Opinion
2D21-2460
08-18-2023
RONNIE O'NEAL, III, Appellant, v. STATE OF FLORIDA, Appellee.
Howard L. Dimmig, II, Public Defender, and Nicholas Martino, Special Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
Opinion subject to revision prior to official publication.
Appeal from the Circuit Court for Hillsborough County; Michelle Sisco, Judge.
Howard L. Dimmig, II, Public Defender, and Nicholas Martino, Special Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Linsey Sims-Bohnenstiehl, Assistant Attorney General, Tampa, for Appellee.
LaROSE, Judge.
Ronnie O'Neal, III, appeals his judgment and sentences for two counts of first-degree murder, attempted first-degree murder, first-degree arson, two counts of aggravated child abuse, and resisting an officer without violence. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Mr. O'Neal brings multiple issues to us. Each lacks merit. Accordingly, we affirm the judgment and sentences.
I. MATERIAL FACTS
This is a tragic case, one where the State sought the death penalty. It began in the late hours of March 18, 2018, when Mr. O'Neal killed his girlfriend (K.B.) and young daughter (R.O.), stabbed and burned his young son (R.B.), and set their house on fire. The case generated significant public attention. The facts will unfold more fully as we detail Mr. O'Neal's pretrial and trial efforts to avoid conviction.
A. Pretrial Proceedings
Mr. O'Neal filed many motions before trial, including a Stand Your Ground motion to dismiss, a motion to exclude photographs, a motion to admit medical evidence about Mr. O'Neal's post-traumatic stress disorder (PTSD) and trauma, and a motion to conduct individual voir dire.
1. Stand Your Ground Immunity
Mr. O'Neal moved to dismiss count one, murder of K.B., under section 776.032, Florida Statutes (2017). Mr. O'Neal claimed that K.B. tried to kill him. After an evidentiary hearing, the trial court thoroughly detailed the evidence in its written order denying the motion.
The State presented K.B.'s 11:43 p.m. 911 call, wherein she is screaming, "I'm shot, help me please"; tearfully repeating, "I'm so sorry"; and shouting, "He's attacking me."
A neighbor's then-fiance, James Gray, testified that "he heard loud screaming and then loud banging on his fiancee's front door." He opened the door, stepped outside, and saw "two silhouettes at the end of a 6 to 8 foot long foyer, along with blood spatter along the foyer's walls." Mr. Gray saw K.B. on the ground, face down. Mr. O'Neal stood over her prone, lifeless body, holding her left arm. Mr. O'Neal was holding something in his right hand. Mr. Gray could not determine what it was. According to Mr. Gray, K.B. "was completely unresponsive, while [Mr. O'Neal] began shouting 'you don't understand.' "Mr. Gray attempted to get Mr. O'Neal to back away, but Mr. O'Neal "continued to yell 'Allah Akbar' and 'you don't understand, she killed me.' "Mr. Gray testified that Mr. O'Neal "then dropped [K.B.'s] arm and retreated back into his own residence." Mr. Gray testified that K.B. never regained consciousness. He stayed with her body until law enforcement officers arrived.
At 11:49 p.m., six minutes after K.B.'s call to 911, Mr. O'Neal called 911, stating, "I just been attacked," K.B. "tried to fuckin' kill me," and "Killed her stupid ass."
Detective Dirks testified that K.B. "was partially clothed in a tank top, underwear and socks." He testified that "[s]he had a gunshot wound to her arm and trauma to her face and upper body." He found pieces of a shotgun near K.B., including the barrel, wooden stock, and miscellaneous mechanical parts. Detective Dirks testified that the shotgun had either been broken or disassembled. He testified that the shotgun was used inside Mr. O'Neal's house.
The medical examiner, Dr. Mainland, visited the crime scene and later performed K.B.'s autopsy. She testified that K.B.'s right arm was broken in two places. K.B. also suffered a gunshot wound to her right back shoulder and another much larger gunshot wound to her right elbow. Dr. Mainland described the numerous injuries to K.B.'s head, including over fifteen separate lacerations, multiple abrasions and contusions mainly to the left side of K.B.'s head, six or seven fractures of her skull including a fractured jaw, fractured facial bones behind K.B.'s lip, and several fractures at the base of K.B.'s skull. Several of K.B.'s teeth were missing. K.B. died from blunt force trauma.
Mr. O'Neal did not testify at the hearing.
The trial court found that Mr. O'Neal was not entitled to Stand Your Ground immunity. As the trial court explained:
There is clear and convincing evidence before this Court that [K.B.] was beaten to death by the Defendant, presumably by the shotgun found broken into pieces by Mr. Dirks, during the intervening 4 % minutes from [K.B.'s] initial 911 call [asking for help], to the time Mr. Gray stepped out of his home to see what was happening. Other than the Defendant's self-serving hearsay statement to law enforcement in his 911 call, there is no other evidence to support that the Defendant was in imminent fear of death or great bodily harm to himself or to his children. The assertions made in the Defendant's 911 call lack credibility as the call was made after [K.B.] was deceased, and after Mr. Gray, who knows the Defendant and could identify him, saw the Defendant holding onto the lifeless body of [K.B.] Consequently, the Court finds the State sufficiently proved Defendant was not in danger of imminent death or great bodily harm during the incident that occurred on the evening of March 18, 2018 that immediately preceded the death of [K.B.]
2. Photographs
Mr. O'Neal moved to exclude various photographs. First, he wanted the trial court to review "all photographs the State intends to present at trial concerning their admissibility based on their relevance, the cumulative nature of such photographs and whether the photographs are subject to Florida Statutes 90.403." Second, he contended that "[a]ny and all photographs which tend to show any genitalia and/or alleged injuries to the genitalia of minor decedent, R.O., would be irrelevant and inadmissible in this case." Third, he asserted that "[a]ny and all photographs that show female decedent, R.O.[,] in a burnt condition would be irrelevant and inadmissible in this case" since the medical examiner determined that the victim "was deceased prior to the burning of her body and/or skin."
Section 90.403, Florida Statutes (2020), provides that "[r]elevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence."
The trial court reserved ruling on Mr. O'Neal's first point, granted the motion as to his second point, and denied it as to his third point. The trial court intended to allow Mr. O'Neal to advance any further objections to particular photographs before or at trial.
3. Medical Evidence of Mr. O'Neal's PTSD and Trauma
Mr. O'Neal moved to admit Dr. McClain's testimony about his PTSD and past trauma to support his self-defense claim at trial. At a pretrial hearing, Dr. McClain testified that PTSD can cause a person to overreact to a stressor. Dr. McClain testified that the fight-or-flight response is a "[v]ery primitive response," "a survival response that stems from having been threatened with possible death . . . [,] and it's a response that is to either leave a situation or fight through the situation for survival." Apparently, PTSD causes a person's fight-or-flight response to override his ability to rationalize, problem solve, and make decisions.
Dr. McClain reviewed the criminal report affidavit, the indictment, the police report, medical records from a 2017 incident where Mr. O'Neal was shot, and an email from Mr. O'Neal's mother about his childhood abuse. Dr. McClain also interviewed Mr. O'Neal's mother and brother. Dr. McClain opined that Mr. O'Neal suffered from personality and behavior changes following the childhood abuse and shooting. Dr. McClain explained that Mr. O'Neal's mother's description of the changes in Mr. O'Neal's behavior was consistent with PTSD and that he met the criteria for PTSD under the Diagnostic and Statistical Manual 5.
On cross-examination, Dr. McClain admitted that she never interviewed or evaluated Mr. O'Neal. She had not reviewed any of the mental health evaluations completed by other mental health experts and was unaware if other experts had diagnosed Mr. O'Neal with PTSD. Going through the criteria for a PTSD diagnosis, Dr. McClain admitted that she did not know if Mr. O'Neal had nightmares, suffered from flashbacks, suffered from trauma-related thoughts or feelings, had negative alterations and thoughts, felt isolated, had difficulty experiencing positive affect, was irritable or aggressive, or engaged in risky or destructive behavior. She did not know if Mr. O'Neal had any physical reaction after exposure to traumatic reminders. When asked, "So, you have no idea whether there was any stressor presented in this defendant which would have triggered a reaction related to [PTSD]", Dr. McClain replied, "None other than the prior history of domestic violence." Significantly, she had "no idea what happened prior to the murder of [K.B.]"
Defense counsel argued that Dr. McClain's testimony was "important to assist the jury in a determination of the flight-or-fight response that Mr. O'Neal took when it came to the death of [K.B.] . . . It shows Mr. O'Neal's overreaction to the events surrounding Count One in this case." The State countered that the evidence was irrelevant because there was no indication that PTSD "played any part whatsoever in this case," there was a calculated, self-serving 911 call by Mr. O'Neal after he killed K.B., and Dr. McClain's opinions were faulty and insufficient. The State further argued that permitting the jury to consider the PTSD for only count one and not the others would confuse the jury.
The trial court found that Dr. McClain had "reviewed very little as far as the facts of the case goes. She has not even interviewed the defendant. And pursuant to her own admission, some of the criteria she didn't even have enough information to make a finding one way or the other." Thus, the trial court denied the motion and excluded Dr. McClain from testifying at trial.
Dr. McClain was not the only expert available to Mr. O'Neal. Dr. Machlus testified for the defense during the death penalty phase. He had personally evaluated Mr. O'Neal. Dr. Machlus provided detailed testimony about Mr. O'Neal's childhood abuse and the shooting incident. Dr. Machlus explained that during the murders, Mr. O'Neal's "ability to appreciate and conform his behavior was impaired because of his disorders with PTSD, the delusional disorder where his reality testing is somewhat impaired. He doesn't see reality quite accurately many times." Mr. O'Neal never called Dr. Machlus or any other health care provider as an expert during the trial's guilt phase.
4. Voir Dire
Mr. O'Neal moved for individual voir dire. He claimed that collective voir dire would allow prospective jurors who were familiar with the case to taint the other prospective jurors, prevent honesty from the prospective jurors, educate the prospective jurors on the grounds for exclusion from jury service, and spend a significant amount of time on the prospective jurors' beliefs regarding the death penalty that would negatively impact their ability to presume Mr. O'Neal's innocence.
After a hearing, the trial court granted the motion to the extent that it would "do individual voir dire for any potential juror that has any knowledge about the case from any source, that is done on an individual basis." Defense counsel then stated that he also wanted individual voir dire regarding the death penalty so that the prospective jurors would feel more comfortable "to express what their true feelings are when it comes to the death penalty." Defense counsel claimed that "the collective voir dire inhibits the candor and honesty of responses." The trial court denied the request.
B. Trial Voir Dire
The State and Mr. O'Neal extensively questioned prospective jurors. Mr. O'Neal warned that the case involved gruesome photographs. He asked if they could remain impartial. He explained that the State's evidence was also his evidence and that he "[would] be using some of that evidence . . . for [his] defense."
Before jury selection, Mr. O'Neal waived his right to counsel and proceeded pro se. Standby counsel was available.
The State inquired whether any prospective jurors had faith-based objections to the death penalty. Mr. O'Neal asked a prospective juror about any objection she had to the death penalty as a Catholic.
Mr. O'Neal further inquired: "With a show of hands, how many of you are Christians? Majority of you. And how many of you know that the bible says-?" The trial court stopped Mr. O'Neal and explained: "A person's religious beliefs are rarely ever relevant or pertinent to whether or not individuals can serve on a jury and be fair and impartial, okay? And all of your questions have to be geared towards determining if all of these citizens can be fair and impartial jurors." When Mr. O'Neal proceeded to ask the prospective jurors if they, as Christians, would be fair and impartial, the trial court asked Mr. O'Neal to "stop referring to the jury collectively as one religious belief or another." Mr. O'Neal asked, "Well, should I do an individual inquiry like-?" The trial court replied: "No, you should not because you're not permitted to get into it. Just, please, stop referring to them collectively as Christians, that may or not be accurate. I have no idea."
Standby counsel asserted that the jurors' religious beliefs were relevant to determining whether a prospective juror "can impose the death penalty or not." The trial court explained that Mr. O'Neal could ask questions such as whether a juror would be biased against him based on religious beliefs.
Mr. O'Neal stated he did not understand why he could not ask "if this person is a Catholic juror and how does that affect them being a juror in this case." The trial court clarified:
Okay. Well, first of all, I do think the question has been asked of these jurors, but if you would like the opportunity to ask any or all of these potential jurors if their religious beliefs are such that it would impact their ability to serve in a death penalty case, or something to that effect, you are absolutely permitted to do that.
So, I'm not going to let you just take a poll of what religion each of the jurors is, but if you want to ask each of them a specific question about their faith as it relates to their ability to sit as a juror in this particular case, you have now and you have always had that capability. So if you would like to proceed forward that way, you're more than welcome to.
Mr. O'Neal replied: "All right. Thank you, Your Honor."
Mr. O'Neal did not ask the prospective jurors about religion again. After voir dire, he accepted the panel without objection.
The parties presented considerable evidence at trial. We recite only the evidence necessary for our review of the issues before us.
Mr. O'Neal began his opening statement claiming that "[t]he evidence is going to show that we are under some of the most vicious, lying, fabricatin', fictious government you ever seen. And by the time it's all said and done, you will see who is [sic] the mass murderers in Tampa Bay, the State of Florida." He promised that the evidence would show that he only hit K.B. three times with the shotgun and that law enforcement tampered with evidence to make it look like he was "a menace to society" and hit K.B. more times. He claimed that law enforcement officers "put those excessive lacerations on [K.B.'s] face." Mr. O'Neal asserted that the evidence would show that R.B. made untrue statements, was coached by law enforcement officers, did not see him shoot K.B., and "did not see much at all." He noted that the evidence would show that he loved his children and the whole case had been fabricated. Mr. O'Neal claimed that he had acted in self-defense to protect himself and the children from K.B.
The State presented the evidence it had presented at the Stand Your Ground hearing, including Mr. Gray's testimony and the recordings of the 911 calls.
Mr. O'Neal's stepfather testified that Mr. O'Neal called him at about 11:48 p.m. and said, "[K.B.] is trying to kill me."
Mr. O'Neal's son, R.B., testified that he was at the house and saw his parents arguing. Mr. O'Neal was holding a shotgun, and K.B. was screaming at Mr. O'Neal. R.B. testified that K.B. ran to R.O.'s room and into the closet. Mr. O'Neal ran after K.B. with the shotgun. Mr. O'Neal told R.B. to walk around and say "Allah Akbar." R.B. heard a gunshot.R.B. testified that Mr. O'Neal then told R.B. to come into R.O.'s room and kill this "B-word." Mr. O'Neal told R.B. to get a hunting knife. R.B. saw K.B. stumble out past him to go outside. Mr. O'Neal chased her with the shotgun; R.B. stayed in the house.
Forensics investigators found holes in the closet doors consistent with shotgun projectiles, waddings and pellets on the closet floor, three spent casings and live rounds, a shotgun slug from the closet wall with red fabric, and K.B.'s blood on the closet door. Investigators also recovered a knife handle and knife blade containing K.B.'s blood in the garage. Further, investigators discovered a knife handle and hatchet handle with R.O.'s blood.
About a minute later, R.B. saw Mr. O'Neal return home, grab R.O. by one arm, drag her into the master bedroom, and hit her in the head with an axe. R.B. saw Mr. O'Neal spread gasoline all over the house and drop a match on the ground.
R.B. testified that Mr. O'Neal put him on the floor in the garage, stepped on his stomach, held him down, lit a match, and threw it down trying to light R.B. on fire. R.B. ran into the kitchen, and Mr. O'Neal stabbed him with a knife. R.B. testified that his mother never set the house on fire or hit R.O. with an axe. R.B. did not see anyone other than Mr. O'Neal holding the shotgun.
Law enforcement officers testified that upon arriving at the scene, the house was on fire. Sergeant Tagliarini testified that R.B. emerged from the house. R.B. was bleeding from the mouth, had been disemboweled and burned, and was still smoking. R.B. suffered knife wounds to his chest, neck, face, arm, and leg; an open evisceration of his abdomen; and burns to over a quarter of his body.
Sergeant Tagliarini and other officers also testified that, when Mr. O'Neal came out of the garage, he smelled like gasoline and had blood on his clothes and hands. Mr. O'Neal told officers that "[K.B.] is the devil, the kids are the devil's kids" and that "the devil tried to kill him, [K.B.] tried to kill him."
Matthew Evans, a crime scene investigator, took about 280 photographs of the crime scene. He testified that the photographs of K.B.'s body "truly and accurately depict the condition of [her body] on the morning of March the 19th, 2018." The State entered the photographs into evidence as exhibits 3LL through 3QQ. Mr. O'Neal unsuccessfully objected based on lack of authentication or foundation.
Mr. Evans testified that exhibit 3LL depicted K.B. after they removed the sheet. Exhibit 3QQ was a similar view but brighter, and Mr. Evans pointed out the shotgun wadding that they had removed from the injury. Exhibit 3MM was a different view of the injuries to K.B.'s arm. Mr. Evans explained that exhibit 3OO pictured the side of K.B.'s face with multiple injuries, with teeth next to her mouth. Exhibit 3PP was a different angle of her face. Mr. Evans testified that exhibit 3NN depicted the injuries to K.B.'s shoulder and back after Dr. Mainland flipped her over.
Dr. Mainland testified about K.B.'s and R.O.'s extensive injuries, using the autopsy photographs to explain their injuries. The State sought to admit into the evidence the photographs of K.B.'s injuries as exhibits 84A through 84FFF and the photographs of R.O.'s injuries as exhibits 85A through 85BBB and 85III through 85NNN. Mr. O'Neal objected to the photographs for lack of authentication; the trial court overruled his objection and admitted the photographs into evidence.
Dr. Mainland testified that K.B. died due to homicidal violence, which included blunt impact trauma to her head and shotgun wounds to her right arm, shoulder, face, and neck. Dr. Mainland testified that exhibit 84BB showed two lacerations to K.B.'s head that were caused by a blunt object.
The transcript states that Dr. Mainland later testified that exhibit 84BB was a closeup of R.O.'s stab wound on her back, but this is likely a typo or misstatement as 85BB was the closeup. The mistake seems inconsequential as the State published each photograph to the jury as Dr. Mainland testified about each photograph's contents.
Dr. Mainland testified that R.O., too, died from homicidal violence, which included a penetrating chop and blade wounds to the head, neck, torso, and foot; broken bones; and a severed spinal cord. Dr. Mainland testified that exhibit 85AA was a photograph of charring on R.O.'s back and buttock, along with a two-and-a-quarter-inch-deep stab wound to her back. Exhibit 85BB was a close-up of the same wound. Dr. Mainland explained that exhibit 85CC depicted a probe in the stab wound to show the wound's depth and direction and that exhibit 85DD showed a perpendicular perspective of the probe in the wound. Dr. Mainland opined that the burns on R.O.'s body occurred postmortem.
Dr. Mainland then explained Mr. O'Neal's injuries. The State had previously admitted photographs of Mr. O'Neal taken on March 19. Mr. O'Neal objected based on lack of authentication; the trial court overruled the objection. Dr. Mainland explained that the injuries to Mr. O'Neal's knuckles depicted in exhibit 71W were burns.
Mr. O'Neal chose not to testify at trial.
In closing argument, Mr. O'Neal admitted to killing K.B., but he stated that he did not hit her fifteen times. He claimed R.B.'s testimony was inconsistent and contradictory because a detective who worked on the case formed a close relationship with R.B. Mr. O'Neal claimed that officers falsified the 911 call recordings and added injuries to and tampered with K.B.'s body. Mr. O'Neal claimed that K.B. killed R.O., and he justifiably killed K.B. because his "baby girl [was] stabbed in the neck, stabbed in the face, burned to death." He stated that the jury saw the pictures of his son "[a]nd that's why [K.B.] is dead." He said: "[K.B.] killed [his] daughter and attacked [them]. And the evidence shows that we all had been cut and we all were burned." He said that "just like any father would have done," he acted "out of pure instinct and passion."
The jury found Mr. O'Neal guilty on all counts. After the penalty phase of the case, the trial court sentenced Mr. O'Neal to life in prison.
II. DISCUSSION
The crimes are horrific. Nevertheless, "despite the egregious and inflammatory facts involved in a tragedy such as this case, we must conduct that dispassionate review which our system of law requires to arrive at a just and legally correct result so that there is no miscarriage of justice." See Chavez v. State, 832 So.2d 730, 747 (Fla. 2002).
A. Pretrial Denial of Stand Your Ground Immunity
Mr. O'Neal argues that the trial court erroneously denied his Stand Your Ground motion. He maintains that the State failed to provide clear and convincing evidence that the use of deadly force was unnecessary. Mr. O'Neal asserts that he had a reasonable belief that K.B. was going to kill him.
The State counters that the trial court properly denied the motion because Mr. O'Neal did not have a reasonable belief that deadly force was necessary to prevent imminent death or great bodily harm. K.B. called 911 after she was shot, pleaded with Mr. O'Neal for mercy, fled their home, was pursued by Mr. O'Neal, screamed for help, and was brutally beaten to death by Mr. O'Neal in front of their neighbor's front door. The State stresses that the jury rejected Mr. O'Neal's self-defense claim and found him guilty beyond a reasonable doubt.
The jury rejected Mr. O'Neal's self-defense claim. It found him guilty beyond a reasonable doubt. Any purported error regarding the Stand Your Ground ruling was cured. See Toiran v. State, 337 So.3d 93, 97 (Fla. 3d DCA 2021) ("[T]he trial court's failure to require the State to overcome Boston's immunity claim with clear and convincing evidence was cured when the State overcame Boston's self-defense claim by meeting the heavier trial burden of proof beyond a reasonable doubt." (quoting Boston v. State, 326 So.3d 673, 678 (Fla. 2021))).
We review a trial court's ruling on a Stand Your Ground motion for "whether competent, substantial evidence supports the trial court's factual findings." Edwards v. State, 351 So.3d 1142, 1149 (Fla. 1st DCA 2022). We review de novo issues of law, such as "whether the State proved by clear and convincing evidence that the [defendant] did not have an objectively reasonable belief that he faced an imminent threat of great bodily harm or death." Id. at 1149-50.
Section 776.012(2), provides that "[a] person is justified in using . . . deadly force if he . . . reasonably believes that using . . . such force is necessary to prevent imminent death or great bodily harm to himself . . . or another." After a defendant presents a prima facie claim of self-defense, the State must overcome the defense by clear and convincing evidence. Edwards, 351 So.3d at 1147-49 (citing § 776.032(4)). The State "partially conceded" in the trial court that Mr. O'Neal alleged a prima facie self-defense claim. Accordingly, we consider whether the State met its burden. It did. See § 776.032(4). "[C]lear and convincing 'evidence is evidence making the truth of the facts asserted "highly probable."' "Cummings v. State, 310 So.3d 155, 158-59 (Fla. 2d DCA 2021) (alteration in original) (quoting Bouie v. State, 292 So.3d 471, 480 (Fla. 2d DCA 2020)).
Detective Dirk's testimony, Dr. Mainland's testimony, and K.B.'s 911 call established that K.B. was shot inside the home before she fled. Her 911 call reflected that while fleeing, she cried out for help and mercy, and said she was being attacked. There was no evidence that K.B. threatened or attempted to harm Mr. O'Neal or the children after she fled.
Mr. Gray testified that he found K.B. face-down on the ground with Mr. O'Neal holding her arm. Mr. Gray saw Mr. O'Neal holding something, later shown to be a shotgun. Dr. Mainland's testimony demonstrated that Mr. O'Neal inflicted over fifteen separate lacerations to K.B.'s head and six to seven fractures to her skull. No evidence suggested that K.B. possessed the shotgun before or during the beating.
The trial court considered Mr. O'Neal's 911 call. We defer to the trial court's determination that Mr. O'Neal was not credible. See generally Huckelby v. State, 313 So.3d 861, 866 (Fla. 2d DCA 2021) ("It was the trial court's task to weigh conflicting evidence and make determinations regarding witness credibility in reaching its decision."); Edwards, 351 So.3d at 1150 (explaining that an appellate court defers "to the trial court's factual findings and credibility determinations" unless "they are not supported by competent, substantial evidence"). As the trial court noted, Mr. O'Neal called 911 "after K.B. was deceased, and after Mr. Gray . . . saw the Defendant holding onto the lifeless body of K.B."
Thus, the State met its burden of showing that Mr. O'Neal did not have an objectively reasonable belief that he was in imminent danger of great bodily harm or death when he followed K.B. and beat her to death. See Edwards, 351 So.3d at 1156-57 (holding that the State met its burden where "Edwards shot his stepson, who was half his size, who had no history of violence as far as Edwards knew, who had never threatened Edwards, who did not have specialized fighting knowledge, and who had just injured his shoulder in a motor vehicle accident"); Swift v. State, 342 So.3d 852, 855 (Fla. 1st DCA 2022) (holding that competent, substantial evidence supported the trial court's determination that Swift was not entitled to immunity where the only eyewitness was not credible, the victim was unarmed, and there was a lack of evidence supporting Swift's self-defense story); cf. Toiran v. State, 337 So.3d 93, 97 (Fla. 3d DCA 2021) (holding that the trial court did not err in denying the defendant's motion for judgment of acquittal where the victim, who was the initial aggressor, was attempting to retreat when the defendant fired the deadly shots). The trial court properly denied Mr. O'Neal's Stand Your Ground motion.
B. Admission of Photographs into Evidence
Mr. O'Neal argues that the trial court erroneously admitted into evidence numerous photographs of the victims' burnt bodies. Specifically, he argues that "Exhibits 3LL-QQ, 71W, 84BB, and 85AA, showing burns and thermal injuries to the bodies of the victims served no legitimate purpose and was an abuse of discretion."
The State contends that Mr. O'Neal failed to preserve this issue for appeal. Alternatively, the State claims that the photographs were relevant to show cause of death, show the arson damage, assist the medical examiner's testimony about injuries and cause of death, and to corroborate the eyewitnesses' and first responders' testimony. The State also asserts that any error was harmless and that any prejudice was diminished because Mr. O'Neal made no objection at trial to other photographs and used similar photographs in his closing argument.
We review "the admission of photographic evidence for an abuse of discretion." Douglas v. State, 878 So.2d 1246, 1255 (Fla. 2004).
The Florida Supreme Court has stated that "[t]hose whose work products are murdered human beings should expect to be confronted by photographs of their accomplishments." Chavez, 832 So.2d at 763 (alteration in original) (quoting Henderson v. State, 463 So.2d 196, 200 (Fla. 1985)). "The test for admissibility of photographic evidence is relevancy rather than necessity." Douglas, 878 So.2d at 1255 (quoting Pope v. State, 679 So.2d 710, 713 (Fla. 1996)). Crime scene photographs are relevant when they tend to show "the manner in which the murder was committed, show the position and location of the victim when he or she is found by police, or assist crime scene technicians in explaining the condition of the crime scene when police arrived." Id. Autopsy photographs are admissible when they are relevant "to explain a medical examiner's testimony, the manner of death, or the location of the wounds." Id.
1. Exhibit 71W
Mr. O'Neal did not object to exhibit 71W at trial. See Wilcox v. State, 143 So.3d 359, 372 (Fla. 2014) ("[F]or a challenge to be cognizable on appeal, it must be the specific contention asserted as a legal basis for the objection below. In the absence of a proper objection, a trial court cannot be held in error for failing to follow a principle of law never voiced." (citation omitted)). He never objected to exhibit 71W in his pretrial motion or claimed that the photograph was irrelevant, cumulative, or gruesome at trial. Regardless, the photograph is certainly not gruesome; it is just a picture of Mr. O'Neal's hands with some fresh burns. The photograph was also relevant to show that Mr. O'Neal lit the house and R.B. on fire, committing arson and child abuse of R.B.
2. Exhibits 3LL through 3QQ and 84BB
As for exhibits 3LL through 3QQ and 84BB, Mr. O'Neal failed to make specific objections to these photographs of K.B.'s body at trial. See id.; see generally Pasha v. State, 225 So.3d 688, 712 (Fla. 2017) ("Pasha claims that he preserved the issue of the admission of morgue and scene photographs through a motion in limine. However, since the trial court never made a definitive ruling on the issue raised in the motion, Pasha was required to object at the time the photographs were introduced at trial.").
Indeed, the trial court advised Mr. O'Neal before trial that he could "object to all specific photographs as the State intends to introduce them." And, based on Mr. O'Neal's statements during voir dire, it appears that he intended to use, and in fact used, photographs to support his defense.
Even if Mr. O'Neal had preserved the issue for appeal, the trial court did not abuse its discretion in admitting exhibit 84BB. It showed the wounds to K.B.'s head and was relevant to show the manner of death, to show the location of the wounds, and to explain the medical examiner's testimony. See Douglas, 878 So.2d at 1255-56 (holding that the trial court did not abuse its discretion in admitting photographs of the victim that were relevant to showing her position when police arrived, showing the location of her wounds, and helping the doctor explain the victim's injuries). The trial court also acted within its discretion in admitting exhibits 3LL through 3QQ. These photographs showed K.B.'s position and wounds, and assisted the crime scene investigator in explaining the condition of the body and crime scene when officers arrived and when the medical examiner inspected K.B.'s body. See Looney v. State, 803 So.2d 656, 669 (Fla. 2001) ("We find State's Exhibit 1-C is relevant to show the position and location of the bodies when they were found by police and assisted the crime scene technician in describing the crime scene.").
The photographs were also relevant to the issue of premeditation, to show the nature and extent of K.B.'s injuries, and to show Mr. O'Neal's use of force and violence that he claimed was justified. See Wilson v. State, 436 So.2d 908, 910 (Fla. 1983) (holding that the pictures were properly admitted where they "were relevant to depict . . . the nature and extent of the victims' injuries, the manner of death, the nature of the force and violence used, and also were relevant to the issue of premeditation").
3. Exhibit 85AA
Exhibit 85AA showed the stab wound to R.O.'s back, not just her burned body. The photograph was relevant to show an injury that contributed to her death and to assist the medical examiner's testimony about the premortem injuries.
Further, the burns in the photograph were relevant to corroborate R.B.'s testimony, to prove arson, and to show Mr. O'Neal's consciousness of guilt by trying to destroy evidence. See Seibert v. State, 64 So.3d 67, 88-89 (Fla. 2010) (holding that the trial court did not abuse its discretion in admitting the dismemberment photograph because it was relevant, in part, "to show consciousness of guilt based on the perpetrator's attempt to dispose of the body in a tidy fashion"); Doorbal v. State, 983 So.2d 464, 498 (Fla. 2008) (finding no abuse of discretion to admit photographs of severed body parts which were corroborative of testimony that defendant dismembered bodies with a chainsaw). Thus, the trial court did not abuse its discretion in admitting exhibit 85AA into evidence. See Seibert, 64 So.3d at 88-89; Doorbal, 983 So.2d at 498.
C. Limitations to Voir Dire
Mr. O'Neal argues that the trial court abused its discretion by denying his request for individual voir dire and prohibiting questions to prospective jurors about their religious beliefs. He claims that the trial court should have been cautious with voir dire because "[t]he case was high profile, involved highly sensitive facts, and was a death penalty case." The State contends that Mr. O'Neal failed to preserve this issue for appeal; he accepted the jury. Also, the State asserts that Mr. O'Neal misconstrues the trial court's instructions and has not asserted fundamental error or shown any prejudice from the jury selection.
At the outset, Mr. O'Neal did not preserve his claims for appellate review; he accepted the jury without objection. See Stripling v. State, 664 So.2d 2, 3 (Fla. 3d DCA 1995) (concluding that the defendant did not preserve for appeal his claims that the trial court's rulings during voir dire "unduly restricted his voir dire inquiry" because he did not renew his objection before the swearing of the jury). We therefore review Mr. O'Neal's claims for fundamental error. See Bell v. State, 108 So.3d 639, 651 (Fla. 2013) (citing Mendoza v. State, 964 So.2d 121, 131 (Fla. 2007)). The trial court's rulings regarding voir dire do not constitute abuse of discretion, much less fundamental error.
Mr. O'Neal's general assertion that individual voir dire was required simply because the case was a high-profile death-penalty case is misguided. Individual and sequestered voir dire is not required in every instance. "The mere existence of extensive pretrial publicity is not enough to raise a presumption of unfairness of constitutional magnitude" that would require individual and sequestered voir dire. Bolin v. State, 736 So.2d 1160, 1164 (Fla. 1999) (citing Bundy v. State, 471 So.2d 9, 19 (Fla. 1985)). Even in high-profile death-penalty cases, individual and sequestered voir dire is required only if failure to do so would render the trial fundamentally unfair. Id. That is, individual and sequestered voir dire is mandated where there has been recent pretrial publicity divulging inadmissible and prejudicial information about the case and it has become apparent that a prospective juror had been exposed to such pretrial publicity. See Dippolito v. State, 143 So.3d 1080, 1084-85 (Fla. 4th DCA 2014). And, recall that the trial court in this case agreed to individual voir dire of prospective jurors having "any previous knowledge of the case," including from pretrial publicity. The trial court's response to Mr. O'Neal's request did not run afoul to the law. See id.
Next, the trial court clarified during voir dire that Mr. O'Neal could inquire into the prospective jurors' religious beliefs about the death penalty as permitted by law. See generally Cannon v. State, 310 So.3d 1259, 1267 (Fla. 2020) (stating that a defendant may "probe whether any potential jurors held religious beliefs that would preclude them from following the trial court's instructions on the law"). Mr. O'Neal chose not to. Thus, Mr. O'Neal has not demonstrated that the trial court erred during voir dire. See generally § 924.051(7), Fla. Stat. (2017) ("In a direct appeal or a collateral proceeding, the party challenging the judgment or order of the trial court has the burden of demonstrating that a prejudicial error occurred in the trial court.").
D. Forgoing a Colloquy on Mr. O'Neal's Right to Testify
Mr. O'Neal argues that the trial court failed to conduct a colloquy during the guilt phase to make sure his waiver to testify was knowing, voluntary, and intelligent. The State notes that Mr. O'Neal did not raise this issue in the trial court, thus failing to preserve it for our review. The State also asserts that the trial court did not have a duty to make a record inquiry concerning his waiver of the right to testify. The State argues that, nevertheless, the record demonstrates that Mr. O'Neal's waiver was knowing, intelligent, and voluntary.
We review Mr. O'Neal's unpreserved claim for fundamental error. See Jackson v. State, 127 So.3d 447, 477 (Fla. 2013).
Mr. O'Neal does not claim that his waiver was not knowingly, voluntarily, and intelligently made. Rather, Mr. O'Neal faults the trial court for failing to conduct a colloquy to ensure that he made a knowing, intelligent, and voluntary waiver of his right to testify. Indisputably, a defendant's waiver of his right to testify must be knowing, voluntary, and intelligent. Morris v. State, 931 So.2d 821, 833 (Fla. 2006). Although a record colloquy might be helpful for later appellate and postconviction reviews, the right to testify "does not fall within the category of fundamental rights which must be waived on the record by the defendant himself." Torres-Arboledo v. State, 524 So.2d 403, 410-11 (Fla. 1988); see also Morris, 931 So.2d at 833 (same). "[T]here is no requirement that a defendant waive the right to testify on the record or be colloquied on the issue to assure he has made a knowing and voluntary waiver." State v. Medina, 118 So.3d 944, 947 (Fla. 3d DCA 2013). Accordingly, the trial court did not commit any error by foregoing a colloquy of Mr. O'Neal's right to testify.
E. Exclusion of Mr. O'Neal's PTSD and Trauma Evidence
Mr. O'Neal argues that the trial court misapplied the law by acting as a fact finder and weighing the evidence to exclude medical evidence of his PTSD and other trauma that was relevant to show "how [Mr.] O'Neal would evaluate a situation in which he thought he was being threatened or attacked." The State contends that the trial court ruled properly. Evidence of a defendant's warped perceptions is purely subjective and does not implicate the state-of-mind used in a self-defense analysis. PTSD evidence was irrelevant because there was no valid diagnosis of PTSD at the guilt phase or that PTSD played a role during the crimes. The State also insists that the probative value of the evidence was low and that it would have confused the jury. Alternatively, the State suggests that any error was harmless.
We review the trial court's ruling to exclude evidence for abuse of discretion. Gonzalez v. State, 306 So.3d 1124, 1129 (Fla. 3d DCA 2020). "[W]e must affirm unless no reasonable person would adopt the trial court's view." May v. State, 326 So.3d 188, 193 (Fla. 1st DCA 2021) (citing Salazar v. State, 991 So.2d 364, 372 (Fla. 2008)).
The trial court excluded Dr. McClain's testimony. Before an expert may testify, the trial court must determine that the evidence is relevant and reliable. State Farm Mut. Auto. Ins. v. Nob Hill Fam. Chiropractic, 328 So.3d 1, 6 (Fla. 4th DCA 2021) (citing Kemp v. State, 280 So.3d 81, 88 (Fla. 4th DCA 2019)). The expert's testimony is admissible if it will help the trier of fact understand the evidence or determine a fact in dispute, and the testimony is (1) "based upon sufficient facts or data"; (2) "the product of reliable principles and methods"; and (3) the product of the expert's application of "principles and methods reliably to the facts of the case." § 90.702, Fla. Stat. (2021) (codifying Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)). Additionally, the trial court must make factual determinations whether the witness adequately qualifies as an expert on the matter and the opinion evidence does "not present a substantial danger of unfair prejudice that outweighs its probative value." Mitchell v. State, 965 So.2d 246, 251 (Fla. 4th DCA 2007) (quoting Anderson v. State, 786 So.2d 6, 8 (Fla. 4th DCA 2000)); see also Huck v. State, 881 So.2d 1137, 1149 (Fla. 5th DCA 2004) (citing § 90.702). Expert testimony about PTSD often runs the danger of "skillfully present[ing] the defendant's testimony by the backdoor, negating the State's right to cross-examination," or "improperly bolster[ing] and/or vouch[ing] for the defendant's version of events." State v. Mizell, 773 So.2d 618, 621 (Fla. 1st DCA 2000).
Here, Mr. O'Neal alleged that K.B. tried to kill him. He argued that Dr. McClain's testimony would explain his "overaction" and fight or flight response. However, Dr. McClain, pretrial, conceded that she did not have sufficient facts to opine on Mr. O'Neal's behavior or state of mind leading up to the murder of K.B. Dr. McClain did not know how Mr. O'Neal physically reacted, if at all, because she had not interviewed him.
Nor did she review the mental health evaluations performed by other doctors. She relied largely on statements from Mr. O'Neal's family members. Dr. McClain had not reviewed all the facts of the case, and she did not know what happened before the murder or whether there had been any stressor that would have triggered Mr. O'Neal's claimed PTSD. Cf. State v. Hickson, 630 So.2d 172, 176-77 (Fla. 1993) (explaining that an expert who did not examine the defendant could testify as to generalities and hypotheticals, but the expert could not testify about the facts of the defendant's case).
Dr. McClain generally testified that a person with PTSD might overreact to a person trying to kill him. However, she never elaborated on what manner a person with PTSD would overreact.
Moreover, it is unclear with what exact issue Dr. McClain's testimony would have assisted the jury. In his pretrial motion and on appeal, Mr. O'Neal discussed cases where evidence was admitted indicating the defendant's perception and belief of danger. Yet, at the pretrial hearing, Mr. O'Neal focused on his "overreaction" and fight or flight response. It is not clear what facts demonstrated his "overreaction" to explain his self-defense claim. Nor did he ever lay a predicate demonstrating the relevancy of Dr. McClain's testimony. Cf. Medina v. State, 260 So.3d 419, 421 (Fla. 3d DCA 2018) ("Because appellant chose not to testify, was not examined by the defense expert, and introduced no evidence to demonstrate that he suffered any cycle of battering by the decedent, the necessary predicate was not established and the trial court properly excluded the expert's proposed testimony."); Mizell, 773 So.2d at 620-21 (explaining that the condition that "[t]he Defendant must lay a predicate by testifying" was "designed to avoid the problems that have arisen in other cases"). Mr. O'Neal admitted that he killed K.B. because she was trying to kill him. Yet, he pointed to no facts indicating that he overreacted. See § 776.012(2) (providing that "[a] person is justified in using . . . deadly force if he . . . reasonably believes that using . . . such force is necessary to prevent imminent death or great bodily harm to himself . . . or another"). Mr. O'Neal's theory at trial appeared to be that he reacted appropriately as a father and that any additional injuries were inflicted by law enforcement.
The trial court properly excluded Dr. McClain's testimony. Mr. O'Neal failed to show how it was relevant or probative in this case, or would assist the jury in understanding how his PTSD and trauma manifested when he killed K.B. Cf. Trice v. State, 719 So.2d 17, 19 (Fla. 2d DCA 1998) (holding that the trial court properly excluded the expert's testimony about battered-spouse syndrome where the expert "testified that he was unable, within a reasonable psychological probability, to testify as to Mrs. Trice's state of mind on the date of her death"); State v. Branch, 417 P.3d 1141, 1154 (N.M. Ct. App. 2018) (holding that the trial court did not abuse its discretion excluding the expert's testimony about PTSD because the probative value of the testimony was slight based on the expert's lack of personal observation of the defendant and it would not have meaningfully assisted the jury in determining the manifestation of PTSD in the defendant).
This court recently indicated in Oquendo v. State, 357 So.3d 214, 216-18 (Fla. 2d DCA 2023), that PTSD evidence is not admissible to support a self-defense claim because it ignores the objective standard of reasonableness used to assess the issue of self-defense. Cf. Passarelli v. State, 201 N.E.3d 271, 278-79 (Ind.Ct.App. 2023) (holding that evidence that a person with PTSD will react more harshly than others was inadmissible because it was not relevant to show "[t]he objective component of self-defense"). Oquendo certified conflict with the First District's Mizell decision, which held that PTSD evidence is relevant to understand a defendant's perceptions. See Oquendo, 357 So.3d at 221; Mizell, 773 So.2d at 621. Notwithstanding Oquendo, the trial court acted within its discretion because Mr. O'Neal failed to show that Dr. McClain's testimony was relevant or probative.
Further, the jury also believed that Mr. O'Neal killed R.O. and attacked R.B. So even if the trial court admitted Dr. McClain's testimony explaining his overreaction, the jury did not believe Mr. O'Neal's version that he defended himself against K.B. because she attacked him and the children, which he offered at trial as the alleged catalyst for his overreaction. The jury did not believe that K.B. attacked the children. Thus, any error in excluding Dr. McClain's testimony was harmless. See generally Jones v. State, 197 So.3d 1085, 1093-94 (Fla. 2d DCA 2015) ("To establish that an error was harmless, the State must 'prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.' "(quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986))).
F. Cumulative Error
Finally, Mr. O'Neal claims that cumulative error requires reversal. The State contends that because there was no individual error, there was no cumulative error. "Because the alleged individual errors are without merit, the contention of cumulative error is similarly without merit, and [Mr. O'Neal] is not entitled to relief on this claim." See Griffin v. State, 866 So.2d 1, 22 (Fla. 2003).
III. CONCLUSION
Mr. O'Neal has not demonstrated any trial court error. Accordingly, we affirm his judgment and sentences.
Affirmed.
BLACK and LUCAS, JJ, Concur