In counterbalance, the State has conceded that Santos' case exhibits two of the weightiest mitigating factors — those establishing substantial mental imbalance and loss of psychological control. We also find (as the State concedes) that under Scull v. State, 533 So.2d 1137, 1143 (Fla. 1988), cert. denied, 490 U.S. 1037, 109 S.Ct. 1937, 104 L.Ed.2d 408 (1989), the trial court should have found in mitigation that Santos had no prior history of criminal conduct. As noted in Scull, this mitigating factor must be found if a defendant had no significant history of criminal activity prior to the transaction in which the instant murder occurred.
The pecuniary gain aggravator is also applicable where the defendant's motivation for murder was to "improv[e his] financial worth." Allen v. State, 662 So. 2d 323, 330 (Fla. 1995); see Scull v. State, 533 So. 2d 1137, 1142 (Fla. 1988); Peek, 395 So. 2d at 499. This Court has consistently found the pecuniary gain aggravating circumstance applicable in cases where the murder was committed during the forcible taking of an automobile.
The pecuniary gain aggravator is also applicable where the defendant's motivation for murder was to "improv[e his] financial worth." Allen v. State, 662 So.2d 323, 330 (Fla. 1995); see Scull v. State, 533 So.2d 1137, 1142 (Fla. 1988); Peek, 395 So.2d at 499. This Court has consistently found the pecuniary gain aggravating circumstance applicable in cases where the murder was committed during the forcible taking of an automobile.
" Nonetheless, Beasley argues that his sentence is disproportionate, likening his case to DeAngelo v. State, 616 So.2d 440 (Fla. 1993),Songer v. State, 544 So.2d 1010 (Fla. 1989), andScull v. State, 533 So.2d 1137 (Fla. 1988). However, unlike the sentencing order in Scull (which this Court found to be "replete with error"), here the trial court's order reflects that it properly considered all of the evidence, and made a determination concerning the weight to be given to each factor, consistent with the dictates of Campbell.
To establish the pecuniary gain aggravating circumstance, the State must prove a pecuniary motivation for the murder. Hill v. State, 549 So.2d 179, 183 (Fla. 1989); Scull v. State, 533 So.2d 1137, 1142 (Fla. 1988), cert. denied, 490 U.S. 1037, 109 S.Ct. 1937, 104 L.Ed.2d 408 (1989). We agree with Allen that the taking of Cribbs' car would not support the finding of pecuniary gain.
During closing argument, the prosecutor urged the jury to reject the mitigating factor of no significant prior history of criminal activity because Lucas had been convicted of two counts of attempted first-degree murder. In Scull v. State, 533 So.2d 1137, 1143 (Fla. 1988), cert. denied, 490 U.S. 1037, 109 S.Ct. 1937, 104 L.Ed.2d 408 (1989), we stated that "we do not believe that a `history' of prior criminal conduct can be established by contemporaneous crimes" and receded from our holding in Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981), to the contrary. While such an argument should not be made now, it could be made at the time of Lucas' resentencing.
The Florida Supreme Court has affirmed decisions of trial courts not to strike jury pools after some prospective jurors heard potentially prejudicial statements when the trial court evaluated each juror's ability to be impartial, which can cure any potential prejudice. See Occhicone v. State, 570 So. 2d 902, 904 (Fla. 1990) (a jury pool was not tainted by a spectator telling a prospective juror she thought a defendant was guilty); see also Street v. State, 636 So. 2d 1297, 1302 (Fla. 1994) (jurors heard a passerby utter the word "guilty" and under later questioning each juror said the comment did not affect his or her ability to be fair and impartial); see also Scull v. State, 533 So. 2d 1137, 1141 (Fla. 1988) (prejudice that might have occurred when jurors witnessed the jury foreman embrace defendant's mother was cured by dismissing the foreman and asking each juror whether he or she would be influenced by the event). The standard for proving ineffective assistance of counsel sets a high bar for Petitioner to overcome.
" (Doc. #16, Exh. C4, p. 744.) Petitioner asserts that while the argument may not have been improper under Florida law at the time of the closing argument, a subsequent decision, Scull v. State, 533 So. 2d 1137 (Fla. 1988), renders the argument improper and must be applied retroactively pursuant to Wheeler v. State, 344 So. 2d 244, 245 (Fla. 1977). The Florida Supreme Court held that while under Scull the argument was no longer available, it was an argument that could be asserted at the time of Petitioner's 1987 resentencing.
A trial court may not factor a contemporaneous conviction into the "no significant history" mitigator. Scull v. State, 533 So.2d 1137, 1143 (Fla. 1988) (holding that a history of prior criminal conduct cannot be established by contemporaneous crimes). Ramirez, which the trial court cited, says nothing to the contrary.
v. State, 601 So.2d 1157, 1162–63 (Fla.1992) ; Maggard v. State, 399 So.2d 973, 977 (Fla.1981) ). Cf. Scull v. State, 533 So.2d 1137, 1143 n. * (Fla.1988) (finding no sentencing error when the trial judge was aware of, but did not consider, inadmissible victim impact evidence). Such comments, when heard by the jury, are not harmless because they create a serious risk that the inadmissible statements affected the advisory sentence.