In Mora v. State, 814 So. 2d 322 (Fla. 2002), the defendant objected to penalty phase counsel contacting his relatives that lived overseas as part of counsel's investigation of mitigating evidence.
The trial court relied on Koon v. Dugger, 619 So. 2d 246 (Fla. 1993) in refusing to allow the defendant to waive any mitigating evidence before counsel had investigated all such evidence. Id. at 331.
The defendant refused to allow counsel to contact his family and proceeded pro se during the penalty phase, where he presented no mitigating evidence. Id. at 332.
The Court reversed the death sentence because the trial court misapplied Koon in holding that it barred a defendant from waiving mitigation before counsel first investigates all possible mitigation. Id.
Instead, Koon simply developed a procedure so that the record clearly reflects "a defendant's knowing waiver of his or her right to present mitigating evidence." Id. at 332-33.
The defendant received a new penalty phase, because the record reflected that he had only wished to waive a portion of the mitigating evidence and had done so knowingly, intelligently, and voluntarily.
Thus, a defendant possesses great control over the objectives and content of his mitigation. See Farr v. State, 656 So. 2d 448, 449 (Fla. 1995) (no error when defendant takes stand to refute and disclaim any possible mitigation because defendant is entitled to control overall objectives of counsel's argument).
Whether a defendant is represented by counsel or is proceeding pro se, the defendant has the right to choose what evidence, if any, the defense will present during the penalty phase. See Grim v. State, 841 So. 2d 455, 461 (Fla.), cert. denied 540 U.S. 892, 124 S. Ct. 230, 157 L. Ed. 2d 166 (2003).