Opinion
No. SC88638.
Opinion filed February 3, 2000.
An Appeal from the Circuit Court in and for Dade County, Norman S. Gerstein, Judge — No. F90-36048.
Roy D. Wasson, Miami, Florida, for Appellant.
Robert A. Butterworth, Attorney General, and Fariba N. Komeily, Assistant Attorney General, Miami, Florida, for Appellee.
Jesus Delgado appeals his convictions on two counts of first-degree murder and the judgment of the trial court imposing a sentence of death on each count. In addition, appellant challenges his conviction of armed burglary. We have jurisdiction pursuant to article V, section 3(b)(1), of the Florida Constitution. We affirm appellant's two first-degree murder convictions and the sentence of death for the murder of Violetta Rodriguez. However, we reverse the conviction of armed burglary. Finally, we remand to the trial court for the imposition of a life sentence for the murder of Tomas Rodriguez.
I. Factual Background
The trial record establishes the following facts. Marlene McField was a neighbor of Tomas and Violetta Rodriguez, the victims in this case. In the early evening hours of August 30, 1990, Ms. McField witnessed the Rodriguezes arrive home. Later, at around 10 p.m., Ms. McField remembered hearing dogs in the home directly behind the Rodriguezes' home wailing in an unusual fashion.
The following morning, Ms. McField went to the Rodriguezes' home and noticed that the gate leading to the Rodriguezes' front porch was ajar; the key was still in the lock on the inside portion of the gate. Ms. McField removed the key from the gate and entered the front porch area. She then rang the doorbell, but no one answered. Knowing that the Rodriguezes were extremely security-conscious people, Ms. McField became suspicious and summoned the police.
When the police arrived, they discovered that the front door was unlocked. The first officer on the scene did not notice any sign of a forced entry. Inside, police secured the bedrooms and living room area first. Nothing in those areas indicated anything unusual. As the police moved toward the kitchen, they noticed a bloodstained knife and a pistol lying on the floor.
The kitchen, utility room, and garage did exhibit signs of a possible struggle. The utility room connects the kitchen and the garage. A wooden door leading from the utility room into the garage was cracked in the center and its hinges were broken. Mr. Rodriguez's body was discovered next to this door, just inside the garage. Ms. Rodriguez's body was also discovered in the garage; it was wedged between a car and the garage wall.
In the kitchen, two cabinet drawers were open. The knife which police found was similar to a set found in one of the open kitchen drawers. A single set of bloody shoe-print impressions led from the garage into the kitchen and up to these drawers. Mr. Rodriguez was found without shoes and the soles of Ms. Rodriguez's slippers did not match the bloody impressions.
The pistol found next to the knife, a .22 caliber Ruger semiautomatic, was equipped with a silencer. Police could not trace the pistol because its serial number had been removed. Police did recover six .22 caliber shell casings that were later determined to have been fired from the Ruger. No other .22 caliber ammunition was found at the home. Police also found a .38 caliber revolver, which belonged to Mr. Rodriguez, in a zippered pouch inside a closed cabinet in the master bedroom. Testing on the revolver revealed it had not been fired. The State presented an expert who testified that tests performed on the victims' hands indicated that neither had triggered a firearm.
The medical examiner testified that Mr. Rodriguez sustained three bullet wounds to his chest. These rounds were fired from the Ruger at a distance of less than three feet. One of these shots severed Mr. Rodriguez's spinal cord, immediately paralyzing him. Mr. Rodriguez also suffered two bullet wounds to his right thigh. The medical examiner was not able to testify with reasonable medical certainty as to whether a wound to Mr. Rodriguez's scrotum was an entrance or an exit wound. In addition to the five or six bullet wounds, Mr. Rodriguez suffered five stab wounds to his neck and chest area. The stab wounds were inflicted after the bullet wounds, and some were inflicted postmortem.
Ms. Rodriguez suffered ten blunt force trauma wounds to her head and shoulder area, the probable result of a pistol whipping. Four of these wounds resulted in skull fractures. One of these skull fractures was so severe that it pushed her skull bone back into her brain. In addition to being severely beaten, Ms. Rodriguez sustained twelve stab wounds, five of which were to her chest. The medical examiner testified that a number of these wounds were defensive in nature. None of Ms. Rodriguez's wounds were inflicted postmortem.
A single drop of only appellant's blood was found in the garage. A mixture of appellant's and the victims' blood was found in the garage, on the handgun, at the base of the kitchen phone that hung from a wall, and on the kitchen phone itself. Appellant's palm print was discovered on the kitchen phone. The police determined that the last call on this phone was made to Barbara Lamellas' home, where appellant resided at the time.
In addition to the physical evidence gathered from the scene, police learned that appellant and the Rodriguezes knew each other and had recently experienced difficulties as a result of a business transaction between the Rodriguezes and Horatio Lamellas. In June of 1990, the Rodriguezes sold their dry cleaning business to Horatio Lamellas. After the purchase, Barbara Lamellas, Horatio Lamellas' daughter, and appellant, Ms. Lamellas' boyfriend, ran the business.
Maria Hernandez worked at the dry cleaning business before and after the sale to Mr. Lamellas. Ms. Hernandez testified that after the sale she observed appellant complaining that the machines were not working properly and about dissatisfied customers. According to Ms. Hernandez, appellant stated that the Rodriguezes had "tricked him with the machines, and the business they had sold them." Ms. Hernandez stated that while the Rodriguezes were in charge, business was steady and the machines worked well.
Based on this information regarding the dry cleaning business and the evidence found at the home, appellant became a suspect. Appellant was not located and apprehended by police until December 23, 1992, more than two years after the murders.
On July 27, 1993, a grand jury indicted appellant on two counts of first-degree murder and one count of armed burglary. The petit jury found appellant guilty on all counts. After a penalty-phase proceeding, the same petit jury recommended by a seven-to-five vote that appellant be sentenced to death for the murder of Mr. Rodriguez and by a vote of twelve to zero that appellant be sentenced to death for the murder of Ms. Rodriguez. Regarding Mr. Rodriguez, the trial court found two aggravating circumstances: prior violent felony and murder committed during an enumerated felony (armed burglary). Regarding Ms. Rodriguez, the court found three aggravating circumstances: prior violent felony, murder committed during an enumerated felony (armed burglary), and heinous, atrocious, or cruel (HAC). The court found no statutory mitigation. The court found the following nonstatutory mitigation: Appellant suffered from serious life- long physical and psychological impairments (limited weight); appellant was a physically and emotionally battered child (substantial weight); appellant never used drugs (some weight); appellant's father was sentenced in 1989 to thirty years in federal prison for drug trafficking (some weight); appellant loves his family (moderate weight); appellant has had little contact with his mother since 1990 (little weight); appellant has the capacity to work hard and other fine qualities (some weight); and appellant's excellent behavior throughout trial (some weight). After weighing the relevant factors, the court sentenced appellant to death for each murder and to life for the armed burglary.
II. Discussion
Appellant raises fourteen issues on appeal. We find that several subissues raised within issue nine and that issues ten and fourteen lack merit, and therefore we dispose of them with little or no discussion. Having disposed of these issues, we turn to the remainder of appellant's claims.
Appellant's issues are as follows: (1) whether the trial court erred in denying appellant's motion for a judgment of acquittal on the felony murder charges; (2) whether the trial court erred in denying appellant's motion for mistrial after the State commented on appellant's failure to testify and attempted to shift the burden of proof; (3) whether the trial court erred in denying appellant's motion for judgment of acquittal on the premeditated murder charges; (4) whether the trial court erred in excusing qualified prospective jurors; (5) whether the trial court erred in admitting certain photographic evidence; (6) whether the trial court failed to provide appellant with a competent mental examination; (7) whether the trial court failed to follow the procedure required when a defendant waives mitigation evidence; (8) whether the trial court erred in failing to grant appellant's motion for mistrial after the State made improper remarks during its penalty-phase closing argument; (9) whether the trial court erred in its instructions to appellant's penalty-phase jury; (10) whether the trial court erred in allowing victim impact evidence to be presented to the jury; (11) whether death is a disproportionate sentence; (12) whether the trial court erred in failing to assign adequate weight to mitigating evidence; (13) whether the cumulative effect of the errors denied appellant a fundamentally fair proceeding; and (14) whether the death penalty is unconstitutional.
Within his ninth issue, appellant raises the following subissues, which we reject as being without merit: (1) whether the trial court erred in giving a jury instruction on the cold, calculated, and premeditated (CCP) and HAC aggravating factors,see Banks v. State, 700 So.2d 363, 365 (Fla. 1997); Hunter v. State, 660 So.2d 244, 252 (Fla. 1995); (2) whether the trial court erred by not instructing the jury that it would impose consecutive life sentences if the jury recommended a life sentence, see Walker v. State, 707 So.2d 300, 314-15 (Fla. 1997), and Nixon v. State, 572 So.2d 1336, 1344 (Fla. 1990); (3) whether the trial court erred by instructing the jury that the responsibility of sentencing appellant rested solely with the court,see Burns v. State, 699 So.2d 646, 654 (Fla. 1997); (4) whether the trial court should have given appellant's proposed jury instruction regarding the nonstatutory mitigation,see Davis v. State, 698 So.2d 1182, 1192 (Fla. 1997); and (5) whether the trial court erred in refusing to instruct the jury on several statutory mitigators, see Geralds v. State, 674 So.2d 96, 101 (Fla. 1996), andBryant v. State, 601 So.2d 529, 533 (Fla. 1992). Further, we find appellant's claim that the trial court erred in refusing to instruct the jury on imperfect self-defense as a defense to the CCP aggravating circumstance to be procedurally barred.
We find appellant's claim regarding the victim impact evidence to be without merit. See Windom v. State, 656 So.2d 432, 438 (Fla. 1995); Davis v. State, 703 So.2d 1055, 1060 (Fla. 1997).
Appellant's claim in issue fourteen, that the death penalty statute is unconstitutional or that electrocution is cruel or unusual punishment, is also without merit. See Fotopoulos v. State, 608 So.2d 784, 794 n. 7 (Fla. 1992) (upholding the constitutionality of the death penalty statute); Provenzano v. State, 24 Fla. L. Weekly S443 (Fla. Sept. 24, 1999) (electrocution is not cruel or unusual punishment).
A. Motion for Judgment of Acquittal
We deal first with appellant's claim that the trial court erred in denying his motion for judgment of acquittal on the charges of first-degree murder. After the State rested its case-in-chief, defense counsel moved the court for a judgment of acquittal on all counts of first-degree murder. Counsel argued that the State's theory of felony murder was flawed and therefore should not be presented to the jury and that the State had failed to introduce sufficient evidence of premeditation. The court denied the motion, allowing the State to argue both felony murder and premeditation in support of the first-degree murder charges.
1. Felony Murder
Appellant's first contention is that the State's theory of felony murder should not have been presented to the jury. We agree. The underlying felony that supported the State's case for felony murder was burglary. Regarding the burglary, the indictment stated that appellant entered or remained in the victims' dwelling with the intent to commit murder.
The State prosecuted this case on the premise that appellant's entry into the victims' home was consensual (i.e., appellant was invited to enter the victims' home) but that at some point, this consent was withdrawn. Section 810.02(1), Florida Statutes (1989), states:
Burglary means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
(Emphasis added.) This Court has construed the consent clause (beginning with "unless") to be an affirmative defense to burglary. See State v. Hicks, 421 So.2d 510 (Fla. 1982). Thus, the burden is on the defendant to establish that there was consent. See id. The defendant can establish that: (1) the premises were open to the public, (2) the defendant was a licensee, or (3) the defendant was an invitee.
Recently, in Miller v. State, 733 So.2d 955, 957 (Fla. 1999), this Court held "that if a defendant can establish that the premises were open to the public, then this is a complete defense." We now conclude that our holding inMiller should be extended to cover invitees and licensees. That is, if a defendant can establish either that the premises were open to the public or that the defendant was an invitee or licensee, then the defendant has a complete defense to the charge of burglary. After examining the origins of the crime of burglary, we conclude that this is necessary to fulfill the purpose for which the crime of burglary was intended.
At common law, burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. See Model Penal Code, § 221.1 cmt.1 at 61 (1980). The commentary to the Model Penal Code explains that the crime of burglary developed due to an effort to compensate for defects in the common law crime of attempt.See id. at 62-63.
Over time, the definition of burglary has been expanded as a result of judicial interpretation and legislation. The following definition of burglary was approved in 1962 for the Model Penal Code:
(1) Burglary Defined. A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. It is an affirmative defense to prosecution for burglary that the building or structure was abandoned.
Id. § 221.1(1) 60-61. The commentary explains that this definition attempted to limit the reach of the crime:
The offense has thus been limited in the Model Code to the invasion of premises under circumstances especially likely to terrorize occupants. Most of the extensions of the offense that have been added by legislation over the years have been discarded.
Id. cmt.2 at 67 (emphasis added).
The comment also addresses the concept of unprivileged entry. The comment urges those states that have adopted the concept of "remaining in" within their statutes to limit the language to narrow circumstances involving a suspect who surreptitiously remains in premises after consensual entry:
There is a difficulty with the ["remains unlawfully"] language, however, that should lead to its rejection. As the Brown Commission pointed out, it literally would include "a visitor to one's home . . . who becomes involved in an argument with his host, threatens to punch him in the nose, and is asked to leave; if he does not leave, but continues his threatening argument, he would . . . be guilty of burglary." For this reason, the Final Report of the Brown Commission included in the burglary offense one who entered or "surreptitiously" remained without license or privilege.
Id. cmt.3(a) at 68-71 (emphasis added)(footnote omitted). Other scholars agree that the "remaining in" language found in some state statutes should have limited application:
This common statutory expansion in the definition of burglary makes great sense. A lawful entry does not foreclose the kind of intrusion burglary is designed to reach, as illustrated by the case of a bank customer who hides in the bank until it closes and then takes the bank's money. Moreover, this expansion forecloses any argument by a defendant found in premises then closed that he had entered earlier when they were open. But for this expansion not also to cover certain other situations in which the unlawful remaining ought not be treated as burglary, it is best to limit the remaining-within alternative to where that conduct is done surreptitiously.
2 Wayne R. LaFave Austin W. Scott, Jr., Substantive Criminal Law, § 8.13(b) at 468 (1986) (citations omitted); see also 2 Working Papers of the National Commission on Reform of Federal Criminal Laws 894 (1970), quoted in 3 Charles E. Torcia,Wharton's Criminal Law § 329, at 198 n. 29 (14th ed. 1980).
Working Papers states:
When a person comes onto property by lawful means, he remains criminally accountable only for the acts he thereafter performs on the property, but his entry in itself imposes no special terror or invasion of privacy on the property holder so as to render the culprit guilty of burglary.
Id.
New York, like Florida, has included the "remaining in" language within its burglary statute. See N.Y. Penal Law § 140.00(5) (McKinney 1999). A review of New York case law reveals that the statute is being interpreted consistent with the commentary of the Model Penal Code. In People v. Hutchinson, 477 N.Y.S.2d 965, 968 (Sup. Ct. 1984),aff'd, 503 N.Y.S.2d 702 (App. Div. 1986), appeal denied, 498 N.E.2d 156 (N.Y. 1986), the court held that once a person is lawfully on the premises, "there must be something more to establish termination of license than the commission of a criminal act or an order to leave after a criminal intention is manifested." The State argued that a defendant violated this statute when he entered a private home with permission but subsequently pulled a knife on the owner. The State reasoned that upon pulling the knife, any consent was automatically revoked. The court rejected this argument and reasoning, holding that if a criminal defendant entered with consent, his subsequent commission of a criminal act alone could not convert a lawful entry into an unlawful remaining sufficient to sustain a burglary charge. The court stated:
[The State's] reasoning impermissibly broadens the scope of liability for burglary, making a burglar of anyone who commits a crime on someone else's premises. It erroneously merges two separate and independent elements that must coexist to establish burglary: First, the trespassory element of entry or remaining without license or privilege; Second, intent to commit a crime. An intrusion without license or privilege (unlawful entry) is the distinguishing element, the essence of burglary. It must be established separately and distinctly from the intention to commit a crime. The mere fact that a crime was committed or was intended is an insufficient basis for finding that the entry or remaining was without privilege or authority.
Id. at 967. The court recognized that the State was improperly using the criminal act to prove both intent and revocation of license or privilege. The court further stated:
If this jury concludes that the defendant was in the complainant's apartment with genuine license, that is, with her consent obtained without deceit, the fact that he was unwelcome after he pulled the knife does not convert his licensed entry into an unlawful remaining. His licensed presence there is not revoked by the commission of a criminal act.
Id. at 968. In People v. Gaines, 546 N.E.2d 913, 915 (N.Y. 1989), the court addressed the addition of the "remains unlawfully" language in the New York statute, and stated that "the Legislature was plainly addressing a different factual situation-not one of unlawful entry but of unauthorized remaining in a building after lawful entry (as a shoplifter who remains on the store premises after closing)."
The issue for this Court to consider is whether the phrase "remaining in" found in Florida's burglary statute should be limited to situations where the suspect enters lawfully and subsequently secretes himself or herself from the host. Up until now, Florida courts have refused to make such a limiting interpretation. In Ray v. State, 522 So.2d 963, 965 (Fla. 3d DCA 1988), the Third District Court of Appeal developed the idea that consent can be withdrawn: "Otherwise stated, once consensual entry is complete, a consensual `remaining in' begins, and any burglary conviction must be bottomed on proof that consent to `remaining in' has been withdrawn."
We agree with much of the Third District Court's reasoning, particularly the statement that "[i]t is undeniably true that a person would not ordinarily tolerate another person remaining in the premises and committing a crime, and that when a victim becomes aware of the commission of a crime, the victim implicitly withdraws consent to the perpetrator's remaining in the premises." Id. at 966. Yet, after coming to this conclusion, the Third District Court would still require the State to produce circumstantial evidence to establish that consent has been withdrawn. See id. at 967 ("Therefore, we agree with the State that Bryant's struggle with the defendant was sufficient evidence that she withdrew her consent to Ray's remaining in the premises, making his remaining in the premises after the withdrawal a burglary."). Such a procedure has obvious faults.
First, if we are certain that "a person would not ordinarily tolerate another person remaining in the premises and committing a crime," then it would not be logical to require the State to produce circumstantial evidence of this fact. Yet, this Court has recently followed the Ray reasoning in a number of cases to conclude that circumstantial evidence sufficiently established that consent had been withdrawn. See Raleigh v. State, 705 So.2d 1324, 1329 (Fla. 1997) (". . . ample circumstantial evidence from which the jury could conclude that [the victim] withdrew whatever consent he may have given for [the defendant] to remain when [the defendant] shot him several times and beat him so viciously that his gun was left bent, broken, and bloody"); Jimenez v. State, 703 So.2d 437, 441 (Fla. 1997) ("In the instant case, we conclude that the trier of fact could reasonably have found proof of withdrawal of consent beyond a reasonable doubt. There is ample circumstantial evidence from which the jury could conclude that [the victim] withdrew whatever consent she may have given for [the defendant] to remain, when he brutally beat her and stabbed her multiple times. . . ."); Robertson v. State, 699 So.2d 1343, 1346-47 (Fla. 1997) ("There was ample circumstantial evidence from which the jury could conclude that the victim of this brutal strangulation-suffocation murder withdrew whatever consent she may have given Robertson to be in her apartment.").
More importantly, if we make the assumption that "a person would not ordinarily tolerate another person remaining in the premises and committing a crime," and assuming that this withdrawn consent can be established at trial, a number of crimes that would normally not qualify as felonies would suddenly be elevated to burglary. In other words, any crime, including misdemeanors, committed on another person's premises would become a burglary if the owner of the premises becomes aware that the suspect is committing the crime. Obviously, this leads to an absurd result. For example, if a person hosts a party and catches an invitee smoking marijuana on the premises, the invitee is not only guilty of a misdemeanor marijuana charge but also of burglary, a second-degree felony. The same can be said of the invitee who writes a bad check for pizza in front of an aware host. The other extreme is also true. An invitee who commits second-degree murder on another person's premises and in the presence of an aware host could be charged with first-degree felony murder, with the underlying felony being burglary. The possibility exists that many homicides could be elevated to first-degree murder, merely because the killing was committed indoors.
We find persuasive the reasoning in Justice Almon's dissent in Davis v. State, 737 So.2d 480, 484-86 (Ala. 1999) (Almon, J., dissenting)(footnote omitted), wherein he stated:
[The majority's] construction [of "remains unlawfully"] has the potential to make almost every murder committed indoors a capital murder, and nearly every crime that occurs indoors can be bootstrapped into a burglary simply by the fact of the commission of the crime. . . .
. . . .
As to the burglary/murder conviction, the majority of this Court is allowing a murder conviction to be made capital by allowing a jury to draw an inference of an implied revocation of a privilege to remain. Is an inference of an implied revocation a basis on which to "`genuinely narrow' the class of persons eligible for the death penalty so that capital punishment is reserved for the most egregious crimes"? Gentry III, 689 So.2d at 917, quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235, 249-50 (1983).
The majority says that the difference between a capital crime and a noncapital murder in this context is whether there is evidence that the victim's death was "inflicted by surprise or stealth [and caused] instantaneous death," in which case the court could not submit the capital-burglary/murder charge to the jury because there would not be "circumstantial evidence of an unlawful remaining." 737 So.2d at 484. I foresee great difficulty in drawing the line between a capital-burglary/murder case, in which the inference of an implied revocation will be supported, and a noncapital case of an indoor murder, in which that inference will not be supported by the evidence. Moreover, this distinction is an inappropriate basis on which to distinguish "the most egregious crimes" from those that are not made capital.
. . . .
. . . An inference that the victim "probably" communicated a revocation of privilege is just as tenuous as an inference of an implied revocation. . . . Does the majority allow an inference that the victim told Davis to leave before he wrapped the cord around her neck, or an inference that, while he was strangling her, she somehow communicated the revocation of his privilege to remain, or does the majority simply hold that her struggle for life was an implied revocation of his privilege to be in her home?
These inferences that the majority is allowing concern me. Essentially, a defendant is being "guessed" into a capital conviction. . . . Alternatively, perhaps the majority thinks that killing a person in the victim's home should be a capital murder. However, there is no capital offense of "murder of a person in the person's home."
The question before this Court is whether the Legislature intended to criminalize the particular conduct in this case as burglary when it added the phrase "remaining in" to the burglary statute. The Third District Court in Ray correctly pointed out that some meaning must be given to the phrase "remaining in." See 522 So.2d at 967 ("Just as the consent defense must be given meaning, so must the "remaining in" alternative."). Yet, in giving meaning to the phrase "remaining in," the Third District Court has effectively wiped out the clause "unless . . . the defendant is licensed or invited to enter." Under the Third District Court's reasoning, even if a defendant was licensed or invited to enter, the moment he or she commits an offense in the presence of an aware host, a burglary is committed. Therefore, in order to give meaning to theentire burglary statute (the "remaining in" clause and the "unless" clause), the "remaining in" clause should be limited to the defendant who surreptitiously remains.
Florida's current definition of burglary was enacted in 1975. See ch. 74-383, section 31, Laws of Fla. The previous definition did not contain the "remaining in" language.See § 810.01, Fla. Stat. (1973).
The Third District Court pointed out that the word surreptitiously does not appear in the statute and that a court should not inject words into statutes that were not placed there by the Legislature. See id. at 967 ("[W]e are bound to construe our statute as written and not add to it a word — "surreptitiously" — not placed there by the Legislature."). Of course, the New York statute does not contain the word surreptitiously, yet the New York courts have concluded that the statute should be limited to such situations. Further, as demonstrated by New York's interpretation and the Third District Court's in Ray, the "remaining in" clause is subject to different interpretations. In section 775.021(1), Florida Statutes (1997), the Legislature mandated that courts use the following rule of construction:
The provisions of this [criminal] code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.
Applying this principle to the present case, the most favorable interpretation of Florida's burglary statute is to hold that the "remaining in" language applies only in situations where the remaining in was done surreptitiously. This interpretation is consistent with the original intention of the burglary statute. In the context of an occupied dwelling, burglary was not intended to cover the situation where an invited guest turns criminal or violent. Rather, burglary was intended to criminalize the conduct of a suspect who terrorizes, shocks, or surprises the unknowing occupant. Many other states that have the "remaining in" language in their burglary statutes have included the word surreptitiously or similar language in the statute.
See Me. Rev. Stat. Ann. tit. 17-A, § 401 (West 1983); N.J. Stat. Ann. § 2C:18-2 (West 1995); N.D. Cent. Code § 12.1-22-02(1) (1997); Vt. Stat. Ann. tit. 13, § 1201 (1998). See also S.C. Code Ann. § 16-11-310 (Law Co-op. Supp. 1998); Tex. Penal Code Ann. § 30.02 (West 1994); Va. Code Ann. § 18.2-90 (Michie Supp. 1999).
In the present case, there is no question that appellant was invited to enter the victims' home. At some point in time after the appellant was inside, he proceeded to commit two heinous murders. However, these actions do not amount to burglary. This is not to say that appellant has not committed a crime; he clearly has committed two murders. Nevertheless, appellant's actions are not the type of conduct for which the crime of burglary was intended to punish.
By our holding today, we recede from this Court's previous opinions in Robertson, Jimenez, andRaleigh, a decision which we do not undertake lightly. While we are aware of the importance of stare decisis, this principle must give way to common sense and logic.See Smith v. Department of Insurance., 507 So.2d 1080, 1096 (Fla. 1987) ("Perpetuating an error in legal thinking under the guise of stare decisis serves no one well and only undermines the integrity and credibility of the court.") (Ehrlich, J., concurring in part, dissenting in part). It is now apparent that the Ray doctrine leads to an absurd result. See Gray v. State, 654 So.2d 552 (Fla. 1995) (concluding that there is no crime of attempted felony murder).
2. Premeditation
Appellant also claims that the State failed to introduce sufficient evidence of premeditation. This Court has previously stated that even if the evidence does not support felony murder, any error in charging the jury on that theory is harmless where the evidence supports a conviction for premeditated murder.See Griffin v. United States, 502 U.S. 46 (1991); McKennon v. State, 403 So.2d 389 (Fla. 1981) (finding error to instruct on robbery as it relates to felony murder where there was no basis in the evidence for the robbery instruction). See also San Martin v. State, 717 So.2d 462 (Fla. 1998) (reversal is not warranted where general verdict could have rested upon theory of liability without adequate evidentiary support when there was alternative theory of guilt for which evidence was sufficient), cert. denied, 119 S.Ct. 1468 (1999).
In State v. Law, 559 So.2d 187 (Fla. 1989), we stated the trial judge's task in deciding a motion for acquittal in a circumstantial evidence case:
It is the trial judge's proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state. The state is not required to "rebut conclusively every possible variation" of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant's theory of events. Once that threshold burden is met, it becomes the jury's duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.
Id. at 189 (citations and footnote omitted); see also Orme v. State, 677 So.2d 258, 262 (Fla. 1996). Appellant never denied he killed the Rodriguezes; rather, he argued that the killing was justified as self-defense. Appellant's theory was based on the following factual assertions: (1) Appellant was invited into the Rodriguezes' home; (2) at some point thereafter, an argument erupted, and Mr. Rodriguez pulled out a pistol (the .22 caliber Ruger) and shot appellant; (3) Ms. Rodriguez then went to the kitchen to retrieve a knife and assist in the attack; (4) during the ensuing altercation with the Rodriguezes, appellant wrestled the weapons away from the Rodriguezes; and (5) the subsequent killings were justified under the circumstances. Given this theory, we must determine whether the State presented sufficient evidence to create a prima facie inconsistency with appellant's version of the events.Law; Orme. We turn to the record to make this determination.
The record in this case reveals a double homicide in which the victims were brutally shot and stabbed to death in their home. Police discovered two weapons at the scene: a .22 caliber Ruger semiautomatic pistol and a knife. The officers at the scene testified they noticed signs of a struggle in the kitchen, the garage, and the utility room, which connected the kitchen and the garage. A wooden door at the passageway between the utility room and the garage was cracked in the center, and its hinges were broken.
The serial number on the Ruger had been removed; the pistol's barrel had also been altered to accommodate a homemade silencer. The physical evidence established that this pistol, with the silencer attached, had been fired six times. Six shell casings located at the scene were later determined by experts to have been fired from the Ruger. There was no evidence that Mr. Rodriguez owned the .22 caliber Ruger found at the scene; police recovered no .22 caliber ammunition in the home other than the casings of the spent rounds. An expert testified that testing done on the Rodriguezes' hands indicated that neither one had triggered any firearm.
In the kitchen, two cabinet drawers were open. The knife, which lay next to the pistol, was similar to a set found in one of the opened drawers. A set of bloody shoe-print impressions led from the utility room to these drawers. Mr. Rodriguez was not wearing shoes and Ms. Rodriguez's slippers did not match the bloody impressions.
Mr. Rodriguez's body was discovered next to the cracked door, just inside the garage. Mr. Rodriguez suffered a number of gunshot and stab wounds. An expert testified that Mr. Rodriguez suffered three gunshot wounds to his chest that were fired in a "cluster" from a distance of less than three feet. One of these bullets severed Mr. Rodriguez's spinal cord, instantly paralyzing him. Another of these bullets penetrated Mr. Rodriguez's aorta, causing massive internal bleeding and cutting off the oxygen supply. In addition to his three chest wounds, Mr. Rodriguez suffered two bullet injuries to his right leg and a possible sixth wound to his scrotum. The medical examiner testified that, in addition to these bullet wounds, Mr. Rodriguez sustained five stab wounds to his neck and chest area. Appellant inflicted the stab wounds after Mr. Rodriguez was incapacitated by the bullet wound which severed his spinal cord.
Ms. Rodriguez's body was found wedged between the family car and the garage wall. She had sustained a total of ten blunt force trauma wounds to her head and shoulder area. Four of these wounds were skull fractures. Each fracture had been caused by a separate blow. Three of the fractures were to the back of her head. Another fracture, on her forehead, had been inflicted with such force as to push the skull bone into her brain. Expert testimony revealed that these wounds were inflicted with the butt of the pistol found at the scene. In addition to these wounds, Ms. Rodriguez sustained twelve stab wounds. A number of the blunt force and stabbing injuries reflect that she was turned away from her attacker at the time. Ms. Rodriguez also sustained multiple defensive wounds.
Viewing this record in the light most favorable to the State, we conclude that the trial court did not err in denying appellant's motion for a judgment of acquittal on the charges of premeditated murder. See Jimenez v. State, 703 So.2d 437, 440 (Fla. 1997) (deliberate use of a knife to stab a victim multiple times in vital organs, alone, is evidence that can support a finding of premeditation); see also Holton v. State, 573 So.2d 284, 289 (Fla. 1990);Larry v. State, 104 So.2d 352, 354 (Fla. 1958).
Appellant raises two other issues concerning felony murder. In light of our conclusion that there was sufficient evidence for premeditated murder, we find any errors in this regard harmless, as there is no reasonable possibility that any such errors affected the verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986) ("The question is whether there is a reasonable possibility that the error affected the verdict.").
Appellant raises the following arguments: (1) the trial court erred in reading the standard jury instruction on felony murder and (2) it is impermissible for the State to charge a defendant with felony murder when the underlying felony is burglary and when the burglary is premised upon the intent to commit murder.
B. Comment on Appellant's Failure to Testify
Appellant contends that the trial court erred in refusing to grant a mistrial because of comments made by the prosecutor during closing argument of the guilt phase which impinged on appellant's constitutional right to remain silent and shifted the burden of proof. As previously noted, appellant never denied committing the homicides; rather, he argued to the jury that the homicides were committed in self-defense.
During the State's case-in-chief, a serologist testified that the position and location of appellant's blood at the crime scene were inconsistent with him having been shot. Rather, the expert testified that the blood stains were consistent with appellant cutting himself on the blade of the knife used to stab the victims. At the conclusion of the State's evidence, defense counsel had appellant display a scar or mark on his shoulder and his hands to the jury. This was the extent of the defense's evidence. In closing, defense counsel argued that Mr. Rodriguez owned the .22 caliber pistol found at the scene, that Mr. Rodriguez shot appellant with this pistol as evidenced by the mark on appellant's shoulder, and that the absence of any marks on appellant's hands made the serologist's testimony implausible. During the State's closing argument, the prosecutor stated:
[Appellant] stood before you this morning and he showed you his hands and a mark on his arm. This is, I don't know October 26, 1995, [Appellant] as you have learned during the course of this trial was gone from August 31st, 1990, until December 23, 1992, or at least was not located.
Have you seen any evidence to suggest to you what was going on during that lapse of time?
Appellant argues that this rhetorical question is "fairly susceptible" of being interpreted by the jury as a comment on appellant's exercise of his constitutional right to remain silent and represents an attempt to shift the burden of proof. The law is clear: the State may not comment on the defendant's failure to present evidence to refute an element of the crime charged because such a comment could lull the jury into believing that the defendant has the burden of proving his or her innocence.See Jackson v. State, 522 So.2d 802, 807 (Fla. 1988) (setting forth "fairly susceptible" test); see also Jackson v. State, 575 So.2d 181, 188 (Fla. 1991); Brown v. State, 593 So.2d 1210, 1212 (Fla. 2d DCA 1992).
This Court has, however, carved a narrow exception to this rule when the defendant assumes some burden of proof by advancing the defense of alibi, self-defense, or defense of another, relying on facts that could be elicited only from a witness who is not equally available to the State. See Jackson, 575 So.2d at 188; see also Hayes v. State, 660 So.2d 257, 265 (Fla. 1995). We conclude that this exception is applicable here and determine that the above-referenced comment by the prosecutor did not violate appellant's constitutional right because the comment related to the evidence presented at trial by appellant in support of an affirmative defense.
Appellant voluntarily assumed an affirmative defense of self-defense and, in support of this defense, he displayed his shoulder and his hands to the jury. Based on this evidence, appellant's counsel argued in closing that Mr. Rodriguez shot appellant first, initiating the altercation, and that the lack of any mark on his hands negated the serologist's testimony that the blood droppings were consistent with a knife cut on his hands. In response to this evidence and argument, the prosecutor pointed out that the mark on appellant's shoulder could have come at any time before or after the shooting and that any mark on his hand could have since healed. Thus, it is clear that the prosecutor's comment did not relate to an element of its case; rather, it was in regard to appellant's affirmative defense and the evidence put forth in support of that defense. See Jackson, 575 So.2d 181.
This conclusion renders inapplicable appellant's argument that the State, by its comment, shifted the burden of proof; appellant did have the burden of proving his affirmative defense, and the prosecutor's comment was in regard to this burden.
Appellant also complains of another remark made by the prosecutor during the closing argument of the guilt phase. However, this second argument was not contemporaneously objected to and therefore was not preserved for review. See McDonald v. State, 743 So.2d 501, 505 (Fla. 1999). "The only exception to the procedural bar is where the prosecutor's comments constitute fundamental error."Id. Fundamental error has been defined as the type of error which "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. (quoting Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla. 1998)). Based on our review of the alleged improper comment, we do not find that the comment rose to the level of fundamental error.
C. Exclusion of Prospective Jurors
Appellant contends that the trial court excused for cause qualified prospective jurors based on their views of the death penalty in violation of Witherspoon v. Illinois, 391 U.S. 510 (1968). The standard for determining whether a prospective juror may be excused for cause because of his or her views of the death penalty is whether the juror's views would prevent or substantially impair the performance of his or her duties as a juror in accordance with the juror's instructions and oath. Wainwright v. Witt, 469 U.S. 412, 424 (1985) (clarifying test set forth in Witherspoon); Foster v. State, 679 So.2d 747, 752 (Fla. 1996). It is within the trial court's province to determine if a challenge for cause is proper, and the trial court's determination of juror competency will not be overturned absent manifest error. See Hannon v. State, 638 So.2d 39, 41 (Fla. 1994);Mills v. State, 462 So.2d 1075, 1079 (Fla. 1985). We have reviewed carefully the voir dire of the jurors in question and conclude that the trial court did not abuse its discretion in sustaining the State's challenges for cause. Each of the four prospective jurors was asked questions as to whether he or she could recommend a sentence of death. Each juror provided an answer such that the trial court was within its discretion in concluding the four jurors would be impaired in the performance of their duties as jurors in this case.
D. Gruesome Photographs
Appellant next argues that certain photographs introduced by the State were so gruesome that any probative value the photographs possessed was substantially outweighed by the danger of unfair prejudice. The admission of photographic evidence is within the trial court's discretion, and a ruling on this issue will not be disturbed on appeal absent a clear showing of abuse.See Gudinas v. State, 693 So.2d 953 (Fla. 1997); Pangburn v. State, 661 So.2d 1182, 1187 (Fla. 1995). We find that the photographs in question were relevant to show the extent of the victims' injuries, to show premeditation, to refute the appellant's claim of self-defense, and to assist the medical examiner in explaining to the jury the numerous injuries sustained in the attack. Moreover, we find that the trial court performed the appropriate balancing test required under section 90.403, Florida Statutes (1989), see Williamson v. State, 681 So.2d 688, 696 (Fla. 1996), and conclude that there was no abuse of discretion regarding the trial court's ruling on this issue.
E. Mental Health Examination
Appellant contends that the trial court failed to provide him with a thorough neurological evaluation by a qualified expert as is required by Ake v. Oklahoma, 470 U.S. 68 (1985). We do not agree. At the conclusion of the guilt phase, defense counsel requested a competency examination because appellant indicated that he wished to receive the death penalty. Counsel also requested a neurological examination because appellant contracted "meningitis as a child, and that conceivably could be a cause of some organic brain damage." The court granted both requests and stated that it would appoint whatever experts the defense team suggested. The court then delayed the commencement of the penalty phase for three weeks until November 20, 1995, in order to provide the defense team with sufficient time to select its experts and have appellant examined.
The defense requested that a Spanish-speaking doctor perform the competency evaluation and that Jackson Memorial Hospital (JMH) perform the neurological examination. Both requests were granted. Dr. Castiello, a medical doctor, issued his report on November 10, 1995, concluding that appellant was competent and "functioning at an apparently average intellectual capacity." Regarding the neurological examination, JMH initially conducted an orthopedic exam of the spine. Finding that this examination did not comport with his order, the trial judge called JMH and verbally ordered a neurological examination. A neurologist at JMH conducted this examination on November 14 and filed a written report on November 16, concluding that appellant's "neurological exam was . . . nonfocal." Defense counsel received a copy of this report on Friday, November 17.
The morning the penalty phase was to commence, defense counsel announced for the first time that, in counsel's view, the examination performed on November 14 at JMH was inadequate and requested the penalty phase be postponed until a proper examination in conformity with the court's order was performed. Specifically, the defense argued that the JMH physician failed to perform the tests necessary to rule out the possibility of organic brain damage as expressly ordered. The defense did not provide the court at that time with any affidavit or testimony from an expert challenging the adequacy of the examination performed at JMH. In denying the defense request, the judge stated:
Let me point out when you requested the exam, you wanted a neurological exam. First they did an orthopedic exam of the spine. The Court resolved that, and had the neurological clinic do a neurological exam. I called them to make sure they would physically do it. It's up to them to decide what tests are necessary, if any. The neurological department [made] its professional judgment after evaluating him. They didn't need any further testing to rule out organic brain damage. You had the option for weeks if you wanted to have anybody of your choice to evaluate him, and I of course would have signed the order. You didn't do that, and that is fine. . . . But the fact is I am satisfied with the neurological exam.
The penalty phase commenced and was competed in two days.
On December 7, 1995, fifteen days after the conclusion of the penalty phase, defense counsel filed a written objection to the adequacy of the court-ordered neurological examination. The motion specifically alleged that the neurological examination performed at JMH was "woefully inadequate to determine whether [appellant] has brain damage as a result of the severe meningitis that he suffered as a child (or any other trauma suffered as a child)." In support of the motion, the defense attached the affidavits of Dr. Cagen, a medical doctor, and Dr. Herrera, a psychologist. Dr. Cagen's affidavit stated that the neurological examination was inadequate for failing to include "a complete physical examination, appropriate blood analysis, and a CT or MRI scan of the brain." Dr. Herrera's affidavit stated that after an initial neuropsychological diagnostic interview, appellant "quite likely suffered from behavioral and attentional deficits when he was a child which may well have been the result of the presence of an organic brain syndrome." The trial judge appointed both Drs. Cagen and Herrera as requested by defense counsel. In addition, the trial judge appointed Dr. Antonio Lorenco to assist the defense in conducting a brain topography.
A hearing was held on December 12, 1995, at which time the trial court determined that Dr. Lorenco had performed a brain topography on appellant. When the State requested the results, defense counsel stated that they were not going to use these results, and therefore the results were not discoverable. Defense counsel also stated on the record that Dr. Lorenco's test results were not probative. Three days after the December 12 hearing, the trial judge appointed Dr. Calderon, a neurologist, to assist the defense. Dr. Calderon's report filed December 19 did not indicate that appellant suffered from organic brain damage but did recommend further testing. On January 10, 1996, defense counsel announced that they were not going to call Dr. Calderon but were going to rely solely on Dr. Herrera's testimony. The judge then granted the State's motion to have its own psychologist examine appellant and also for an MRI and EEG examination of appellant. Appellant refused all attempts to be examined by the State.
At the May 31, 1996, allocution hearing, defense counsel acknowledged that appellant refused to be examined by the State. Appellant also affirmatively stated on the record that he was not willing to be examined by the State. Defense counsel then told the judge that they would not be presenting any witnesses and were relying solely on Dr. Herrera's report, Dr. Calderon's report, and a document written in Spanish which was retrieved from Cuba. The Cuban document was an EEG performed on appellant when he was fifteen or sixteen years old. The results of the test reflect no abnormalities.
The reports were admitted into evidence. In his sentencing order, the trial judge addressed the evidence of appellant's mental health as nonstatutory mitigation:
The court has thoroughly reviewed both experts' reports, and all other testimony and evidence in the case concerning [appellant's] physical, mental and psychological condition. Dr. Herrera bases his opinion on the history given to him by [appellant's] mother and [appellant]. This court is mindful of the fact that [appellant] refused the MRI and the EEG examination which were scheduled in order to verify the existence or non-existence of any organic brain syndrome or problem. While the court is not reasonably convinced that the evidence presented established any of the statutory mitigating circumstances, the court is reasonably convinced that the evidence presented does prove the existence of this non-statutory mitigating circumstance. The court gives this mitigating circumstance limited weight based on the evidence and testimony presented.
Based on this record, we conclude that appellant was provided with as thorough a mental health evaluation as was reasonably required and obtainable under the circumstances of this case. The court ordered both competency and neurological examinations pursuant to appellant's request. The initial neurological examination was performed by JMH at appellant's express request. JMH eventually issued a report which was adverse to appellant's position. When appellant challenged the adequacy of this examination, the court appointed four new experts: three medical doctors (Cagen, Calderon, and Lorenco) and a psychologist (Herrera).
Five months elapsed between the appointment of these experts and appellant's allocution hearing. In this time, appellant never proffered the results of any blood test, MRI, or CAT scan which suggested that he suffered from organic brain damage. When the State's expert sought to examine appellant, he refused. This was a right which appellant did not have. Dillbeck v. State, 643 So.2d 1027, 1031) (Fla. 1994) (capital defendant who presents expert's testimony in mitigation waives his right to refuse to be examined by expert for prosecution). On this record, we conclude that the trial court acted in accordance withAke and due process by providing appellant with a reasonable opportunity to have a thorough mental examination.
F. Waiver of Mitigation
Appellant argues that the trial court erred by failing to follow the appropriate procedure when a defendant waives the right to present mitigation evidence as set forth in Koon v. Dugger, 619 So.2d 246, 250 (Fla. 1993). Koon, however, is not applicable to this case because appellant did present evidence in mitigation of a death sentence. Moreover, the record does not indicate that appellant, against his counsel's advice, refused to allow the presentation of mitigating evidence. See Lawrence v. State, 691 So.2d 1068, 1074 (Fla. 1997).
H. Improper Remarks During Penalty Phase Closing Argument
Appellant contends that the State made improper remarks during its penalty phase closing argument. Specifically, appellant argues that the State improperly dismissed mitigating evidence as an attempt to excuse or justify the murder. InMoore v. State, 701 So.2d 545 (Fla. 1997), we stated that wide latitude is permitted in arguing to a jury and that it is within the trial court's discretion to control the arguments of counsel. Id. at 551. After reviewing the prosecutor's closing argument, we find that the comments made are not of such a nature as to taint the jury's recommendation of death; accordingly, there was no abuse of discretion.See Crump v. State, 622 So.2d 963, 972 (Fla. 1993); Bertolotti v. State, 476 So.2d 130, 133 (Fla. 1985).
Appellant's contention that the State used the power and prestige of the State Attorney's office to influence the jury is procedurally barred because defense counsel did not object until the close of all argument. See Nixon v. State, 572 So.2d 1336, 1340-41 (Fla. 1990) (defense counsel's motion for mistrial at end of closing argument, absent contemporaneous objection, is insufficient to preserve claim of improper argument for appellate review). Further, we do not find that the remarks rose to the level of fundamental error.See McDonald, 743 So.2d at 505.
I. HAC
Appellant challenges the trial court's application of the HAC aggravator to Ms. Rodriguez's murder. The trial court's order states:
Violetta Rodriguez had twenty-two injuries. She was stabbed twelve (12) times. Additionally Mrs. Rodriguez suffered ten lacerations on her head which were, according to the testimony, caused by blunt force trauma and consistent with the victim having been repeatedly struck with the butt of a hand gun. The medical examiner testified that the victim was alive when all the lacerations were inflicted. Four of the wounds resulted in fractures to the victim's skull. Although there is no evidence as to the exact time the victim lost consciousness, the defensive nature of the lacerations on the back of the hands indicate that she was conscious, aware, and trying to defend herself. All of the wounds inflicted would have been extremely painful.
Competent, substantial record evidence supports these factual findings. We have upheld the HAC aggravator in a number of cases where the victim has been repeatedly stabbed and sustained numerous defensive wounds. See Brown v. State, 721 So.2d 274, 277 (Fla. 1998), cert. denied, 119 S.Ct. 1582 (1999); Mahn v. State, 714 So.2d 391 (Fla. 1998); Jimenez v. State, 703 So.2d 437, 441 (Fla. 1997). Therefore, we find no error in the trial court's legal conclusion that this aggravating circumstance applied to the facts of Ms. Rodriguez's murder.
J. Proportionality
Appellant contends that his death sentences are disproportionate because the evidence of aggravation was balanced or outweighed by the mitigating evidence. The purpose of our proportionality review is not to evaluate the trial court's weighing of aggravating and mitigating circumstances; rather, "[r]eview by this Court guarantees that the reasons present in one case will reach a similar result to that reached under similar circumstances in another case." State v. Dixon, 283 So.2d 1, 10 (Fla. 1973); see also Foster v. State, 679 So.2d 747, 756 (Fla. 1996). Thus, our responsibility in performing a proportionality review consists of comparing "the case under review with all past capital cases to determine whether or not the punishment is too great."Brown v. Wainwright, 392 So.2d 1327, 1331 (Fla. 1981) . Based on our conclusion that the evidence was insufficient to support the underlying charge of burglary, it follows that the aggravating circumstance that the murders were committed during the course of an enumerated felony is improper in this case. After striking this aggravator, there remain two aggravating circumstances for the murder of Ms. Rodriguez: prior violent felony and HAC. We conclude that appellant's death sentence for the murder of Ms. Rodriguez is proportionate. See Jimenez v. State, 703 So.2d 437 (Fla. 1997);Johnson v. State, 660 So.2d 637 (Fla. 1995). However, there only remains one valid aggravating circumstance for the murder of Mr. Rodriguez: prior violent felony. Although this Court has upheld death sentences in the past where there was only one aggravator, see, e.g., Ferrell v. State, 680 So.2d 390 (Fla. 1996) (affirming death sentence where sole aggravator was prior second-degree murder);Nibert v. State, 574 So.2d 1059, 1063 (Fla. 1990) ("[T]his Court has affirmed death sentences supported by one aggravating circumstance only in cases involving `either nothing or very little in mitigation.'"), these cases generally involved a very weighty aggravator or little or no mitigation. Generally, "death is not indicated in a single-aggravator case where there is substantial mitigation." Jones v. State, 705 So.2d 1364, 1366 (Fla. 1998). The trial court found the following nonstatutory mitigators in this case: appellant suffered from serious life-long physical and psychological impairments (limited weight); appellant was a physically and emotionally battered child (substantial weight); appellant never used drugs (some weight); appellant's father was sentenced in 1989 to thirty years in federal prison for drug trafficking (some weight); appellant loves his family (moderate weight); appellant has had little contact with his mother since 1990 (little weight); appellant has the capacity to work hard and other fine qualities (some weight); and appellant's excellent behavior throughout trial (some weight). Therefore, we conclude that appellant's death sentence for the murder of Mr. Rodriguez is disproportionate.
K. Weighing Mitigation
Appellant argues that the trial court abused its discretion in failing to assign adequate weight to the nonstatutory mitigation. This claim is without merit. When addressing mitigating circumstances, the sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether it is supported by the evidence and whether, in the case of nonstatutory factors, it is truly of a mitigating nature. Campbell v. State, 571 So.2d 415, 419 (Fla. 1990). The weight to be assigned to specific nonstatutory mitigation is within the sole prerogative of the sentencing court, and such a determination will be upheld if the record contains competent, substantial evidence to support the trial court's determination. Foster v. State, 679 So.2d 747, 756 (Fla. 1996); Campbell, 571 So.2d at 420. Appellant presented the court with a memorandum alleging the specific mitigating circumstances which appellant argued were applicable to this case. The court addressed each in its order as was required, finding some and dismissing others, and we conclude that the record contains competent, substantial evidence to support the trial court's order in this regard.
L. Cumulative Errors
Finally, appellant claims that all of the errors alleged in this appeal, when considered cumulatively, denied him a fundamentally fair proceeding. Of the claims raised by appellant, we only found error for the claims regarding the burglary conviction, which was the basis for the felony murder charge and the aggravator of murder committed during an enumerated felony. We concluded that individually, these errors were harmless. Yet, as this Court stated in Jackson v. State, 575 So.2d 181, 189 (Fla. 1991):
Because we find multiple errors, we must consider whether even though there was competent substantial evidence to support a verdict . . . and even though each of the alleged errors, standing alone, could be considered harmless, the cumulative effect of such errors was such as to deny to defendant the fair and impartial trial that is the inalienable right of all litigants in this state and this nation.
Seaboard Air Line R.R. Co. v. Ford, 92 So.2d 160, 165 (Fla. 1956) (on rehearing).
In making this determination, we follow the analysis utilized by the Court in Jackson. First, we conclude that none of the errors in this case were fundamental. Second, had these errors not been committed, the jury still would have heard evidence of the two brutal murders in this case. Therefore, considering the weight of the errors and the magnitude of the totality of the evidence against appellant, we find that there is no reasonable possibility that the errors in this case contributed to the conviction. See id.
III. Conclusion
Accordingly, we affirm appellant's convictions for first-degree murder. We reverse the conviction for burglary. We affirm appellant's death sentence for the murder of Ms. Rodriguez. We vacate appellant's death sentence for the murder of Mr. Rodriguez and remand for imposition of a life sentence without possibility of parole for twenty-five years.
It is so ordered.
HARDING, C.J., and SHAW, ANSTEAD and PARIENTE, JJ., concur.
WELLS, J., concurs in part and dissents in part with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
I concur in result with the majority's affirmance of appellant's two first-degree murder convictions and the sentence of death for the murder of Ms. Rodriguez. I dissent from the majority's setting aside of the death penalty for the murder of Mr. Rodriguez. I dissent from the reversal of the conviction for armed burglary.
I write to explain that I believe the majority seriously errs in unsettling the law of burglary. Though the majority pays a passing tribute to stare decisis, it does what the doctrine of stare decisis is intended to prevent-it destabilizes the law. The law in respect to the "remaining in" part of the burglary statute has been settled in Florida since 1983 by this Court's decision in Routly v. State, 440 So.2d 1257 (Fla. 1983), and, in respect to the withdrawal of the "remaining in" consent, since 1988 by the decision in Ray v. State, 522 So.2d 963, 965 (Fla. 3d DCA 1988). This Court plainly accepted this as settled law by affirming it in Raleigh v. State, 705 So.2d 1324, 1329 (Fla. 1997); Jimenez v. State, 703 So.2d 437, 440 (Fla. 1997); and Robertson v. State, 699 So.2d 1343, 1346-47 (Fla. 1997). Unsettling well-settled legal principles is extremely disruptive in the criminal justice system, a lesson we learned again and again from this Court's about-face in State v. Gray, 654 So.2d 552 (Fla. 1995).
The majority recognizes that this issue is one of statutory interpretation. Since the majority cannot reach its result through the acceptance of the plain language of the burglary statute, the majority resorts to writing a change in the statute by inserting the word "surreptitiously" into the statute. As pointed out earlier, this Court and the appellate courts of this state have interpreted this statute contrary to the present interpretation since 1984 and 1988. Since those dates, there have been yearly legislative sessions. The Legislature has not evidenced any doubt that these long-standing statutory interpretations are in accord with legislative intent. The fact that the Legislature has not acted in so many sessions according to this Court's precedent indicates that the Legislature approved or accepted the construction placed upon the statute.See Johnson v. State, 91 So.2d 815, 187 (Fla. 1956); White v. Johnson, 59 So.2d 532, 533 (Fla. 1952). I must conclude that this precedent is now also cast aside.
The present majority decides against our State's precedent in favor of the precedent of the State of New York in People v. Gaines, 546 N.E.2d 913, 915 (N.Y. 1989), and in favor of a dissent by a member of the Supreme Court of Alabama in Davis v. State, 737 So.2d 480 (Ala. 1999). However, I would follow what the majority stated in the Alabama decision:
In [Ex parte Gentry, 689 So.2d 916 (Ala. 1996)], this Court overruled a line of precedents holding that evidence of a struggle and a murder inside the victim's dwelling was sufficient to establish that any initial license to enter had been withdrawn. Gentry served a valid purpose in condemning a finding of burglary merely from the commission of a crime that could not be deemed to be within the scope of the privilege to enter. To hold otherwise would have converted every privileged entry followed by a crime into a burglary, thereby running afoul of the constitutional requirement of reserving capital punishment for only the most egregious crimes. However, in sweeping out mere evidence of the commission of a crime following privileged entry, this Court condemned the use of evidence of a struggle as indicium of revocation of the defendant's license or privilege to remain. In so doing the Court swept with too broad a broom.
Id. at 483 (citations omitted). In this case, the victim's body was found inside her mobile home. The cause of death was a ligature strangulation. The victim also received three nonfatal stab wounds in her neck. There were no signs of a forced entry. The defendant's fingerprints were found on the scene, and the defendant knew the victim. The court concluded that this evidence was sufficient to make revocation of consent an issue for the jury.
Evidence of a struggle that gives rise to circumstantial evidence of revocation of a license or privilege can be used to show an unlawful remaining, a separate prong of the offense of burglary upon which a conviction can be based.
Id. at 483-84. See also People v. Ager, 928 P.2d 784, 790 (Colo. Ct. App. 1996); Hambrick v. State, 330 S.E.2d 383 (Ga. Ct. App. 1985) ("When Hambrick's ulterior purpose beyond the bounds of a friendly visit became known . . . and [the victim] reacted against it, a reasonable inference could be drawn that the authority to remain ended. Arrington did not have to shout `Get out!' for this to be so. Yet Hambrick remained until he got possession of the money, far beyond the time at which the scope of the permission ended."); State v. Steffen, 509 N.E.2d 383, 389 (Ohio 1987) ("[e]ven assuming lawful initial entry, the jury was justified in inferring from the evidence that appellant's privilege to remain in Karen's parents' home terminated the moment he commenced his assault on her."). This is in accord with our own precedent. I would follow our State's precedent and that of the above-referenced states.
In sum, in Jimenez and Raleigh, this Court held that the facts were sufficiently established in respect to whether consent had been withdrawn so that the issue was properly decided by a jury. That is the correct decision for this case. Therefore, I do not join the majority.