Mark D. Sievers v. State of Florida

Supreme Court of Florida
____________

No. SC20-225
____________

MARK D. SIEVERS,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

November 17, 2022

PER CURIAM.

Mark D. Sievers appeals his first-degree murder conviction

and corresponding death sentence, as well as his conviction for

conspiracy to commit murder.1 We affirm in all respects.

FACTS AND PROCEDURAL BACKGROUND

Guilt Phase

On June 28, 2015, Dr. Teresa Sievers left a family vacation

and returned alone to her Bonita Springs home. After pulling into

the garage, she retrieved her luggage and walked into the house.

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Unbeknownst to Dr. Sievers, Curtis Wayne Wright, Jr., and Jimmy

Ray Rodgers were waiting inside to carry out the murder that her

husband—defendant Mark D. Sievers—had hired them to perform.

When Dr. Sievers entered the kitchen, Wright and Rodgers beat her

in the head with hammers until she died.

The murder marked the culmination of a plot that began

weeks earlier, when Sievers traveled to Missouri for Wright’s May

2015 wedding. Over the course of several conversations during the

wedding weekend, Sievers asked his longtime friend Wright to

murder Dr. Sievers as soon as possible. Initially uncertain, Wright

eventually agreed to “take care of it” for at least $100,000 in life

insurance proceeds.

Wright then recruited Rodgers by promising him part of the

life insurance money. In his trial testimony, Wright explained that

Rodgers had “been involved in other deaths” and characterized him

as “somebody that would actually do it.” Throughout the planning,

only Wright communicated with Rodgers; Sievers had explicitly told

Wright that he did not want to know the identity of any accomplice

Wright might hire. Sievers and Wright themselves used prepaid cell

phones for their calls about the plot, thinking those phones were
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safer and more secure than their regular phones. Phone records

showed that their prepaid phones became active only after they

exchanged a code word on their regular lines.

Sievers envisioned two possible scenarios for the murder: June

28 at the Sieverses’ home (to look like a burglary) or June 29 at

Dr. Sievers’ medical office (to look like a mugging). Sievers knew his

wife was set to return home alone from a family vacation on June

28. He had booked her return flight, and he wanted to ensure that

he and their daughters would not be in town at the time of the

killing.

Sievers prepared in depth for each scenario. For the home

murder plan, Sievers tested going over the backyard fence, and he

trimmed bushes in the yard to carve out a path to the garage. He

also told Wright how to enter the house and disarm the security

system. For the office murder plan, Sievers sent Wright aerial

photographs of the building, identifying a secluded stairwell that

Dr. Sievers used when she left work late at night. He also gave

Wright the stairway access code. Sievers told Wright that,

regardless of where the murder took place, it should appear to have

been committed incident to a burglary or robbery.
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Wright and Rodgers left Missouri on June 27, equipped with

detailed instructions and money from Sievers. They arrived in

Bonita Springs, Lee County, Florida, early the next morning.

Wright and Rodgers first stopped at the Sieverses’ home and left

after a brief visit. Then they drove past Dr. Sievers’ medical

practice to evaluate its potential as a murder location, but they

eliminated that option after feeling too exposed on the property. For

the remainder of the day, they napped in their rental car, shopped

at Walmart, and spent time at the beach.

Around 10:30 p.m., Wright and Rodgers returned to the

Sieverses’ residence. They put on coveralls and gloves and “pried

open” the already unlocked side door to mimic a burglary. Thinking

Dr. Sievers would arrive at midnight, Wright was taken aback when

he heard the garage door roll up shortly before 11:25 p.m. Wright

scrambled to conceal himself in the garage as he watched

Dr. Sievers park the car, retrieve her luggage, and enter the house.

Wright then followed her, picking up a hammer that was lying on

the garage freezer on his way inside.

As he walked into the kitchen, Wright stumbled on a dog dish,

startling Dr. Sievers, who turned toward Wright at the noise.
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Wright struck her head once and swung two more times while she

put up her hands to defend herself. At this point, Rodgers began to

attack her, too. Using a different hammer, Rodgers bludgeoned her

in the head over and over. Eventually, Dr. Sievers went silent as

she fell to the floor, where Rodgers continued to hit her until Wright

made him stop. Certain that Dr. Sievers was dead, Wright and

Rodgers left the house and drove back to Missouri.

While Wright and Rodgers were carrying out the murder,

Sievers was still at his mother-in-law’s home in Connecticut, on

vacation with his two daughters. Earlier that day, Sievers out of the

blue called Dr. Mark Petrites, a family friend, to “check in” and

inform him of Dr. Sievers’ travel plans. The next morning, on June

29, Sievers heard from Dr. Sievers’ office that she did not show up

for work. Sievers again called Dr. Petrites and asked him to stop by

the house to check on his wife. Dr. Petrites found it odd that

Sievers gave him the garage code and instructed Dr. Petrites to just

walk in, rather than first knock on the front door. When he entered

the Sieverses’ home, Dr. Petrites found Dr. Sievers face down on the

kitchen floor in a pool of blood.

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The first break in the subsequent police investigation came

two weeks later. Law enforcement in Illinois called lead detective

David Lebid with the news that someone had come forward with

information potentially related to the murder. Lebid traveled to

Illinois to conduct an in-person interview of the informant, and,

from that interview, Wright emerged as a suspect.

Eventually, police obtained a warrant to search Wright’s house

in Missouri. There, they seized Wright’s cell phone and the GPS

used on the trip to Florida, which in turn linked Wright to Rodgers.

While detectives executed a search warrant at Rodgers’ residence in

Missouri, Rodgers’ girlfriend, Taylor Shomaker, led authorities to

evidence connecting Rodgers to the crime, including the backpack,

shoes, shirts, and beverage cooler that had been purchased at a Lee

County Walmart on the day of the murder. Shomaker also brought

detectives to the sites where she and Rodgers had discarded the

coveralls worn during the murder and pieces of Rodgers’

deconstructed prepaid cell phone. Wright and Rodgers were then

arrested, interrogated, and charged.

Wright initially denied involvement in the murder. But he

later confessed, implicated Sievers in the crime, and agreed to a
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plea deal. Sievers himself was indicted in May 2016 for first-degree

murder and conspiracy to commit murder.

At trial, the State proved its case principally through Wright’s

testimony; Rodgers did not testify. The State corroborated Wright’s

account with cell phone, GPS, and video surveillance records that

documented both Sievers’ painstaking planning and Wright’s

locations in the weeks before and immediately after the murder.

The State presented the backpack, shoes, shirts, and beverage

cooler that were purchased in Lee County on the day of the murder

and later found in Rodgers’ Missouri home. The State also

introduced fibers from Rodgers’ discarded coveralls worn during the

murder that were found on Dr. Sievers’ corpse and in the rental car.

Dr. Thomas Coyne, the Lee County medical examiner, testified

about the autopsy he performed on Dr. Sievers. He determined that

she died from blunt head trauma from multiple impact wounds to

the back of the skull that were consistent in size with the head of a

hammer.

Sievers did not testify at trial. His defense counsel argued in

closing that there was no credible evidence connecting Sievers to

the crime. According to defense counsel, the State had done
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nothing more than prove that Wright and Rodgers—not Sievers—

murdered Dr. Sievers. The defense focused on Wright’s asserted

lack of credibility, highlighting his bipolar disorder, his status as a

five-time felon, and his admitted lies during the investigation. The

defense theorized that Wright, hoping to protect his wife from being

prosecuted for tampering in the murder investigation, was simply

parroting a narrative that had been fed to him by the State.

On December 4, 2019, the jury found Sievers guilty of first-

degree premeditated murder and conspiracy to commit murder.

Penalty Phase

The same jury returned a week later for the penalty phase.

The State presented victim impact evidence but otherwise relied on

evidence from the trial. Sievers presented mitigating evidence

through several relatives, all of whom testified to his loving

relationship with his family, especially with his daughters.

The State sought to prove two aggravators: murder committed

in a cold, calculated, and premeditated manner with no pretense of

moral or legal justification; and murder committed for pecuniary

gain. The jury unanimously found the CCP aggravator but not the

pecuniary gain aggravator. On the verdict form, it checked that no

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mitigating circumstances had been proven, even though Sievers’

lack of criminal history had been conceded by the State. The jury

unanimously recommended a death sentence.

Spencer Hearing and Sentencing

The trial court held a Spencer 2 hearing on January 3, 2020.

Sievers entered his clean disciplinary record from the Lee County

Sheriff’s Office, a postcard from his daughter, and a letter that had

been written before the murder by Dr. Petrites’ wife, expressing her

affection for the Sievers family. The court noted for the record that

Sievers’ daughters did not want him to die. Sievers himself made a

statement to the court. He denied involvement in the murder, said

he loved Dr. Sievers and their two daughters, and asked to be

spared from the death penalty. The State introduced an additional

victim impact statement.

After a thirty-minute recess, the trial court sentenced Sievers

to death for the murder conviction and to a consecutive thirty-year

prison sentence for the conspiracy conviction. The court gave great

weight to the jury’s recommendation in favor of a death sentence. It

2. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

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found the CCP aggravator (but not the pecuniary gain aggravator)

proven beyond a reasonable doubt and gave it great weight. The

court found the following mitigating circumstances had been

established, but gave them little weight: that Sievers had no prior

criminal history; that he had a loving and supportive relationship

with his family; that his family would be negatively affected if he

were to be executed; and that he had engaged in charitable

activities that benefited the community. The court found that the

mitigating effect of Sievers’ positive relationship with his family was

undercut by his decision to procure the murder of his daughters’

mother. Finally, the court found that the evidence did not support

Sievers’ requested statutory mitigator for capital felony accomplices

whose participation was “relatively minor.”

This direct appeal followed.

ANALYSIS

Sievers raises myriad challenges to his convictions and death

sentence, none of them meritorious. We will address Sievers’ claims

in the order presented in his opening brief.

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Guilt Phase Challenges

Issues I through III: Polygraph-Related Claims. A principal

theme of Sievers’ closing argument was that the State had not

subjected Wright to a polygraph examination, even though Wright’s

plea agreement gave the State the option to do so. Sievers’ counsel

ended closing argument by telling the jury: “When you weigh the

evidence and you look at all these facts, ultimately, the one

question you all have to ask yourselves: Do you trust Curtis Wayne

Wright? And would you feel different if a polygraph had been

administered?” After defense counsel finished, and outside the

presence of the jury, the State argued that this reference to a

polygraph was improper. Ultimately, the State persuaded the trial

court to instruct the jury as follows: “If Mr. Wright had actually

taken a polygraph, those results, if they were—if he passed, would

not have been admissible during this trial.” The State then

proceeded to give its rebuttal.

Sievers now argues that the trial court’s instruction misstated

the law, that it amounted to a comment to the jury on the

evidentiary weight of the State’s decision not to give Wright a

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polygraph exam, and that it indirectly commented on Wright’s

credibility. We disagree.

As to the first point, Sievers forfeited any challenge to the

substance of the trial court’s instruction. During the parties’

discussion of this issue with the trial court, defense counsel did not

contest the instruction’s content. Instead, counsel told the trial

court that the State, rather than the court itself, should raise the

admissibility issue with the jury in the form of an argument.

Nor is there merit to Sievers’ claim that the trial court’s

instruction amounted to a comment on the evidence or on Wright’s

credibility. The jury could reasonably have taken defense counsel’s

closing argument to imply that the jury would have known the

results of any polygraph exam administered to Wright. Against that

backdrop, it was not error for the trial court to issue a clarifying

instruction. Importantly, the trial court gave Sievers free rein to

argue to the jury that the decision not to subject Wright to a

polygraph showed the State’s unwillingness to find the truth.

Sievers next maintains that the State, in rebuttal, falsely

suggested that Wright would be administered a polygraph exam

sometime between the end of trial and Wright’s sentencing. The
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record does not support this claim. It is true that the State’s

rebuttal told the jury that Wright remained obligated to take a

polygraph at the State’s request, but the argument did not imply

that the State necessarily would avail itself of that option.

Sievers’ final polygraph-related claim has to do with the

testimony of lead detective Lebid. Lebid interviewed Wright in July

and August 2015, and he was present for Wright’s proffer in

January 2016 and sworn statement in February 2016. On cross-

examination, Lebid acknowledged that the State had not given

Wright a polygraph exam, even though Lebid knew that Wright lied

in the 2015 interviews and at the beginning of the January 2016

proffer. On redirect and over defense counsel’s objection, the

prosecution rhetorically asked Lebid if he needed a “lie detector

machine” to tell him when Wright was lying—to which Lebid

answered “no.” Sievers now argues that these questions and

answers implied that Lebid had a “natural ability” to detect Wright’s

truthfulness and thus improperly bolstered Wright’s credibility.

The record does not support Sievers’ argument. It was defense

counsel, during Lebid’s cross-examination, who first juxtaposed

Wright’s undisputed lies with the State’s failure to administer a
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polygraph exam. In response, the State on redirect elicited

testimony that, at the time of Wright’s summer 2015 interviews,

Lebid was already aware of evidence (e.g., surveillance videos from a

Walmart in Florida) that directly exposed Wright’s lies. Read in its

entirety, the thrust of the testimony on redirect was not that Lebid

had an intuitive sense of Wright’s credibility, but rather that other

evidence available to Lebid showed when Wright was lying. We

conclude that no improper bolstering occurred.

Issue IV: Wright’s Reference to Prayer. On direct examination,

Wright acknowledged that he lied at the outset of his January 2016

proffer meeting when he said that he had stayed outside the

Sieverses’ home while Rodgers alone carried out the killing. Wright

explained the lie by testifying that he had “struggled with [his] own

personal involvement in it, the physical part of it.” But then he said

this about his decision to tell the truth: “I just couldn’t quite let go

of all that. And I took a break. I talked to my attorney. I prayed.”

Defense counsel objected, arguing that Wright’s reference to having

prayed violated section 90.611, Florida Statutes (2019). Sievers

now argues that this alleged violation appealed to “religious bias”

and improperly bolstered Wright’s credibility.
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We find no violation of section 90.611. That law says:

“Evidence of the beliefs or opinions of a witness on matters of

religion is inadmissible to show that the witness’s credibility is

impaired or enhanced thereby.” Here, Wright made a fleeting

reference to prayer and explicitly equated it with talking to his

attorney and taking a break. The prosecution neither solicited

Wright’s prayer reference nor mentioned it again. Sievers’ argument

lacks merit.

Issue V: Wright’s February 2016 Meeting with the State. After

the January 2016 proffer, Wright again met with the State on

February 19, 2016. The latter meeting proceeded in two parts.

First, Wright discussed a plea agreement and agreed to cooperate

with the State. Second, Wright made a sworn statement about the

murder.

Part of the discussion at the February meeting focused on

Wright’s wife, Angela. The prosecutor told Wright that the

authorities were aware that Mrs. Wright had asked potential

witnesses in the investigation to change their statements. In that

context, the prosecutor referred to Wright’s wife as a “blip on [his]

radar screen” that he wanted “to go away.” But the prosecutor
- 15 -
explained that the plea agreement would not protect Wright’s wife

and that she would be prosecuted if the investigation revealed her

involvement in the murder. Wright acknowledged that he

understood and assented to the plea agreement. He then gave his

sworn statement.

At trial, after the State rested its case-in-chief, Sievers recalled

Lebid for the purpose of introducing into evidence the video of the

“blip” discussion at the February 2016 meeting. The State objected,

arguing that the disputed video footage was hearsay, that any

introduction of the video needed to occur during Sievers’ cross-

examination of Wright or Lebid, and that the video evidence would

be cumulative in light of Wright’s and Lebid’s testimony on direct

and cross-examination. Sievers countered that it was admissible

because the State had opened the door by asking Wright about his

truthfulness in its case-in-chief and because the video would show

Wright’s bias to protect his wife. The trial court excluded the video.

Sievers argues on appeal that the trial court erred by

excluding the video footage, but we disagree. Regardless of the

merits of the State’s hearsay objection or of the State’s objection to

the timing of Sievers’ attempt to introduce the footage, we conclude
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that the video evidence was cumulative and therefore properly

excluded. See § 90.403, Fla. Stat. (2019) (“Relevant evidence is

inadmissible if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of issues, misleading the

jury, or needless presentation of cumulative evidence.”); Gutierrez v.

Vargas, 239 So. 3d 615, 625 (Fla. 2018) (“Courts should exercise

their discretion to avoid the needless waste of time through

unnecessary presentation of cumulative evidence.”).

The record shows that Sievers questioned both Lebid and

Wright about the February 2016 meeting. During Wright’s cross-

examination, defense counsel explicitly broached the “blip”

discussion that Sievers sought to introduce via the video:

DEFENSE: You had some concerns that Ms. Wright may
be charged in some capacity for this; is that correct?
WRIGHT: I had concerns that she was going to get—yeah.
DEFENSE: Yes.
WRIGHT: Yeah, I don’t know about a charge, but yeah.
DEFENSE: And do you recall that Mr. Hunter said that
Angie is a blip that will go away? Do you recall Mr.
Hunter saying that?
WRIGHT: Yeah.
...
DEFENSE: That made you feel better about giving your
testimony, protecting your wife, correct?
WRIGHT: Not about giving my testimony, but . . .
DEFENSE: You love your wife, correct?
WRIGHT: I do.
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DEFENSE: You want to protect your wife, correct?
WRIGHT: I do.
DEFENSE: And so if you can make sure that she is
insulated from prosecution, that’s something you want,
isn’t it?
WRIGHT: Yeah, when she’s innocent.

On recross, defense counsel again asked if Wright remembered

the prosecutor calling Mrs. Wright a “blip” and read portions of the

transcript from the February 2016 meeting. Counsel even elicited

Wright’s acknowledgment that he wanted to protect his wife (though

Wright added that his participation in the plea agreement had

“nothing to do” with her).

Likewise, during Lebid’s cross-examination, defense counsel

asked about Mrs. Wright. He said:

DEFENSE: Mr. Hunter asked you about Angela Wright.
You said there was no evidence to show that Angela
Wright went to Florida; is that correct?
LEBID: Correct.
DEFENSE: Okay. And you said you could—you could
affirmatively rule out Angela Wright as a participate—
participant in the murder, correct?
LEBID: Correct.
...
DEFENSE: If Ms. Wright helped in the planning, she
could be charged, correct?
LEBID: Absolutely.
DEFENSE: If she helped Mr. Wright avoid detection, she
could be charged for this, correct?
LEBID: Absolutely.

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And even after the trial court ruled to exclude the video,

counsel questioned Lebid about Mrs. Wright’s involvement in the

case and how Lebid was able to eliminate her as a suspect.

Finally, relying on the evidentiary foundation developed during

trial, defense counsel in closing argument pursued the theme that

Wright was lying to protect his wife. Counsel told the jury that Mrs.

Wright had tampered with witnesses, and he suggested that the

State could have charged her in connection with the murder.

Alluding to the prosecutor’s remarks at the February 2016 meeting,

counsel told the jury: “And why not prosecute Angie [Wright]?

Because she’s a blip. She’s a blip that only Curtis Wright can make

go away.”

We note that Sievers does not claim that Wright or Lebid gave

any trial testimony inconsistent with any statement in the excluded

video. On the contrary, their testimony appears to have accurately

recounted the exchanges at issue. We find no error in the trial

court’s decision to exclude this cumulative evidence.

Issue VI: Sexual Motive. During Wright’s cross-examination,

defense counsel inquired whether Lebid had asked Wright about his

“sexual preference” and about whether Sievers and Wright “had a
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sexual relationship.” The trial court sustained the State’s

relevance-based objections before Wright could answer the

questions. In a sidebar, the court explained to counsel: “It’s not

relevant at this time, unless someone is going to get up and say

they had a relationship. I haven’t heard it, so I don’t see how it’s

even relevant, and I’m going to sustain the objection.” Sievers now

argues that the trial court’s ruling violated Sievers’ confrontation

rights and deprived him of an opportunity to explore Wright’s

motives for murdering Dr. Sievers.

“Limitations on the examination of a particular witness are

controlled in the sound discretion of the trial court, and the trial

court’s ruling in this area will only be reversed if the aggrieved party

demonstrates an abuse of that discretion.” Kormondy v. State, 845

So. 2d 41, 52 (Fla. 2003). We see no abuse of discretion here. It

was reasonable for the trial court, before allowing defense counsel

to proceed down a tangential and potentially distracting path, to

determine whether there was any evidence showing a potential

romantic relationship between Wright and Sievers. Absent any

proffer from defense counsel to that effect, the trial court acted

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within its discretion by sustaining the State’s objection to defense

counsel’s questioning on this issue.

Issue VII: Neighbor’s Testimony. During the State’s case-in-

chief, the jury heard testimony from Kimberly Torres, the Sieverses’

next-door neighbor. Two aspects of Torres’s testimony are at issue

on appeal. First, Torres testified about unexpectedly encountering

Sievers on her backyard lanai several months before the murder.

Second, Torres recounted an argument she overheard between

Sievers and Dr. Sievers the month before the murder. Torres

testified that Dr. Sievers said, “I’m f-ing tired of this” and “I’m

leaving,” to which Sievers responded: “If that’s what you want to

do, fine, but we’ll see about that.” Sievers objected at trial to these

portions of Torres’s testimony.

Sievers now argues that the trial court should not have

allowed the testimony about the lanai encounter because it was

irrelevant, overly prejudicial, and evidence of prior bad acts. But we

see no error in the admission of this testimony. Torres’s testimony

tended to corroborate Wright’s account that Sievers had actively

scoped out his home as a possible murder location and investigated

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jumping over the backyard fence as the best way to access the

home.

As to Torres’s testimony about the overheard argument,

Sievers maintains that the statements Torres attributed to

Dr. Sievers and him are hearsay and do not fall within any

exception to the hearsay rule. The State counters that the

statements qualify under exceptions for excited utterances and for

statements of then-existing state of mind. In particular, the State

says that Sievers’ “we’ll see about that” comment shows Sievers’

state of mind and helps explain his conduct in having his wife

killed.

We need not resolve the question whether the disputed

statements qualified for any hearsay exception or, indeed, whether

the statements even meet the definition of hearsay; after all, it is

not obvious that the statements contained assertions that were

offered to prove the truth of the matter asserted. Any error in

admitting Torres’s testimony about the Sievers’ argument was

harmless because there is no reasonable possibility that such error

contributed to the conviction.

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To the extent it relied on Torres’s testimony at all, the State

focused on the lanai encounter, not the overheard argument. In

closing argument, the State emphasized what it called Sievers’

“recon mission” to Torres’s backyard. But the State did not even

mention the overheard argument. Nor did the State in closing

argue to the jury that marital problems explained the murder.

Instead, the State argued that Dr. Sievers’ substantial life insurance

gave Sievers a financial motive to commit the crime. Under these

circumstances, we believe the State has met its burden to prove

harmless error beyond a reasonable doubt.

Issue VIII: Autopsy Photographs. Sievers next challenges the

trial court’s decision to admit eleven autopsy photographs showing

trauma to Dr. Sievers’ head and body. The photographs depicted

injuries to her skull from multiple angles, as well as defensive

wounds on her body. Sievers argues that the photos’ prejudicial

effect substantially outweighed their probative value.

We find no abuse of discretion in the admission of the autopsy

photographs here. In this case, the photographs corroborated

Wright’s testimony about the murder and assisted the jury in

understanding the medical examiner’s testimony.
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Issue IX: Cumulative Error. Sievers next argues for reversal

based on cumulative error. That doctrine applies where multiple

errors, though individually harmless, combine to deprive the

defendant of a fair and impartial trial. McDuffie v. State, 970 So. 2d

312, 328 (Fla. 2007). The cumulative error doctrine has no place in

this case because we have not found multiple errors. See Fletcher

v. State, 168 So. 3d 186, 220 (Fla. 2015); Pagan v. State, 830 So. 2d

792, 815 (Fla. 2002).

Issues X and XI: Motions for Judgment of Acquittal. Sievers

maintains that the trial court erred in denying his motions for

judgment of acquittal on the first-degree murder count and on the

conspiracy count. We review the denial of a motion for judgment of

acquittal de novo and uphold convictions supported by competent,

substantial evidence. Pagan, 830 So. 2d at 803. If, after viewing

the evidence in the light most favorable to the State, a rational trier

of fact could find the existence of the elements of the crime beyond

a reasonable doubt, sufficient evidence exists to sustain a

conviction. Id. For the reasons we explain, we affirm the trial

court’s denial of Sievers’ motions for judgment of acquittal on both

counts.
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As to the first-degree murder count, the State had to prove

that Dr. Sievers was dead, that Sievers’ criminal act caused her

death, and that her death was premeditated. § 782.04(1)(a), Fla.

Stat. (2019). Because Sievers was not present at the murder, the

jury was instructed on the principal theory of liability. Under that

theory, Sievers could be found guilty of first-degree murder if he

had procured, hired, or aided Dr. Sievers’ killing. § 777.011, Fla.

Stat. (2019).

Wright’s testimony was sufficient to establish every necessary

element of the crime, and it is not for our Court to determine the

credibility of that testimony. Specifically, the jury could conclude

from Wright’s testimony that Sievers had promised to pay Wright to

murder Dr. Sievers, that Sievers and Wright carefully planned the

murder weeks in advance, and that Wright and Rodgers murdered

Dr. Sievers according to Sievers’ plan. As we have explained, the

State corroborated Wright’s testimony with cell phone evidence

showing their communications leading up to the murder. The State

also presented evidence corroborating Wright’s account of his and

Rodgers’ commission of the crime. We therefore reject Sievers’

claim, and, under our independent obligation to review the
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sufficiency of the evidence, we conclude that competent, substantial

evidence supports Sievers’ first-degree murder conviction. See Fla.

R. App. P. 9.142(a)(5).

As to the conspiracy count, Sievers points to the fact that the

indictment alleged that he conspired with both Wright and Rodgers.

Sievers claims that he was entitled to a judgment of acquittal given

the undisputed evidence that Sievers never communicated with

Rodgers about the murder and told Wright that he did not want to

know the identity of any accomplice.

Sievers’ argument here misstates the law of conspiracy. To

sustain a conspiracy conviction, the government does not need to

prove that the defendant knew the identity of every other person

alleged to have been part of the conspiracy. It is enough that the

State prove that the alleged co-conspirators shared a common

purpose to commit the crime. See Blumenthal v. United States, 332

U.S. 539, 557 (1947) (“[T]he law rightly gives room for allowing the

conviction of those [members] discovered upon showing sufficiently

the essential nature of the plan and their connections with it,

without requiring evidence of knowledge of all its details or of the

participation of others.”); Pino v. State, 573 So. 2d 151, 152 (Fla. 3d
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DCA 1991) (“Moreover, direct proof of the criminal agreement is not

necessary to establish a conspiracy; the jury may infer from all the

surrounding circumstances that a common purpose to commit a

crime existed.”). Here, Wright’s testimony was sufficient to support

a jury finding that Sievers, Wright, and Rodgers all were members

of a single plot to murder Dr. Sievers.

Penalty Phase Challenges

Issue XII: Notice of Intent to Seek the Death Penalty. Section

782.04(1)(b), Florida Statutes (2016) (effective Mar. 7, 2016), sets

out certain procedural requirements for death penalty cases. In

pertinent part it says:

If the prosecutor intends to seek the death penalty, the
prosecutor must give notice to the defendant and file the
notice with the court within 45 days after arraignment.
The notice must contain a list of the aggravating factors
the state intends to prove and has reason to believe it can
prove beyond a reasonable doubt. The court may allow
the prosecutor to amend the notice upon a showing of good
cause.

This provision went into effect in March 2016, and the State

concedes that it applied to Sievers’ prosecution. 3

3. Florida Rule of Criminal Procedure 3.181 also governs the
State’s notice to seek the death penalty, but that rule is
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Sievers was arraigned on May 9, 2016. Forty-four days later—

that is, one day before the statutory deadline—the State filed a

notice of intent to seek the death penalty. But that notice did not

list the aggravating factors that the State intended to prove. The

omission was inadvertent, as the State appears to have been

unaware of the then relatively new requirements of section

782.04(1)(b). Instead, the State had filed the notice under the 2016

version of Criminal Procedure Rule 3.202, which pertained to

discovery in death penalty cases and did not require any

aggravators to be listed.

Sievers soon filed a motion to strike the State’s notice. That

same day—four days after the expiration of the 45-day deadline—

the State filed an amended, substantively compliant notice that

listed two aggravating factors. Sievers responded with a motion to

strike the State’s amended notice.

After a hearing, the trial court entered an order denying

Sievers’ motions to strike. The court concluded that the State’s

inapplicable here because the Court did not adopt it until months
later, on September 15, 2016.

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initial filing, though defective for failing to list aggravators, was

timely. And the court further ruled that the State had shown good

cause for filing an amended, compliant motion—specifically, that

the delay was “negligible” and that Sievers was not prejudiced.

Sievers now argues that the trial court’s ruling was in error and

that the State’s failure to file a timely, compliant notice requires this

Court to reverse Sievers’ death sentence.

We affirm, but on grounds independent of the merits of the

trial court’s good cause determination. Guided by our Court’s

analysis in Massey v. State, 609 So. 2d 598 (Fla. 1992), the most

analogous precedent of which we are aware, we conclude that any

procedural defect here is subject to harmless error analysis.

In Massey, the state had failed to comply with a statute that

required notice to be served on the defendant before his sentencing

as a habitual felony offender. The defendant argued that the state’s

procedural misstep required vacatur of his sentence. Our Court

disagreed, relying on section 59.041, Florida Statutes (1989). That

statute instructs that a reviewing court may not set aside a criminal

judgment “for error as to any matter of pleading or procedure”

unless the court determines that “the error complained of has
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resulted in a miscarriage of justice.” Our Court’s precedents equate

this statutory standard with the harmless error test. See State v.

Lee, 531 So. 2d 133, 136 n.1 (Fla. 1988). In Massey, we

emphasized: “[T]he issue in this case is not whether Massey must

show harm in order to assert the lack of notice as error but rather

whether the state, by affirmatively proving no harm, can bring this

technical error within the harmless error rule.” 609 So. 2d at 600.

Here, as in Massey, we are faced with a statute that imposes a

mandatory claim processing (i.e., nonjurisdictional) rule but does

not specify a remedy for noncompliance. Applying the harmless

error standard of review, we conclude that the State has shown

beyond a reasonable doubt that Sievers suffered no prejudice from

any delay in the State’s full compliance with section 782.04(1)(b).

In Sievers’ case, the State filed a compliant notice within four days

of the statutory deadline. At that time, discovery had not

commenced, and no hearings were scheduled. Sievers’ trial did not

begin until three and a half years later, in November 2019. Given

these circumstances, we find harmless error and therefore decline

to vacate Sievers’ death sentence.

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Issue XIII: Prior Criminal History Mitigator. On the penalty

phase verdict form, the jury checked “no” to the statement: “One or

more individual jurors find that one or more mitigating

circumstances was established by the greater weight of the

evidence.” The jury did so even though the State, in its penalty

phase closing argument, twice conceded that Sievers had

established the statutory mitigator for “no significant history of

prior criminal activity.”

Sievers now maintains that the jury’s decision was a reaction

to a misstatement by the State in that same closing argument.

During a question-by-question explanation of the penalty phase

verdict form, the State told the jury: “So, if one or more individual

jurors find that one or more mitigating circumstances was

established by the greater weight of the evidence, check ‘no.’ It was

not.” Sievers claims that, through this misstatement, the State

“persuaded” the jury to reject an “important undisputed” mitigator

and thereby “corrupted the jury’s decision-making process.”

Because Sievers did not object to the disputed statement at

trial, we review this claim for fundamental error. And we find no

such error here. Almost immediately after the statement at issue,
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in the same closing argument, the State again told the jury that

Sievers had no prior criminal history. After the State’s closing,

defense counsel reminded the jury about the State’s concession.

And finally, after the parties’ penalty phase closing arguments, the

trial court instructed the jury on the law of mitigating

circumstances and accurately explained the penalty phase verdict

form. Viewing the relevant record as a whole, we conclude that

Sievers has fallen far short of the high bar necessary to establish

fundamental error as to this claim. Santiago-Gonzalez v. State, 301

So. 3d 157, 175 (Fla. 2020) (reciting fundamental error standard).

Issue XIV: Postcard Redaction. As mitigation, Sievers

repeatedly emphasized his loving relationship with his family,

especially his two daughters. In addition to offering live testimony

from several relatives, Sievers sought to prove that relationship by

introducing into evidence a postcard his daughter had sent him

while he was in custody. The State objected to the postcard as

hearsay but agreed to its admission—including a portion of the

postcard saying “I love you”—subject to redaction of these three

sentences: “Is it possible they could kill you? I really hope NOT.

Please say no.” (Emphasis in original.) The postcard was redacted
- 32 -
over Sievers’ objection and admitted into evidence. Sievers now

argues that the redaction constituted reversible error.

Our precedent establishes that, in the penalty phase of a

capital trial, both the State and the defendant must be afforded the

opportunity to rebut hearsay evidence sought to be admitted by the

other side. Frances v. State, 970 So. 2d 806, 813-14 (Fla. 2007).

There is no question that the redacted portion of the postcard—

saying that the daughter did not want Sievers to be executed—was

hearsay. Here, neither of Sievers’ daughters testified, and the State

would have had no opportunity to cross-examine the author of the

postcard. We find no abuse of discretion in the trial court’s

evidentiary ruling.

Issue XV: Victim Impact Evidence. At the penalty phase trial,

the State presented victim impact evidence consisting of live

testimony from Dr. Sievers’ mother and a brief video clip of

Dr. Sievers herself. In the video, Dr. Sievers discusses her

commitment to practicing holistic and preventative medicine.

Sievers objected at trial, and he now argues that the admission of

the video, particularly in combination with the testimony of

Dr. Sievers’ mother, was reversible error.
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We find no error in the admission of the victim impact

evidence here. Under Florida law, victim impact evidence is

admissible “to demonstrate the victim’s uniqueness as an individual

human being and the resultant loss to the community’s members

by the victim’s death.” § 921.141(8), Fla. Stat. (2019). Our Court

regularly upholds the admission of victim impact evidence that falls

within the statutory definition. See, e.g., Colley v. State, 310 So. 3d

2, 17 (Fla. 2020) (statement from victim’s friend detailing victim’s

unique characteristics permissible); Jordan v. State, 176 So. 3d

920, 932-33 (Fla. 2015) (statement from victim’s family detailing

loss permissible). In this case, the live testimony and the brief (less

than two-minute) video were relevant to show the loss suffered by

Dr. Sievers’ family and community, and this evidence was not

unduly prejudicial.

Issue XVI: Alleged Failure to Hold a Spencer Hearing. The

Spencer hearing is an aspect of the capital sentencing process that

typically occurs after the penalty phase trial and jury

recommendation, but before the trial court’s imposition of sentence.

We have explained that the purpose of a Spencer hearing is to:

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(a) give the defendant, his counsel, and the State, an
opportunity to be heard; (b) afford, if appropriate, both the
State and the defendant an opportunity to present
additional evidence; (c) allow both sides to comment on or
rebut information in any presentence or medical report;
and (d) afford the defendant an opportunity to be heard in
person.

Spencer, 615 So. 2d at 691. In this case, the trial court on January

3, 2020, held a hearing at which all of these things occurred—

including an in-person statement from Sievers, argument from

defense counsel, and the admission of additional mitigating

evidence. After hearing from the parties, the trial court took a

recess to collect its thoughts. The court then returned and imposed

its sentence.

Although he did not object to the trial court’s procedure at the

time, Sievers now argues that our Court’s decision in Spencer

required the trial court to impose sentence on a separate day after

the Spencer hearing. Sievers maintains that the procedure that the

court followed here amounted to a failure to hold a Spencer hearing

at all, and that this was fundamental error.

Sievers’ argument lacks merit. Our decision in Spencer does

not categorically preclude the trial court from holding a Spencer

hearing and imposing sentence on the same day. Nor does Florida’s

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death penalty statute say that a Spencer hearing and the imposition

of sentence must occur on different days. § 921.141, Fla. Stat.

(2019). We find no error—much less fundamental error—in the

procedure that the trial court followed here. See Robertson v. State,

187 So. 3d 1207, 1216-17 (Fla. 2016) (combining Spencer hearing

and imposition of sentence in one proceeding did not violate due

process where defendant presented evidence and addressed the

court before imposition of sentence).

Issue XVII: Cold, Calculated, and Premeditated Aggravator.

Sievers argues that the jury’s CCP finding lacks a constitutional

basis because it depended entirely on Wright’s (allegedly uncredible)

testimony. We reject this claim for the same reason that we

rejected Sievers’ challenge to the denial of his motion for judgment

of acquittal. It is the jury’s role, not ours, to evaluate witnesses’

credibility and weigh the evidence.

Issue XVIII: Proportionality Review. Sievers lastly urges us to

undertake a proportionality review. We held in Lawrence v. State,

308 So. 3d 544 (Fla. 2020), however, that this Court lacks

constitutional or statutory authority to do so. We decline to revisit

Lawrence here.
- 36 -
CONCLUSION

We affirm Sievers’ first-degree murder conviction and

corresponding death sentence, as well as his conviction for

conspiracy to commit murder.

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., concurs in result with an opinion.
FRANCIS, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.

LABARGA, J., concurring in result.

Because I continue to adhere to my dissent in Lawrence v.

State, 308 So. 3d 544 (Fla. 2020), wherein this Court abandoned

this Court’s decades-long practice of comparative proportionality

review in direct appeal cases, I can only concur in the result.

An Appeal from the Circuit Court in and for Lee County,
Bruce E. Kyle, Judge – Case No. 362015CF000673000BCH

Howard L. “Rex” Dimmig, II, Public Defender, and Karen M. Kinney,
Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and
Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida,

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for Appellee

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