James Herard v. State of Florida

Supreme Court of Florida
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No. SC2015-0391
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JAMES HERARD,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

July 3, 2024

PER CURIAM.

After a jury trial, James Herard was found guilty of 18 gang-

related felonies, including the first-degree murders of Eric Jean-

Pierre and Kiem Huynh. The trial court sentenced Herard to death

for the Jean-Pierre murder and to life without the possibility of

parole for the Huynh murder. Herard now appeals his convictions

and death sentence. 1 For the reasons we explain, we affirm in all

respects.

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
I. BACKGROUND

Guilt Phase

Herard was the second-in-command of the “BACC Street

Crips,” a Lauderhill-based branch of the national Crips gang. In

the early morning hours of November 14, 2008, Herard and two

fellow gang members drove the streets of Lauderhill in search of a

victim for their ongoing body-count competition. They randomly

came upon Eric Jean-Pierre, who had no gang affiliation and just

happened to be walking home from a bus stop. As the gang

members’ car pulled up alongside Jean-Pierre, Herard’s co-

passenger Tharod Bell reached out from the vehicle with a 20-gauge

shotgun. Herard told Bell to “bust it, bust it, bust it,” prompting

the latter to shoot Jean-Pierre in the chest at point-blank range.

The blast blew away part of Jean-Pierre’s heart and killed him

almost instantly.

That murder was one of many gang-related crimes that Herard

and his associates committed between June and December 2008.

Those crimes included Herard’s murder of Kiem Huynh, which

occurred during the robbery of a Dunkin’ Donuts store in Tamarac.

There were also robberies and shootings at Dunkin’ Donuts stores

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in Plantation (where Herard had been an employee), Sunrise, and

Delray Beach, along with shootings that targeted rival gang

members in Lauderhill. On December 2, 2008, Herard and another

gang member assaulted two people and stole their pit bull.

Lauderhill detectives who witnessed the incident immediately

arrested Herard, ending his crime spree.

An indictment and a May 2014 trial on 19 felony counts

ensued. The backbone of the evidence at trial consisted of

incriminating statements that Herard made to law enforcement

during a series of interrogations in the two days or so after his

arrest for stealing the pit bull. About the Jean-Pierre murder, for

example, Herard told investigators that Tharod Bell would not have

pulled the trigger if Herard himself had not provoked the shooting

by repeatedly telling Bell to “bust it.” The State also presented

evidence linking Herard to the 20-gauge shotgun used in many of

the shootings (including the two murders) and to a white Toyota

Camry seen in surveillance footage near many of the crimes.

Herard did not testify at trial. Defense counsel sought to

counter the State’s evidence by arguing that Herard’s statements to

law enforcement were inconsistent (he initially denied having shot

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anyone), unreliable, and involuntary. Counsel emphasized that

Herard was only 19 years old at the time of the police questioning.

The defense also stressed that police had been unable to recover the

shotgun used in the murders and other crimes, and it maintained

that there was no physical or scientific evidence implicating Herard.

The jury found Herard guilty on 18 counts and not guilty on a

robbery count. The offenses of conviction consisted of: 2 counts of

first-degree murder; 1 count of racketeering; 1 count of conspiracy

to commit racketeering; 1 count of directing the activities of a

criminal gang; 7 counts of robbery (4 with a firearm); 3 counts of

attempted first-degree murder with a firearm; 2 counts of attempted

second-degree murder with a firearm; and 1 count of aggravated

battery.

Penalty Phase

The same jury returned three weeks later for the penalty

phase, at which the State sought imposition of the death penalty for

both the Jean-Pierre murder and the Huynh murder. 2 As to the

2. Before the start of the penalty phase, the court ordered a
psychological evaluation of Herard to determine if he was

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Jean-Pierre murder, the State sought to prove three aggravating

circumstances: prior violent felony; cold, calculated, and

premeditated; and committed by a criminal gang member.

§ 921.141(5)(b), (i), (n), Fla. Stat. (2014). Herard presented

mitigating evidence through the testimony of two expert and five lay

witnesses. The experts, Dr. Gilbert Raiford and Dr. Myriam

Glemaud, chiefly testified about the negative impact Herard’s

upbringing had on his social, psychological, and behavioral

development. The lay witnesses, Herard’s family members, testified

as to his intellect, good nature, and respectful attitude. They

claimed these attributes would render him a valuable asset in

assisting other inmates if given a life sentence.

By a vote of 8 to 4, the jury recommended that Herard be

sentenced to death for the murder of Eric Jean-Pierre. A majority of

the jury recommended a sentence of life imprisonment for the

murder of Kiem Huynh.

competent. Dr. Atiya evaluated Herard and found that he was
competent to proceed.

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After conducting a September 2014 Spencer 3 hearing at which

Herard himself testified, the trial court on January 23, 2015, issued

an order imposing a death sentence for the Jean-Pierre murder.

The court found that the State had proven the three proposed

aggravating circumstances beyond a reasonable doubt. Indeed, the

court found the aggravators “overwhelming.”

As to mitigation, the trial court found that Herard had failed to

establish any of his five proposed statutory mitigating

circumstances: extreme emotional or mental disturbance; minor

participant; extreme duress; substantially impaired capacity; and

age. § 921.141(6)(b), (d)-(g), Fla. Stat. (2014). But the court found

that Herard had established 19 non-statutory mitigating

circumstances. 4

3. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
4. The trial court found the following non-statutory mitigating
factors were established: (1) Defendant was raised without a father;
(2) Defendant was raised in very poor financial circumstances and
his mother was a strict disciplinarian who believed in punishments
considered child abuse today; (3) Defendant was repeatedly
subjected and forced to kneel for an unbearable amount of time and
had his fingers burnt; (4) Defendant has always had a very close,
loving relationship with his mother; (5) Defendant maintained very
good, respectful relationships with his aunts, uncles, and
numerous cousins; (6) Defendant has a big heart, many times going

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The trial court gave “great weight” to each of the three proven

aggravators and “little weight” to each of the established mitigators.

And, based on a qualitative assessment, it concluded that the

aggravators “far outweigh[ed]” the mitigators. Consistent with the

jury’s recommendations, the trial court sentenced Herard to death

out of his way to help unfortunate others; (7) Defendant befriended
Omar Hunter, who suffered from sickle-cell anemia and gave him
transportation for treatments when Mr. Hunter had no one else; (8)
Defendant, during his incarceration, had a helpful attitude towards
others. Many inmates appeared and testified about the help and
guidance he provided and how he encouraged fellow inmates to
become productive even though incarcerated; (9) Defendant wrote a
novel while awaiting trial; (10) Defendant talked two fellow inmates
out of giving up and committing suicide; (11) Defendant might be
helpful and productive while incarcerated; (12) Defendant is deeply
spiritual; (13) Defendant consistently attended church and
participated during his childhood; (14) Defendant helped fellow
inmates learn English and Mathematics while incarcerated; (15)
Defendant obtained employment to help his mother financially; (16)
Defendant never received the help and attention he needed to
mature as an adult; (17) Defendant only finished ninth grade; (18)
Defendant started drinking at age seven; his father gave him his
first drink, and again as a 14 year old he was drinking vodka, rum,
tequila, and Hennessy. In middle school he smoked marijuana and
when entering high school was smoking marijuana five to six times
a day; and (19) Dr. Glemaud’s testimony supports the non-statutory
mitigator that Defendant’s behavior is attributable to his
environment, which did not support the chance for growth and
development.

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for the Jean-Pierre murder and to life without the possibility of

parole for the Huynh murder.

This direct appeal followed.

II. ANALYSIS

On appeal, Herard argues that the trial court erred by: (1)

denying Herard’s due process-based motion to dismiss; (2) denying

Herard’s motions to suppress incriminating statements; (3)

admitting physical evidence Herard claims was unrelated to the

crimes charged; (4) excluding Herard’s expert witness testimony

about false confessions; and (5) sentencing Herard in a manner that

violated the Sixth and Eighth Amendments. As we must, we also

consider whether there is sufficient evidence to sustain Herard’s

conviction for the murder of Eric Jean-Pierre.

Denial of Herard’s Motion to Dismiss

Herard’s first claim sounds in due process and relates to the

trial court’s dismissal of the first jury venire. Jury selection in

Herard’s case initially began on February 11, 2014. A few days

later, with jury selection still underway, a death warrant was signed

in a different case where the defendant was represented by Kevin

Kulik, Herard’s penalty-phase counsel. Kulik, who had been

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participating in jury selection in Herard’s case, unsuccessfully

attempted to withdraw as counsel in the death warrant case. The

trial court tried and failed to secure replacement penalty-phase

counsel for Herard. So, with Kulik temporarily unavailable for

Herard’s case, the trial court granted the State’s request to strike

the remaining panel of prospective jurors. The trial court then

recessed the case.

When his case started up again a month later, Herard sought

dismissal of the pending charges on due process grounds. He

argued that he had been “extremely pleased” with the remaining

jury pool when the initial venire was dismissed, and he maintained

that the State had sought the strike solely to gain a tactical

advantage. The trial court denied Herard’s motion, and Herard now

argues that doing so was reversible error.

To support his argument, Herard relies principally on the

Fourth District Court of Appeal’s decision in State v. Goodman, 696

So. 2d 940 (Fla. 4th DCA 1997). In Goodman, after a jury had been

selected but before it was sworn, the State “nolle prossed” the case

and then refiled the same charges 30 minutes later. Id. at 940.

The trial court found, and the district court agreed, that the State

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had acted solely to avoid trying the case to a jury that included “a

member whom it had improperly sought to strike” on racial

grounds. Id. at 943. On those facts, the Goodman court affirmed

the trial court’s ruling that the State had violated the defendant’s

due process rights.

This case is nothing like Goodman. The record here gives no

indication that the State acted in bad faith or for an improper

purpose. On the contrary, faced with the temporary unavailability

of Herard’s penalty-phase counsel (Kevin Kulik), it was reasonable

for the State to ask the trial court to dismiss the remaining jury

venire and start over once Kulik became available. In his briefing

here, Herard does not dispute that even his guilt-phase counsel

(Mitch Polay) agreed that jury selection should not continue in

Kulik’s absence. Herard has not shown a violation of his due

process rights.

Admission of Herard’s Statements

Herard next challenges the trial court’s denial of his motions

to suppress various statements he made to law enforcement from

December 2 through 4, 2008. Those statements were made: (1) in

the Lauderhill Police Department interview room on December 2,

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2008; (2) in the Lauderhill Police Department booking area on

December 2, 2008; (3) in the Broward Sheriff’s Office Public Safety

Building interview room on December 3, 2008; and (4) in the

Broward County Main Jail on December 4, 2008. The trial court

denied Herard’s motions after holding a pretrial evidentiary hearing.

In assessing Herard’s claims of error, we defer to the trial

court’s findings of fact as long as they are supported by competent,

substantial evidence, and we review de novo the trial court’s

application of law to those facts. Delhall v. State, 95 So. 3d 134,

150 (Fla. 2012); Thomas v. State, 894 So. 2d 126, 136 (Fla. 2004).

Applying these standards here, we conclude that the trial court did

not err in denying Herard’s motions to suppress.

1. Lauderhill Police Department interview room.

Herard’s initial custodial interrogation was conducted at the

Lauderhill Police Department. The interrogation took place after

Herard’s arrest for stealing the pit bull. Before questioning began, a

detective read Herard his Miranda 5 rights from a waiver of rights

form. Herard initialed the form to indicate that he understood his

5. Miranda v. Arizona, 384 U.S. 436 (1966).

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rights. The detective then read aloud the remaining portion of the

form, which affirmed the voluntariness of Herard’s statement and

his willingness to answer the detectives’ questions without an

attorney. When the detective finished reading, Herard said, “I don’t

agree to that,” and added that he wanted an attorney. The detective

replied, “Oh, okay, that’s no problem.”

Immediately thereafter, as the detective collected her

paperwork to leave the room, Herard said: “Hold on, hold on. If I

get an attorney do I gotta wait?” A brief conversation ensued where

the detective explained to Herard that he would not wait in the

interview room, but would be booked and remain there until an

attorney arrived. Herard then said, “I don’t want an attorney.” The

detective responded, “Do you want to talk or not?” Herard then

asked to sign the paperwork. The detective again asked, “Do you

want to talk to us?” Herard answered “yes” and proceeded to sign

the waiver of rights form. During the ensuing interview, Herard

made incriminating statements about the theft of the pit bull.

Herard argues that the trial court erred in denying his motion

to suppress any statements he made to the Lauderhill detectives—

and that, indeed, all the statements he made over two days of

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questioning were tainted and inadmissible. According to Herard,

once he invoked his right to an attorney, there should have been no

further questioning without an attorney present. The trial court

rejected that argument after finding that Herard himself reinitiated

communication with the police and then validly waived his Miranda

rights.

Our Court’s recent decision in State v. Penna, 49 Fla. L.

Weekly S119 (May 2, 2024), explained the legal test that governs a

claim like Herard’s. At the threshold, “[w]hen a suspect

unequivocally invokes the Miranda right to counsel, the officers

must immediately stop questioning the suspect.” Id. at S120. The

parties here have assumed that Herard’s invocation of his right to

counsel was unequivocal, so we will, too. That takes us to the next

steps in the analysis.

There can be no subsequent interrogation of the suspect

without counsel present unless two conditions are met: (1) the

suspect must reinitiate contact with the police; and (2) the suspect

must knowingly and voluntarily waive his earlier-invoked Miranda

rights. Id. “The latter inquiry turns on the totality of the

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circumstances.” Id. at S121. We have no difficulty finding these

conditions met here.

When Herard stated that he wanted an attorney, the

Lauderhill detectives acknowledged the request and began to leave

the room. But Herard immediately reinitiated communication,

asking whether he would be booked and if he would have to wait for

an attorney. After a detective answered Herard’s questions, Herard

indicated that he wanted to sign the waiver form. The detective

then asked a couple of follow-up questions to clarify Herard’s

wishes before giving him the form to sign. The entire exchange—

from the detective reading the rights disclosure and waiver form, to

Herard saying he wanted an attorney, to Herard then changing his

mind and signing the form—took less than three minutes. Under

these circumstances, the trial court was right to deny Herard’s

motions to suppress the statements he made to the Lauderhill

detectives.

2. Lauderhill Police Department booking area.

After the Lauderhill detectives finished questioning Herard, he

was taken to the Broward Sheriff’s Office. On his way out of the

Lauderhill Police Department, Herard looked into the waiting room

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where uniformed officers from Sunrise, Lauderhill, and the Broward

Sheriff’s Office were gathered. Without prompting, Herard stated:

“Sunrise, what is Sunrise doing here? Oh ya, Sunrise. Where is

Delray?” At trial, the State used these comments to help establish

Herard’s connection to the Dunkin’ Donuts armed robbery that

occurred in Delray Beach. Herard claims that his statement should

have been suppressed, but we disagree.

Miranda warnings are not required unless the defendant is

both “in custody and under interrogation.” Davis v. State, 698 So.

2d 1182, 1188 (Fla. 1997). Though Herard was clearly in custody,

his statements about Sunrise and Delray were not the product of

interrogation. Rather, they were entirely spontaneous and

unprompted. We find no error in the trial court’s denial of the

motions to suppress these statements.

3. Broward Sheriff’s Office Public Safety Building interview
room.

Herard made the next set of statements in response to

questioning by officers from various law enforcement agencies while

he was in custody at the Broward Sheriff’s Office from the early

morning through the afternoon of December 3, 2008. It is

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undisputed that Herard was again Mirandized and that he signed a

new waiver of rights form before this interrogation began.

Nonetheless, Herard maintains that his subsequent statements

were involuntary. Herard points to the length of time he was in

custody (starting with his arrest the day before) and says that law

enforcement did not give him enough bathroom breaks or other

breaks between questioning. He notes that he twice had to urinate

in a McDonald’s cup (provided earlier by law enforcement as part of

a meal) because no one answered when he knocked on the interview

room door. Herard vaguely mentions improper “promises of

leniency,” but because he makes no specific argument on that

point, we deem it forfeited.

In its order denying Herard’s motion to suppress, the trial

court found the following facts:

Defendant was in custody at the Broward Sheriff’s Office
for approximately 12 hours. He was fed, was allowed to
take at least three naps which totaled at least 3.5 hours,
was given at least two bathroom breaks, and other
breaks in between questioning. While this Court found it
unsettling that Defendant urinated twice in his
McDonald’s cup, he was in fact afforded bathroom
breaks.

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The trial court summed up its ruling by explaining that Herard “was

not threatened or coerced, nor was he deprived of any of his basic

needs including food, rest and an opportunity to use the bathroom.”

“Whether a confession is voluntary depends on the totality of

the circumstances surrounding the confession.” Sliney v. State,

699 So. 2d 662, 667 (Fla. 1997). When the voluntariness of a

confession is in dispute, it is the State’s burden to prove

voluntariness by a preponderance of the evidence. Id. Proof that a

defendant validly waived his Miranda rights is a significant but not

dispositive factor in determining the voluntariness of a confession.

Id. at 669.

We find no error in the trial court’s ruling. Its factual findings

are supported by the record, and its conclusion about the

voluntariness of Herard’s statements is consistent with precedents

of this Court finding confessions voluntary under comparable

circumstances. See, e.g., Perez v. State, 919 So. 2d 347, 361-62

(Fla. 2005) (voluntary confession stemming from 25-hour interview

where the defendant was permitted to take smoking and restroom

breaks, provided with food and drink, and slept for about six to

eight hours); Chavez v. State, 832 So. 2d 730, 749 (Fla. 2002)

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(upholding voluntariness of a confession where the defendant was

in custody for over 54 hours but provided with food, drink, and

cigarettes as requested, given frequent breaks and a six-hour rest

period, and repeatedly Mirandized).

4. Broward County Main Jail.

Finally, Herard contends that the trial court erred by not

suppressing statements he made to law enforcement on December

4, 2008, at the Broward County Main Jail. Around 6:00 p.m. on

December 4, two Sunrise detectives visited Herard in jail for

questioning. At the outset, Herard was Mirandized, waived his

rights, and signed a written waiver of rights form. The detectives’

purpose in interviewing Herard was to investigate a Dunkin’ Donuts

robbery and a separate attempted murder, both of which had

occurred in Sunrise in November 2008, and both of which would

eventually be included among the crimes charged in this case. At

trial, the detectives testified about Herard’s admission that he

participated in the Delray Dunkin’ Donuts robbery and that he was

the shooter in the attempted murder in Sunrise.

Earlier that day, Herard had attended his first appearance

hearing for the pit bull theft. There, Herard was aided by the Public

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Defender’s Office, which had him execute a “Notice of Defendant’s

Invocation of His/Her Right to Remain Silent and Right to Counsel.”

Herard maintains that because he invoked his right to counsel at

his first appearance for the pit bull robbery, the Sunrise detectives

were prohibited from questioning him on the afternoon of December

4 without counsel present. The trial court disagreed, and so do we.

In Sapp v. State, 690 So. 2d 581, 584-86 (Fla. 1997), this

Court held that under both federal law and article 1, section 9 of

the Florida Constitution, a claim of rights form is ineffective to

invoke a suspect’s Miranda right to counsel if signed before

custodial interrogation has begun or is imminent. This is because

the “Miranda right to counsel is a prophylactic rule that does not

operate independent from the danger it seeks to protect against—

‘the compelling atmosphere inherent in the process of in-custody

interrogation’—and the effect that danger can have on a suspect’s

privilege to avoid compelled self-incrimination.” Id. at 585 (quoting

Alston v. Redman, 34 F.3d 1237, 1246 (3d Cir. 1994)).

Sapp controls here. When Herard signed the form purporting

to invoke his Miranda rights, an interrogation was neither underway

nor imminent. Hours later, when the detectives met with him in the

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county jail, Herard was again informed of his Miranda rights, and

he validly waived them.

To the extent Herard makes an argument based on his Sixth

Amendment right to counsel, that argument is also unavailing.

Unlike the Fifth Amendment-based Miranda right to counsel, the

Sixth Amendment right to counsel is offense-specific. See Owen v.

State, 986 So. 2d 534, 544-45 (Fla. 2008); Durocher v. State, 596

So. 2d 997, 999 (Fla. 1992) (attachment of Sixth Amendment right

to counsel for charged crime did not preclude police questioning

about other crime). Assuming a Sixth Amendment right to counsel

attached at Herard’s December 4 first appearance, that right

pertained only to the charge for the pit bull incident. Herard was

still only a suspect in the crimes he was questioned about later that

day—the Dunkin’ Donuts robberies and the Sunrise attempted

murder. Therefore, the detectives’ questioning of Herard did not

implicate his Sixth Amendment right to counsel, rendering it

unnecessary to address the potential relevance of Herard’s waiver of

his Miranda rights to remain silent and to counsel at the outset of

the December 4 interview. See Montejo v. Louisiana, 556 U.S. 778,

786 (2009) (a valid waiver of Miranda rights “typically does the

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trick” for effecting valid a waiver of the Sixth Amendment right to

counsel).

Admission of Physical Evidence

Herard next argues that the trial court committed reversible

error by admitting several pieces of physical evidence seized from

the house of Jonathan Jackson, the leader of the BACC Street Crips

gang. The contested evidence consists of a composition notebook, a

spiral notebook, ledger paper, a computer printout, a banana style

magazine clip, a BB gun, and a composite photographic exhibit of

the items. The notebooks and paper contained information about

gang membership, meetings, and activities. Herard makes two

claims. First, he contends the evidence is unduly prejudicial and

lacked relevance, at least to the extent the evidence pertained to

Jackson’s involvement in gangs other than the BACC Street Crips.

Second, he alleges that the search and seizure of Jackson’s house

was unlawful, rendering the seized items inadmissible. Herard

presents no argument on the search and seizure claim, so we deem

that issue forfeited.

We find no abuse of discretion in the admission of evidence

related to Herard’s involvement in the BACC Street Crips, an issue

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directly relevant to the racketeering and gang-related charges in the

indictment. To the extent there could have been error in the

admission of evidence about Jackson’s leadership of other gangs,

any such error was harmless.

Expert Witness Testimony

Next, Herard claims that the trial court erred by refusing to

admit the expert testimony of Mr. Gregroy DeClue, a licensed

psychologist. DeClue would have testified about false confessions

and related “inherent problems” with the “Reid Technique,” a

commonly used method of police interrogation “pioneered by John

E. Reid and Associates, aimed at extracting confessions and

evaluating suspect credibility.” United States v. Jacques, 744 F.3d

804, 808 n.1 (1st Cir. 2014). In the proffered testimony, DeClue

said that the Reid Technique is one that can lead to true

confessions and to false confessions, and that it is unknown what

percentage of confessions obtained through the Reid Technique are

false. He also said that the Reid Technique was used in this case.

Finally, he said that safeguards exist to make a false confession less

likely; but he could not say whether such safeguards were used in

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this case, because he had not seen all the video footage of Herard’s

police interviews.

The admission of expert testimony is governed by section

90.702, Florida Statutes (2014). Among other requirements, the

proposed testimony must be “the product of reliable principles and

methods,” and it must be the case that “[t]he witness has applied

the principles and methods reliably to the facts of the case.”

§ 90.702(2)-(3), Fla. Stat. Here the trial court excluded DeClue’s

testimony for several reasons, including that DeClue was

unprepared to testify reliably to the interrogation techniques—

including any safeguards against false confessions—used in this

case. For related reasons, the trial court also questioned the

relevance of DeClue’s testimony.

To resolve this issue, we need not decide whether expert

testimony about the phenomenon or prevalence of false confessions

could ever be admissible. DeClue was not prepared reliably to

address the specifics of Herard’s case, including whether law

enforcement used adequate safeguards in its questioning. And

DeClue’s proposed testimony about the purported link between the

Reid Technique and false confessions was equivocal and potentially

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confusing to the jury. Under these circumstances, we find no

abuse of discretion in the trial court’s decision to exclude DeClue’s

testimony.

Herard’s Death Sentence

The trial court sentenced Herard to death on January 23,

2015, the jury having recommended that sentence by a vote of 8 to

4. The court conducted Herard’s sentencing proceedings under the

statutory scheme that the United States Supreme Court partly

invalidated in Hurst v. Florida, 577 U.S. 92 (2016). There the Court

held that Florida’s (since amended) capital sentencing statute

violated the Sixth Amendment to the extent Florida law “required

the judge alone to find the existence of an aggravating

circumstance,” a predicate to the defendant’s eligibility for a death

sentence. Id. at 103.

In State v. Poole, 297 So. 3d 487 (Fla. 2020), we upheld a

death sentence imposed under our state’s pre-Hurst v. Florida

sentencing procedures and following an 11 to 1 jury

recommendation in favor of death. Id. at 493. We found the Sixth

Amendment rule of Hurst v. Florida satisfied in Poole because that

jury had unanimously found the defendant guilty of a

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contemporaneous violent felony. Id. at 508. Partly receding from

our own decision in Hurst v. State, 202 So. 3d 40 (Fla. 2016), we

further held that (1) the weighing of aggravating and mitigating

factors is not a factual determination or “element” for purposes of

the federal or state jury trial guarantee; and (2) neither the Eighth

Amendment nor any provision in our state constitution requires

jury sentencing in capital cases, or a unanimous jury

recommendation, or indeed any jury recommendation at all. Poole,

297 So. 3d at 503-05.

There is no dispute that Herard’s death sentence satisfies the

constitutional requirements explained in Poole. As in Poole, the

aggravating circumstances in Herard’s case include the prior violent

felony aggravator, i.e., that “[t]he defendant was previously

convicted of another capital felony or of a felony involving the use or

threat of violence to the person.” § 921.141(5)(b), Fla. Stat. Here,

the same jury that found Herard guilty of murdering Eric Jean-

Pierre also found him guilty of committing many other violent

felonies, including the first-degree murder of Kiem Huynh. The

State also introduced evidence of Herard’s violent felony convictions

in other cases. These contemporaneous and prior violent felony

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convictions amply “satisfied the [Sixth Amendment] requirement

that a jury unanimously find a statutory aggravating circumstance

beyond a reasonable doubt.” Poole, 297 So. 3d at 508.

Herard now argues that our decision in Poole is wrong and

that we should recede from it. But Herard has offered no good

reason for us to do so, and we decline the invitation. Also,

consistent with our Court’s precedents, we reject Herard’s argument

that he was sentenced under a death penalty scheme that did not

meaningfully narrow the class of defendants eligible for a death

sentence. See, e.g., Johnson v. State, 969 So. 2d 938, 961 (Fla.

2007) (pre-2016 death penalty sentencing statute sufficiently

narrows class of eligible offenders); Lightbourne v. State, 438 So. 2d

380, 385 (Fla. 1983) (statutory listing of aggravators and mitigators

is not unconstitutionally vague).

We find no merit in Herard’s challenges to his death sentence.

Sufficiency of the Evidence

Finally, in cases where a death sentence has been imposed, we

must independently review the record to determine whether

competent, substantial evidence supports the underlying murder

conviction. See Fla. R. App. P. 9.142(a)(5); Kirkman v. State, 233

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So. 3d 456, 469 (Fla. 2018). “In conducting this review, we view the

evidence in the light most favorable to the State to determine

whether a rational trier of fact could have found the existence of the

elements of the crime beyond a reasonable doubt.” Rodgers v.

State, 948 So. 2d 655, 674 (Fla. 2006) (citing Bradley v. State, 787

So. 2d 732, 738 (Fla. 2001)).

To prove first-degree premeditated murder, the State had to

establish: (1) that Eric Jean-Pierre is dead; (2) that the death of

Jean-Pierre was premeditated; and (3) that the death of Jean-Pierre

resulted from Herard’s criminal act. See Glover v. State, 226 So. 3d

795, 804 (Fla. 2017). Under the law of principals, it was not

necessary for the State to prove that Herard was the actual shooter.

See § 777.011, Fla. Stat. (2008) (one who “aids, abets, counsels,

hires, or otherwise procures [the] offense to be committed . . . is a

principal in the first degree and may be charged, convicted, and

punished as such”); see also Staten v. State, 519 So. 2d 622, 624

(Fla. 1988) (“In order to be guilty as a principal for a crime

physically committed by another, one must intend that the crime be

committed and do some act to assist the other person in actually

committing the crime.”).

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In Herard’s videotaped statement played for the jury, he

discussed the murder of Jean-Pierre with Broward Sheriff’s Office

detectives. Herard told the detectives that, together with Tharod

Bell and another gang member, he drove looking for a “body” for

Bell because it was his turn to kill someone. Herard explained that

they were in a competition to see who could commit the most

murders. They picked Jean-Pierre at random, and as they

approached him, Herard told Bell to “bust it, bust it, bust it.”

Herard even told the detectives that “you might as well give me that

body because Tharod would not have done that if I didn’t provoke

it.” The jury also heard evidence from which it could have

concluded that the shotgun Bell used to kill Jean-Pierre is the same

one Herard used in various other shootings and armed robberies.

In sum, a rational jury could have concluded that Tharod Bell

shot and killed Eric Jean-Pierre with Herard’s intentional and active

aid and encouragement, as part of a plan that Bell and Herard

shared. Competent, substantial evidence supports Herard’s murder

conviction.

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III. CONCLUSION

Because Herard has not demonstrated any reversible error, we

affirm his convictions and death sentence.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS, and
SASSO, JJ., concur.
LABARGA, J., concurs in result with an opinion.

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

LABARGA, J., concurring in result.

I agree with the majority that under the circumstances of this

case, the trial court did not err in denying Herard’s motion to

suppress the statements he made to law enforcement.

However, in discussing the statements Herard made in the

interview room at the Lauderhill Police Department, the majority

cites this Court’s recent decision in Penna v. State, 49 Fla. L.

Weekly S119 (Fla. May 2, 2024), which held that when a defendant

voluntarily reinitiates contact with law enforcement, “there is no

per se requirement that an officer remind or readvise [an accused]

- 29 -
of his Miranda[6] rights.” I dissented in Penna, because I disagree

with the majority’s conclusion that this Court may not interpret the

Fifth Amendment in a way that grants more protections to Florida’s

citizens. I reaffirm my dissent in Penna here.

Additionally, I reaffirm my dissent in Lawrence v. State, 308

So. 3d 544 (Fla. 2020), wherein this Court receded from its

decades-long practice of conducting proportionality review in cases

involving direct appeals of sentences of death.

For these reasons, I can only concur in the result.

An Appeal from the Circuit Court in and for Broward County,
Paul L. Backman, Judge - Case No. 062009CF004654A8881

Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum,
Fort Lauderdale, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Lisa-
Marie Lerner, Assistant Attorney General, West Palm Beach,
Florida,

for Appellee

6. Miranda v. Arizona, 384 U.S. 436 (1966).

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