This case is before the Court on appeal from a judgment of convictions of first-degree murder and kidnapping and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm Allen’s convictions and sentences.
On March 8, 2005, Margaret A. Allen was indicted for the first-degree murder and kidnapping of Wenda Wright. Wright’s domestic partner, Johnny Dublin, last saw Wright leaving his home with Allen. Wright never returned home. A few days after Wright went missing, Quin-tín Allen, Margaret Allen’s co-defendant and the State’s main witness turned himself in to the police and told the police about the events that led up to Wright’s death. Quintín also took the police to the location in which he, Allen, and James Martin buried Wright’s body.
Guilt Phase
A jury trial commenced on September 13, 2010. Johnny Dublin testified for the State. Dublin testified that on the day Wright went missing, Allen came to Dublin and Wright’s house and whispered something into Wright’s ear. In response, Wright and Allen left the house together. A little while later, Allen returned to Dublin’s house and told Dublin that Wright stole about $2000 of Allen’s money and Allen asked Dublin if she could search his house. Dublin obliged and Allen searched Dublin’s house. Dublin testified that he noticed that Allen had scratches on her when she came back to his house. Dublin asked Allen where Wright was, and Allen responded that she was still at Allen’s house. Dublin testified that the next day, Allen came back to his house and asked him where Wright was. Dublin testified that Quintín was with Allen.
Quintín Allen testified for the State. He acknowledged that he was serving a fifteen-year sentence of incarceration followed by five years’ probation for his guilty plea for second-degree murder based on his involvement in Wright’s murder. Quintín testified that he was at Allen’s house on the day of the murder when Allen noticed that her purse was missing. Allen left her house and told Quintín to stay with her children. Allen returned to her house with Wright and asked Quintín to come inside. Allen told Quintín that Wright must have stolen Allen’s purse because Wright was the only person at Allen’s house before the purse went missing. Allen and Quintín searched for the purse. Allen left the house again and told Quintín not to let Wright leave if she tried. At one point while Allen was gone, Wright tried to leave; Quintín told Wright that Allen wanted her to stay, and Wright obliged.
Upon Allen’s return, Quintín plaited Allen’s hair. Quintín testified that at one point Wright started crying and begged Allen to let her go home. Wright attempted to leave Allen’s house and Allen hit Wright on the head; Wright fell to the ground. Quintín testified that Allen had a gun and told him that if he did not help her with Wright, she would shoot him, so Quintín held Wright down on the floor. While he held Wright down, Allen found chemicals including bleach, fingernail polish remover, rubbing alcohol and hair spritz and poured them all onto Wright’s face. At one point, one of Allen’s children walked into the room in which this was taking place, and Allen told the child to rip off a piece of duct tape for Allen. Allen attempted to put the duct tape over Wright’s mouth, but because Wright’s face was wet from the chemicals that were poured on her face, the duct tape would not stick to her skin. Allen retrieved belts from her closet and beat Wright with them. Quintín then tied Wright’s feet together with one of the belts. Quintín testified that at that point Wright was not struggling. Allen then put one of the belts around Wright’s neck and pulled. At one point, Wright said, “Please, stop. Please stop. I am going to piss myself.” Wright’s body started shaking and after
Quintín left soon after the incident. Allen called Quintín throughout the night, but he did not answer her calls. The next day, Allen found Quintín at the barbershop. Quintín testified that Allen still had the gun. Quintín got into the truck that Allen was driving; James Martin was also in the truck. Allen told Quintín that Wright was dead. Allen then told Quintín that he had to help her get rid of the body.
Allen, Quintín, and Martin drove to Lowe’s to buy plywood to help move Wright’s body from inside the house into the truck. They also borrowed a dolly hand truck from a local shop to help move the body. Quintín testified that upon returning to Allen’s house, Wright’s body had been moved from where he had last seen her and had been wrapped in Allen’s carpet. They were eventually able to get Wright’s body into the truck. Then, all three took shovels from Allen’s mother’s tool shed and drove to an area off of the highway to dump Wright’s body. Quintín and Martin dug a hole while Allen stood as a lookout. They placed Wright’s body in the hole, covered the hole with debris, and took the carpet with them. They threw the carpet into a dumpster outside of a truck stop and picked up Allen’s daughter from school. Quintín went to the police and turned himself in. Quintín also took the police to the place where Wright’s body had been buried.
James Martin testified that he was sentenced to sixty months’ incarceration for his participation in hiding Wright’s body. Martin testified that on the day of the murder, he was at Allen’s house helping her repair a car. Allen asked Martin to help her search for her purse, and Martin did. He testified that he left Allen’s house around 10 p.m. to get a starter belt for the car. Martin finished repairing the car and asked Allen if she had any cocaine. She did not, so Martin left Allen’s house, found cocaine, came back to Allen’s house, and smoked it. Martin testified that when he got back from finding the cocaine, Wright was the only one at Allen’s house. Martin testified that the timing of the events of the day was unclear because he had been high. Martin testified that he slept at Allen’s house until the morning and got a ride from Allen when she took her children to school. At that point, Allen told Martin that she needed help. Allen and Martin went back to Allen’s house, and Martin saw Wright’s body. Martin testified that Allen told him, “He must have hit her too hard.” Martin testified that he noticed a bandana tied around Wright’s hands.
Allen told Martin that they had to bury Wright’s body. Allen sent Martin to Allen’s brother’s house to borrow a truck. Martin testified that the truck was never found by police. Martin testified that the entire plan, including getting the plywood at Lowe’s was Allen’s idea. Martin testified that he was the only smoker of the group, and he dumped all of the ashtrays out of the car after they buried the body. When they got back to Allen’s house, Quin-tin left, and Martin cleaned the nylon strap that had been used to secure the carpet around Wright’s body. Martin also washed the truck but testified that he did not know what became of the vehicle. Martin was at Allen’s house when the police came to Allen’s house with a search warrant.
On cross-examination, Martin testified that it was Quintín who first told Wright that she could not leave. Martin also testified that Quintín gave directions to bury the body. The defense elicited that Martin told Allen’s sister that Quintín “did this.” On redirect, the State elicited from
Denise Fitzgerald, a crime scene technician, testified that she exhumed Wright’s body and located a cigarette butt in the vicinity. The State and defense stipulated that the DNA found on the cigarette butt was consistent with Martin’s DNA.
Dr. Sajid Qaiser, a forensic pathologist and chief medical examiner for Brevard County, testified that while he did not perform the autopsy on Wright, he had reviewed the autopsy report. He testified that Dr. Robert Whitmore,
The State rested, and the defense filed a motion for judgment of acquittal asserting that the State had not proven the underlying charge of kidnapping for felony murder. The trial court denied the motion, and the defense rested without calling any witnesses. The jury found Allen guilty of first-degree murder and kidnapping.
Penalty Phase
The penalty phase commenced on September 22, 2010. Dr. Qaiser testified on behalf of the State. He acknowledged that he could not determine what kind of pain Wright felt before she died. Dr. Qaiser reiterated that Wright had about eight to ten bruises on her face. He also testified that someone would feel a sense of panic and pressure during strangulation.
On cross-examination by the defense, Dr. Qaiser acknowledged that he did not know whether Wright was conscious during the majority of the attack. Dr. Qaiser also testified that someone would lose consciousness after about ten to twenty seconds of strangulation and would die after about four to six minutes. After Dr. Qaiser’s testimony, the State rested.
Dr. Michael Gebel, a neurological physician, testified for the defense. He testified that he had reviewed Allen’s records and spoken with Allen. He determined that Allen suffered from numerous head injuries, including at least four incidents in which Allen lost consciousness. He testified that Allen’s records included emergency room visits in 1995 and 1996 during which she was treated for facial and head trauma and bite wounds. He also testified that she was treated in 1989 for a drug overdose. Dr. Gebel testified that Allen had significant intracranial injuries and was at the lower end of intellectual capacity. He testified that Allen had organic brain damage, which would destroy impulse control. He opined that this brain damage might affect her ability to appreciate the criminality of her conduct and that
On cross-examination, the State elicited Dr. Gebel’s opinion that a person with Allen’s brain injuries would not be able to create and follow through with a plan such as the one Allen executed to discard Wright’s body. Upon the doctor finding out the facts of this case, he stated that while that would change the severity of his diagnosis of Allen, it would not change her brain injuries.
Dr. Joseph Wu, a neuropsychiatry and brain imaging specialist, testified on behalf of the defense that he reviewed Allen’s PET scan. He testified that Allen had at least ten traumatic brain injuries, mostly to the right side of her brain, resulting in asymmetrical changes, specifically in the frontal lobe. Dr. Wu testified that damage to the frontal lobe affects impulse control, judgment, and mood regulation. He also testified that her brain injuries would make it hard for Allen to conform her conduct to the requirements of society. He testified that she would have an overreaction to slight provocation, but that Allen’s injuries should not impair her planning abilities. Dr. Wu testified that Allen’s ability to understand and regulate proportionate responses in a consistent manner was significantly impaired. He also testified that it would be difficult for her to consistently conform her conduct to the requirements of society.
Myrtle Hudson, Allen’s aunt, testified that Allen had an unstable childhood in a violent and drug-infested neighborhood. Hudson testified that she never knew Allen to abuse drugs, but Allen drank alcohol. Hudson knew of at least two abusive relationships in which Allen was beaten to the point of unconsciousness. She also thought Allen had been sexually abused as a child.
Spencer
Myrtle Hudson testified that Allen became part of the neighborhood culture, drinking alcohol and selling drugs. Bessie Noble, an advocate for prisoners, testified that Allen had an abusive and bad life. Tara Posey, Allen’s cousin, testified that Allen was a good person and friend, but she had a tough and violent life, and had a problem with alcohol. She also testified that Allen sold drugs so that she could provide for her children. April Smith, Allen’s sister-in-law, testified that Allen was a good person with a hard life. Irene Posey, Allen’s grandmother, testified that Allen had a good childhood, living with her intermittently. She testified that Allen had been a good child and that she did not commit this crime.
Margaret Allen testified on her own behalf regarding her harsh upbringing, including selling drugs and being abused. She recounted that she suffered head injuries as a result of being beaten. She acknowledged that she had been previously charged with drug and gun possession charges. She testified that she did not kill Wright. On cross-examination, Allen admitted that she had been arrested for assault and battery and that her daughter told the police that Allen committed the instant crime.
The State elicited victim impact testimony from Dublin that Wright was a good person and that she and Allen had been good friends. Diane Baxter, Wright’s sis
The jury recommended a sentence of death by a unanimous vote. The trial court found two aggravators: (1) the capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit a kidnapping (great weight); and (2) the capital felony was especially heinous, atrocious, or cruel (great weight). The trial court found no statutory mitigation and found the following nonstatutory mitigation: (1) defendant has been the victim of physical abuse and possible sexual abuse in the past (some weight); (2) defendant has brain damage as a result of prior acts of physical abuse and the brain damage results in episodes of lack of impulse control (some weight); (3) defendant grew up in a neighborhood where there were acts of violence and illegal drugs (some weight); and (4) defendant would help other people by providing shelter, food or money (little weight). The trial court concluded that the aggravating circumstances outweighed the mitigation. Thus, the trial court imposed the sentence of death. This is Allen’s direct appeal.
ANALYSIS
Allen raises the following issues for review: (1) whether the trial court erred in excluding the testimony of State witness James Martin that former-co-defendant-tumed-State-witness Quintín admitted to choking the victim to death; (2) whether the trial court erred in adjudicating Allen guilty of the kidnapping charge, and whether the trial court erred in adjudicating Allen guilty of first-degree felony murder predicated on the kidnapping charge; (3) whether reversible error occurred when the prosecutor repeatedly asked the defendant’s mental health expert about the nonstatutory and highly inflammatory ag-gravator of future dangerousness of the defendant; and (4) various claims regarding whether Allen’s death sentence is im-permissibly imposed.
Guilt Phase Claims
I. Witness Testimony
Allen asserts that the trial court erred in excluding testimony of State witness James Martin on cross-examination by the defense that the former-co-defendant-turned-State-witness Quintín allegedly admitted choking Wright to death. We disagree.
Martin testified regarding his knowledge of the events of the day of Wright’s death; however, he testified that he was not present when Wright died. On cross-examination, the defense attempted to elicit from Martin that while they were incarcerated together Quintín allegedly admitted to Martin that he killed Wright. Specifically, the defense asked Martin, “Did [Quintín] ever tell you or did you ever hear him say he choked [Wright]?” The State objected and the following colloquy was proffered:
Q [defense]: Now, when you were in the jail, at any point in time did he ever tell you that he choked Wenda Wright? A [Martin]: No, he didn’t tell me.
Q: Well, did you ever hear him say that, that he choked her?
A: Nope.
Q: In your deposition on page 12....
“He said he had a special hold with his leg, that he choked her.”
A: Yeah, but — yeah. You didn’t write everything. I remember saying that there. I remember saying he got a special hold that he used to choke her*956 with. Because he nearly choked the boy out in jail with that same hold.
Q: I am going to continue in the deposition. I asked you then, “Quintín said that,” question. And you said, “Yes.” “So, did you hear him say he choked her?” “Yeah. He next — he next to me, he let me read the deposition and the autopsy report.” So I asked you did Quintín say that?
A: Right. In the room you asked me that and I said no.
Q: So you are disputing what the court reporter wrote down? Would you like to see it?
A: No, I don’t need to see it. I know I didn’t say choke hold. How can I say something if it is a lie because me and him talked like that? If me and him talked, like he didn’t kill nobody and he didn’t do that.
Q: All right. I am just reading the deposition. Do you agree with it or not?
A: But I didn’t say that he told me.
Q: Well, again, I asked you — and your answer at the top of page 12, line 2, “He said he had a special hold with his leg that choked her.”
I said, “Quintín said that?”
And you said, Wes.”
“So, if you did hear him say he choked her?”
Answer, “Yeah.”
A: No.
Q: So, now you are saying that he didn’t say that?
A: No. What I am saying is he didn’t tell me that he choked her. But he said — yeah, I know you said he choked people, but I didn’t say nothing about he choked her. I said yeah he probably did choke her. Because how can a 140 pound woman choked a 290—
The trial court excluded the testimony.
Hearsay is defined as an out-of-court statement being offered into evidence to prove the truth of the matter asserted. See § 90.801(l)(c), Fla. Stat. (2005). “Except as provided by statute, hearsay evidence is inadmissible.” § 90.802, Fla. Stat. (2005). This Court reviews “ ‘a trial court’s decision to admit evidence under an abuse of discretion standard.’ ” McWatters v. State,
Allen asserts that Quintin’s alleged confession to Martin is admissible under the hearsay exception of a statement against penal interest. Section 90.804(2)(c), states:
Statement against interest. — A statement which, at the time of its making, was so far contrary to the declarant’s pecuniary or proprietary interest or tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant’s position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is inadmissible, unless corroborating circumstances show the trustworthiness of the statement.
§ 90.804(2)(c), Fla. Stat. (2005). This exception only applies when the declarant is unavailable. See § 90.804, Fla. Stat. (2005). Quintín was available to testify, was called as a State witness, and was cross-examined by the defense, during which the defense did not ask Quintín whether he had confessed to this crime. Furthermore, the statute specifically ex-
Allen’s assertion that the trial court erred in assessing Martin’s credibility in determining that Quintin’s alleged confession did not have sufficient circumstances of reliability to be admissible, is without merit. See Carpenter v. State,
Even if the trial court’s exclusion of this proffered testimony was in error, it is harmless beyond a reasonable doubt. See State v. DiGuilio,
Allen cites Chambers v. Mississippi,
Allen’s alternative suggestion that the statement was admissible as an admission of a party opponent or a co-conspirator’s statement is unpreserved and without merit. See § 90.803(18)(e), Fla. Stat. (2005). “‘In order to preserve an issue for appellate review, the specific legal argument or ground upon which it is based must be presented to the trial court.’” Bertolotti v. Dugger,
Even if this argument had been preserved, the claim is without merit. In order to be admitted as an admission of a party, the statement must be made while the conspiracy is in existence and before it is terminated. See Calvert v. State,
II. Sufficiency of the Evidence
Allen asserts that the trial court erred in adjudicating Allen guilty of kidnapping, and as a result the trial court erred in adjudicating Allen guilty of firstdegree felony murder predicated upon the kidnapping conviction. We have a mandatory obligation to review the sufficiency of the evidence in every case in which a sentence of death has been imposed. See Miller v. State,
The State charged Allen with first-degree felony murder during the course of a kidnapping, and kidnapping with the intent to inflict bodily harm or terrorize the vic
The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function.
There is sufficient evidence to support the kidnapping conviction in this case. The evidence supports a finding that Wright was confined by force against her will from the moment Wright tried to leave and Allen hit her on the head and knocked her to the ground, with the intent to terrorize Wright in an attempt to locate Allen’s purse. Quintín testified that Wright dropped down on her knees and started crying and begged, “Margaret, please let me go home. All I want to do is go home to see my kids.” When Wright tried to leave, Allen hit her in the head and continued punching her after Wright fell to the floor. The events occurred over a substantial period of time, during which Wright was beaten with fists and belts and had caustic substances poured over her face. Wright’s legs were tied with a belt so that she could not move. The medical examiner, Dr. Qaiser, testified that ligature marks were found on Wright’s neck and wrists, supporting a conclusion that she was either hung or something was tied tightly around her neck, and her body was bruised. Thus, there is sufficient evidence to support the conviction of kidnapping with the intent to “inflict bodily harm upon or to terrorize the victim or another person,” and that the kidnapping was not merely incidental to the killing. See § 787.01(l)(a)3., Fla. Stat. (2005).
Allen heavily relies on our decision in Faison and several other cases for the proposition that we must determine whether the kidnapping was sufficiently separate from other criminal charges. See Faison v. State,
In Faison, the following test was applied when a defendant was charged with two crimes, one of which was kidnapping under section 787.01(a)(2), “if a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement”:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.
Faison,
Dr. Qaiser testified that Wright died as a result of homicidal violence, with strangulation and ligature important causes of her death. Quintín testified that Wright died as a result of the strangulation from the belt, during the event in which she was beaten and tied up by Allen and Quintín. Thus, Wright’s death was directly related to her being a victim of kidnapping by Allen. Accordingly, there is sufficient evidence to support the conviction of felony murder with the underlying felony of kidnapping. Therefore, we conclude that there was sufficient evidence to support Allen’s convictions.
Penalty Phase Claims
I. Prosecutorial Misconduct
Allen asserts that reversible error occurred when the prosecutor repeatedly asked Allen’s mental health expert about the future dangerousness of Allen. On cross-examination of the defense’s mental health expert, Dr. Wu, who had testified on direct examination that Allen’s brain damage led her to have a lack of impulse control, the following colloquy took place between Dr. Wu and the State:
Q [State]: Isn’t it true, Doctor, that if somebody has impulse control, it just doesn’t happen at random, it happens, I believe as you say, that they have a disproportionate overreaction to provocation, correct?
A [Dr. Wu]: That can occur. It doesn’t necessarily have to occur on every occasion. It is something that can occur. She has a higher likelihood of this. It’s kind of like saying how Toyota was, it was a problem with unattended acceleration, you are not going to have unattended acceleration all the time.
Q: So, she can control when it happens?
A: No. It’s kind of like the driver of the car with unattended acceleration, he cannot control when it starts to go out of control. I mean, it may not happen for years and then all of a sudden it happens.
Q: So, it would happen, say, to a prison guard in the future, correct?
A: Well, I can’t really say. All I can see is, that is something that I cannot really say. I mean, I would say she is at higher risk. But generally in a much more structured setting than the outside world. And people with brain injury in the frontal lobe usually do better in highly structured organized regimented systems.
Q: Okay. So, to your knowledge it never happened before this murder and you cannot say it is ever going to happen in the future. But you are saying because she committed a murder this one time that that is conclusive evidence that she has impulse control problems?
A: I am saying that the PET scan and the history is consistent with that of an individual who has a greater vulnerability of having problems with impulse control within a reasonable degree of medical probability.
Q: Okay. So, you are saying to a reasonable degree of medical probability she is a risk to any prison guard who is watching her in the future?
[Defense]: Objection. Speculation.
[Court]: Sustained.
We have held that arguments of future dangerousness as a basis to impose a death sentence are improper and “prosecutorial overkill.” Teffeteller v. State,
On cross-examination of Dr. Wu, the prosecutor clearly attempted to elicit improper testimony about the possible future dangerousness of Allen. Both of the State’s assertions, that the defense opened the door to this line of questioning by asking Dr. Wu if Allen’s lack of impulse control could occur at any time, and that the State’s questions were not to show future dangerousness but to discredit Dr. Wu’s opinion that she lacked impulse control, are disingenuous. It is clear that the State was attempting to improperly allege Allen’s future dangerousness, without a valid basis.
Nonetheless, we determine that the prosecutor’s improper questions to Dr. Wu here were less egregious than those warranting reversal when the issue was preserved. See Kormondy v. State,
II. Aggravating Circumstances
Allen asserts that the trial court erred in finding the aggravating circumstances (a) that the capital felony was committed during the commission of a kidnapping, and (b) that the capital felony was especially heinous, atrocious, or cruel (HAC). In reviewing the trial court’s finding of an aggravating circumstance, this Court’s “task on appeal is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” MeWatters,
a. During the Course of a Kidnapping
Allen asserts that the trial court erred in finding the aggravating circumstance that the capital felony was committed while the defendant was engaged in the commission of a kidnapping. See § 921.141(5)(d), Fla. Stat. (2005). Allen bases this assertion on her argument that the trial court erred in adjudicating Allen guilty of kidnapping. As discussed above, the evidence is sufficient to support Allen’s kidnapping conviction. Thus, the trial court’s finding during the penalty phase that the evidence supports the aggravating circumstance that the murder was committed during the course of a kidnapping is supported by competent, substantial evidence. See, e.g., Hess v. State,
b. HAC
Allen asserts that the trial court erred in finding the aggravating circumstance of HAC. See § 921.141(5)(h), Fla. Stat. (2005). The HAC aggravator is proper “only in torturous murders — those that evince extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another.” Guzman v. State,
[This Court has] upheld the HAC ag-gravator in numerous cases involving beatings. Lawrence v. State,698 So.2d 1219 , 1221-22 (Fla.1997) (“We have consistently upheld HAC in beating deaths.”); see also, e.g., Colina v. State,684 So.2d 1077 , 1081 (Fla.1994) (holding that the HAC aggravator applied where one of the defendants hit the victim, who fell to the ground, and when that victim attempted to get to his feet, the other defendant hit him several times in the back of the head with a tire iron); Owen v. State,596 So.2d 985 , 990 (Fla.1992) (upholding the HAC aggravator where the sleeping victim was struck on the head and face with five hammer blows); Lamb v. State,582 So.2d 1051 , 1053 (Fla.1988) (upholding the HAC aggravator where the defendant struck the victim six times in the head with a claw hammer, pulled his feet out from under him, and kicked him in the face); Heiney v. State,447 So.2d 210 , 216 (Fla.1984) (upholding the HAC aggravator where seven severe hammer blows were inflicted on the victims head).
Patrick v. State,
Wright was terrorized over a substantial period of time and she was aware of what was happening to her. Testimony reflects that Wright begged to be let go. When she tried to leave, Allen punched her in the head; Wright fell on the ground, and Allen continued punching her. According to Quintín, he was holding Wright down while Allen poured chemicals onto Wright’s face. Allen beat Wright with belts while Wright’s legs were tied. Allen then strangled Wright with a belt. Quintín testified that Wright was terrified and screamed for Allen to stop because she was going to wet herself. Wright was shaking and moving around for about three minutes after the belt was placed around her neck.
According to Dr. Qaiser, the cause of death was strangulation. Dr. Qaiser also testified that he found bruises and contusions on Wright’s body which indicated that she was beaten. In particular, bruises were found on the back of the ear, forehead, left side of the torso, trunk and the leg area. He also found ligature marks over Wright’s wrist and neck, which indicated that she was tied and strangled. He explained that if someone suffers a blow to the head and becomes unconscious, consciousness could be regained thereafter. According to Dr. Qaiser, it could take a person four to six minutes to die as a result of strangulation, and a person could remain conscious during about ten to twenty seconds of that time.
Allen contends that Wright could have lost consciousness upon the initial blow to her head and therefore been unaware of her impending death, asserting that there were no defensive wounds. This assertion is negated by Quintin’s testimony that Wright was conscious and continually pleaded to be released and that upon being strangled, Wright pleaded for Allen to stop, stating that she might wet
III. Mitigation
Allen raises several issues regarding mitigation. Specifically, she asserts that (a) the trial court erred in rejecting the statutory mental mitigators of (i) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance and (ii) the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired; and (b) the trial court erred in the weight it assigned to the nonstatutory mitigation,
a. Statutory Mental Mitigation
Allen contends that the trial court erred in rejecting the following statutory mitigators: (1) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance; and (2) the capacity of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was substantially impaired. See §§ 921.141(6)(b), 921.141(6)(f), Fla. Stats. (2005).
We recently reiterated the requirements regarding mitigation.
A trial court must expressly evaluate all statutory and nonstatutory mitigators a defendant has proposed. See Ault v. State,53 So.3d 175 , 186 (Fla.2010), cert. denied, — U.S. —,132 S.Ct. 224 ,181 L.Ed.2d 124 (2011). A trial court must find a proposed mitigating circumstance when the defendant has established that mitigator through competent, substantial evidence. See Reynolds v. State,934 So.2d 1128 , 1159 (Fla.2006). However, a trial court may reject a mitigator if the defendant fails to prove the mitigating circumstance, or if the record contains competent, substantial evidence supporting that rejection. See Ault,53 So.3d at 186 . “Even expert opinion evidence may be rejected if that evidence cannot be reconciled with other evidence in the case.” Id. (quoting Coday v. State,946 So.2d 988 , 1003 (Fla.2006)). A mitigator may also be rejected if the testimony supporting it is not substantiated by the actions of the defendant, or if the testimony supporting it conflicts with other evidence. See Douglas v. State,878 So.2d 1246 , 1257 (Fla.2004) (holding that although testimony supported a mitigator, the trial court did not err by not finding it because the actions of the defendant did not substantiate that testimony); see also Coday,946 So.2d at 1005 (“The expert testimony from the defense could be rejected*965 only if it did not square with other evidence in the case.”).
Oyola v. State, 99 So.Bd 481, 444-45 (Fla.2012).
i. The Capital Felony was Committed While the Defendant was Under the Influence of Extreme Mental or Emotional Disturbance
Allen contends that the trial court erred in rejecting the statutory mitigator of the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance. See § 921.141(6)(b), Fla. Stat. (2005). Allen’s assertion that the trial court improperly focused on whether the crime was committed while Allen was abusing drugs or alcohol appears to be correct. Nevertheless, we find the trial court’s incorrect analysis harmless beyond a reasonable doubt. See DiGuilio,
ii. The Capacity of the Defendant to Appreciate the Criminality of His or Her Conduct or to Conform His or Her Conduct to the Requirements of Law was Substantially Impaired
Allen contends that the trial court erred in rejecting the statutory miti-gator that her capacity to appreciate the criminality of her conduct or to conform her conduct to the requirements of law was substantially impaired. See § 921.141(6)®, Fla. Stat. (2005). “Mitigating evidence must be considered and weighed when contained ‘anywhere in the record, to the extent it is believable and uncontroverted.’ ” LaMarca v. State,
The trial court’s rejection of this miti-gator is supported by competent, substantial evidence. During the penalty phase, two experts, Drs. Gebel and Wu, testified on behalf of the defense. Dr. Gebel testified that he had reviewed Allen’s records and spoke with Allen. He determined that Allen suffered from numerous head injuries, including at least four incidents in which Allen lost consciousness. He testified that Allen’s records included emergency room visits in 1995 and 1996 during which she was treated for facial and head trauma and bite wounds. He also testified that she was treated in 1989 for a drug overdose. Dr. Gebel opined that Allen had significant intracranial injuries and was at the lower end of intellectual capacity. He testified that Allen had organic brain damage, which would destroy impulse control. He testified that this brain damage “might” affect her ability to appreciate the criminality of her conduct and that she
Dr. Wu testified that he reviewed Allen’s PET scan. He testified that Allen had at least ten traumatic brain injuries, mostly to the right side of her brain, resulting in asymmetrical changes, specifically in the frontal lobe. Dr. Wu testified that damage to the frontal lobe affects impulse control, judgment, and mood regulation. He testified that she would have an overreaction to slight provocation. He testified that Allen’s ability to appreciate the criminality of her conduct would be impaired. He also testified that Allen’s injuries should not impair her planning abilities. Dr. Wu testified that Allen’s ability to understand and regulate proportionate responses in a consistent manner is significantly impaired. He also testified that it would be difficult for her to consistently conform her conduct to the requirements of society.
Neither of these experts testified that Allen’s health condition substantially impaired her ability to conform her conduct to the requirements of law, as mandated in the express language of section 921.141(6)(f). See Oyola,
Furthermore, the evidence presented supports the rejection of the theory that Allen’s mental condition substantially impaired her ability to conform her conduct to the requirements of the law. Specifically, the events surrounding Wright’s death lasted for an extensive period of time rather than an instantaneous moment of loss of impulse control. Allen kept Wright at her house long enough to search for her purse at Wright’s house, return, get her hair plaited by Quintín, then tie Wright up, beat her with her fists and a belt, and pour caustic substances on Wright’s face before finally strangling her to death with a belt. The evidence presented also established that Allen understood the criminality of her conduct and was intelligent enough to destroy evidence in an attempt to exculpate herself from the murder; ' i.e., she went to Dublin’s house asking if he had seen Wright and suggesting that she did not know that Wright was at her house; she went to Lowe’s and bought plywood and borrowed a dolly to help load Wright’s
b. Weight Assigned to Nonstatutory Mitigation
Allen asserts that the trial court erred in the weight it assigned to the nonstatutory mental mitigation. The weight a trial court assigns to a mitigator is within its discretion and will not be disturbed on appeal absent an abuse of that discretion. See Douglas v. State,
The trial court found the following non-statutory mitigation: (1) defendant has been the victim of physical abuse and possible sexual abuse in the past (some weight); (2) defendant has brain damage as a result of prior acts of physical abuse and the brain damage results in episodes of lack of impulse control (some weight); (3) defendant grew up in a neighborhood where there were acts of violence and illegal drugs (some weight); and (4) defendant would help other people by providing shelter, food or money (little weight).
The trial court did not abuse its discretion in its assignment of weight to the nonstatutory mitigators. The trial court considered each of the mitigating circumstances presented by Allen, and the trial court provided detailed factual findings as to the reasons or circumstances upon which it based its evaluation of each mitigating circumstance. All of the trial court’s findings are clearly supported by the record. Although the above mitigators were established, their effect, given the facts of this case, warranted the allocation of “some weight” and “little weight.”
Allen also asserts that the trial court’s sentencing order fails to meet the standard set forth in Campbell v. State,
When addressing mitigating circumstances, the sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether it is supported by the evidence and whether, in the case of nonstatutory factors, it is truly of a mitigating nature .... The court next must weigh the aggravating circumstances against the*968 mitigating and, in order to facilitate appellate review, must expressly consider in its written order each established mitigating circumstance. Although the relative weight given each mitigating factor is within the province of the sentencing court, a mitigating factor once found cannot be dismissed as having no weight. To be sustained, the trial court’s final decision in the weighing process must be supported by “sufficient competent evidence in the record.” Brown v. Wainwright,392 So.2d 1327 , 1331 (Fla.1981).
Review of the sentencing order shows that Allen’s assertion is without merit. The trial court identified each mitigating circumstance presented by the defense and stated its conclusion as to each miti-gator, supplying facts and reasoning for its conclusions. The trial court adequately reviewed each of the proposed aggrava-tors and mitigators and applied the relevant facts of the case to each. The trial court gave careful consideration to the aggravating and mitigating circumstances, carefully weighed them, and found that the aggravation outweighed the mitigation. Allen’s reliance on Hudson v. State,
c. Proportionality
Allen contends that the death sentence imposed in her case is not proportional. “[T]o ensure uniformity in death penalty proceedings, ‘we make a comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence.’ ” Floyd v. State,
Allen was convicted of the first-degree murder of Wenda Wright and kidnapping. The trial court found the following aggravators: (1) the capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit a kidnapping (great weight); and (2) the capital felony was especially hei
We find that the death sentence is proportional in this case. See Slimy v. State,
CONCLUSION
Based on the foregoing, we affirm Allen’s convictions of kidnapping and first-degree murder and respective sentences of life imprisonment and death.
It is so ordered.
Notes
. Dr. Whitmore was unavailable to testify at trial.
. Spencer v. State,