Quawn M. FRANKLIN, Appellant,
v.
STATE of Florida, Appellee.
Supreme Court of Florida.
*83 Jаmes S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public *84 Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant.
Bill McCollum, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee.
PER CURIAM.
This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the conviction and sentence.
Facts and Procedural History
Quawn M. Franklin was charged with attempted armed robbery and first-degree murder in the shooting death of Jerry Lawley in Lake County in December 2001. Lawley's murder was the third violent crime committed by Franklin in the span of two weeks.
Franklin was sixteen years old when he was sentenced to ten years in prison for the robbery of Clarence Martin in 1993. He was granted conditional release from prison on October 1, 2001. On December 18, 2001, Franklin ambushed pizza delivery man John Horan in Leesburg. Franklin bound Horan with duct tape, drove him to another location, and then shot Horan in the back, killing him.[1] On December 27 or 28, Franklin and codefendant thirteen-year-old Pamela McCoy committed a forced invasion of the home of Alice Johnson in Leesburg. Franklin struck Johnson in the head with a hammer and stole her Toyota Camry. Johnson suffered severe injuries from this attack when pieces of her skull imbedded in her brain. Following the attack, Johnson was unable to live on her own or participate in civic and volunteer activities.[2]
On December 28, Franklin drove Johnson's stolen vehicle from Leesburg to St. Petersburg to visit relatives. Franklin was accompanied by McCoy and cоusins Antwanna and Adrian Butler. Late in the evening, the Butler cousins told Franklin that they wanted to return to Lake County. However, none of the group had money and Franklin had to borrow ten dollars from one of his relatives in order to buy gas for the return trip. While driving back to Lake County, Franklin showed Antwanna Butler a .357 magnum revolver he had obtained from one of his relatives in St. Petersburg. In Leesburg, Franklin stopped at the Elberta Crate and Box Factory and asked directions from the security guard, Jerry Lawley. Franklin then took the Butler cousins to an apartment building near their home. He told Antwanna Butler that he was going to return to St. Petersburg. He also stated that he was going "to get" the security guard.
Franklin returned to the crate factory in the early morning hours of December 29, 2001. He ordered Lawley out of his vehicle at gunpoint. While Lawley was complying and on his knees in the factory parking lot, Franklin shot Lawley once in the back. In statements made by Franklin after his apprehension, he stated that he shot Lawley because he "didn't have no other choice. . . . What I did, I wanted to do it at the time." Franklin rifled Lawley's pockets and also searched Lawley's car. However, Franklin found nothing of *85 value and was unable to get Lawley's car to move. Franklin left the scene and fled to St. Petersburg.
After being shot, Lawley sought help from a company truck driver, Edward Ellis. Ellis had arrived at the crate factory earlier in the evening, parked his truck in the lot, and gone to sleep in the truck cab. Lawley drove his car a short distance across the crate factory grounds to where Ellis's truck was parked. Lawley pounded on the cab of Ellis's truck and shouted that he had been shot. Lawley told Ellis that a tall black male wearing a knit cap had shot him. Lawley also told Ellis that the man was driving a relatively new blue car and had tried to rob him. Ellis called 911 at 5:44 a.m., and Leesburg Police Officer Joseph Iozzi responded to the scene.[3] Lawley also told Officer Iozzi that a thin black male, approximately six feet tall and wearing a knit cap, had ordered him from his car at gunpoint, told him to lie on the ground, and then shot him in the back while he was doing as told. Lawley also told the officer that the man had left the scene in a newer model blue, four door car, possibly a Pontiac.
During the early morning hours of December 30, a St. Petersburg police officer came upon a blue 2000 Toyota Camry in which Franklin was asleep in the driver's seat and codefendant McCoy was asleep in the passenger seat. Franklin was wearing gloves, and the officer found a revolver under the driver's seat. Crime scene technicians found a spent .357 caliber shell casing and five rounds of live ammunition in the revolver. They also located a black knit skull cap in the trunk of the car. The St. Petersburg officer took Franklin and McCoy into custody. After being informed of his rights, Franklin agreed to give a statement to the police, in which he admitted shooting Lawley. Franklin also stated that he had intended to rob Lawley, but Lawley had nothing of value he could take, that he shot Lawley because he "wanted to," and that he wore gloves so that he would not leave any fingerprints. In his statement to the St. Petersburg police, Franklin said that all of the companions who had made the original trip to St. Petersburg were in the car at the time оf the shooting. However, Franklin later contradicted this statement in an interview with a reporter when he stated that only McCoy was with him during the shooting. Antwanna Butler also testified that she and her cousin had been dropped off at their home by Franklin and that they were not present during the shooting of Lawley.
While awaiting trial in the Lake County jail, Franklin contacted a newspaper reporter from the Orlando Sentinel and gave an interview in which he incriminated himself in Lawley's murder. While parts of the taped interview were redacted, the trial court overruled Franklin's objections to three other passages, which were played at trial. The objectionable portions included Franklin's statements that he had decided to confess because he was "tired of life" and "tired of being treated just like an animal"; that he saw a helicopter looking for the car he was in and that he was hiding from the helicopter; and that he had committed the crime, but that "the people, the world, life" were the cause of his actions and that he was tired of people watching him and hating him and that he hated life. Defense counsel posed a relevance objection to the statements about Franklin's motivation in confessing and objected that the statements about hiding from the helicopter could be interpreted as evidence that the car had been stolen or that the police were looking for Franklin for some other reason. Defense counsel *86 renewed these objections at trial when the tape was introduced into evidence.
Franklin filed a number of pretrial motions. These motiоns included a challenge of Florida's death sentencing scheme in light of Ring v. Arizona,
During the State's case in chief, defense counsel made a hearsay objection to the testimony of truck driver Ellis and Officer Iozzi, who related Lawley's statements to them after he was shot. The trial court overruled defense counsel's objections and permitted both witnesses to testify about what Lawley had said to them. The trial court ruled that the statements were admissible as either spontaneous statements, excited utterances, or an existing physical condition under the hearsay exceptions contained in section 90.803, Florida Statutes (2001). Both witnesses testified that Lawley stated he had been shot by a tall, thin black man wearing a knit cap and driving a blue, four-door car; that the shooter had searched through Lawley's pockets and car; and that Lawley was in a great deal of pain and having difficulty breathing after being shot.
Antwanna Butler testified that Franklin showed her a big silver or chrome revolver on the trip back to Leesburg from St. Petersburg and that Franklin stated his intent to go back and "get" the security guard after dropping off Butler and her cousin in the early morning hours of December 29. The jury also heard Franklin's audiotaped confession to the police and his audiotaped interview with the newspaper reporter. On each tape, Franklin admitted that he killed Lawley and that he had intended to rob him. In the newspaper interview, Franklin also stated that he had intended to take Lawley's car, but had been unable to move it.
The State's other guilt phase witnesses included crime scene technicians, forensic experts, the medical examiner, and various law enforcement officers who either were involved in the investigation or had contact with Franklin while he was in custody. The experts testified that the bullet recovered at the crime scene contained Lawley's DNA and had been fired from the revolver found under the driver's seat of the car in which Franklin was apprehended. The experts also testified that Lawley was shot in the back while kneeling on the ground and *87 died from the injuries inflicted by this single gunshot. The gun was fired from at least five and a half feet away from Lawley. The medical examiner testified that the bullet entered Lawley's left back below his lower rib cage, injured the lower portion of his left lung, bruised the surface of his heart, passed through his diaphragm, passed through his liver, and exited his left upper abdomen. The medical examiner also noted that both of Lawley's knees were scraped and that the exit wound was not "supported" or "shored," indicating that Lawley was not lying on the ground when shot. The jury found Franklin guilty as charged of first-degree murder and attempted armed robbery with a firearm.
During the penalty phase, the State presented a videotaped deposition by the victim of Franklin's 1993 robbery; the testimony of an officer who was at the scene of the Horan murder on December 18, 2001, and the home invasion and attack on Johnson on December 28, 2001; the testimony of Johnson recounting Franklin's attack on her; and the testimony of the officer who investigated Horan's murder. Defense counsel objected to the testimony relating to these previous crimes and to several photos that depicted the earlier crime scenes and the victims, arguing that the testimony and evidence were prejudicial and inflammatory. Defense counsel also stated that Franklin would stipulate to the aggravating factor of prior violent felony convictions in lieu of the State presenting еvidence relating to these previous crimes. The trial court overruled the defense objections and refused to accept Franklin's stipulation.
Codefendant McCoy testified that Franklin had obtained a big silver gun while in St. Petersburg; Franklin stated it was going to "hurt a little, but it will only take a second" before he exited his vehicle and ordered Lawley to get on the ground; Lawley asked Franklin not to shoot him; and Franklin shot Lawley in the back while Lawley was kneeling on the ground with his hands behind his head.
Two of Lawley's relatives testified that he was a good and loving person who helped family members and neighbors and that his murder had devastated the family. Lawley's coworker and friend Ellis also testified that Lawley was liked by everyone at work and had no enemies. Defense counsel objected to the presentation of this victim impact evidence, but the trial court overruled the objection.
Defense counsel had subpoenaed Minnie Thomas, the woman who raised Franklin until he was eight years old and whom he called Mom. However, Thomas was either unavailable or unwilling to testify at trial. The court permitted the defense to present Thomas's deposition in lieu of her live testimony. The parties also stipulated to other facts that Thomas would have presented about Franklin's background and family history. The other defense penalty phase witness was Franklin himself who testified about his background and child. Franklin described the trauma of being forcibly removed from the only family he knew when he was eight years old, being taken to St. Petersburg by his biological mother, and his failed attempts to return to the Thomas family in Leesburg by stealing bikes, cars, and money. Franklin also testified about his experiences in juvenile facilities from age nine, including being physically and sexually abused by older boys in the facilities, and his imprisonment in adult prison at age fifteen.
At the conclusion of the penalty phase, the jury returned a unanimous recommendation of a death sentence. The jury also unanimously agreed that four aggravating factors were present: (1) the murder was committed while Franklin was serving a *88 prison sentence because he was on conditional release at the time of Lawley's shooting; (2) Franklin had previous violent felony convictions, including another capital felony for the murder of Horan; (3) Lawley's murder was committed for pecuniary gain; and (4) the murder was cold, calculated, and premeditated (CCP). The trial court followed the jury's recommendation and imposed a death sentence. In its sentencing order, the trial court found the same four aggravating factors, rejected Franklin's age as a statutory mitigating factor, and found a number of nonstatutory mitigating factors.[4] The trial court concluded that the aggravating factors outweighed the mitigating factors. The trial court also sentenced Franklin to a consecutive life sentence for the attempted armed robbery of Lawley.
In his appeal to this Court, Franklin raises eight issues. He claims that (1) the admission of hearsay statements relating to his prior violent felony convictions during the penalty phase violated his constitutional right to confront witnesses in light of the United States Supreme Court's recent decision in Crawford v. Washington,
Crawford v. Washington Claims
Franklin claims that certain hearsay statements admitted during the guilt and penalty phases of his trial violated his right to confront witnesses under the Sixth Amendment of the United States Constitution,[5] as explained in the United States Supreme Court's recent decision in Crawford v. Washington,
Franklin also asserts that it was error to permit Officer Iozzi and truck driver Ellis to testify during the guilt phase about Lawley's statements concerning the shooting, including Lawley's description of the shoоter and the vehicle driven by the shooter. Over a defense hearsay objection, the trial court ruled that Lawley's statements were admissible as an exception to the rule against hearsay testimony. On appeal, both parties seem to agree that the statements at issue fit under the excited utterance exception, which authorizes the admission of "[a] statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition," notwithstanding the general prohibition against hearsay. § 90.803(2), Fla. Stat. (2005).
Initially, the State contends that none of these Crawford claims were preserved for appellate review by a proper objection. Franklin filed pretrial motions to prohibit the State from using hearsay evidence at the penalty phase as provided in section 921.141(1), Florida Statutes (2005),[6] and to have the statute declared unconstitutional for violating his right to confront witnesses. The trial court denied these pretrial motions. Franklin also offered to stipulate to the aggravating factor of prior violent felony convictions in order to prevent the jury from hearing the details of his prior crimes. However, the court rejected this stipulation and permitted the State to present penalty phase testimony and evidence that related the details of Franklin's other crimes. While Franklin's objection to the detective's penalty phase testimony was not directed to its nature as hearsay or as a violation of his right to confront the witnesses against him, we conclude that he adequately preserved the issue through his prеtrial motions. Section 90.104(1)(b), Florida Statutes, covering rulings on evidence, was amended in 2003 to add the following language: "If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." See ch.2003-259, § 1, at 1298, Laws of Fla. (codified at § 90.104(1)(b), Fla. Stat. (2005)). Thus, Franklin was not required to renew his objection to the penalty phase evidence in order to preserve his confrontation claim for appellate review.
The State also argues that Franklin's hearsay objection to the guilt phase testimony regarding Lawley's statements did not preserve any Crawford claim. We agree. Franklin's pretrial motion did not address any guilt phase confrontation issues. However, even if these guilt phase *90 claims had been properly preserved, they would be without merit as explained below.
In considering Confrontation Clause claims, we are guided by the following principles. The standard for determining whether the admission of a hearsay statement against a criminal defendant violates the right of confrontation was recently modified by the Supreme Court in Crawford. Before Crawford, the issue was controlled by Ohio v. Roberts,
In Crawford, the Supreme Court dispensed with the Roberts reliability analysis for testimonial hearsay statements and held that the admission of a hearsay statement made by a declarant who does not testify at trial violates the Sixth Amendment if (1) the statement is testimonial, and (2) the declarant is unavailable and the defendant lacked a prior opportunity for cross-examination of the declarant. The Court emphasized that if "testimonial" evidence is at issue, "the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford,
While Crawford did not establish a precise definition of the term "testimonial," the Supreme Court did provide some guidance, holding that, at a minimum, statements are testimonial if the declarant made them "at a preliminary hearing, before a grand jury, or at a former trial; and [in] police interrogations." Crawford,
Following Crawford, the Supreme Court has provided further guidance in determining when statements made in the course of police interrogations are testimonial. As the Supreme Court explained in *91 Davis v. Washington, the distinction rests on the primary purpose of the interrogation.
This category of statements bears upon at least one of Franklin's claims here, namely the admission of the statement Lawley made to his friend and cowоrker Ellis immediately after being shot. Most courts agree that a spontaneous statement to a friend or family member, such as Lawley's statement to Ellis, is not likely to be testimonial under Crawford. See, e.g., People v. Vigil,
In the instant case, the circumstances surrounding Lawley's statements to Ellis indicate that the statements were not testimonial. Lawley spontaneously made the statements to his friend. Lawley pounded on Ellis's truck in order to summon assistance and to relay to his friend what had happened to him. Additionally, Lawley made these statements in thе midst of a medical emergency: he had just been shot and was struggling for breath. Thus, even if this claim had been preserved by a proper objection, Franklin would not be entitled to relief because Lawley's excited utterances to his friend Ellis were not testimonial.
The other two statements that Franklin claims as error were made to police officers during the course of police questioning in a criminal investigation. In the wake of Crawford, the courts have reached varying conclusions as to the testimonial nature of such statements. Compare Commonwealth v. Gonsalves,
In Davis, the Supreme Court recently addressed the testimonial status of several statements made by declarants in response to police interrogations. Davis actually involved two separate cases decided by the Washington and Indiana Supreme Courts, State v. Davis,
In Davis, the questioning by the 911 operator was to enable the responding officers to meet an ongoing emergency. The Supreme Court noted the following circumstances in Davis: the declarant was speaking about events as they were actually happening; the declarant was facing an ongoing emergency and made the 911 call in order to seek help against a bona fide physical threat; the elicited statements were crucial to resolving the ongoing emergency (i.e., the 911 operator asked who was attacking the caller, whether the attacker was using a weapon, and whether the attacker had been drinking); and the declarant was giving frantic answers over the phone in the midst of hectic events and an unsafe environment.
In contrast, the Supreme Court concluded that the primary purpose of the interrogation in Hammon was to establish or prove past events potentially relevant to later criminal prosecution. The Supreme Court noted very different circumstances surrounding the interrogation in Hammon: there was no emergency in progress when the officers arrived; the declarant was alone on the front porch and told the officers that she was fine and in no immediate danger; the officer questioned the declarant in a separate room about "what had happened"; the declarant delivered a narrative of past events removed in time from the danger she described; and the officer asked the declarant to execute a written affidavit in order to establish the events that had occurred previously. The Supreme Court described these statements in Hammon as "an obvious substitute for live testimony, because they do *93 precisely what a witness does on direct examination; they are inherently testimonial."
Applying the reasoning of Davis to the instant case, we conclude that the victim's statements to the responding officer that were introduced during the guilt phase of trial were not testimonial in nature.[7] The circumstances of the officer's questioning indicate that its primary purpose was to assist in an ongoing emergency. Lawley was under considerable pain and distress and was having difficulty breathing when he was responding to the officer's questions. These statements were made shortly after Lawley had been shot and before emergency personnel had even arrived on the scene. There were no indicia of formality in this questioning by the officer.
As to the penalty phase evidence claim, we conclude that the physician's statements to the police detective about an earlier victim's injuries were testimonial under the standards laid out in Davis. These statements were made by the doctor in responsе to questioning by a detective who was investigating an already completed crime. There was no ongoing emergency that needed to be resolved. The purpose of the detective's questioning was inherently testimonial. Thus, it was error to admit this testimony over defense objection. However, a confrontation error is subject to harmless error analysis. See United States v. McClain,
For the reasons explained above, we conclude that Franklin is not entitled to relief on his Crawford claims, either because the claims were not preserved for appellate review or are without merit.
Defendant's Statements to Newspaper Reporter
While awaiting trial, Franklin contacted a newspaper reporter and gave an interview in which he made inculpatory statements about Lawley's shooting. The parties agreed to redact those portions of the taped interview in which Franklin discussed the other сrimes he had committed. However, Franklin also wanted three other portions of the tape redacted, including statements that Franklin had decided to confess because he was "tired of life" and "tired of being treated just like an animal"; that he saw a helicopter looking for the car he was in and that he was hiding from the helicopter; and his admission that he committed the crime, but that "the people, the world, life" were the cause of his actions and that he was tired of people watching him and hating him and that he hated life.[8]*94 Defense counsel posed a relevance objection to the statements regarding Franklin's motivation in confessing. He objected to the helicopter statement on the grounds that the jury might speculate that the car Franklin occupied had been stolen or had been used for some other crime. Defense counsel renewed these objections when the tape was admitted during the guilt phase of trial, but the court overruled the objections and admitted these portions of the taped interview. Franklin argues that the introduction of this evidence at the guilt phase was unfairly prejudicial.
Under Florida law, all relevant evidence, defined as that tending to prove or disprove a material fact, is admissible unless otherwise provided by law. See §§ 90.401-90.402, Fla. Stat. (2005). Relevant evidence is inadmissible, however, where the probative value is substantially outweighed by the danger of unfair prejudice. See § 90.403, Fla. Stat. (2005). The admissibility of evidence is within the sound discretion of the trial court, and the trial court's determination will not be disturbed on appellate review absent a clear аbuse of that discretion. See, e.g., Brooks v. State,
The basis of Franklin's objection to the helicopter statement was highly speculative. The jury knew that Lawley had identified his assailant and the car he was driving. It was logical that the police would be looking for this vehicle near the murder scene. Franklin's statement that he hid from the helicopter and fled to St. Petersburg was relevant to explaining his subsequent arrest in St. Petersburg while seated in the driver's seat of the car. Nothing in this statement would give the jury any hint that the car in question was stolen or that it was being sought in another crime. Thus, Franklin has not shown that the trial court abused its discretion by allowing this statement into evidence.
Franklin objected to the other two statements on the grounds of relevancy. The State argues that these statements were relevant to Franklin's motivation for confessing and talking to the reporter. However, Franklin's motivation for talking to the reporter was not germane to the question of his guilt or innocence. While Franklin's admission to the reporter that he "did it" (shot Lawley) was relevant, his other statements surrounding this one-sentence *95 admission were not relevant to any issue in the case. Moreover, this one-sentence admission was not Franklin's only confession to the crime. The jury heard Franklin's statement to the police in which he admitted shooting Lawley and that he had intended to rob him. Thus, we conclude that the trial court abused its discretion in admitting these statements, other than the admission of guilt.
However, we conclude that any error in admitting Franklin's statements to the reporter was harmless beyond a reasonable doubt. See State v. DiGuilio,
Stipulation to Prior Violent Felony Convictions
Prior to the introduction of the penalty phase testimony, Franklin offered to stipulate to the aggravating factor of prior violent felony convictions in order that the details of his prior crimes not be presented to the jury. Defense counsel argued that the violent nature of these prior crimes would unduly prejudice the jury. The State responded that Florida law allows for the presentation of this evidence and that the evidence would not be improper. The trial court permitted the evidence to be presented. Two of the victims of Franklin's previous crimes presented factual testimony regarding the circumstances of the crimes and two law enforcement officers also testified about the details of the crimes.
Franklin now claims that the trial court's refusal to accept his stipulation violated the Supreme Court's decision in Old Chief v. United States,
However, the applicability of Old Chief to the capital sentencing context has been decided adversely to Franklin. See Cox v. State,
This case is factually similar to Cox, in which the defendant claimed that the trial court erred in refusing to accept his offer to stipulate to his prior violent felony convictions of robbery of a convenience store, burglary of a home and the battery of the occupants, and a violent sexual battery. The trial court ruled that the State was entitled to decline the offer аnd present evidence concerning the prior felonies. Id. On appeal, the defendant argued that the introduction of this evidence was contrary to the holding of Old Chief and resulted in a deprivation of his rights to due process and a fair trial. Id. at 716. As noted above, we explained that Old Chief did not require the court to accept a defendant's stipulation of prior violent felony convictions in a capital sentencing proceeding. Id.
"[A]ny relevant evidence as to a defendant's character or the circumstances of the crime is admissible [during capital] sentencing [proceedings]." Stano v. State,
In determining whether a trial court has abused its discretion in admitting evidence of prior violent felony convictions, this Court looks at the tenor of the witnesses' testimony and whether this testimony became a central feature of the penalty phase. See Cox,
In the instant case, the witnesses recounted the factual circumstances of the crimes committed against them and did not engage in any editorializing or inflammatory rhetoric. Further, there is no indication on the record that there was any kind of emotional display by the witnesses.[9] Nor can the testimony relating to Franklin's prior convictions be deemed the central feature of the penalty phase. The State presented testimony and evidence to establish each of the aggravating circumstances, *97 including the testimony of Franklin's parole supervisor to establish that the murder was committed while Franklin was under imprisonment and the testimony of codefendant McCoy to establish that the murder was CCP and committed for pecuniary gain. We find no error on this point.
Victim Impact Evidence
In Payne v. Tennessee,
In Windom v. State,
In this case, the testimony of the victim's family members and coworker did not exceed the proper bounds of victim impact evidence as provided in both section 921.141(7) and Payne. Lawley's sister Linda Paulette testified that Lawley was the second oldest child in a family of six children; he took over the role of "father" at age eighteen when his father died and he helped support the family; he was a member of the Army for twenty-five years and served in Vietnam; he allowed two of his sisters to live with him in Leesburg; he planned to retire to Alabama in order to be near the rest of his family; he was a loving and generous person who helped family, friends, and neighbors; and his death had devastated his family. Lawley's coworker and friend Edward Ellis testified that he had known Lawley for at least twelve years; Lawley was a "good guy" who would help others; he had no enemies; and over half of the employees of the crate factory were friends with Lawley and were "hurt pretty bad" by his death. Lawley's sister-in-law Kay Lawley testified that Lawley served two tours of duty in Vietnam; he helped his neighbors by cutting their grass and doing odd jobs for them; he bought clothes, school supplies, and glasses for neighborhood children; his family misses him; and Lawley's sister Carolyn, who had been living with him, has been left without a home or income. This evidence is within the purpose of section *98 921.141(7), which allows the jury to consider "the victim's uniqueness as an individual human being and the resultant loss to the community's members by the victim's death." See, e.g., Huggins v. State,
Aggravating Factors
Franklin argues that the trial court erred in finding the CCP and pecuniary gain aggravating factors in his case. In reviewing the finding of an aggravating circumstance, "it is not this Court's function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt that is the trial court's job. Rather, [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." Willacy v. State,
In the instant case, the jury unanimously found that both the CCP and pecuniary gain aggravators were present. The trial court also found both applicable. The sentencing order shows that the trial court applied the correct rules of law in making these determinations. Thus, the only question for us is whether there is sufficient competent evidence in the record from which the judge and jury could properly find the presence of CCP and pecuniary gain.
In order to find the CCP aggravating factor, the jury must determine that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification. Jackson v. State,
Premeditation can be established by examining the circumstances of the killing and the conduct of the accused. The CCP aggravator can "be indicated by circumstances showing such facts as advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course." Swafford v. State,
The killing in the instant case has all of the hallmarks of CCP. Franklin procured a weapon earlier in the day, long before he actually chose his victim. Franklin engaged the victim in conversation earlier in the night and was able to assess the surroundings and the victim's situation, i.e., a single individual in an isolated location. Franklin stated his intent to return to the location and "get" the victim. When he arrived at the scene, Franklin again voiced his intent to shoot the victim when he told McCoy that "this is gonna hurt, but only for a minute." There was no resistance or struggle by the victim, who complied with Franklin's order to get out of his car and down on the ground and asked Franklin not to shoot him. However, while the victim was complying with Franklin's orders, Franklin shot him in the back without provocation. Further, Franklin took no precautions to hide his face or his vehicle from the victim, but he did wear gloves in order to avoid leaving his fingerprints at the scene. All of these facts are supported by sufficient competent evidence in the record, either through witness testimony, forensic evidence, or Franklin's own confessions.
Franklin also argues that the trial court erred in finding the pecuniary gain aggravating factor in his case. The pecuniary gain aggravator is applicable in cases where "the murder was motivated, at least in part, by a desire to obtain money, property, or other financial gain." Finney v. State,
This Court has held that killing for the purpose of obtaining a car constitutes commission of a murder for pecuniary gain. See, e.g., Jones v. State,
In the instant case, there is competent, substantial evidence of the pecuniary gain aggravator through witness testimony and Franklin's own statements. Franklin had no money, was running low on gas, and intended to drive back to St. Petersburg from Leesburg on the night of Lawley's shooting. Franklin admitted that he was looking for someone to rob in order to obtain money and a new vehicle. After shooting the victim, Franklin searched the victim's pockets and his car for something of value. Franklin also tried to steal the victim's car, but had to abandon this plan when he was unable to get the victim's car moving. The victim's shooting was not an afterthought of the robbery; there was no apparent motivation for the murder other than taking the victim's property for рecuniary gain.
We find competent, substantial evidence in the record to support both the CCP and pecuniary gain aggravating factors. Thus, we conclude that the trial court did not err in its finding of either aggravating circumstance and Franklin is not entitled to relief on these claims.
Proportionality
Although Franklin has not challenged the proportionality of his death sentence in his appeal to this Court, the State asserts that the death sentence is proportional in this case. This Court has explained that "a proportionality review is inherent in this Court's direct appellate review and the issue is considered regardless of whether it is discussed in the opinion or raised by a party." Patton v. State,
The instant case involved a murder to enable robbery of the victim. It also involved four substantial aggravating factors (under imprisonment, prior violent felony convictions, pecuniary gain, and CCP) and slight mitigation. We have found the death sentence to be an appropriate penalty in a number of cases involving similar factual circumstances as well as similar aggravating and mitigating factors. See, e.g., Shellito v. State,
Ring Claims
Franklin contends that Florida's capital sentencing statute is facially unconstitutional under Ring v. Arizona,
In over fifty cases since Ring's release, this Court has rejected similar Ring claims. See Marshall v. Crosby,
Additionally, Ring did not alter the express exemption in Apprendi v. New Jersey,
In the instant case, the trial court found the aggravating circumstance of a priоr violent felony conviction, based on Franklin's convictions for the 1993 robbery of Martin, the December 2001 murder, kidnapping, and armed robbery of Horan, and the December 2001 burglary, robbery with a deadly weapon, and attempted felony murder of Johnson. Additionally, we have rejected similar claims that Ring requires aggravating circumstances to be alleged in the indictment or to be individually found by a unanimous jury verdict. See Hodges v. State,
Finally, we note that the trial court, at Franklin's request, gave the jury a special interrogatory verdict form regarding the aggravating factors. The jury unanimously found the four aggravating factors that the trial judge subsequently found applicable in Franklin's case. We recently held that "a trial court departs from the essential requirements of law in a death penalty case by using a penalty phase special verdict form that details the jurors' determination concerning aggravating factors found by the jury." State v. Steele,
However, in light of Franklin's request for the special verdict form and the State's agreement to its use, the unanimous jury finding as to the four aggravating circumstances, and the jury's unanimous recommendation of a death sentence, we find no reversible error on this point. Thus, Franklin is not entitled to relief on any of his Ring claims.
Conclusion
For the reasons stated above, we find no merit to most of Franklin's claims of error. In those instances where error did occur, we conclude that the error was harmless beyond a reasonable doubt. Accordingly, we affirm Franklin's conviction of first-degree murder and his sentence of death.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
PARIENTE, J., specially concurs with an opinion, in which ANSTEAD, J., concurs.
CANTERO, J., concurs with an opinion, in which WELLS and BELL, JJ., concur.
*103 PARIENTE, J., specially concurring.
I concur in the majority opinion but write separately to comment, as I have in other cases, on the trial court's use of a penalty-phase special verdict to record the jury's vote on the aggravating circumstances. See Coday v. State,
The special verdict form used by the trial judge in this case could be a model for all death penalty cases. As used by many other excellent trial judges after Ring, and before State v. Steele,
I acknowledge that this Court determined in 2005 that an order authorizing a special verdict that would require jurors to agree that a particular aggravator applies before they can weigh it in favor of a death recommendation departed from the essential requirements of law. See Steele,
Under the law, . . . the jury may recommend a sentence of death so long as a majority concludes that at least one aggravating circumstance exists. Nothing in the statute, the standard jury instructions, or the standard verdict form, however, requires a majority of the jury to agree on which aggravating circumstances exist. Under the current law, for example, the jury may recommend a sentence of death where four jurors believe that only the "avoiding a lawful arrest" aggravator applies, see § 921.141(5)(e), while three others believe that only the "committed for pecuniary gain" aggravator applies, see § 921.141(5)(f), because seven jurors believe that at least one aggravator applies. The order in this case, however, requires a majority vote for at least one particular aggravator. This requirement imposes on the capital sentencing process an extra statutory requirement.
Id. at 545 (latter emphasis supplied). The Steele majority, also concerned about ad hoc innovations in Florida's capital sentencing *104 procedures, stated that guidelines for individual jury findings on aggravating circumstances and accompanying jury instructions "are more appropriately crafted in a rules proceeding than in an individual capital case." Id. at 546. Accordingly, the majority concluded that "unless and until a material change occurs in section 921.141, the decisional law, the applicable rules of procedure, or the standard instructions and verdict form," verdict forms detailing the jurors' votes on specific aggravating circumstances are impermissible. Id. at 547-48.
The material change anticipated in Steele has not occurred, via either statutory revision as the Steele majority recommended or an interrogatory verdict form on aggravating circumstances and accompanying amendment of the standard jury instructions. While we must leave statutory revision to the Legislature, we have the authority to revise the standard penalty-phase verdict form and jury instructions in a manner consistent with our death penalty statute. In Globe, joined by Justice Anstead and Justice Lewis, I recommended that the Committee on Standard Jury Instructions in Criminal Cases and the Criminal Court Steering Committee "study the matter and propose changes to the verdict form and instructions on the jury's role in the penalty phase that this Court can then consider and either reject, accept or modify."
In a report submitted after Globe and before Steele, the Steering Committee proposed a verdict form and instructions calling upon jurors to record their findings and vote breakdown on the existence of aggravating and mitigating circumstances. Significantly, the Steering Committee suggested that the special verdict could be used under the present statutory scheme. See Amended Report-Standard Instructions in the Penalty Phase of Capital Trials 2, 4, & App. 3-3A, In re Standard Jury Instructions in Criminal Cases Penalty Phase of Capital Trials, No. SC05-1890 (Fla. Oct. 5, 2005). As explained by the Committee:
Presently, the trial judge does not know how the jury considered the various aggravating and mitigating circumstances submitted. The fact that jurors do not have to reach unanimity on aggravating or mitigating circumstances adds confusion to the problem. It would be most helpful for the trial judge to know how the jury viewed the evidence presented in the penalty phase particularly how many jurors agreed to the existence of each aggravating and mitigating circumstance before preparing the sentencing order. The information would provide valuable assistance in deciding the weight to be given to each circumstance.
However, the Steering Committee withdrew its proposal, concluding that the Court in Steele "held this suggestion to be a substantive change and rejected it." Response of the Criminal Court Steеring Committee 6-7, In re Standard Jury Instructions in Criminal Cases Penalty Phase of Capital Trials, No. SC05-1890 (Fla. Feb. 14, 2006).
I disagree that a recorded jury vote on individual aggravators necessarily imposes a substantive burden on the State beyond what is required by our capital sentencing law. Jurors given an interrogatory on individual aggravators could be told that to recommend death, a majority must find that at least one aggravator exists but need not reach a majority on any single aggravator.[11] That is all the majority of *105 this Court believes that our present death penalty law requires. See Steele,
More than four years ago, in Bottoson v. Moore,
That was 2002. It is now 2007, and we still have not amended the standard instructions and penalty-phase verdict form to reflect jury findings on aggravators that operate as "the functional equivalent of an element of a greater offense." Ring,
ANSTEAD, J., concurs.
CANTERO, J., concurring.
Like the majority, I would affirm Franklin's conviction for first-degree murder and his sentence of death. I agree with the majority that Franklin's general hearsay objection at trial did not preserve his Confrontation Clause argument with regard to Lawley's statements to Ellis and Officer Iozzi. I write separately to suggest this Court adopt a "primary purpose" test for determining whether hearsay statements are testimonial.
TEST FOR TESTIMONIAL STATEMENTS
Because the majority held that Franklin's Confrontation Clause argument with regard to Lawley's statements was not preserved, its discussion of the proper test for determining whether hearsay statements *106 are testimonial is dictum. Nevertheless, I write separately to address the test I believe we should employ in determining whether hearsay statemеnts are testimonial. As the majority notes, in Crawford the Supreme Court mentioned (but did not adopt) a three-factor approach for determining whether hearsay statements are testimonial:
[T]he Supreme Court discussed three formulations of statements that might qualify as testimonial, namely: (1) "ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially"; (2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; or (3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Majority op. at 90 (quoting Crawford,
In the passage the majority cites, the United States Supreme Court quoted from the petitioner's brief in Crawford and the brief of the National Association of Criminal Defense Lawyers, as amicus curiae. Later in the opinion, the Court specifically declined to adopt any particular definition of "testimonial," leaving that issue "for another day."
The United States Supreme Court came closer to defining what is testimonial in Davis v. Washington, ___ U.S. ___,
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 2273-74 (emphasis added).
Although the holding in Davis was limited to situations involving police interrogation, the Court contemplated a broader application: "Our holding refers to interrogations because . . . the statements in the cases presently before us are the products of interrogations which in some circumstances tend to generate testimonial responses. This is not to imply, however, that statements made in the absence of any interrogation are necessarily nontestimonial. . . . and of course even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." Id. at 2274 n. 1 (emphasis added).
The majority notes that "Davis left open the question of `whether and when statements made to someone other than law enforcement personnel are "testimonial."'" Majority op. at 91. I agree that the holding in Davis does not by its terms apply to such cases. However, I believe Davis does provide compelling guidance. I would therefore adopt a comprehensive primary purpose test similar to that the Nevada Supreme Court recently outlined *107 in Harkins v. State,
Together, Crawford, Davis, and Hammon dеmonstrate that when determining whether a statement is testimonial, it is necessary to look at the totality of the circumstances surrounding the statement. . . .
. . . .
. . . We now take the opportunity to further refine this rule by presenting a nonexhaustive list of factors for courts to consider in determining whether a statement is testimonial: (1) to whom the statement was made, a government agent or an acquaintance; (2) whether the statement was spontaneous, or made in response to a question (e.g., whether the statement was the product of police interrogation); (3) whether the inquiry eliciting the statement was for the purpose of gathering evidence for possible use at a later trial, or whether it was to provide assistance in an emergency; and (4) whether the statement was made while an emergency was ongoing, or whether it was a recount of past events made in a more formal setting sometime after the exigency had ended. . . . These factors will assist courts in ascertaining the relevant facts surrounding the circumstances of a hearsay statement in order to determine its testimonial nature.
Id. at 714. The Nevada Supreme Court's nonexhaustive four-factor test focuses on one pivotal issue: objectively determining the primary purpose of a hearsay statement. The fundamental question is whether the totality of the circumstances indicates that the primary purpose of the statement was to establish past events for later use in a criminal prosecution.
Several state courts have discussed a similar approach. See Raile v. People,
I would adopt the emerging "primary purpose" approach espoused in Davis. As to many of the statements at issue, the majority appears to use precisely *108 such an analysis. For example, the majority applies the Davis primary purpose test to conclude that the victim's statements to the responding officer were not testimonial. Majority op. at 93. I agree with that analysis. As to the statements the victim made to Ellis just after he was shot, the majority does "consider the circumstances surrounding Lawley's statements." Majority op. at 91. However, the majоrity does not specifically employ the primary purpose test presumably because the statements were not made to law enforcement officers. Although Davis and Hammon involved statements to law enforcement, as I noted above, the primary purpose test the Court adopted is not necessarily limited to that context. Therefore, I would apply that test and hold that the victim's primary purpose was, as the majority itself notes, "to summon assistance and to relay to his friend what had happened to him." Majority op. at 91. Because the primary purpose of the statements was not "to establish or prove past events potentially relevant to later criminal prosecution," Davis,
Except for these comments, I join the majority opinion.
WELLS and BELL, JJ., concur.
NOTES
Notes
[1] Franklin pled guilty to first-degree murder, kidnapping, and armed robbery in Horan's shooting. He was sentenced to three consecutive life sentences.
[2] In the middle of trial for the attack on Johnson, Franklin accepted a plea bargain. Franklin pled guilty to burglary, robbery with a deadly weapon, and attempted felony murder and was sentenced to life imprisonment.
[3] The record is silent as to how long it took Officer Iozzi to arrive at the scene.
[4] The trial court found ten nonstatutory mitigating factors: (1) there were deficiencies in Franklin's upbringing which included being forcibly removed by his biological mother from the only mother and father he had known for eight years (given some weight); (2) Franklin had been sentenced to adult prison at a young age and served eight years of a ten-year sentence, which was a severe sentence in light of his prior record (given little weight); (3) Franklin had cooperated with law enforcement after his arrest (given some weight); (4) Franklin took responsibility for his crimes by confessing to the police and a newspaper reporter (given some weight); (5) Franklin had offered to plead guilty in return for a life sentence without possibility of parole that would run consecutive to his other life sentences (given little weight); (6) Franklin apologized to the victim's family, showed remorse, and confessed to other offenses which were used as aggravating circumstances (given some weight); (7) Franklin apologized and showed remorse for his other crimes (given little weight); (8) Franklin had entered pleas in his related cases and had been sentenced to life (given some weight); (9) there was no one available to testify on Franklin's behalf in the penalty phase (given some weight); and (10) codefendant McCoy received a thirty-five-year sentence for her role in the crimes (given little weight).
[5] The Confrontation Clause of the Sixth Amendment provides that in all criminal prosecutions the accused has the right "to be confronted with the witnesses against him." U.S. Const. amend. VI.
[6] Section 921.141(1), which governs the penalty phase proceedings that are held after a defendant is adjudicated guilty of a capital felony, provides in pertinent part that evidence "relevant to the nature of the crime and the character of the defendant," including "matters relating to any of the aggravating or mitigating circumstances enumerated [in the statute]" is admissible "regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements."
[7] However, as noted above, this issue was not preserved by a proper objection. Thus, the merits of this claim are not before this Court.
[8] In full, the three statements that Franklin wanted redacted from the tape and that the jury heard during the guilt phase of trial provided:
Reporter: Why have you decided to confess now?
Franklin: I'm tired of life, man. I'm tired of being I'm tired of being treated just like an animal.
. . . .
Reporter: What else do you remember from that night?
Franklin: Uh, man, we just left, man. Just just left from there, you know? Saw a helicopter in the looking looking for the car we was in, and we was hiding, and then we left.
Reporter: Uh-huh.
Franklin: We left to St. Pete.
. . . .
Reporter: So now so now what? I mean, you're back here. What's gonna happen?
Franklin: I don't know. I don't care. You know what I mean? Whatever happens, you know, happens. I'm just saying, you know. I did it. You know, I did my part, you know? I ain't denying it no more, and that's it, and everybody out there want to look at me and find me guilty anyway. I did it, but, so what, you know? They the cause of that there. The people, the world, the world, life, life itself. It's I hate I hate living. I just hate life. I mean, I'm tired of I'm tired of everything. I'm tired of people watching me, tired of people hating me, you know what I mean? I'm tired of people. You know what I mean? Things people do, you know? I'm tired of everything.
[9] In fact, the only indication on the record of an emotional display is a bench conference in which the judge noted that Franklin seemed to be "acting up" during the testimony by the elderly victim Johnson. The judge called a brief recess so that defense counsel could calm his client.
[10] In Apprendi, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt."
[11] I believe that the jury-trial guarantee in article I, section 22 of the Florida Constitution together with the logical application of Ring requires that a jury finding that at least one aggravator exists must be unanimous, but that is not the majority view in this Court. See Butler v. State,