Thomas H. Fletcher v. State of Florida

Supreme Court of Florida
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No. SC20-1862
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THOMAS H. FLETCHER,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

July 7, 2022

PER CURIAM.

Thomas H. Fletcher appeals his judgment of conviction of first-

degree murder and his sentence of death. We have jurisdiction.

See art. V, § 3(b)(1), Fla. Const. For the reasons below, we affirm

Fletcher’s conviction and sentence of death.

I. Background

In September 2018, while serving a life sentence for the 1994

first-degree murder of Milton Grossman, Fletcher strangled his

cellmate Kenneth Davis to death in their cell at the Blackwater

River Correctional Facility. Fletcher, who confessed to killing Davis
to a Florida Department of Law Enforcement (FDLE) special agent

and in letters he wrote to the trial court, was indicted for first-

degree premeditated murder in March 2019. As explained in the

trial court’s sentencing order:

On August 29, 2019, [Fletcher] pled guilty to first-degree
murder in open court, which the Court accepted. At the
same time, [Fletcher] informed the Court of his decisions
to waive a penalty phase jury, to not challenge the
imposition of the death penalty, and to refuse to present
mitigation, a position that he has consistently
maintained throughout these proceedings. The Court
found that [Fletcher]’s waivers were knowingly and
voluntarily made and directed the Department of
Corrections to prepare a comprehensive presentence
investigation report (PSI) in accordance with Muhammad
v. State, 782 So. 2d 343, 363-64 (Fla. 2001). After
reviewing the PSI and other mitigating evidence
submitted by the State and defense counsel, the Court
appointed special counsel to represent the public interest
in bringing forth all available mitigation for the Court’s
benefit . . . .

Following Fletcher’s guilty plea, the case proceeded to a

penalty phase. On June 18, 2020, the court confirmed Fletcher’s

waiver of a penalty-phase jury and his wish for his appointed

counsel not to present evidence in mitigation. The State presented

the testimony of several witnesses and introduced several exhibits

in support of the following aggravators it sought to establish: (1)

“capital felony was committed by a person previously convicted of a

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felony and under a sentence of imprisonment”; (2) Fletcher “was

previously convicted of another capital felony”; (3) “capital felony

was especially heinous, atrocious or cruel” (HAC); and (4) “capital

felony was a homicide and was committed in a cold, calculated and

premeditated manner without any pretense of moral or legal

justification” (CCP).

Among the State’s witnesses was the FDLE special agent who

conducted the interview—published in court with no objection—

during which Fletcher confessed, “I did kill Kenny Davis. I

strangled him.” The State also presented testimony from the

pathologist, who performed Davis’s autopsy, identified possible

defensive wounds on several parts of Davis’s body, and concluded

that Davis’s cause of death was manual asphyxiation.

The State’s exhibits included three letters written by Fletcher

addressed to various individuals at the Santa Rosa County

Courthouse confessing to Davis’s murder. These letters were

received and read into the record without objection.

The special counsel, whom the trial court appointed,

summarized the mitigation contained in the record regarding

Davis’s murder, including from Department of Corrections (DOC)

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records and an FDLE investigative report. Special counsel also

summarized relevant mitigation from Fletcher’s 1995 trial for the

murder of Milton Grossman in 1994. Among the evidence

summarized, special counsel indicated that as a minor Fletcher

experienced (1) physical and sexual abuse; (2) physical and

emotional neglect; and (3) drug addiction. Special counsel also

noted that, as an inmate, Fletcher regularly tested positive for drugs

and was suicidal.

After the State rested, Fletcher elected not to present a closing

argument and both the State and Fletcher agreed that a Spencer 1

hearing was unnecessary.

As the trial court explained in the sentencing order, the

penalty-phase evidence established that:

[Fletcher] determined that he wanted to escape the hard
life of prison. Because he was unable to commit suicide,
[Fletcher] decided that the easiest way to accomplish his
“retirement plan” was to kill [Davis] a fellow inmate and
have the death penalty imposed on him. [Fletcher]
accomplished this through careful planning, choking his
cellmate to death despite his cellmate’s obvious attempts
to escape death. [Fletcher] does not lack intelligence or
an ability to understand the nature of his actions.

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

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The trial court sentenced Fletcher to death for the first-degree

murder of Davis on November 24, 2020. In so doing, the trial court

found that the State had proven beyond a reasonable doubt all four

of its proposed aggravators—under sentence of imprisonment, prior

violent felony, HAC, and CCP—and assigned great weight to each

aggravator.

As for mitigating factors, the trial court found no statutory

mitigators; however, the trial court found and assigned the noted

weight to the following ten nonstatutory mitigating circumstances

proved by the greater weight of the evidence, namely that Fletcher

was: (1) physically and sexually abused as a child (some weight); (2)

raised by an alcoholic mother (slight weight); (3) raised in an

unstable home life (slight weight); (4) protective of his sister who

was being abused (some weight); (5) a provider for his sister (slight

weight); (6) exposed to alcohol and illegal drugs at a young age and

became an addict (some weight); (7) found to possess an artistic

talent and has demonstrated a desire to develop this ability in the

past (very slight weight); (8) found to have lost all hope (very slight

weight); (9) cooperative with law enforcement (very slight weight);

and (10) respectful and courteous in court (very slight weight).

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As to the sufficiency and weighing findings, the trial court

found that “sufficient aggravating factors exist to warrant the death

penalty . . . that the aggravating factors far outweigh the mitigating

circumstances and that a sentence of death, rather than life, is

appropriate.”

Fletcher now appeals.

II. Analysis

In this direct appeal, Fletcher argues that the trial court erred

in sentencing him to death for two reasons: (1) the trial court failed

to ensure that all available mitigation was developed and presented,

and (2) the trial court failed to determine beyond a reasonable

doubt that the aggravating factors were sufficient to justify death

and outweighed the mitigating circumstances. Though not raised

as an issue, we also review Fletcher’s guilty plea to first-degree

murder.

1. Mitigation

Although Fletcher instructed his appointed counsel not to

present mitigation below, he now argues on appeal that even

though the trial court followed the “formalities of a presentence

investigation report and the appointment of special counsel,” it

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erred in “ensur[ing] that all available mitigation was considered.”

Because this argument was raised for the first time on appeal, we

review the trial court’s rulings regarding mitigation for fundamental

error. See Craft v. State, 312 So. 3d 45, 56 n.6 (Fla. 2020)

(explaining that unpreserved errors are reviewed for fundamental

error).

We have “repeatedly recognized the right of a competent

defendant to waive presentation of mitigating evidence.” Koon v.

Dugger, 619 So. 2d 246, 249 (Fla. 1993). However, we have also

held that a capital defendant’s mitigation waiver “does not eliminate

the court’s responsibility to consider mitigating evidence in the

record.” Bell v. State, 336 So. 3d 211, 217 (Fla. 2022) (citing Sparre

v. State, 164 So. 3d 1183, 1196 (Fla. 2015)). And, in cases like

Fletcher’s where a capital defendant entirely waives the

presentation of mitigation, we require the trial court to order a

“comprehensive” PSI that “include[s] information such as previous

mental health problems (including hospitalizations), school records,

and relevant family background.” Muhammad, 782 So. 2d at 363;

see also Fla. R. Crim. P. 3.710(b) (adopting the Muhammad

standard). We have further left it within the trial court’s discretion

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to appoint special counsel. See Marquardt v. State, 156 So. 3d 464,

491 (Fla. 2015) (holding that “[i]f the PSI and the accompanying

records alert the trial court to the probability of significant

mitigation, the trial court has the discretion . . . to appoint an

independent, special counsel”); Robertson v. State, 187 So. 3d 1207,

1214 (Fla. 2016) (“[A]ppoint[ing] special counsel [is] a matter within

the court’s discretion.”) (citing Sparre, 164 So. 3d at 1198-99).

Here, Fletcher argues that special counsel presented outdated

mitigation from the proceedings related to Fletcher’s 1994 murder

of Grossman and failed to explore Fletcher’s “drug use and suicidal

ideation” as it relates to Davis’s murder. Fletcher faults the trial

court for failing to order further development of the mitigation

concerning his adverse childhood experiences and his “drug use

and suicidal ideation.” We disagree that fundamental error

occurred.

The record shows that, faced with Fletcher’s election not to

present mitigation, the trial court complied with our precedent. The

trial court ordered a comprehensive PSI, which contained required

information like Fletcher’s “criminal, educational, work, and family

history” and referenced Fletcher’s prior suicide attempt,

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notwithstanding Fletcher’s refusal to participate in the PSI’s

preparation. See Bell, 336 So. 3d at 215 n.7 (finding that even

though “the PSI was not particularly thorough, it included the type

of information a comprehensive PSI requires”). Further, as the

sentencing order explicitly states, the trial court considered the

mitigating evidence from the PSI. See Hojan v. State, 3 So. 3d 1204,

1216-17 (Fla. 2009) (finding that the trial court “consider[ed] the

PSI report as it was required to do” since the “sentencing order

specifically states that a PSI was ordered”).

Moreover, after exercising its discretion to appoint special

counsel, see Marquardt, 156 So. 3d at 491, the record is also clear

that the trial court considered the mitigation presented by special

counsel. Specifically, in the sentencing order, the trial court stated

that “most of the mitigation [was] gleaned from special counsel’s

summary.” Indeed, over half of the mitigating circumstances found

by the trial court relate to Fletcher’s traumatic childhood

experiences, which were documented when Fletcher was an adult in

connection with Fletcher’s 1994 murder of Grossman. Additionally,

special counsel discussed and the trial court explicitly considered

Fletcher’s drug use in prison and “the fact that [Fletcher] had told

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other inmates that he wanted to die.” Although Fletcher faults the

sufficiency of special counsel’s presentation and argues that the

trial court erred by not requiring special counsel to do more to

develop mitigation, he does not identify any mitigation that the trial

court failed to consider. See Muhammad, 782 So. 2d at 363

(“emphasiz[ing] the duty of the trial court to consider all mitigating

evidence ‘contained anywhere in the record, to the extent it is

believable and uncontroverted’ ”) (quoting Farr v. State, 621 So. 2d

1368, 1369 (Fla. 1993)); see also Grim v. State, 971 So. 2d 85, 102

(Fla. 2007) (finding that “the appointment of special counsel is

solely at the discretion of the trial court” and “a defendant has no

basis for claiming that special counsel’s presentation of mitigation

evidence was ineffective”). Furthermore, to the extent Fletcher

claims fundamental error because the trial court did not appoint

experts to assist special counsel with developing and presenting

mitigation, Fletcher’s trial counsel stated that there was “no need

for [special counsel] to seek to have experts appointed, because the

defendant simply will not cooperate.”

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Accordingly, because on these facts we find no fundamental

error in the trial court’s rulings regarding mitigation, Fletcher is not

entitled to relief.

2. Sufficiency of Findings

Fletcher also challenges his death sentence on the ground

that, in sentencing him to death, the trial court failed to determine

beyond a reasonable doubt that the aggravating factors were

sufficient to justify death and outweighed the mitigating

circumstances. However, as Fletcher properly concedes in his

initial brief, we have repeatedly rejected this argument. See

Newberry v. State, 288 So. 3d 1040, 1047 (Fla. 2019) (holding that

sufficiency and weighing determinations “are not subject to the

beyond a reasonable doubt standard of proof”); see also Craft, 312

So. 3d at 57 (finding that this Court has “repeatedly” rejected

arguments that “that the trial court fundamentally erred by failing

to determine beyond a reasonable doubt that the aggravating

factors were sufficient to justify the death penalty”). As in prior

cases, we decline in Fletcher’s case to “revisit what has been settled:

only the existence of a statutory aggravating factor must be found

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beyond a reasonable doubt.” McKenzie v. State, 333 So. 3d 1098,

1105 (Fla. 2022).

3. Guilty Plea

Finally, we review Fletcher’s guilty plea to first-degree murder.

See Fla. R. App. P. 9.142(a)(5); Tanzi v. State, 964 So. 2d 106, 121

(Fla. 2007). This review requires us “to scrutinize the plea to

ensure that the defendant [1] was made aware of the consequences

of his plea, [2] was apprised of the constitutional rights he was

waiving, and [3] pled guilty voluntarily.” Ocha v. State, 826 So. 2d

956, 965 (Fla. 2002). Additionally, we “review the relevant factual

basis for the plea.” Bell, 336 So. 3d at 218 (citing Doty v. State, 170

So. 3d 731, 739 (Fla. 2015)).

Here, the record shows that Fletcher knowingly, intelligently,

and voluntarily entered his guilty plea. First, Fletcher was made

aware of the consequences of his plea and indicated he understood

the consequences and the conditions of the plea agreement.

Second, Fletcher was apprised of the constitutional rights he was

waiving. The trial court asked and Fletcher affirmed that he “read

over the plea agreement” and “underst[ood] all the terms and

conditions” which stated, among other things, that Fletcher was

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waiving: (1) “the privilege against self-incrimination;” (2) “the right

to a jury trial;” and (3) “the right to confront [his] accusers.”

Godinez v. Moran, 509 U.S. 389, 397 n.7 (1993) (explaining that

three constitutional rights are waived when defendants plead

guilty). Third, the trial court asked, and Fletcher confirmed, that he

pled guilty voluntarily. Finally, the “factual basis for the plea,”

which was agreed to by Fletcher, is sufficient to support the first-

degree murder conviction. Doty, 170 So. 3d at 739.

III. Conclusion

For the foregoing reasons, we affirm Fletcher’s first-degree

murder conviction and sentence of death.

It is so ordered.

MUÑIZ, C.J., and CANADY, POLSTON, LAWSON, COURIEL, and
GROSSHANS, 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.

For the reasons expressed in my dissenting opinion in

Lawrence v. State, 308 So. 3d 544 (Fla. 2020) (receding from

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proportionality review requirement in death penalty direct appeal

cases), I can only concur in the result.

An Appeal from the Circuit Court in and for Santa Rosa County,
James Scott Duncan, Judge
Case No. 572019CF000526CFAXMX

Jessica J. Yeary, Public Defender, and Barbara J. Busharis,
Assistant Public Defender, Second Judicial Circuit, Tallahassee,
Florida,

for Appellant

Ashley Moody, Attorney General, and Michael T. Kennett, Assistant
Attorney General, Tallahassee, Florida, and Jennifer A. Davis,
Assistant Attorney General, Miami, Florida,

for Appellee

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