David Beasher Snelgrove appeals his sentences of death for the 2000 murders of 84-year-old Glyn Fowler and his 79-year-old wife, Vivian Fowler.
I. FACTS AND PROCEDURAL HISTORY
The facts of this case were fully set out in this Court’s opinion on the initial direct appeal:
On Sunday, June 25, 2000, Glyn and Vivian Fowler were found dead in their home. The elderly couple had been brutally beaten and stabbed to death, as evidenced by multiple fractures and stab wounds spread throughout their bodies. Ultimately, Vivian died from a stab wound to the heart, and Glyn died of a brain injury caused by blunt force trauma to the head.
Evidence at the crime scene and in the surrounding area linked David Snel-grove, the twenty-seven-year-old nephew of one of the Fowlers’ neighbors, to the murder. Snelgrove had recently moved in with his aunt and his cousin, Jeff McCrae, after being expelled from a drug rehabilitation program. Blood droplets matching Snelgrove’s DNA were found throughout the house, as were bloody fingerprints and footprints matching Snelgrove’s. A trained bloodhound followed a scent from the blood on the Fowlers’ broken window to Snel-grove, and the police recovered a knife in the woods next to the Snelgrove home with blood matching Snelgrove’s DNA.
Snelgrove denied any involvement with the murder. On the day the Fowl-ers’ bodies were discovered, the Flagler County Sheriffs Office questioned Snel-grove about his activities that weekend and the cause of the cut on his hand. Snelgrove claimed he and Jeff McCrae had spent Friday evening at Don Silva’s home. Around 12:30 a.m., he and McCrae left Silva’s together, and Snel-grove claimed he spent the rest of the night at home. He attributed the cut on his hand to an accident that occurred on Monday, June 19, the last day of his landscaping job.
At trial, Jeff McCrae presented a different version of events. He testified that he and Snelgrove arrived at Silva’s separately on Friday, June 23, and they left together at approximately 12:30 a.m. On the way back to their house, they stopped to purchase crack cocaine. He did not notice any cuts or bandages on Snelgrove’s hand at that time. During the middle of the night, McCrae awoke to the sound of someone entering his house. He arose to find Snelgrove in the bathroom cleaning a cut on his hand and wiping what appeared to be blood from his leg and foot. Snelgrove stated that he had been in a fight, but he refused McCrae’s offer to take him to the hospital. Instead, he wrapped his hand in what was possibly a shirt,3 and told McCrae that he wanted to get more cocaine. The two went to purchase cocaine from a man named “Kimo” (Cornelius Murphy). McCrae testified that the money used to buy the cocaine had blood on it. Later that night, police stopped “Kimo” at a Jiffy Food Store after he attempted to make a purchase with blood-stained money. DNA tests on one of the bills showed that the blood matched Snelgrove’s DNA.
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Additional testimony came from Gary Matthews, an inmate at the Flagler County Jail, where Snelgrove was detained when he was arrested on June 25. Mathews alleged that Snelgrove made critical admissions to him....
At trial, Matthews testified to his jailhouse conversations with Snelgrove. Specifically, Matthews testified that Snelgrove told him of a cooperative effort between him and McCrae to break into the Fowlers’ home and rob them of cash that the elderly couple kept in their bedroom. According to Matthews, Snel-grove claimed he knew of this money because he had borrowed money from the Fowlers in the past, and he was in need of money because another neighbor had refused his request for a loan. Snelgrove allegedly told Matthews that with McCrae acting as his lookout, Snel-grove broke a window with his hand and entered the house. He found his way to the master bedroom, but Glyn Fowler startled him before he could find the dresser where the money was kept. Glyn began to fight, and Snelgrove reported to Matthews that he beat and stabbed Glyn to death. In the commotion, Vivian awoke, and he beat and stabbed her as well. Matthews further testified that Snelgrove expressed remorse at his failure to look to the left when he entered the bedroom. If he had done this, he would have seen Vivian’s purse, and he could have taken it without having to kill the victims.
Snelgrove,
On direct appeal, we. affirmed Snel-grove’s convictions but reversed the death sentences based on the jury’s failure to make individualized recommendations for each murder. Id. at 572-78.
On the first day of jury selection for Snelgrove’s new penalty phase, Snelgrove moved for a continuance, requesting “[additional time” to test for mental retardation. According to defense counsel, on the night before jury selection, Dr. Robert M. Berland, a forensic psychologist who examined Snelgrove and testified at the first penalty phase, notified defense counsel of his recommendation to again test Snel-grove to determine whether Snelgrove was mentally retarded.
Following the second day of jury selection, Dr. Stephen Bloomfield, another forensic psychologist, conducted the requested WAIS-III test. Snelgrove indicated that his IQ score on the WAIS-III test was 70, a score consistent with “mild men
At the new penalty phase, the prosecution presented extensive evidence detailing the scene of the crime, injuries to the victims, and incriminating injuries to Snel-grove. The prosecution’s evidence included expert testimony from forensic pathologist Dr. Thomas Beaver, who testified that both victims bore defensive wounds and had been severely beaten, strangled, and stabbed in the context of a prolonged struggle involving significant pain and suffering. Dr. Beaver further testified that, unlike Mrs. Fowler, who lived through all inflicted injuries, Mr. Fowler was alive only through the beating and strangling and died just prior to the stabbings. There was no sign of sexual assault.
Snelgrove presented testimony from corrections officers, family members, and experts. Dr. Drew Edwards, an expert in cocaine addiction, testified that cocaine impairs one’s judgment, decision-making, and behavioral control. Dr. Edwards also provided his opinion that Snelgrove was addicted to cocaine at the time of the murders, and he further expressed his opinion on cross-examination that Snelgrove would not have committed the crime if he was not intoxicated. Dr. Joseph Wu, an expert in PET scanning, testified that Snelgrove’s temporal lobe and subcortical areas were asymmetrical, abnormalities “consistent with a history of possible trauma” and producing a “disproportionate response to an insult or provocation or threat.” Dr. Wu also testified that cocaine can exacerbate abnormal functioning of the brain. Dr. Berland testified that Snelgrove exhibited signs of a psychotic disturbance, specifically, depression and delusional paranoid thinking. Based on that result, Dr. Berland testified that Snelgrove was acting under an extreme mental or emotional disturbance and was substantially impaired in his capacity to conform his conduct to the requirements of the law (but not in his capacity to appreciate the criminality of his conduct).
In rebuttal, the prosecution presented testimony from Dr. Lawrence Holder, a radiologist and nuclear medicine physician, who reviewed PET scan video and images prepared and analyzed by Dr. Wu. Dr. Holder testified that he observed no abnormality in the PET scan and instead found that Snelgrove’s brain operated normally. The prosecution also played video of Snelgrove’s statement to law enforcement and presented testimony from the officer who interrogated Snelgrove. The interrogating officer testified that Snel-grove appeared sober and aware throughout their contact.
Following the penalty phase, Snelgrove moved for a continuance to conduct further testing on mental retardation prior to a Spencer
At the Spencer hearing, Snelgrove presented evidence regarding possible mental retardation. His family members reiterated testimony given at the penalty phase that Snelgrove was twice hospitalized as a child, once when he fell out of a shopping cart and once when he overdosed on a relative’s prescription medication. Family members offered their observations that Snelgrove was a hyperactive child and mentally “slow,” and an older cousin recalled that Snelgrove grew depressed after his parents died. Snelgrove also presented testimony from Dr. Bloomfield, who added to his penalty-phase testimony by detailing his findings that Snelgrove had a significant deficit in adaptive functioning and that the adaptive deficit “likely’ manifested prior to age 18. Dr. Bloomfield testified that he inferred both findings from the fact that, when Snelgrove was a child, he was classified by the public school system as “emotionally handicapped” (EMO) and, as a result of the classification, placed in exceptional student education (ESE) classes. Dr. Bloomfield could not locate any records to explain Snelgrove’s ESE/EMO designation. However, he testified that such a designation — made before Snelgrove was 18 — would have resulted from “some combination” of observable “maladaptive behavior” which serves to define an emotional handicap and could be roughly transferred to a determination that Snelgrove had deficient adaptive functioning. Dr. Bloomfield clarified that he could not provide a definitive answer as to intellectual functioning prior to age 18 because he could not find an IQ score on Snelgrove prior to age 18.
In response to Dr. Bloomfield’s testimony, the prosecution presented expert testimony from Dr. Gregory Prichard, a forensic psychologist who evaluated Snelgrove for mental retardation and reviewed the same documentation used by Dr. Bloomfield. Dr. Prichard administered the Stanford-Binet 5 test and determined that Snelgrove’s full-scale IQ was 75, above the retarded range. Prichard further testified that, while Snelgrove’s ESE/EMO designation likely indicated behavioral problems beginning prior to age 18, it also meant that the school system had likely ruled out the possibility of intellectual problems first by testing Snelgrove’s IQ and declining to classify him as mentally retarded. Placing a mentally retarded child in EMO classes, he said, would be illegal. Dr. Prichard did not see any evidence of intellectual limitations in his four-hour interview with Snel-grove or in Snelgrove’s records.
After the Spencer hearing but before the sentencing hearing, the trial court issued an order denying Snelgrove’s mental retardation claim and specifically noting that the claim would have failed even under the preponderance of the evidence standard. In its order, the trial court noted the conflict among Drs. Bloomfield (IQ of 70) and Prichard (IQ of 75) regarding Snelgrove’s intellectual functioning. It
Ultimately, the trial court followed the jury’s recommendation and imposed two death sentences for the murders. The trial court found five aggravators applicable to each of the two murders: (1) the murder was committed when Snelgrove was on community control for a felony offense of tampering with physical evidence (little to some weight); (2) prior violent felony based on the contemporaneous murder (great weight); (3) the murder was committed during the commission of robbery and/or burglary, merged with pecuniary gain (significant weight); (4) the murder was especially heinous, atrocious, or cruel (HAC) (great weight); and (5) the victim was particularly vulnerable due to advanced age (significant weight). The trial court found one statutory mitigator— extreme mental or emotional disturbance (significant weight) — and the following nonstatutory mitigators: (1) Snelgrove was a hard worker (some weight); (2) Snel-grove was a loving and caring person who was loved by his family (some weight); (3) Snelgrove had a long history of drug addiction (significant weight); (4) Snelgrove was greatly impacted by the death of his parents (some weight); (5) Snelgrove is a model inmate and has adjusted well to a structured environment (little weight); (6) Snelgrove suffers from some abnormal brain functioning and has a somewhat limited level of intelligence (some weight).
II. ISSUES RAISED ON APPEAL
Snelgrove raises seven issues on appeal: (A) whether the trial court erred in denying Snelgrove’s motion for continuance before the penalty phase to further explore the possibility that Snelgrove was retarded; (B) whether the trial court erred in finding that Snelgrove was not mentally retarded; (C) whether the trial court erred in admitting video of Snel-grove’s statement to law enforcement; (D) whether the trial court erred in instructing the jury on its advisory role; (E) whether the trial court erred in allowing the prosecution to cross-examine mental health experts Dr. Berland and Dr. Edwards regarding their knowledge of the facts surrounding the murders; (F) whether the prosecution’s comments and the trial court’s instructions regarding victim impact evidence together constituted reversible error; and (G) whether the trial court erred in considering and weighing several aggravators and miti-gators.
A. Snelgrove’s Motion for Continuance
Snelgrove argues that the trial court erred in denying his pre-penalty phase motion for continuance in which Snelgrove sought additional time to test for mental retardation and to present the evidence at the penalty phase. We disagree.
We have repeatedly explained that
[ a] court’s ruling on a motion for continuance will only be reversed when an abuse of discretion is shown. An abuse of discretion is generally not found unless the court’s ruling on the continuance results in undue prejudice to the defendant. This general rule is true even in death penalty cases. While death penalty cases command our closest scrutiny, it is still the obligation of an appellate court to review with caution*251 the exercise of experienced discretion by a trial judge in matters such as a motion for a continuance.
Doorbal v. State,
Under that rubric, we have held that the trial court does not abuse its discretion where the requesting party has unjustifiably caused the delay or requests an indefinite suspension of the proceedings. See Doorbal,
Here, the trial court did not err in denying Snelgrove’s motion for continuance because Snelgrove requested an indefinite continuance at a late stage in the proceedings to investigate information within his control. In his initial motion for continuance, Snelgrove sought additional time to collect evidence on mental retardation for presentation to the jury. At that time, Snelgrove requested time to collect evidence on all three statutory prongs necessary to show mental retardation: (1) significantly subaverage general intellectual functioning;
As in Doorbal and Wyatt, the information sought had been available to the defendant, and the length of the requested continuance was unknown. Snelgrove made this motion on the first day of jury selection on his second penalty phase. Snelgrove was permitted to undergo IQ testing at this stage to satisfy the first prong. After Snelgrove received the results, he renewed his motion on the third day of jury selection and requested an indefinite period of additional time to conduct mental retardation investigation on the second and third prongs. The trial court denied the motion on the basis that mental retardation as a bar to execution could be proven at any time prior to sentencing.
In any event, Snelgrove was not unduly prejudiced by the trial court’s decision against giving him additional time to investigate mental retardation prior to the conclusion of the penalty phase. See Israel v. State,
Accordingly, the trial court did not abuse its discretion in denying Snelgrove’s motion for continuance.
B. Trial Court’s Finding that Snelgrove Was Not Mentally Retarded
Snelgrove argues that the trial court erred by finding that Snelgrove was not mentally retarded.
Florida law includes a three-prong test for mental retardation as a bar to imposition of the death penalty. See § 921.137(1), Fla. Stat. (2009); Fla. R.Crim. P. 3.203; Nixon v. State,
Here, there was competent, substantial evidence to support the trial court’s finding that Snelgrove is not mentally retarded. See Franqui,
Second, competent, substantial evidence supports the conclusion that Snelgrove failed to demonstrate deficits in adaptive behavior. See Dufour,
Finally, there was competent, substantial evidence to support the trial court’s finding regarding the age of manifestation. Though the school records indicated academic problems beginning prior to age 18, Snelgrove offered no evidence to explain them or his placement in ESE/EMO classes. In the absence of records, Snel-grove and the prosecution offered conflicting expert testimony regarding why a child may receive such a designation.
Accordingly, we affirm the trial court’s mental retardation determinations.
C. Snelgrove’s Statement to Law Enforcement
Snelgrove argues that the trial court erred in allowing the prosecution to present a videotape of Snelgrove’s interrogation in rebuttal to Snelgrove’s mental health evidence.
Section 921.141(1), Florida Statutes (2008), “provides ‘wide latitude ... in admitting penalty-phase evidence.’ ” Marek v. State,
evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (5) and (6). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.
§ 921.141(1), Fla. Stat. A trial court’s admission or exclusion of evidence under section 921.141 is reviewed for abuse of discretion. Miller v. State,
Here, the videotape of Snelgrove offering an alternative account of his whereabouts and the cause of his injury provided evidence to rebut expert testimony in support of the impaired capacity mitigator because it demonstrated that Snelgrove knew right from wrong and was capable of taking logical steps to deceive law enforcement. See Abdool v. State,
Accordingly, the trial court did not abuse its discretion in allowing the prosecution to present the videotape of Snel-grove’s statement to law enforcement.
D. Instructions Concerning Jury’s Advisory Role
Snelgrove argues that the trial court’s instruction improperly advised the jury on its role in issuing an advisory sentence and that the prosecution improperly urged jurors to follow the allegedly erroneous instruction. He argues that the trial court should have given his requested instruction that the jury was “never required to recommend a sentence of death.” We disagree.
“[F]ailure to give special jury instructions does not constitute error where the instructions given adequately address the applicable legal standards.” Coday v. State,
Here, the trial court declined to give Snelgrove’s requested instruction and instead instructed the jury as follows:
The sentence that you recommend to this Court must be based on the facts you find from the evidence and the law. You should weigh the aggravating circumstances against the mitigating circumstances, and your advisory sentence ... must be based on these considerations.
The trial court did not err because it provided instructions substantially tracking this Court’s approved instruction at that time and adequately addressed the role of the penalty-phase jury. See Phillips v. State,
Accordingly, the trial court did not err in instructing the jury on its role.
E. Cross-examination of Dr. Berland and Dr. Edwards
Next, Snelgrove argues that the trial court erred in allowing the prosecution to cross-examine his mental health experts, Drs. Berland and Edwards, regarding their knowledge of the facts surrounding the murders. Specifically, he claims that the prosecution improperly questioned Dr. Berland as to whether he had reviewed a statement from an inmate to whom Snelgrove confessed and Dr. Edwards as to whether Snelgrove disclosed
“The facts and data relied upon in forming the expert’s opinion may be explored on cross-examination.” Charles W. Ehrhardt, Florida Evidence § 702.5 (2011 ed.); see also § 90.705(1), Fla. Stat. (2008) (“On cross-examination the expert shall be required to specify the [underlying] facts or data.”). The trial court also has the discretion to permit cross-examination into additional matters. § 90.612(2), Fla. Stat. (2008); see Boyd v. State,
With respect to the cross-examination of the defense’s penalty-phase expert, this Court has stated that “it is proper for a party to fully inquire into the history utilized by the expert to determine whether the expert’s opinion has a proper basis.” Parker v. State,
Here, the trial court did not abuse its discretion in allowing the prosecution to question Snelgrove’s experts because the questions properly explored the bases of the experts’ opinions. See Parker,
Accordingly, the trial court did not abuse its discretion in declining to limit the scope of the prosecution’s cross-examination.
F. Jury Instructions and Prosecutorial Comment on Victim Impact Evidence
Snelgrove argues that the trial court abused its discretion in denying his proposed instruction regarding victim impact evidence. He also argues that the prosecutor delivered an improper argument regarding the victim impact evidence and that the argument, together with the in
“[Fjailure to give special jury instructions does not constitute error where the instructions given adequately address the applicable legal standards.” Coday,
Here, the trial court did not err because the instruction as given adequately addressed the applicable legal standards. See Coday,
Snelgrove also challenges as improper the comments made by the prosecutor in closing arguments that Mr. Fowler was a World War II veteran and that Mrs. Fowler was a “wife of a lifetime.” Because there was no contemporaneous objection to the comments, Snelgrove must demonstrate that there was fundamental error. See Hayward v. State,
In this case, the prosecutor’s comment does not rise to the level of fundamental error because the comment was brief and merely summarized victim impact information already in evidence. This Court has held that similar arguments were permissible statements showing the victim’s uniqueness as an individual. See, e.g., Orme v. State,
Because the trial court did not abuse its discretion in instructing the jury on victim impact evidence and because the prosecutor made permissible comments at closing argument, we find no reversible error.
G. Consideration and Weight Given to Aggravators and Mitigators
Snelgrove makes numerous claims of trial court error in the sentencing order. For the reasons that follow, however, we reject these claims.
This Court has explained that
[ t]he weight to be given aggravating factors is within the discretion of the trial court, and it is subject to the abuse of discretion standard. Sexton v. State,775 So.2d 923 , 934 (Fla.2000). “[Discretion is abused only where no reasonable man would take the view adopted by the trial court.” Huff v. State,569 So.2d 1247 , 1249 (Fla.1990) (quoting Canakaris v. Canakaris,382 So.2d 1197 , 1203 (Fla.1980)). We affirm the weight accorded an aggravator if based on compe*258 tent, substantial evidence. Sexton,775 So.2d at 934 .
Buzia v. State,
[ t]he Court in Campbell v. State,571 So.2d 415 (Fla.1990), established relevant standards of review for mitigating circumstances: 1) Whether a particular circumstance is truly mitigating in nature is a question of law and subject to de novo review by this Court; 2) whether a mitigating circumstance has been established by the evidence in a given case is a question of fact and subject to the competent substantial evidence standard; and finally 3) the weight assigned to a mitigating circumstance is within the trial court’s discretion and subject to the abuse of discretion standard.
Blanco v. State,
1. Weight given to community control aggravator
First, Snelgrove argues that the trial court should have assigned less weight to this aggravator because community control was imposed for a nonviolent offense that did not merit a prison sentence. In weighing the aggravator, the trial court explicitly considered the nature of the underlying offense and concluded, “Because this offense was non-violent in nature, the Court gives it little to some weight.” Accordingly, the trial court did not abuse its discretion in assigning “little to some weight” to the community control aggravator. See Buzia,
2. Weight given to prior violent felony aggravator
Next, Snelgrove argues that the trial court erred in assigning “great weight” to the prior violent felony aggra-vator because the prior violent felony was a contemporaneous murder and because Snelgrove had, up to the time of the murders, lived a “violence-free life.” The trial court did not abuse its discretion in assigning great weight to this aggravator. See Frances v. State,
3.Improper doubling
Next, Snelgrove argues that the trial court erred by improperly doubling the HAC and victim vulnerability aggrava-tors. We disagree.
This Court has explained that
[ i]mproper doubling occurs when both aggravators rely on the same essential feature or aspect of the crime. Provence v. State,337 So.2d 783 , 786 (Fla.1976). However, there is no reason why the facts in a given case may not support multiple aggravating factors so long as they are separate and distinct aggra-vators and not merely restatements of each other, as in murder committed during a burglary or robbery and murder for pecuniary gain, or murder committed to avoid arrest and murder committed to hinder law enforcement. Echols v. State,484 So.2d 568 , 575 (Fla.1985); see, e.g., Davis v. State,604 So.2d 794 , 798 (Fla.1992) (improper doubling where murder was found to be both committed during the course of a burglary and for pecuniary gain where purpose of burglary was pecuniary gain).
Banks v. State,
Accordingly, there was no improper doubling in this case.
4.Weight given to drug addiction
Snelgrove claims that the trial court erred in rejecting or giving little weight to the fact that, at the time of the murders, Snelgrove craved crack cocaine and was controlled by his addiction to the drug. However, contrary to Snelgrove’s assertion, the trial court gave “significant weight” to a nonstatutory mitigator entitled “Defendant had a long history of drug addiction.” In making this finding, the trial court indeed recognized that Snel-grove’s “drug addiction played a role in the crimes committed” and that Snelgrove had “unsuccessfully sought treatment” in the past. Significantly, Snelgrove’s addiction to and use of drugs prior to commission of the murder also formed the sole basis for the statutory mitigator of extreme mental or emotional disturbance, given “significant weight.” Accordingly, the trial court did not abuse its discretion.
5. Full consideration of evidence to support mental or emotional disturbance
Next, Snelgrove argues that, in its finding on the extreme mental or emotional disturbance mitigator, the trial court failed to consider the irresistible impact of Snel-grove’s addiction, the recent death of Snel-grove’s parents, and Snelgrove’s biological brain damage. Again, contrary to Snel-grove’s assertions, the trial court explicitly considered all of the evidence referenced by Snelgrove. Evidence of Snelgrove’s drug addiction supported the extreme mental or emotional disturbance mitigator (significant weight) and the “long history of drug addiction” mitigator (significant weight). His parents’ deaths supported a separate nonstatutory mitigator entitled “The death of David Snelgrove’s parents greatly impacted the Defendant” (some weight). And the evidence on Snelgrove’s biological brain damage supported a non-statutory mitigator noting “abnormal brain function” and “somewhat limited level of intelligence” (some weight). Accordingly, the trial court did not abuse its discretion.
6. Rejection of impaired capacity miti-gator
Finally, Snelgrove argues that the trial court erred in rejecting the statutory mitigator that Snelgrove’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
As explained in Durousseau v. State,
[ t]his Court will not disturb a trial court’s rejection of a mitigating circumstance if the record contains competent, substantial evidence to support the trial court’s rejection of the mitigation. See Spencer v. State,645 So.2d 377 , 381, 385 (Fla.1994); Nibert v. State,574 So.2d 1059 , 1062 (Fla.1990). There must be a rational basis for the trial court’s rejection of such mitigation at a capital sentencing proceeding. Lebron v. State,982 So.2d 649 , 660 (Fla.2008)....
We have articulated a distinction between factual evidence and opinion testimony. ... “[C]ertain kinds of opinion testimony clearly are admissible — and especially qualified expert testimony— but they are not necessarily binding even if uncontroverted. Opinion testimony gains its greatest force to the degree it is supported by the facts at hand, and its weight diminishes to the degree such support is lacking.” Walls [v. State,641 So.2d 381 , 390-91 (Fla.1994) ].
With regard to the impaired capacity mitigator, “[t]his Court has previously upheld rejection of this statutory mitigating factor where a defendant ‘took logical steps to conceal his actions from others.’ ” Zommer,
Here, there is competent, substantial evidence to support rejection of the impaired capacity mitigator. There was evidence that, after committing the murders, Snel-grove washed off the blood, hid his clothes in the attic, and lied to law enforcement about committing the murders. Such evidence demonstrated that Snelgrove was capable of taking logical steps to conceal his actions from others. See Abdool,
Accordingly, we affirm the trial court’s rejection of the impaired capacity miti-gator.
III. PROPORTIONALITY
Although Snelgrove did not challenge the proportionality of the death sentence, “proportionality of the death sentence is an issue that this court must review in every death penalty case.” Orme v. State,
This Court is required to review the proportionality of a death sentence “in order to prevent the imposition of unusual punishments under the Florida Constitution.” Phillips,
In this case, the jury recommended, in separate 8-4 votes, the death sentence for each murder. The trial court found five aggravators applicable to each of the two murders: (1) commission while on community control (little to some weight); (2) prior violent felony (great weight); (3) commission during robbery and/or burglary, merged with pecuniary gain (significant weight); (4) HAC (great weight); and (5) the victim was particularly vulnerable (significant weight). “[T]he heinous, atrocious, or cruel aggravator is one of the ‘most serious aggravators set out in the statutory sentencing scheme.’” Aguirre-Jarquin v. State,
This case is comparable to numerous other cases involving similar aggravators and similar or weightier mitigators. See Aguirre-Jarquin,
Accordingly, we conclude that the death sentence is proportionate in this case.
IV. CONCLUSION
For the reasons expressed above, we affirm Snelgrove’s sentences of death for the murders of Glyn and Vivian Fowler.
It is so ordered.
Notes
. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
N.3. In the attic of the Snelgrove home, the police discovered a bag with two bloody t-shirts. The bag smelled of ammonia. Blood samples from the t-shirts matched Snelgrove’s DNA profile. Two pairs of blood-stained shorts were also found in the Snelgrove home. Blood samples from the shorts revealed a mixture of DNA: Snelgrove was determined to be the primary contributor; the testing was unable to exclude Jeff McCrae as a possible secondary contributor.
. In preparation for his first trial, Snelgrove completed the revised Weshler Adult Intelligence Scale (WAIS-R) test and scored a 78, within the "borderline range of intellectual functioning" and above the retarded range.
. On cross-examination, Dr. Berland clarified that he did not seek any information from Snelgrove or law enforcement regarding the crime and did not have the information necessary to form a causal link between Snel-grove’s psychosis and the crime.
. Spencer v. State,
. This Court has "consistently interpreted this definition to require a defendant seeking exemption from execution to establish he has an IQ of 70 or below." Nixon v. State,
. This evidence was considered by the trial court and ultimately supported a mitigator on Snelgrove’s "somewhat limited level of intelligence.”
. In a related claim, Snelgrove argues that Florida’s mental retardation standard is unconstitutional. However, we have repeatedly rejected Snelgrove's argument that a firm IQ cut-off score of 70 or below is unconstitutional, see, e.g., Franqui v. State,
. In its order rejecting the mental retardation claim, the trial court found the expert for the prosecution to offer the more credible explanation — that Snelgrove was likely tested and determined not to be retarded because it would have been illegal to place a retarded child in EMO classes.
. Snelgrove also argues that the prosecution committed a discovery violation by providing the redacted video late in the trial and that he should have received a continuance in order to review the video. But it is undisputed that Snelgrove received a copy of the video without redactions at the original trial, reviewed the redacted version prior to its introduction, and was given additional time to view the video in and out of court and to prepare for its introduction. Snelgrove has waived his claim that the video was "materially changed” by the redactions because Snel-grove failed to offer any argument to support this assertion, either to this Court or to the trial court. See Kearse v. State,
. Snelgrove also argues that the trial court should have considered, for puiposes of the impaired capacity mitigator, evidence of brain damage, impulse control problems, biological brain malfunction, and low IQ. In fact, the trial court did consider this information; in its sentencing order, the trial court discussed Snelgrove’s mental problems, "abnormal brain function,” and "limited intelligence,” yet found that these problems did not substantially impair Snelgrove's capacity. Additionally, there was no testimony describing the relationship of this evidence to Snel-grove’s capacity.