knew that once he started, that he had to
not only kill her, but get rid of the body so that he wouldn‘t be
charged with it because he did not want to go back to prison.  He told
me he was there I think for possession of a—felon in possession of a
shotgun or something.
In finding that this aggravating circumstance had been proven beyond a reasonable
doubt, the trial court stated in relevant part:
The testimony of prisoner William Hawley, a cellmate of the
defendant at the county jail after defendant‘s arrest, is direct evidence
that establishes beyond a reasonable doubt that the defendant acted
upon his fear of arrest and imprisonment.  Hawley credibly testified
that the defendant admitted to him that he had robbed the victim‘s
checking account, that she threatened to turn him in for prosecution,
and that he killed her because he did not want to go back to prison as
he had been there before.  This was clearly the dominant motive for
the defendant‘s murder of Susan Dykes.
- 32 -

Williams claims that the testimony of Hawley as to the motive for the crime
is inconsistent with the testimony of Shirah and Cordell and that this inconsistency
negates avoiding arrest as the primary motive for the killing.  Shirah testified that
―she was coming in with $80 worth of crack every day; he didn‘t know where she
was getting it from.  And he told me he was on drugs and told me he killed her
with a ball bat for the drugs.‖  Cordell testified that Dykes confronted Williams
about using her ATM card and stated that she ―wasn‘t going to smoke crack with
him‖; while they were arguing, they knocked over some tools and there was a bat
and Williams picked up the bat and hit her in the head with it.
Although the testimony of two of the three inmates does not reflect an avoid
arrest motive, the trial court determined that Hawley‘s testimony on this issue was
―credibl[e].‖  This is ―significant in light of the trial court‘s superior vantage point
to assess‖ the witness‘s credibility.  Hernandez, 4 So. 3d at 668.  The testimony of
a witness that reflects admissions made by a defendant is direct evidence of the
defendant‘s motive.  Because the testimony of Hawley is direct evidence that
avoiding arrest was the main motive for the otherwise spontaneous killing, we
conclude that in this case there is competent, substantial evidence to support the
trial court‘s finding that Williams‘s dominant motive for the murder was to avoid
arrest.
Statutory Mitigation
- 33 -

The trial court rejected the statutory mitigator that Williams‘s capacity to
conform his conduct to the requirements of law was substantially impaired.
Rather, the trial court recognized that Williams had a cocaine addiction but
concluded that his addiction led him to the conscious choices of stealing ―the
victim‘s money and then . . . deliberately murder[ing] her to avoid the
consequences.‖
The trial court must find a mitigating circumstance if it ―has been
established by the greater weight of the evidence.‖  Coday v. State, 946 So. 2d 988,
1003 (Fla. 2006).   ―However, a trial court may reject a proposed mitigator if the
mitigator is not proven or if there is competent, substantial evidence to support its
rejection.‖  Id.  When expert opinion evidence is presented, it ―may be rejected if
that evidence cannot be reconciled with the other evidence in the case.‖  Id.  Trial
judges have broad discretion in considering unrebutted expert testimony; however,
the rejection of the expert testimony must have a rational basis, such as conflict
with other evidence, credibility or impeachment of the witness, or other reasons.
Id. at 1005.
Dr. Larson‘s unrebutted expert testimony was that Williams‘s capacity to
conform his conduct to the requirements of law was substantially impaired
―[b]ecause he was basically strung out on crack cocaine or on a cocaine binge‖ at
- 34 -

the time of the murder.11  The fact that Williams was on a crack cocaine binge at
the time of the murder was also corroborated by testimony from Callie that she and
Williams smoked crack cocaine throughout the day and night of October 3 and the
morning of October 4.
Although the trial court rejected this statutory mitigator, it found as a
nonstatutory mitigator that Williams was a ―polysubstance abuser‖ and that ―the
defendant was on a cocaine binge at the time of the murder and was chemically
dependent at the time of the crime.‖  The trial court therefore found credible the
testimony that Williams‘s drug addiction played a part in the murder and that he
was on a cocaine binge at the time.  However, the trial court rejected the testimony
of the only expert who testified on this matter, Dr. Larson, without providing ―a
rational basis,‖ Coday, 946 So. 2d at 1005, such as impeachment of Dr. Larson‘s
testimony or other evidence that conflicted with Williams being on a crack cocaine
binge at the time of the murder such that his capacity to conform his conduct to the
11.  The dissent cites to Duest v. State, 855 So. 2d 33 (Fla. 2003), and
asserts that, as in Duest, there is no evidence indicating that Williams was
substantially impaired at the time of the murder or that his ability to control his
behavior was reduced by his use of drugs.  Dissenting op. at 50.  However, here,
unlike in Duest, an expert testified that the defendant‘s capacity to conform his
conduct to the requirements of the law was substantially impaired at the time of the
murder.  See Stewart v. State, 558 So. 2d 416, 420 (Fla. 1990) (holding that trial
court erred in rejecting the statutory mitigator where a doctor opined that the
defendant ―was drunk at the time of the shooting and that his control over his
behavior was reduced by his alcohol abuse‖).
- 35 -

requirements of the law was substantially impaired.  We conclude that the trial
court erred in rejecting the statutory mitigation.
Proportionality
We finally address the issue of proportionality.  As we have previously
stated, in determining whether death is a proportionate penalty in a given case:
―[W]e make a comprehensive analysis in order to determine whether
the crime falls within the category of both the most aggravated and the
least mitigated of murders, thereby assuring uniformity in the
application of the sentence.‖  We consider the totality of the
circumstances of the case and compare the case to other capital cases.
This entails ―a qualitative review by this Court of the underlying basis
for each aggravator and mitigator rather than a quantitative analysis.‖
In other words, proportionality review ―is not a comparison between
the number of aggravating and mitigating circumstances.‖
Offord v. State, 959 So. 2d 187, 191 (Fla. 2007) (citations omitted).  The Eighth
Amendment to the United States Constitution and this Court‘s proportionality
review require that the death penalty ―be reserved only for those cases that are the
most aggravated and least mitigated.‖  Crook v. State, 908 So. 2d 350, 357 (Fla.
2005).
After our analysis in this case, the only valid aggravating circumstance
remaining is avoid arrest.  We have struck the aggravators of CCP and HAC,
which are considered ―two of the most serious aggravators set out in the statutory
sentencing scheme.‖  Buzia v. State, 926 So. 2d 1203, 1216 (Fla. 2006) (quoting
Larkins v. State, 739 So. 2d 90, 95 (Fla. 1999)).  The circumstances of the murder
- 36 -

reveal a spontaneous killing fueled by an argument about the continued use of
crack cocaine or Dykes‘s threat during an argument that she was going to press
charges against Williams for the unauthorized ATM withdrawals.  In addition,
while not determinative, this case does not involve the prior violent felony
aggravator.  Although Williams had a prior criminal history, his history was not
one of violence.12
This Court has previously explained that ―absent unusual circumstances,
‗death is not indicated in a single-aggravator case where there is substantial
mitigation.‘ ‖  Green v. State, 975 So. 2d 1081, 1088 (Fla. 2008) (quoting Almeida
v. State, 748 So. 2d 922, 933 (Fla. 1999)).  We review the mitigation presented that
was not rebutted by the State.
The defense presented three witnesses—one expert witness and two lay
witnesses.  Through the expert witness, Dr. Larson, the following picture emerged.
Williams had a history of polysubstance abuse, including crystal
methamphetamine, cocaine, crack, various pharmaceutical medications, and
possibly others.  Williams had previously been treated for substance abuse in the
form of court-ordered classes.
12.  During the Spencer hearing, Williams testified that he had two previous
criminal charges: (1) a charge of grand theft of an automobile when he was
eighteen or nineteen and (2) a charge of possession of a firearm by a convicted
felon.
- 37 -

Williams had an extremely disadvantaged childhood.  Not only was he
raised without a father, but when he was two years old, his mother and stepfather
were accused of child abuse when a sibling of Williams died.  As a result, his
mother and stepfather served a prison term.  During this time, Williams lived with
his aunt, Betty Gulliver.  After his mother was released from prison, Williams
moved back in with her.  However, when Gulliver found out that his mother had
put him up for adoption, Gulliver took care of him until she became ill.  After
Gulliver became ill, Williams was placed back with his mother.  Within a short
period of time, his mother arranged for him to live with cousins in Georgia for
some period of time.  As a teenager, Williams was then placed in foster care until
he was seventeen or eighteen.  Dr. Larson concluded that Williams ―had quite a
chaotic childhood background‖ and briefly stated that the childhood ―also included
physical and sexual abuse.‖
Dr. Larson also testified as to Williams‘s mental impairments.  Williams was
diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) as a child and
was treated with medication (Ritalin) for a few years.  Dr. Larson administered a
variety of psychological tests on Williams and concluded that the results of the
tests were indicative of underlying brain damage.  In particular, the results of the
IQ tests showed a significant disparity between Williams‘s verbal IQ and
performance IQ.  Dr. Larson stated that this disparity was indicative of brain
- 38 -

damage or a learning disability and was one of the reasons he believed that
Williams had ―Alcohol Fetal Effects Syndrome.‖13  Another test revealed that
Williams was at the eleventh or twelfth grade level in reading comprehension and
spelling, while he was at the fourth grade level in math computation.  Dr. Larson
opined that this discrepancy was also indicative of underlying brain damage.  Dr.
Larson also concluded that Williams was not malingering.
Dr. Larson also administered personality tests.  The tests revealed that
Williams did not have socially deviant attitudes.  During testing, Williams
complied with everything requested of him, he was polite, and he expressed no
negative attitudes or hostility.  Further, Williams did not have any well-defined
personality disorders; however, Williams is dependent on other people
emotionally, he has borderline personality features, meaning that his personality is
not very stable interpersonally, and he has some antisocial personality features,
which is expected given the history of drug abuse.  Williams is the type of person
to be dependent on another person, to abuse substances, and who would not be
overly ambitious in life or do particularly well economically.
Dr. Larson also assessed how well Williams would do in a prison
population.  He concluded that Williams is at low risk for future violence in a
13.  Dr. Larson stated that Williams‘s mother may have been abusing
alcohol during the pregnancy.
- 39 -

controlled population.  Dr. Larson opined that he would not expect Williams to be
dangerous in a criminal population.
Finally, Dr. Larson opined that Williams‘s capacity to conform his conduct
to the requirements of law was substantially impaired ―[b]ecause he was basically
strung out on crack cocaine or on a cocaine binge‖ at the time of the murder.  Dr.
Larson also testified that he believed the murder was not characteristic of the way
that Williams lives his life, but rather that the incident was situational—a function
of the cocaine binge and the situations that evolved during the cocaine binge,
including the desire to obtain more cocaine.
The defense also presented the testimony of Gulliver, Williams‘s aunt.  She
verified the details of Williams‘s childhood and how he was passed back and forth
between her and Williams‘s mother and eventually placed in foster care.  She
further testified that Williams has two daughters, one of whom lives with her, and
that Williams showed affection toward his children.
Finally, the defense‘s last witness, Pam Miller, testified that Williams
worked for her business and that he was a good employee, a hard worker, and
courteous to customers.  Miller also testified that Williams was a good father.
Even though the trial court rejected the statutory mitigator, the trial court
gave moderate weight to defendant‘s history as a polysubstance abuser having used
such substances as cocaine, crystal methamphetamine, and prescription medication
- 40 -

and found that Williams was on a crack cocaine binge at the time of the murder
and was chemically dependent at the time of the crime.  The trial court also found
and gave moderate weight to Williams‘s chaotic and unstable childhood as well as
his positive relationships with family members, his caring and loving attitude
toward his children, and his desire to maintain good father-child relationships
during imprisonment.
In summary, this case involves only one aggravator and statutory as well as
nonstatutory mitigation.  The evidence demonstrates that this murder occurred after
an argument erupted between Williams and Dykes, with whom Williams had lived
for several months.  See Kramer v. State, 619 So. 2d 274, 278 (Fla. 1993) (vacating
death sentence where there were two aggravators (prior violent felony and HAC)
and substantial mitigation and the evidence ―in its worst light suggest[ed] nothing
more than a spontaneous fight‖).  Williams is undeniably guilty of this crime and
will spend the rest of his life in prison as a result.  However, this crime is not one
of the most aggravated and least mitigated, and accordingly we conclude that the
imposition of the death penalty is not a proportionate penalty.
CONCLUSION
For the reasons stated, we reverse Williams‘s sentence of death and remand
the case to the trial court for imposition of a sentence of life without the possibility
of parole.
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It is so ordered.
QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
POLSTON, J., concurring in part and dissenting in part.
I disagree with the majority‘s striking of the pecuniary gain aggravating
circumstance, but I agree with the majority‘s analysis of the other aggravators,
including upholding the avoid arrest aggravating circumstance.  I also disagree
with the majority that the trial court erred in rejecting the statutory mitigation that
the defendant‘s capacity to appreciate the criminality of his conduct or to conform
to the requirements of law was substantially impaired.  I agree with the majority
that the conviction should be affirmed.  See majority op. at 2 and n.1.  But because
I believe the trial court properly found the avoid arrest and pecuniary gain
aggravating circumstances, properly rejected the statutory mitigators, and because
the jury recommended the death sentence by a significant eleven to one margin, I
would not vacate Williams‘ death sentence and enter a sentence of life.  Instead, I
would remand for a new penalty phase.  Accordingly, I respectfully concur in part
and dissent in part.
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A.  The Pecuniary Gain Aggravator
On appeal, it is not this Court‘s function to reweigh the evidence; that is the
role of the trial court.  See Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997).
Instead, this Court looks to see whether the trial court applied the correct rule of
law for e

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