DARIUS MARK KIMBROUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darius Mark Kimbrough appealed the denial of his successive postconviction motion challenging Florida's death penalty statute under the Eighth Amendment. The Florida Supreme Court affirmed the circuit court's denial, rejecting Kimbrough's arguments that non-unanimous jury recommendations for death sentences violate evolving standards of decency and that newly discovered statistical evidence demonstrated constitutional defects.
The court affirmed the denial of relief, holding that Florida law permits non-unanimous jury recommendations for death sentences and that such recommendations are not unconstitutional. The court also held that statistical research studies do not qualify as newly discovered evidence under Florida law.
[1] A successive postconviction motion may be summarily denied if legally insufficient, should have been brought on direct appeal, or is refuted by the record.
[2] Non-unanimous jury recommendations to impose the sentence of death are not unconstitutional.
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Join FLexlaw to unlock all legal intelligence“This Court has repeatedly held that it is not unconstitutional for a juiy to recommend death on a simple majority vote.”
Establishes the controlling legal principle that non-unanimous jury recommendations for death are constitutional under Florida law.
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Join FLexlaw to unlock all legal intelligenceKimbrough was convicted in 1991 of first-degree murder, burglary of a dwelling with battery, and sexual battery with great force in the death of Denis…
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Darius Mark Kimbrough appeals an order from the Ninth Judicial Circuit denying his successive postconviction motion filed under Florida Rule of Criminal Procedure 3.851.1 For the reasons that follow, we affirm the circuit court’s order.
I. Background
Kimbrough is scheduled for execution on November 12, 2013, for the murder of Denise Collins. He “was convicted of first-degree murder, burglary of a dwelling with a battery therein, and sexual battery with great force and was sentenced to death consistent with a jury recommendation of eleven to one.” Kimbrough v. State, 700 So.2d 634, 635 (Fla.1997), cert. denied, 523 U.S. 1028, 118 S.Ct. 1316, 140 L.Ed.2d 479 (1998). In 1991, Kimbrough entered the victim’s apartment through a second-floor sliding glass door and attacked and raped her. Id. at 635-36. The victim died from blunt injury to the face. Id. at 636.
This Court upheld the convictions and death sentence on direct appeal in 1997. Id. at 639. And, in 2004, this Court upheld the denial of postconviction relief and denied habeas relief. Kimbrough v. State, 886 So.2d 965 (Fla.2004). Kimbrough filed his current successive postconviction motion after Governor Scott signed a death warrant on October 4, 2013.
II. Analysis
In these successive postconviction proceedings, Kimbrough claims that Florida’s death penalty statute violates the Eighth Amendment’s evolving standards of decency because most states require a unanimous jury verdict to recommend a death sentence and because allegedly newly discovered evidence indicates that Florida witnessed an increase in death sentences in 2012 compared to the rest of the nation. We affirm the circuit court’s denial of relief.2
*754This Court recently reviewed and rejected this same argument in Mann v. State, 112 So.3d 1158, 1162 (Fla.2013). As we explained in Mann, Kimbrough’s claim “is subject to our general jurisprudence that non-unanimous jury recommendations to impose the sentence of death are not unconstitutional.” 112 So.3d at 1162 (citing Parker v. State, 904 So.2d 370, 383 (Fla.2005) (“This Court has repeatedly held that it is not unconstitutional for a juiy to recommend death on a simple majority vote.”); Davis v. State, 859 So.2d 465, 479 (Fla.2003) (“This Court has repeatedly rejected [this] argument and held that a capital jury may recommend a death sentence by a majority vote.”)); see also Robards v. State, 112 So.3d 1256, 1267 (Fla.2013) (rejecting argument that death sentences based on seven-to-five jury recommendations are unconstitutional, arbitrary, and unreliable). Moreover, there was juror unanimity in Kimbrough’s case in regard to the prior violent felony aggravator. See Kimbrough, 700 So.2d at 636 (“To support the prior violent felony aggravator, the judge cited Kimbrough’s prior convictions for both burglary of a dwelling with battery therein and sexual battery.”).
Additionally, as the circuit court accurately noted in this case, “the various research studies cited by [Kimbrough] do not qualify as newly discovered evidence under the law governing newly discovered evidence.” See Foster v. State, — So.3d -, -, 2013 WL 5659482, *24 (Fla.2013) (“[N]ew research studies are not recognized as newly discovered evidence.” (citing Schwab v. State, 969 So.2d 318, 325 (Fla.2007); Rutherford v. State, 940 So.2d 1112, 1117 (Fla.2006))). Accordingly, the circuit court properly denied relief.
III. Conclusion
For the reasons expressed above, we affirm the order of the circuit court denying Kimbrough’s successive postconviction motion. No rehearing will be entertained by this Court, and the mandate shall issue immediately.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.
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Hurst v. State, 202 So. 3d 40 (Fla. 2016)…ord v. State, No. SC14-1011, SC14-2040, 2015 WL 1741803 (Fla. Apr. 15, 2015) (denying Eighth Amendment claim because it “has been repeatedly rejected by this Court”), cert. denied, — U.S. -, 136 S.Ct. 538, 193 L.Ed.2d 433 (2015); Kimbrough v. State, 125 So. 3d 752, 754 (Fla.2013) (denying the claim due to this Court’s “general jurisprudence that non-unanimous jury recommendations to impose the sentence of death are not unconstitutional”); Robards v. State, 112 So. 3d 1256, 1267 (Fla.2013); Mann v. State, 112…
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Dane P. Abdool v. Bondi, 141 So. 3d 529 (Fla. 2014)…, Chavez v. State, 132 So. 3d 826 (Fla.) (challenging the lethal injection protocol, the denial of public records requests, and the sufficiency of clemency proceedings), cert. denied, - U.S. -, 134 S.Ct. 1156, - L.Ed.2d - (2014); Kimbrough v. State, 125 So. 3d 752 (Fla.) (presenting the single claim that Florida's death penalty statute violates the Eighth Amendment), cert. denied, - U.S. -, 134 S.Ct. 632, 187 L.Ed.2d 412 (2013).…
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Henry v. State, 134 So. 3d 938 (Fla. 2014)…3 So. 3d 511 (Fla.2014), cert. denied, — U.S. -, 134 S.Ct. 1376, 188 L.Ed.2d 372, 2014 WL 727245 (2014), and Muhammad v. State, 132 So. 3d 176, (Fla.2013), cert. denied, — U.S. -, 134 S.Ct. 894, 187 L.Ed.2d 700 (2014). And citing Kimbrough v. State, 125 So. 3d 752 (Fla.), cert. denied, — U.S.-, 134 S.Ct. 632, 187 L.Ed.2d 412 (2013), and Mann v. State, 112 So. 3d 1158 (Fla.2013), the postconviction court denied Henry’s claim that his death sentences are unconstitutional as a result of nonunanimous jury recomme…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Parker v. State, 904 So. 2d 370 (Fla. 2005)
- Davis v. State, 859 So. 2d 465 (Fla. 2003)
- Schwab v. State, 969 So. 2d 318 (Fla. 2007)
- Darius Mark Kimbrough v. State, 886 So. 2d 965 (Fla. 2004)
- Robards v. State, 112 So. 3d 1256 (Fla. 2013)
- Seburt Nelson Connor v. State, 979 So. 2d 852 (Fla. 2007)
- Gianni Passino v. State (Fla. 4th DCA 2019)
- Rutherford v. State, 940 So. 2d 1112 (Fla. 2006)
- Mann v. State, 112 So. 3d 1158 (Fla. 2013)
- Marek v. State, 8 So. 3d 1123 (Fla. 2009)