Lead Opinion
This case is before the Court on appeal from a resentencing proceeding where Le-brón was sentenced to death. This Court has jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons that follow, we affirm the sentence.
FACTS AND PROCEDURAL HISTORY
Jermaine Lebrón was convicted of the 1995 first-degree murder and robbery with a firearm of Larry Neal Oliver. See Lebron v. State,
According to eyewitnesses, [Oliver, who worked with one of Lebron’s ac*654 quaintances, Danny Summers,] had been lured to a house in Osceola County (the “Gardenia house”) where Lebrón and several others were staying after Le-brón offered to sell [Oliver] some “spinners” for his truck. Shortly after [Oliver] arrived at the home, Lebrón called to him to come toward the back bedrooms. As [Oliver] entered the hallway leading to the bedrooms, he was forced to lie face down, and was shot at short range in the back of the head.... Money, checks, and a credit card were taken from [Oliver], and stereo equipment was stripped from his truck. Lebrón directed others present at the time to burn [Oliver’s] identification papers, to dispose of [his] body, and to clean up the area where [he] had been shot.
Over the next several days, Lebrón and some of the others used [Oliver’s] credit card, pawned his stereo equipment, and cashed his checks. An attempt was also made to burn [Oliver’s] truck.... Shortly thereafter, Lebrón left for New York City, the place where “Legz Diamond,” a topless juice bar owned by his mother, was located.
[Oliver’s] body was later discovered in a rural area near the Walt Disney World property. Although the body was covered with a blanket and some shrubs, it was still visible from the road.
The medical examiner, Dr. Julia Martin, performed the autopsy on Oliver’s body after it was discovered. She testified that ... [t]here were no bruises to the hands consistent with defensive wounds. The cause of death, which was instantaneous, was from a shotgun wound to the head.
After Lebrón left for New York, the others having knowledge of the event reported the murder to law enforcement officers.... All of the witnesses other than the Tocci brothers gave statements which were consistent throughout, and also consistent with what the police were able to verify with evidence and other statements (such as where the body was hidden; where the truck was burned; how the checks were cashed; and where Oliver’s property was pawned).
At about the same time, a crime-scene investigation was being conducted by the Osceola County Sheriffs Department. Investigators observed several drops of what appeared to be dried blood in a big area at the southeast bedroom door of the home where the event allegedly occurred. They also discovered what appeared to be blood that had some foreign substance on it. The area was at least twelve to fourteen inches in diameter. A very strong stench of dried blood was detected immediately upon entering the residence.
Plastic balls were found inside the southeast bedroom, along with sponges and pellets. A spent Winchester twelve-gauge pheasant shotgun shell was found in a drawer in another bedroom. In a third bedroom, the police found four shotgun shells and the decedent’s ring in a pair of sneakers.
Shortly after these eyewitness reports were made to law enforcement, Lebrón, accompanied at the time by Stacie Kirk and Howard Kendall (who was involved in burning Oliver’s truck), was apprehended in a car parked on the street outside of Legz Diamond, and arrested. Incident to the arrest, a search of the vehicle was conducted, and a day planner was recovered from the center console underneath the dashboard between the passenger seat and the driver’s seat. Upon opening the planner, an identifying card with the name “Larry N. Oliver” was found. Detective Rodriguez retrieved the planner and secured it for*655 safekeeping. He also found four shotgun shells in the center console.
Id. at 1001-02.
Lebron’s first trial resulted in a mistrial due to jury deadlock. See id. at 1001. During the guilt phase of the second trial, the jury found the following on special-verdict forms: (1) Lebrón was guilty of first-degree felony murder; (2) Oliver was killed by someone other than Lebrón; (3) Lebrón did not possess a firearm during the commission of the felony murder; (4) Lebrón was guilty of robbery with a firearm; and (5) Lebrón possessed a firearm during the commission of the robbery. See id. at 1004. During the penalty phase for this same proceeding, the jury recommended the death penalty by a vote of seven to five. See id. at 1006. The trial court sentenced Lebrón to death. See id. at 1008. In 2001, this Court affirmed Le-bron’s convictions but vacated the death sentence and remanded for resentencing. See id. at 1022.
During the most recent penalty-phase proceeding, which commenced on August 16, 2005, the State presented the testimony of Detective Andrew Lang, who provided a summary of the facts surrounding the incident. Lang testified that Daniel Summers supplied the following information with regard to Lebron’s conduct immediately prior to Oliver’s death: (1) Lebrón was playing with the shotgun in the vehicle on the ride home after Oliver had agreed to follow them; (2) Lebrón stated that he could not believe Oliver was stupid enough to follow them to the house; (3) at the house, Lebrón had the shotgun in his possession when Summers and Oliver walked down the hallway; and (4) Lebrón directed Oliver to lie on the floor, and Oliver eventually complied after an initial struggle. Additionally, Lang testified that the autopsy of Oliver showed no signs of defensive wounds or wounds consistent with a struggle. Lang also testified that Charissa Wilburn provided information that was consistent with Summers’ statement: Wilburn stated that immediately after she heard a struggle in the hallway, she heard a shotgun blast.
Lang also presented evidence that Dwayne Sapp made the following statements with regard to Lebron’s conduct: (1) when Sapp arrived at the house, Le-brón had the gun in his possession; (2) Lebrón directed Sapp to look at “his” (Le-bron’s) truck (the red pickup truck that belonged to Oliver) which had been parked in the garage; (3) Lebrón directed Sapp and the others to clean the area where Oliver had been shot; (4) Lebrón directed that the red pickup truck be destroyed; and (5) Lebrón was present when equipment from Oliver’s truck was pawned and Oliver’s credit card was used. Lang addressed that when Lebrón was arrested in New York, both a shotgun shell and Oliver’s day planner were found in the car
The State presented evidence from Oliver’s mother with regard to victim-impact evidence and also exhibits which included (1) proof of Lebron’s prior-violent-felony convictions; (2) pictures of the deceased Oliver after the murder and the hallway at the crime scene; and (3) evaluations of mental health professionals who analyzed Lebrón.
The defense presented only the testimony of Jocelyn Ortiz, Lebron’s mother. Her testimony revealed that while she was living on the streets of New York City, she became pregnant with Lebrón when she was sixteen years old and had used drugs during this pregnancy. Lebron’s father was only involved with Lebrón for the first few months of his life. Her memory of Lebrón during the first few months after his birth was her drug involvement and unsuccessful attempts to feed him. When Lebrón was about three months old, she entered a drug rehab program. Her motivation to enter this residential program was based on being advised that Lebrón would be taken from her if she did not rehabilitate. Lebrón was in foster care during this time.
After completing rehab, she married Tony Ortiz and she worked as a counselor with the rehab program she attended. From the time Lebrón was three months old until he was four or five years old, she did not use drugs. After her job as a counselor there ended, she became a dancer and later a stripper which covered approximately ten years.
During this period of time, Lebrón would steal from her on different occasions. She testified that on occasion she used corporal punishment on Lebrón in an attempt to instill discipline and would tell him to leave her alone when he would “cling” to her. Her employment provided sufficient income to provide for Lebrón, and she would provide him with money and the items (e.g., clothes) he desired.
The defense presented exhibits which included (1) the charges and convictions of the other individuals involved in the Oliver incident; (2) reports with regard to Le-bron’s prior arrest in New York (these reports disclosed that he was seventeen at that time and a codefendant possessed a gun that was used during the crime);
On August 17, 2005, the jury returned a recommendation of death by a vote of seven to five. The jury found three aggrava-tors on Attachment A
On October 20, 2005, the trial court conducted a Spencer
On December 27, 2005, the trial court sentenced Lebrón to death. The trial court found that the State had proven beyond a reasonable doubt that (1) Lebrón was previously convicted of a felony that involved the use or threat of violence to a person; and (2) the capital felony was committed while Lebrón was engaged in or an accomplice in the commission of robbery (this merged with the financial gain aggravator). The trial court further found that there were no statutory mitigators present. The trial court found the following nonstatutory mitigators: (1) Lebron’s mother used drugs (assigned “very little weight”); (2) Lebrón performed poorly in school (“some weight”); (3) Lebrón was good with children (“very little weight”); (4) the profile of Lebron’s parents was mitigating (“very little weight”); (5) Le-bron’s mother rejected him and had negative feelings about him (“some weight”); (6) Lebrón behaved properly during trial (“very little weight”); and (7) Lebrón had emotional problems, mental health problems, and lacked the “world’s best mother” (“little weight”). Finally, the trial court found that the death sentence was sup
ANALYSIS
1. Mitigation Findings of Trial Court
Resentencing as a De Novo Proceeding
Lebrón asserts that the trial court erred in its mitigation findings when it considered and relied on evidence not contained in this record. We agree. In the sentencing order, the trial court relied on information, in analyzing multiple miti-gators, that was not introduced (i.e., the trial court neither admitted it as evidence nor took judicial notice of it) during the 2005 penalty-phase proceeding. First, in support of a rejection of the mitigator that Lebron’s participation in the offense was relatively minor, the trial court relied on (1) the testimony of Mark Tocci, Charissa Wilburn, and Danny Summers with regard to the night that Oliver was killed;
Q When you were only 18, you were a drug addict?
A Well, I used drugs. I wouldn’t call myself a drug addict. I used drugs.
Q And you got into treatment?
A Yes.
Q And the reason you got into treatment was so you wouldn’t lose your son?
A Right.
Q Any other reason?
A When you go into treatment, you go to school. They send you to school. You have a place to live. Those are the reasons. Otherwise, I wouldn’t be able to go to school. I wouldn’t be able to graduate high school or go to college.
Fourth, in support of finding that Lebrón was good with children, the trial court stated that “some evidence that he was good with some children was presented at the previous proceeding.” However, none of this evidence was presented during the
A trial court’s reliance upon evidence not presented during the most recent penalty-phase proceeding is problematic for multiple reasons. First, this practice is totally inconsistent with the instructions given to the jury and also that which the trial court purported to do in its sentencing order. The jury was instructed during this 2005 proceeding that the advisory sentence should be based upon evidence presented in this proceeding. Thus, the jury’s advisory recommendation was based upon different and less evidence than the trial court utilized in the final determination. The sentencing order itself reflects that the trial court had “closely considered the arguments both in favor of and in opposition to the death penalty, all of the facts and evidence in the trial, penalty proceeding, and Spencer hearing.” (Footnote omitted; emphasis supplied.) Thus, the trial court appeared to correctly recognize that it should not weigh evidence from previous proceedings but, strangely, failed to follow its own maxim.
Second, reliance on evidence not presented during the 2005 proceeding is inconsistent with the premise that a resen-tencing proceeding is de novo and must begin with a “clean slate.” Galindez v. State,
Third, if this practice were approved, it would be extremely difficult for this Court to perform its duty of appellate review. The impermissible evidence relied on by the trial court would not be within the record of the proceeding presented to this Court. Although the record may contain earlier transcripts or exhibits from a prior proceeding, trial courts should rely on evidence presented during the most recent penalty-phase proceeding upon which the judgment is based. The best practice is for a trial court to rely on information admitted as evidence during the most recent penalty-phase proceeding. Here, we cannot consider prior penalty-phase evidence not included in the 2005 penalty-phase proceeding to support either mitigation or aggravation findings. Thus, we analyze only evidence from the 2005 penalty-phase proceeding to determine whether the trial court made proper miti
Evidence from the 2005 Proceeding
In Florida, the finding of a trial court with regard to mitigation will be upheld if there is competent, substantial evidence for such a finding in the record. See Coday v. State,
Lebrón asserts that the trial court improperly rejected his age at the time of the crime as a mitigator. In Florida, numerical age alone may not be mitigating if not linked to some other material characteristic (e.g., immaturity). See Echols v. State,
Lebrón asserts that the trial court abused its discretion when it assigned “very little weight” to its finding that his
Lebrón also contends that the trial court improperly rejected the miti-gator that his mother was a drug addict during the pregnancy prior to his birth. However, even if the trial court improperly rejected this mitigator, we conclude that any error would have been harmless. In Florida, even if a mitigator or aggravator finding is erroneous, it is not reversible if the error was harmless beyond a reasonable doubt. See Morris v. State,
Lebrón also contends that the trial court improperly rejected the difficulties he had in forming relationships as mitigation.
Next, Lebrón asserts that the trial court improperly rejected physical abuse as mitigation. The sentencing order relied on the testimony of Lebron’s mother “that she hit him once with a closed fist.” (Emphasis supplied.) Apparently, the trial court did not believe that a one-time incident should be classified as domestic violence abuse. However, Lebron’s mother did not make this direct statement during the 2005 proceeding. Thus, as with the discussion of other mitigation, this aspect must be supported by competent, substantial evidence from the 2005 proceeding. During the 2005 proceeding, Le-bron’s mother testified that she used corporal punishment on occasion and when Lebrón would “cling” to her, she would tell him to leave her alone. She did not testify with regard to how frequent she used this physical discipline. Thus, it is possible
Q You had tried disciplining him, right?
A How did I discipline him? I used to yell at him, I used to hit him, because he was, he was — look, I don’t want to be— excuse me.
Q He was what?
A I don’t want to be seen like I was some kind of creep. All mothers hit their kids.
(Emphasis supplied.) In light of this testimony, the trial court reasonably found that the subject conduct was an attempt to discipline Lebrón in a manner similar to her perception of how other mothers discipline their children. This does not necessarily amount to domestic violence or physical abuse. In so holding, we do not conclude that a mother’s perception that physical contact has occurred in the context of discipline necessarily negates the possibility that domestic violence or physical abuse occurred. However, in the instant case, only Lebron’s mother provided evidence on this matter of potential physical abuse. Thus, because the limited information contained in this record does not reflect an alleged severity that could be classified as abuse, we conclude that the trial court’s rejection of physical abuse as mitigation is supported by competent, substantial evidence.
The trial court’s finding that Le-brón was not psychologically abused is also supported by competent, substantial evidence from the record. There is some evidence that Lebron’s mother was psychologically abusive with him, but there is also contrary evidence inconsistent with this conclusion. Some psychological evaluations did link some actions of his mother to some of Lebron’s problems. However, these actions generally involved her sexually promiscuous behavior, which was not intentionally directed toward Lebrón. For example, during one evaluation, Lebrón stated that his mother had acknowledged that she created videos of herself stripping, which was consistent with her employment as a dancer and stripper. Another evaluation report while Lebrón was residing at the Pleasantville Cottage School documented that “[Lebrón] complained ... that she was ‘a whore’ and he complained to his therapist that he once walked in the living room when he was at home on a City trip weekend only to find her having sex with somebody who was not her boyfriend.” This reflects questionable behavior, but there is no evidence that this behavior was in any way intentionally directed toward Lebrón. Moreover, the record contains evidence that there was a loving relationship between Lebrón and his mother. This evidence is consistent with the trial court’s rejection of psychological abuse as mitigation.
Lebrón also contends that the trial court improperly failed to address institutionalization as mitigation and erred in the findings made under the heading “Parent Profile,” wherein the trial court stated that this issue had been addressed. Under the heading “Parent Profile,” the trial court found “that the defendant was in foster homes” but assigned “very little weight” because “there was no evidence presented on what effect, if any, [this] circumstance[ ] had on the defendant.” The record does not establish the existence, nature, or extent of any negative impact on Lebrón by this circumstance. Lebrón entered foster care while his mother received treatment and was only there when he was very young. He returned to live with his mother at age four or five after she completed her treatment. In addition to a lack of evidence, Lebrón was in a more suitable living situation after his mother received treatment for her drug
Finally, Lebrón asserts that the trial court erred when it assigned only limited weight to the mitigation findings under the headings “Parent Profile ” and “Psychological.” In assigning weight to these mitigation findings (i.e., Lebron’s mother was a dancer and adult club owner, Lebrón suffered from emotional and mental health problems, etc.), the trial court found that there was no evidence of the effect these circumstances had on Lebrón. We agree. The record contains some evidence of a difficult childhood for Lebrón but also contains other evidence that Le-brón was given opportunities to succeed and had the mental capacity to do so. His mother testified that she provided Lebrón with his material needs and other items that he desired. She continued with financial support after he turned twenty, and she was described as being “affectionate” with Lebrón. Lebrón also had a close relationship with his mother’s former husband, Tony Ortiz. The record supports that Lebrón was given opportunities to succeed as a youngster and that his problems of delinquency in later years were related to his own poor judgment. The record contains virtually no evidence of Lebron’s circumstances from the age of eighteen until the day of Oliver’s murder (when Lebrón was twenty-one), which could have provided a crucial, missing nexus between these mitigation findings and the life of Lebrón before the time of the murder. Thus, the trial court did not abuse its discretion in assigning limited weight to these various mitigation findings.
2. Steele Error
Next, Lebrón asserts that the trial court improperly required the jurors to record a numerical vote for findings with regard to each aggravating and mitigating factor presented. Since our decision in State v. Steele,
Here, any error that may have resulted from the jury’s use of special-verdict forms is harmless. Although the instant case is factually distinguishable from Franklin, it is analogous to Rodgers and Huggins because Lebrón has not alleged sufficient prejudice from this alleged error. Lebrón contends that harm was established as evidenced by the trial court’s statement that it wanted to utilize special-verdict forms because it did not like “fishing in the dark.” We disagree. This statement by the trial court was made before the jury was instructed, and it is not an indication of the actual effect the jury’s findings had on the trial court’s sentencing determination. There is no indication that the trial court did not conduct an independent weighing of the aggravating and mitigating factors. Thus, this statement by the trial court does not establish prejudice. Accordingly, we follow prior precedent and hold that any Steele error here is harmless.
3. Ring Error
Additionally, Lebrón asserts that Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona,
Lebrón also asserts that Florida’s standard penalty-phase jury instructions are unconstitutional. We disagree. This Court has repeatedly rejected the claim that these instructions improperly shift the burden of proof to the defendant. See, e.g., Rodriguez v. State,
5.Constitutionality of Lethal Injection
Lebrón also asserts that execution by lethal injection, as currently performed in Florida, constitutes cruel and unusual punishment in violation of the United States Constitution. We disagree. This Court has recently considered this claim in other cases and denied relief. See Schwab v. State,
6.Proportionality of Death Sentence
Introduction
Finally, Lebrón asserts that the imposition of the death sentence here is disproportionate. We disagree. During the 2005 proceeding, the jury recommended the death penalty by a vote of seven to five. The trial court found this recommendation appropriate after weighing the ag-gravators and mitigators. The trial court found two aggravators to be proven beyond a reasonable doubt: (1) Lebrón had previously been convicted of a felony that involved the use or threat of violence; and (2) Lebrón committed the capital felony while he was engaged, or was an accomplice, in the commission of the crime of robbery. The trial court did not assign these aggravators a particular weight; rather, these factors were found to be “present.” The trial court also found the following nonstatutory mitigators: (1) Le-bron’s mother used drugs (“very little weight”); (2) Lebrón performed poorly in school (“some weight”); (3) Lebrón was good with children (“very little weight”); (4) the profile of Lebron’s parents was mitigating (“very little weight”); (5) Le-
Strength of Aggravators
Here, notwithstanding that weights were not assigned, the two aggra-vators found by the trial court merit at least moderate weight. For the prior-violent-felony aggravator, the trial court relied on three prior violent felonies of Le-brón in support of its finding that the aggravating factor was present. The record contains competent, substantial evidence (i.e., a sentence and judgment) for each of the three convictions. The aggravated assault that involved the victim Grib-ben was committed only a few days before Oliver’s murder and Lebrón did possess a firearm during this aggravated assault. The same gun used in the murder of Oliver was also used in the incident that involved Gribben. Moreover, the robbery and kidnapping conviction that involved the victim Nasser was committed approximately one week after Oliver’s murder. Thus, the fact that Lebrón was convicted of attempted robbery in New York, in addition to the other two convictions occurring close in time and Lebrón using a gun for at least one of these convictions, support that this prior-violent-felony aggravator merits at least moderate weight.
Evidence from the 2005 penalty proceeding provides strong support for the trial court’s finding of the second ag-gravator (i.e., the murder was committed while Lebrón was engaged, or was an accomplice, in the commission of the crime of robbery).
Detective Lang testified that Wilburn provided him with information that matched the information provided by Summers: immediately after Wilburn heard a struggle between Lebrón and Oliver, she heard a shotgun blast. Dwayne Sapp provided information that was consistent with the information provided by both Summers and Wilburn: (1) when Sapp arrived at the house after Oliver was dead, Lebrón had the gun in hand; and (2) Lebrón directed Sapp to look in the garage at his (Le-bron’s) truck (which- had previously belonged to Oliver). Finally, Lang testified that when Lebrón was arrested in New York following Oliver’s murder, a shotgun shell and day planner, which belonged to Oliver (and in which Lebrón had written), viere found in the car driven by Lebrón. Thus, this extensive testimony established that Lebrón robbed Oliver during the commission of this capital-felony offense, and this aggravator also merits at least moderate weight.
Comparison to Other Capital Cases
When this Court conducts a proportionality review, the totality of the circumstances must be considered and the entire matter is compared with other capital cases. See Nelson v. State,
The death sentence has been imposed in other cases that have had similar aggrava-tors and stronger mitigation than the present case. In Melton v. State,
In Miller v. State,
Moreover, the cases upon which Lebrón relies in asserting that his death sentence is disproportionate are distinguishable. In Robertson v. State,
In Livingston v. State,
In Urbin, this Court held a death sentence to be disproportionate where the trial court found three aggravators (i.e., prior violent felony, committed for purpose of preventing lawful arrest, and committed during commission of robbery and for pecuniary gain (merged)), and six mitigators (i.e., Urbin’s age at the time of the crime, his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired, absence of his father, drug and alcohol abuse, the imprisonment of his mother, his dyslexia, and his employment history). See
Accordingly, we conclude that Lebron’s death sentence is proportionate to other capital cases in which a death sentence has been imposed.
CONCLUSION
For the reasons expressed above, we affirm Lebron’s sentence of death.
It is so ordered.
Notes
. This Court vacated Lebron’s death sentence due to the following: (1) the trial court erred in finding the felony-probation aggravator because this violated the ex post facto doctrine; and (2) the trial court erred in rejecting the minor-participant mitigator based on the trial court’s improper finding that Lebrón shot Oliver, which was contrary to the special finding of the jury that someone other than Lebrón shot Oliver. See id. at 1020-21.
. This Court vacated Lebron’s death sentence because the probative value of the evidence presented to establish the prior-violent-felony aggravator was far outweighed by its prejudicial effect. See id. at 853.
. On February 18, 1993, Lebrón was convicted of attempted robbery for this crime, which was committed in New York.
. The trial court required the jurors to record a numerical vote for each aggravator on a document called “Attachment A.” The jury found the following aggravation: (1) Lebrón had a conviction for a prior violent felony (the jury vote was twelve to zero); (2) the felony murder of Oliver was committed while Le-brón was engaged in a robbery (twelve to zero); and (3) the felony murder of Oliver was committed for financial gain (nine to three).
. The trial court also required the jurors to record a numerical vote for each mitigator on a document called "Attachment B.” The jury found the following with regard to mitigation: (1) Lebrón was not merely an accomplice, whose participation was relatively minor, in the felony murder of Oliver (twelve to zero); (2) Lebron’s age was not a mitigator (twelve to zero); (3) no aspect of Lebron's character, record, or background was a mitigator (nine to three); and (4) no other circumstance of
. Spencer v. State,
. On June 24, 1997, Lebrón was convicted of both robbing and kidnapping Nasser. This incident occurred approximately one week after Oliver's murder.
. On August 26, 1997, Lebrón was convicted of perpetrating an aggravated assault with a firearm against Gribben. This incident occurred only a few days before Oliver’s murder.
. Enmund v. Florida,
. Tison v. Arizona,
. The trial court’s sentencing order contained the following:
The evidence presented in this case established through the testimony of Mark Tocci, Charissa Wilburn, and Danny Summers that:
1.The defendant said he was going to "jack” the victim, Larry Neal Oliver, Jr., and that the term "jack” meant to rob;
2. The defendant asked [Oliver] to follow them to the house on Gardenia Road;
3. The defendant had possession of a shotgun, which he gave to Charissa Wilburn to take into the house;
4. The defendant got the shotgun from Charissa Wilburn after she took it into the house;
5. After the shotgun blast, the defendant told Charissa Wilburn, who was in another room, that it was over and that [Oliver] was dead; and
6. The defendant was observed going through [Oliver’s] property, taking money, checks and credit cards.
. The trial court mentioned additional information that was not presented during the 2005 proceeding, but the trial court attributed this information to Lebron's mother, who testified during the 2005 proceeding. It is ¡in-possible to determine whether the trial court misinterpreted her testimony from the 2005 proceeding or, instead, improperly relied on testimony from an earlier proceeding.
. Contrary to Lebron’s assertion, the fact that he attempted to forge a school transcript on the night of Oliver’s murder does not establish that he was performing poorly in school at that time. The record only establishes that Lebrón attempted this forgery because his mother would send him money for his purported school expenses. The record does not establish that Lebrón was even enrolled in school; thus, it cannot be implied that he was performing poorly in school.
. The record reveals Lebron’s placement as a teenager in various schools and group homes: (1) after Lebron’s mother had him evaluated by multiple mental health professionals, she agreed to have him attend, in July 1988, the Pleasantville Cottage School, which was a facility located in Pleasantville, New York; (2) Lebron's mother agreed to this placement because Lebrón stole items (i.e., money, and jewelry) from her, would not attend school, and had emotional problems; (3) Lebrón remained at the Pleasantville Cottage School until June 18, 1990, at which time he transferred to Glen Mills, which was a military-type school located in Concordville, Pennsylvania, that provided a more structured environment; (4) Lebrón left Glen Mills on April 1, 1991; (5) Lebrón attended the Lutheran Community Services Group Home on August 9, 1991; (6) within a week of his arrival, he was asked to leave because he "stole in the community"; (7) the Jewish Child Care Association then made attempts to find other accommodations, but these attempts failed primarily due to his delinquent behavior and age; and (8) when Lebrón became eighteen years old, no other educational opportunities were attempted.
. The specific finding of the trial court was: “There was no evidence presented that supports the notion that the defendant had an exaggerated need for approval, was easily led by others, or that he had shallow emotional attachments.”
. Lebrón also contends that contrary to the findings in the trial court's sentencing order, there was no evidence that he “was cared for by extended family at times” or that his mother only "traveled somewhat.” Specifically, Lebrón asserts that his mother traveled extensively during which time he would be left with inadequate care. However, during the 2005 proceeding, Lebron's mother only testified that she would take trips for her job as a dancer and stripper; she did not testify with regard to the frequency of these trips. Thus, the trial court’s finding that she "traveled somewhat” is supported by the record. It should be noted that Lebrón is correct that there is no evidence in the record that extended family cared for him. However, the fact that Lebrón was cared for by people other than extended family when Jocelyn traveled does not necessarily mean this care was inadequate.
. Lebrón contends that Crook v. State,
. Lebrón also asserts that his death sentence is unconstitutional because the jury’s recommendation was not unanimous. We disagree. This Court has consistently held that it is not unconstitutional for a jury to recommend a death sentence on a simple majority vote. See, e.g., Coday,
Additionally, Lebrón asserts that the existence of the prior-violent-felony aggravator should not render Ring inapplicable. Notwithstanding this assertion, we follow our pri- or precedent that rejects this Ring claim due to both the existence of the prior-violent-felony aggravator, see Jones,
. In the portion of its sentencing order addressing this aggravator, the trial court only referenced information that was not presented during the 2005 proceeding. The trial court only referenced the testimony of Mark Tocci, Charissa Wilburn, Danny Summers, Dwayne Sapp, and Joe Tocci as the evidence establishing that this particular aggravator was "present.” However, none of these individuals testified during the 2005 proceeding. The only individuals who testified in 2005 were Detective Lang, Rebecca Oliver, and Le-bron's mother. Detective Lang did provide hearsay testimony when he paraphrased from Danny. Summers, Charissa Wilburn, and Dwayne Sapp, but he never addressed the statements of Mark Tocci or Joe Tocci. Strangely, even the trial court acknowledged this fact:
Mr. Ashton: At no time did I ask this witness to quote anything Mark Tocci ever said. I asked him to quote Danny Summers, I asked him to quote Charissa Wilburn, and I asked him to quote [Dwayne] Sapp, no one else. Mark Tocci’s credibility is not before this jury.
The Court: Just a second. (Reading real-time translation) Objection is sustained. He’s right.
(Emphasis supplied.) Additionally, neither the State nor Lebrón used testimony from past proceedings as exhibits. Thus, this testimony relied upon by the trial court in its sentencing order is not within the record of the proceeding now on appeal. Moreover, the trial court provided no reference to establish the proceeding during which this alleged testimony occurred. Similar to the above analysis for the claim that mitigation findings constituted error, evidence from the 2005 penalty proceeding may be analyzed to support this aggravator finding in this proportionality analysis. See generally Johnson v. State,
. See Buzia v. State,
Concurrence Opinion
concurring.
I concur in affirming the death sentence in this ease. I write separately to once again discuss an issue on which I have often spoken in recent years — the trial court’s use of a penalty-phase special verdict form to record the jury’s vote on the aggravating and mitigating circumstances. Because of our decision in State v. Steele,
Unfortunately, instead of encouraging the use of these special verdict forms, the majority in Steele foreclosed their use. As I explained in Coday v. State,
I understand that the majority in Steele felt restricted by the legislative scheme and even urged the Legislature to reconsider the statute. However, instead of heeding the majority’s recommendation in Steele to “require some unanimity in the jury’s recommendations,” Steele,
In this case, Chief Judge Belvin Perry, one of the most experienced trial judges in the State in death penalty cases, utilized a special verdict form. As noted by the majority, he indicated during the trial that he did not like “fishing in the dark.” Apparently, Chief Judge Perry believes that utilizing a special verdict form enhances his own independent decision making. In fact, the jury’s findings as to the aggrava-tors and mitigators were incorporated into his sentencing order as follows:
Twelve (12) members of the jury found beyond a reasonable doubt that the defendant had been previously convicted of a felony involving the use or threat of violence to some person.
Twelve (12) members of the jury found beyond a reasonable doubt that the crime for which the defendant was to be sentenced was committed while he was engaged in the commission of the crime of robbery.
Nine (9) members of the jury found beyond a reasonable doubt that the crime for which the defendant was to be sentenced was committed for financial gain, while three (3) members of the jury did not find that the crime for which the defendant was to be sentenced was committed for financial gain.
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Twelve (12) members of the jury did not find the presence of the mitigating factor that “the defendant was an accomplice in the capital felony committed by another person, and the defendant’s participation was relatively minor.”
Twelve (12) members of the jury did not find the age of the defendant at time of the crime was a mitigating factor.
Three (3) members of the jury found that some aspect of the defendant’s character, record, or background was a mitigating factor, while nine (9) members of the jury did not find this to be a mitigating fact.
Twelve (12) members of the jury did not find some other circumstance of the offense was a mitigating factor.
These findings confirm my statements in Franklin and what I have reiterated today, that this type of special verdict form “could be a model for all death penalty cases.” Franklin v. State,
In addition, the verdict form evidences that a unanimous jury found that two ag-gravators, a prior violent felony and murder during the commission of a robbery, were proven beyond a reasonable doubt, which forecloses any claim of constitutional infirmity under Ring v. Arizona,