In What Cases Does the State Have to Rely on the Defense's Opening Statement of Mitigation As Basis for Rebuttal ?

In Ellis v. State, 622 So. 2d 991 (Fla. 1993), this Court said that the State "shall be provided a full opportunity to rebut the existence of mitigating factors urged by the defendant Ellis and to introduce evidence tending to diminish their weight if they cannot be rebutted." Id. at 1001. The court usually allowes the State to rebut the mitigation offered by the defense, and we allow the defense to offer evidence to rebut aggravation proposed by the State. See, e.g, Singleton v. State, 783 So. 2d 970 (Fla. 2001); Teffeteller v. Dugger, 734 So. 2d 1009 (Fla. 1999). This principle holds true even though the defense may present no witnesses and rely solely on cross-examination to support its proffered mitigation. In such a situation the State has the right to rely on the defense's opening statement of its mitigation as a basis for rebuttal. As the court noted in Teffeteller v. State, 495 So. 2d 744 (Fla. 1986), new penalty phase proceedings present unique problems: One of the problems inherent in holding a resentencing proceeding is that the jury is required to render an advisory sentence of life or death without the benefit of having heard and seen all of the evidence presented during the guilt determination phase . . . . We note that this evidence is not used to relitigate the issue of appellant's guilt, but is used only to familiarize the jury with the underlying facts of the case. . . . We hold that it is within the sound discretion of the trial court during resentencing proceedings to allow the jury to hear or see probative evidence which will aid it in understanding the facts of the case in order that it may render an appropriate advisory sentence. We cannot expect jurors impaneled for capital sentencing proceedings to make wise and reasonable decisions in a vacuum. Id. at 745.