Imposing a Death Sentence Without Considering Non-Statutory Mitigation In

To determine whether a judge as trier of fact has considered evidence, the first question to ask is thus whether the judge ruled the evidence to be admissible or inadmissible. The decision in Groover v. State, 640 So. 2d 1077 (Fla. 1994), serves to illustrate this point. In Groover, the appellant argued that his death sentence was unreliable because the trial court in sentencing the defendant to death failed to consider nonstatutory mitigation. Id. at 1078. The court rejected this contention, stating that "when a trial judge instructs a jury that it can consider nonstatutory mitigating evidence, 'we must presume that the judge followed his own instructions to the jury.'" Id. (quoting Johnson v. Dugger, 520 So. 2d 565, 566 (Fla. 1988)). Accordingly, when a trial judge rules evidence to be admissible, i.e., "relevant and . . . of such a character . . . that the court should receive it," Black's Law Dictionary 635 (9th ed. 2009), it is nonsensical to presume that the trial court did not consider the evidence it had previously determined to be admissible. Based on the sensible general presumption that a judge as trier of fact acts in accord with the legal rulings made by the judge, the following two presumptions arise: (1) the judge as trier of fact is presumed to consider evidence she has ruled admissible; (2) the judge as trier of fact is presumed to not consider evidence she has ruled to be inadmissible. Either presumption may be rebutted by sufficient contrary statements or findings by the trial judge subsequent to the ruling on admissibility.