Lead Opinion
Mark Anthony Poole was convicted of the murder of Noah Scott, attempted first-degree murder of Loretta White
On the evening of October 12, 2001, after playing some video games in the bedroom of their mobile home, Noah Scott and Loretta White went to bed sometime between 11:30 p.m. and 12 a.m. Later during the night, White woke up with a pillow over her face and Poole sitting on top of her. Poole began to rape and sexually assault her as she begged Poole not to hurt her because she was pregnant. As White struggled and resisted, Poole repeatedly struck her with a tire iron. She put her hand up to protect her head, and one of her fingers and part of another finger were severed by the tire iron. While repeatedly striking White, Poole asked her where the money was. During this attack on White, Scott attempted to stop Poole, but was also repeatedly struck with the tire iron. As Scott struggled to defend White, Poole continued to strike Scott in the head until Scott died of blunt force head trauma. At some point after the attack, Poole left the bedroom and White was able to get off the bed and put on clothes but she passed out before leaving the bedroom. Poole came back in the bedroom and touched her vaginal area and said “thank you.” White was in and out of consciousness for the rest of the night. She was next aware of the time around 8 a.m. and 8:30 a.m. when her alarm went off.
When her alarm went off, White retrieved her cell phone and called 911. Shortly thereafter, police officers were dispatched to the home. They found Scott unconscious in the bedroom and White severely injured in the hallway by the bedroom. White suffered a concussion and multiple face and head wounds and was missing part of her fingers. Scott was pronounced dead at the scene. Evidence at the crime scene and in the surrounding area linked Poole to the crimes. Several witnesses told police officers that they saw Poole or a man matching Poole’s description near the victims’ trailer on the night of the crimes. Stanley Carter stated that when he went to the trailer park around 11:30 that night, he noticed a black male walking towards the victims’ trailer. Carter’s observations were consistent with that of Dawn Brisendine, who knew Poole and saw him walking towards the victims’ trailer around 11:30 p.m. Pamela Johnson, Poole’s live-in girlfriend, testified that on that evening, Poole left his house sometime in the evening and did not return until 4:50 a.m.
Poole was also identified as the person selling video game systems owned by Scott and stolen during the crime. Ven-tura Rico, who lived in the same trailer park as the victims, testified that on that night, while he was home with his cousin’s girlfriend, Melissa Nixon, a black male came to his trailer and offered to sell him some video game systems. Rico agreed to buy them for $50, at which point the black male handed him a plastic trash bag. During this exchange, Nixon got a good look at the man and later identified Poole when the police showed her several photographs. Nixon testified that the next morning, when her son was going through the trash bag, he noticed that one of the systems had blood on it.
Pamela Johnson also testified that on the same morning, she found a game controller at the doorstep of Poole’s house, she handed it to Poole, and Poole put it in his nightstand. She indicated that she had never seen that game controller before that morning and did not know what it would be used for because neither she nor Poole owned any video game systems. During the search of Poole’s residence, the police retrieved
Based on this evidence, the jury returned a verdict finding Poole guilty on all charges, including first-degree murder. Following the penalty phase, the jury recommended death by a vote of twelve to zero. The trial court followed the jury’s recommendation and sentenced Poole to death. The trial court found two statutory aggravating circumstances: (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person, and (2) the murder was especially heinous, atrocious, or cruel. The court also found three statutory mitigators and numerous nonstatu-tory mitigators. The statutory miti-gators were: (1) the crime for which Poole was to be sentenced was committed while he was under the influence of extreme mental or emotional disturbance (moderate weight); (2) Poole’s capacity to conform his conduct to the requirements of law was substantially impaired (moderate weight); and (3) Poole had no significant history of prior criminal activity (little weight). The nonstatutory mitigators were: (1) Poole is of borderline intelligence (some weight); (2) Poole received a head injury, which created dementia (little weight); (3) Poole’s age at the time of the crime linked with mental deficiency and lack of serious criminal history (moderate weight); (4) Poole dropped out of school due to his low intelligence and learning disabilities (little weight); (5) Poole lost Mr. Bryant, his “best friend, father figure, employer,” and that had an emotional effect on Poole and led to his drug use (some weight); (6) Poole sought help for his drug problem in the past (little weight); (7) Poole had an alcohol abuse problem at the time of the crime (little weight); (8) Poole had a drug abuse problem at the time of the crime (little weight); (9) Poole does not have antisocial personality disorder nor is he psychopathic (some weight); (10) Poole has and can continue a relationship with his son (minimum weight); (11) Poole has a strong work ethic (little weight); (12) Poole has a close relationship with his family (moderate weight); (13) Poole is a religious person (little weight); and (14) the murder and rape were impulsive excessive acts, not premeditated acts (little weight). The trial court determined that these mitigating factors did not outweigh the aggravating circumstances and, as a result, the trial court sentenced Poole to death on the count of first-degree murder. The trial court also sentenced Poole to consecutive life sentences for the attempted first-degree murder of Loretta White, armed burglary, sexual battery of Loretta White, and armed robbery.
*408 [On direct] appeal, Poole raisefd] four issues: (1) whether the trial court abused its discretion in denying Poole’s motion for mistrial when the prosecutor repeatedly commented during closing argument on Poole’s failure to testify at trial and on his silence after his arrest; (2) whether the prosecutor violated Poole’s right to a fair penalty phase proceeding by cross-examining defense witnesses about the unproven prior arrests, the unproven content of a tattoo, and the lack of remorse; (8) whether the prosecutor violated Poole’s right to a fair penalty phase proceeding by misleading the jurors about their responsibilities in recommending a sentence; and (4) whether Florida’s death penalty statute violates the Sixth Amendment right to trial by jury.
Id. at 387-89 (footnote omitted). Based on the cumulative effect of the errors made during the penalty phase of the trial, this Court vacated Poole’s death sentence and remanded the case for a new penalty phase. Id. at 394.
Resentencing
On remand, following the new penalty phase, the jury recommended death by a vote of eleven to one. Following a Spencer
The trial court found two statutory mental mitigating circumstances: (1) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance (moderate to great weight); and (2) defendant’s capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law was substantially impaired (great weight).
The trial court also found eleven non-statutory mitigating circumstances, according them little or very little weight: (1) borderline intelligence (little weight); (2) defendant dropped out of school (very little weight); (3) loss of father figure had emotional effect and led to his drug abuse (very little weight); (4) defendant sought help for drug problem (very little weight); (5) defendant had an alcohol problem at time of crime (very little weight); (6) drug abuse problem at time of crime (very little weight); (7) defendant has a relationship with son (very little weight); (8) strong work ethic (very little weight); (9) defendant is a religious person (very little weight); (10) dedicated uncle (very little weight); and (11) defendant needs treatment for mental disorder unrelated to substance abuse (very little weight). The trial court determined that the proposed miti-gator that the defendant has severe chronic alcohol and cocaine problem for which he needs treatment was not proven.
The trial court sentenced Poole to death, finding that the aggravating 'circumstances “far outweigh the mitigating circumstances” and that the “heinous, atrocious, or cruel aggravator alone outweighs all the mitigating circumstances in this case.” Poole now raises several claims related to
PEREMPTORY STRIKES
Poole claims that the State’s race-neutral explanation for striking venirepersons Wearing and Blandin, both African Americans, was actually a pretext for discrimination. The defense repeatedly attacked the genuineness of the State’s race-neutral explanations for striking these two jurors. The defense also argued that the State engaged in disparate questioning as to these two jurors.
Deference to Trial Courts
This Court has consistently held that trial courts have broad discretion in determining the propriety of the exercise of a peremptory challenge. See Franqui v. State,
A trial court’s decision to allow a peremptory strike of a juror is based primarily on an assessment of credibility. King v. State,
Genuineness of the State’s Race-Neutral Explanation
Discriminatory exercise of peremptory challenges based on race or ethnicity violates a defendant’s rights to equal protection and to be tried by an impartial jury under the United States and state constitutions. See, e.g., Batson v. Kentucky,
A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must*410 ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral, and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3) ... Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.
Melbourne,
The trial court must make an indication on the record that it not only accepted the race-neutral explanation, but actually engaged in a “genuineness” analysis. Hayes,
This Case
During voir dire, the prosecutor questioned venirepersons Wearing and Blandin about their feelings regarding the death penalty:
PROSECUTOR: Okay. Ms. Wearing, how do you feel about this idea, just philosophically, that we put people to death as punishment for a crime?
JUROR WEARING: I’m kind of like-like a little mixed feeling, but at the same time, if the punishment fits the crime then, yeah, go ahead and do — do away and put him to death. But if not, then like, you know, why take a life for a life? So it’s — I’m just kind of in between.
PROSECUTOR: How old are you?
JUROR WEARING: 21.
PROSECUTOR: How do you feel about being asked to do this job when you’re barely old enough to vote?
JUROR WEARING: I’m kind of nervous, but at the same time, really confident that I can handle it.
PROSECUTOR: If you were to be the person that went to the polls tomorrow and said we keep the death penalty in Florida or we just do away with it, people that get found guilty of murder just*411 get life in prison, would you keep the death penalty or do away with it?
JUROR WEARING: I’m not sure. It’s—
PROSECUTOR: That’s a fair enough answer. It doesn’t have to be a yes-or-no answer. I’m not sure is a perfectly good answer. I mean we’re asking very weighty questions here. Believe me, I understand what I’m asking. Mr. Blan-din?
JUROR BLANDIN: Yes, sir.
PROSECUTOR: How do you feel about this idea philosophically that we say it’s okay to put people to death as punishment in Florida?
JUROR BLANDIN: I’m like the rest of these guys. If it fits the crime they committed and — but at the same time, I’m like, if I had to vote — kind of like her, I.don’t — I don’t really know what I would vote for.
Immediately prior to the prosecution’s strike of Juror Wearing, both the State and the Defense accepted Juror Maruska. The State simultaneously sought to strike both Venirepersons Wearing and Blandin based on the fact that they both answered that they were “not sure” to his question regarding how they would vote if they had the opportunity to vote to keep or abolish the death penalty in Florida:
PROSECUTOR: ... But I asked them if you had to go into the voting booth and vote, how would you vote?
And I wrote it down verbatim. Ms. Wearing said: I’m not sure. And Mr. Blandin said: Not sure how I would vote.
The defense objected on the grounds that the question was not relevant to the case at hand, and instead sought to determine the jurors’ political views on the death penalty.
The trial judge then asked the prosecutor, “Do you have any other race-neutral reason besides that?” The prosecutor responded:
PROSECUTOR: No I don’t.... And I believe that they’re weak death penalty jurors based on that answer.... There’s a lot of ways to figure out if people are weak death penalty jurors. That was one of them for me.
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PROSECUTOR: I can tell you that no one else on this panel answered that question that way. In fact, Ms. Ippert, who is also an African-American juror, said very clearly she would vote for the death penalty. That is, she would vote to keep the death penalty as an option.
THE COURT: Well, we’re going to get to her, so let’s see what happens. I’ll for the time being, I’m going to accept those, and I’ll get back to you.
The trial court determined that a juror’s political view on an issue is a sufficient race-neutral reason to strike a venireper-son. Shortly after the striking of venire-persons Wearing and Blandin, the State decided to baekstrike Juror Maruska, stating that he is “also weak on the death penalty and young and white.”
In an effort to clarify the record, the Court explained that the fact that the prosecution “kept Ms. Ippert, who answered that she would vote for it, and she is an African-American ...” supported the prosecution’s proffered race-neutral explanation. In closing, the trial judge commented that he assumed that venireper-sons Wearing and Blandin were being struck because they were too young to be on the panel. The judge also implied that he assumed this was also the State’s reason for striking Staresnick, a young white venireperson. At this point, the prosecutor interjected with the following statement:
*412 Well, and I did say, when I struck Juror Maruska, that Staresniek, Marus-ka, and the two African-Americans who I had the race — other race-neutral reason for, were all too young. They’re all in their early twenties.
The prosecution had not previously offered age as a reason for the striking of Venire-persons Wearing and Blandin. At the time of the strikes, the only race-neutral explanation he provided was that they had seemed like weak death penalty jurors based on their answers to his voting question. The trial judge accepted his striking of these jurors based on this race-neutral explanation.
The next day, the prosecution revisited the striking of Venirepersons Wearing and Blandin, stating for the record that there was case law to support age as a race-neutral reason for a peremptory strike. The State mentioned that Wearing, Blan-din, Staresniek and Maruska were all young and that none of them had any children. The State continued with the ages of the venirepersons who were not struck, many in their fifties and sixties and many who had children. The defense objected to the striking of Venirepersons Wearing and Blandin based on this supplemental reason, arguing that the case law pertained to the maturity, not the age, of the potential jurors, and that the jurors were not asked questions regarding their maturity. The trial court did not make a contemporaneous finding regarding this additional race-neutral explanation, simply stating, “Okay. All right. Well, you both made your record.”
Because the trial court followed the procedure outlined in Melbourne, and its findings regarding the genuineness of the State’s reason for striking venirepersons Wearing and Blandin were supported by the record, its decision to allow the strikes was not clearly erroneous. The defense requested that this Court determine that the State’s explanation is not genuine based on the State’s supplementing of the record the next morning to add the race-neutral explanation that the stricken jurors were young and had no children. In considering the trial court’s “genuineness” finding, it is important to note that the trial court’s acceptance of the State’s race-neutral reason took place prior to the prosecution’s supplementing of the record the next day. In determining that the trial court’s determination was not clearly erroneous, we rely on the trial court’s acceptance of the State’s race-neutral reason offered immediately at the time of the defense’s objection; this is different from the State’s belated reliance on age and lack of children as the reason for the strike, which could be considered less genuine. See Nowell,
The strikes allowed in this case are unlike those in Nowell, where this Court found that the trial court’s decision to allow the peremptory challenge to the challenged juror was clearly erroneous because the State’s explanations, which may have appeared to be race neutral, were pretextual.
In addition to defense counsel’s observation that Mr. Ortega possessed qualities that the State of Florida usually sought in jurors, such as stable employment and a sibling in law enforcement, this Court found that Mr. Ortega possessed strikingly similar qualities to a white juror, Mr. Collins, who was not challenged by the State. Id. at 603, 605. Both jurors were approximately the same age, were fathers, and both stated that they believed the death penalty should be reserved for the most serious crimes. Id. at 605, 606 n. 7. Additionally, the victim in Nowell was also in her mid-twenties, which further undermined the genuineness of the State’s asserted justification that Mr. Ortega would likely identify with the defendant — he was just as likely to identify with the victim, which would clearly favor the State’s position. Id. at 605. This Court also found it persuasive that the prosecutor could not identify behavior in the record to demonstrate why he did not like Mr. Ortega, nor could the prosecutor identify statements in the record to support its assertion that Mr. Ortega would not follow the law, but instead acknowledged that Mr. Ortega stated that he would follow the law. Id. at 604-06.
In the case at hand, most notably, of the venirepersons who were asked the question regarding how they would vote if they had the option, Wearing and Blandin were the only two to state that they were “not sure.” Other jurors answered in a manner that implied that, more likely than not, they would vote to keep the death penalty as an option, as opposed to the blatant ambivalence expressed by the two challenged venirepersons. Although it appears that Juror Ippert was the only African-American member of the seated jury, it does not appear likely that the peremptory strikes were used to discriminate against venirepersons Wearing and Blan-din based on race. Further, upon review of the record and based on the totality of the circumstances, the prosecutor’s stated reasons for the strikes of Wearing and Blandin do not appear to be pretextual. The trial court did not abuse its discretion in allowing the strikes.
Disparate Questioning
Poole also argues that there was disparate questioning of venirepersons Wearing and Blandin. Although it is true that “disparate treatment of similarly situated jurors can give rise to a finding of pretext,” the record does not indicate that the defense raised the issue of disparate questioning to the trial court. See Hayes,
At trial, the defense did not state explicitly or imply that it wanted to allege disparate questioning on behalf of the prosecutor; the defense based its objection on venirepersons Wearing’s and Blandin’s race, and not the prosecution’s questioning of them. In defending his explanation that venirepersons Wearing and Blandin should
ADMISSIBILITY OF SEVERED FINGERTIP
Poole next argues that the trial court abused its discretion in allowing the State to introduce the severed fingertip of victim Loretta White, preserved in a jar of formalin, into the new penalty phase. The defense claims that the probative value of the evidence was substantially outweighed by the prejudicial value of the severed fingertip, especially considering that the prosecutor offered no credible reason as to why the severed fingertip was relevant to any issue in the penalty phase, much less any issue in dispute.
This Court recognizes the broad discretion granted to trial courts in determining the relevance of evidence; such a determination will not be disturbed absent an abuse of discretion. See Heath v. State,
[A]ny fact relevant to prove a fact in issue is admissible into evidence unless its admissibility is precluded by some specific rule of exclusion.” Section 90.408, Florida Statutes (2007), provides that “[Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” However, it has been observed that “[m]ost evidence that is admitted will be prejudicial or damaging to the party against whom it is offered.” The question under the statute is not prejudice, but instead, unfair prejudice.
King,
When the State sought to admit the preserved fingertip into evidence, defense counsel objected on the ground that it was inflammatory and that any probative value would be far outweighed by its unfair prejudice. The defense also objected to the admission of Ms. White’s natural fingernails with her skin attached. The trial court overruled the objections, stating particularly that the preserved fingertip was “really not ... difficult to look at. It’s not unpleasant. There’s not blood on it. It just shows what appears to be a large chunk of skin and the end of a finger.”
We find that the trial court did not abuse its discretion in admitting the preserved fingertip. The fingertip was relevant because it was severed during the same criminal episode at issue in this penalty phase. Also the preserved fingertip was relevant to the amount of force used during the attempted first degree murder of Ms. White, which was offered as an
PROSECUTORIAL MISCONDUCT
Poole acknowledges that the arguments made in support of his allegation of prose-cutorial misconduct are largely unpre-served. The defense, however, argues that the misconduct of the prosecutor was so severe that it resulted in fundamental error, requiring this Court to grant relief in the absence of the generally required contemporaneous objection. See Brooks v. State,
Fundamental error has been defined as error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. (citations omitted). It has also been described as error that is so significant that the sentence of death “could not have been obtained without the assistance of the alleged error.” Snelgrove v. State,
Of all the comments that the defense claims were improper, the only comment that was objected to during the trial is the prosecutor’s reference in closing argument to the testimony of the defendant’s family offered in mitigation that the defendant had multiple head injuries. However, the trial court gave the jury a curative instruction following that comment. Therefore, the defense is required to demonstrate fundamental error to prevail on each pros-ecutorial misconduct claim. We address each comment individually below.
Prosecutor’s “All That Crap” Comment
The prosecutor’s reference to the testimony of Poole’s family members as “all that crap” during closing argument does not rise to the level of fundamental error, as demonstrated by this Court’s decision in Mendoza v. State,
When the prosecutor referred to Poole’s family’s testimony as “all that crap,” the trial judge informed the jury that the comment was improper and instructed them to disregard it. Further, the prosecutor explained to the jury that he was not attempting to tell them not to consider the evidence presented by Poole’s family, but was instead requesting that the jury give more weight to the doctors’ evidence regarding the defendant’s head injuries. Under these circumstances, this comment does not rise to the level of fundamental error.
Prosecutor’s “False Apology”
The trial judge granted the defense a curative instruction after sustaining its objection to the prosecutor’s “all that crap” comment. In apologizing to the jury for this comment, the prosecutor stated that he gets “wound up when [he]
Prosecutor’s Mischaracterization of Intoxication Evidence
The defendant argues that the prosecutor sought to mislead the jury to believe that even if they found Dr. Krem-per to be credible and even if they believed that the defense had proved the impaired capacity mitigating factor, they could give it no weight simply because Mr. Poole voluntarily drank and did drugs. The defense also argues that the prosecutor mischaracterized psychological testimony by stating that Poole’s impaired capacity was only due to his voluntary intoxication, where the expert testified that it was also due to Poole’s low intelligence.
A prosecutor may request the jury to accord minimal weight to a miti-gator that the defendant has proven. The cases cited by the defense, Mahn v. State,
The prosecutor in this case urged the jury members to use their individual perceptions in deciding who to believe, stating “The judge will tell you that you rely on your own conclusions about a witness. You can believe or disbelieve all or any part of what a witness says, and that includes experts.” The prosecutor continued, “I submit to you that when you think about that evidence, you need to really think about whether that is a mitigating circumstance, whether it mitigates the penalty that you should vote to impose, or whether that goes to sympathy that you’re not allowed to consider.”
After discussing the possible aggrava-tors in the case and how weight should be assigned, the prosecutor discussed how to assign weight to mitigators:
The first two of these mitigators really rely on the testimony of these two doctors. They are that the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance ... if you are reasonably convinced that they proved it to you, then you should consider it.
But here’s the rub: You don’t have to accept it as mitigating the death penalty at all. And I’m going to tell you why you shouldn’t. Because both of these doctors said that the only reason Mr. Scott [sic] hit this mitigator and the next one ... was because he voluntarily drank and did drugs. The only reason they told you.
The prosecutor does not refute that the mental mitigators were proven, rather the prosecutor implies that perhaps the jury should give the mental mitigation a small amount of weight because the defendant may have been the cause of his own emotional distress and substantially impaired capacity. This was not improper.
Improper Instructions on Aggravating Circumstances
While instructing the jury on “merger” in considering the aggravating circumstances, the prosecutor stated, "... the robbery and financial gain merge ... but all it really does is make you able to give more weight to the armed robbery circumstance.” This Court has recognized in Brooks v. State,
Although in Brooks this Court determined that the merger argument made by the prosecutor was improper, this Court did not determine, or even imply, that this comment alone would be a basis for finding fundamental error. This Court granted Brooks a new penalty phase after it considered “the jury’s close seven-to-five recommendation that Brooks be sentenced to death ... and the objected-to comments ... when viewed in conjunction with the unobjected-to comments.” Id. at 899. We find that in this case, where the jury recommended imposition of the death penalty by an 11-1 vote and the comments that the defense raises in this proceeding were not continuous, this improper instruction on the merged aggravators does not rise to the level of fundamental error. This is especially true when the trial court did not repeat this misstatement of the law when instructing the jury on the merged aggra-vators, immediately prior to deliberations, and defense counsel stated on the record that he had no objection to the court’s instruction.
The next comment that the defense argues was improper was the prosecutor’s comment made to the jury in instructing the jury on the HAC aggravator:
Designed to inflict a high degree of pain with utter indifference to the suffering of Mr. Scott.
Then the law goes a little further and tells you that the kind of crime that is intended here to be defined as heinous, atrocious or cruel is one accompanied by additional acts that show the crime was conscienceless or pitiless, and was unnecessarily tortuous to the victim.
Now when you think about the death of Mr. Scott and what was going on in total in that room, what shows con-sciencelessness? He put his hand between Ms. . White’s legs and said thank you, after he just beat the hell out of her and raped her. It wasn’t just rape. It was conscienceless and pitiless, and Mr. Scott was the person that suffered the*418 death that Mr. Poole’s being punished for.
As recognized by the prosecutor in his argument, this Court has defined the HAC aggravator as being “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” See State v. Dixon,
The State argues that the touching of White should be considered in the HAC analysis, based on the totality of the circumstances. In Baker v. State,
In this case, White testified that when Poole would try to rape her, Scott would get up, and that Mr. Poole would pick up the tire iron and hit Scott in the face with it. White then explained that Poole did, in fact, rape her. Id. White then explained that after Poole left the room, she got off the bed and pulled on Scott and could hear him breathe. She testified that after she vomited and fell to the floor again, Poole came back into the room and touched her vaginal area and said “thank you.” White does not mention any further contact between Poole and Scott after Poole repeatedly hit Scott with the tire iron. While Scott was aware of Poole’s attempts to rape White, there is no indication that Scott was still conscious when Poole left the room and returned. Thus, Scott cannot be said to have suffered emotional torment by Poole’s touching of White’s vaginal area and simultaneous comment. Therefore, the proven facts do not support this statement.
In light of defense counsel’s failure to object to this comment at trial, the next inquiry is whether this misstatement amounts to fundamental error. As observed by the trial court’s sentencing order, this Court has “consistently upheld HAC in beating deaths,” particularly where the victim is conscious for at least a part of the attack and is aware of impending death. See Williams v. State,
Cumulative Impact of All Errors
We view the defense’s claims of prosecu-torial misconduct in context of the entire argument and the testimony presented to the jury and find that the misconduct does not constitute fundamental error. The improper arguments made by the prosecutor do not appear to be “so egregious as to warrant reversal” or “reach[ ] critical mass
PROPORTIONALITY
In reviewing a case to determine whether a death sentence is proportional, this Court’s task is not to compare the number of aggravating and mitigating circumstances; rather, this Court must thoughtfully consider the totality of the circumstances in a case and compare it with other capital cases. Beasley v. State,
In this case, Poole was convicted of first-degree murder, attempted first-degree murder, armed burglary with intent to commit an assault or battery with a weapon, sexual battery with great force, and armed robbery with a deadly weapon. The jury recommended the death penalty by a vote of eleven to one. The trial court found that such a punishment was appropriate after considering all of the evidence and properly weighing the aggravators against the mitigators. Specifically, the court found four aggravating factors, two statutory mitigators, and eleven nonstatu-tory mitigators. In sentencing Poole to death, the trial court determined that “the heinous, atrocious or cruel aggravator alone outweighs all mitigating circumstances in this case.”
The circumstances of this case are similar to other cases in which this Court has upheld the death penalty. See Orme v. State,
RING v. ARIZONA
The defense submits that for all practical purposes, Florida is a “judge sentencing” state within the meaning and constitutional analysis of Ring v. Arizona,
CONCLUSION
For the reasons stated above, we uphold the trial court’s imposition of the death penalty on resentencing.
Notes
. Although the female victim has changed her name since the direct appeal in this case, for consistency, we will refer to her by her previous surname, White, throughout this opinion.
. Spencer v. State,
Concurrence Opinion
concurring in result.
While I concur in the result that the majority reaches, I disagree with the majority’s conclusion that the fingertip was admissible, particularly since the majority fails to analyze whether less graphic methods were available to illustrate the same point. Majority op. at 413-15. Defense counsel objected to the admission of the fingertip on the basis that it was prejudicial and photographs could also illustrate this injury without the extremely inflammatory effect of admitting a jar containing the victim’s actual flesh. The prosecutor argued that the fingertip should be admissible because Poole had been convicted of attempted first-degree murder and the admission of this body part in a jar should not be considered inflammatory because people would see this type of item in a biology class. The trial court accepted this argument and admitted the fingertip, concluding that the fingertip was “not unpleasant” to see and simply appeared to be a large chunk of skin and the end of a finger.
I conclude that this ruling was error because the trial court failed to analyze whether there was a less graphic method of illustrating the same point, such as through the introduction of photographs. As this Court has held, even when dealing with photographs of a murder victim that are deemed relevant, the key question for determining admissibility is whether less graphic photographs are available to illustrate the same point:
“The test for admissibility of photographic evidence is relevancy rather than necessity.” Crime scene photographs are considered relevant when they establish the manner in which the murder was committed, show the position and location of the victim when he or she is found by police, or assist crime scene technicians in explaining the condition of the crime scene when police arrived. This Court has upheld the admission of autopsy photographs when they are necessary to explain a medical examiner’s testimony, the manner of death, or the location of the wounds.
However, even where photographs are relevant, the trial court must .still determine whether the “gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jur[ors] and [distract] them from a fair and unimpassioned consideration of the evidence.” In making this determination, the trial court should “scrutinize such evidence carefully for prejudicial effect, particularly when less graphic photos are available to illustrate the same point.”
Doorbal v. State,
Relevancy is the starting point, not the ending point. In this case, neither the trial court nor this. Court evaluated whether there was a less graphic means available to illustrate the fact that Poole was previously convicted of attempted first-degree murder. However, when this objection was raised, both the trial court and the parties recognized that pictures demonstrated this injury, that the victim herself would be testifying, and that her injury was still visible.
In support of its argument that the trial court did not err, the State relies solely upon out-of-state cases in which a human bone was admitted into evidence to address a disputed fact. See State v. Pike,
However, a closer review of each case shows that the state courts allowed the introduction of the cleaned bone to establish the identity of the murder victim or address an issue in dispute and that each court considered both the relevancy of the evidence and the ability of presenting the same information in a less prejudicial or graphic format. In fact, in Crain v. State,
A critical difference between those eases and this one is the fact that the evidence at issue here is not a cleaned bone, but the surviving victim’s very flesh that had been preserved in a jar. Moreover, the necessity of admitting this type of evidence is questionable — here, the evidence is relevant only to show the force that Poole exerted when he tried to kill the surviving victim, but the amount of force is not relevant in proving the aggravator related to the attempted murder conviction. The fact that Poole was convicted of attempted murder is not disputed. In addition and importantly, the trial court never weighed the necessity of introducing the flesh, as opposed to admitting this evidence through a less gruesome means, like photographs as. Poole requested.
I am concerned that the majority’s holding, which concludes that there was no abuse of discretion and which does not analyze whether less gruesome methods existed to demonstrate the same point, is an incomplete analysis. While I agree that in this ease the admission constitutes harmless error, I urge trial courts to exercise caution before admitting an actual body part and to consider whether less gruesome and prejudicial ways exist to demonstrate the same point.