Rodney Tyrone Lowe v. State of Florida
Rodney Tyrone Lowe v. State of Florida
Opinion of the Court
This case is before the Court on direct appeal from a resentencing of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Rodney Tyrone Lowe appeals his sentence of death for the 1990 first-degree murder of Donna Burnell. The trial judge sentenced Lowe to death after the new penalty phase jury recommended the death penalty by a vote of twelve to zero. We first set forth the factual and procedural background of this case and then address Lowe's claims, including his Hurst v. Florida (Hurst v. Florida ), --- U.S. ----,
FACTUAL AND PROCEDURAL BACKGROUND
Lowe was convicted by a jury and sentenced to death for the July 1990 first-degree murder of Donna Burnell. The jury also convicted Lowe of attempted robbery. We set forth the following facts in Lowe's first direct appeal:
On the morning of July 3, 1990, Donna Burnell was working as a clerk at the Nu-Pack convenience store in Indian River County when a would-be robber shot her three times with a .32 caliber handgun. Ms. Burnell suffered gunshot wounds to the face, head, and chest and died on the way to the hospital. The killer fled the scene without taking any money from the cash drawer.
During the week following the shooting, investigators received information linking the defendant, Rodney Lowe, to the crime. Lowe was questioned by investigators at the police station and, after speaking to his girlfriend, gave a statement that implicated him in the *34murder. Following this statement, Lowe was arrested and indicted for first-degree murder and attempted robbery.
At trial, the State presented witnesses who testified that, among other things, Lowe's fingerprint had been found at the scene of the crime, his car was seen leaving the parking lot of the Nu-Pack immediately after the shooting, his gun had been used in the shooting, his time card showed that he was clocked-out from his place of employment at the time of the murder, and Lowe had confessed to a close friend on the day of the shooting. The State also presented, over defense objection, the statement Lowe gave to the police on the day of his arrest. Lowe advanced no witnesses or other evidence in his defense. After closing arguments, the jury returned a verdict finding Lowe guilty of first-degree murder and attempted armed robbery with a firearm as charged.
Lowe v. State ,
At the conclusion of the original penalty phase, the jury, by a vote of nine to three, recommended death.
On direct appeal, Lowe raised ten guilt phase issues and seven penalty phase issues.
Lowe filed an initial motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. Lowe v. State ,
Lowe then filed a successive postconviction motion based on newly discovered evidence and also filed a motion for rehearing.
The new penalty phase commenced on September 12, 2011. On September 23, 2011, the jury unanimously recommended death. At the Spencer
*36ISSUES ON APPEAL
Now on appeal from the new penalty phase, Lowe raises the following eighteen claims: (1) the trial court improperly granted the State a cause challenge to a prospective juror; (2) the trial court erred in overruling defense counsel's objection to the State's use of a mannequin; (3) the State's use of a computer-generated diagram of the crime scene as a demonstrative aid was improper; (4) the trial court erred in admitting Officer Ambrum's testimony regarding Lowe's possible sentence for a violation of community control; (5) the trial court erred in restricting mitigating evidence and limiting cross-examination; (6) the trial court erred in excluding the defense expert's testing results due to a discovery violation; (7) comments made by the State during closing amounted to fundamental error; (8) the trial court erred in sending prejudicial evidence not introduced at trial to the jury room for consideration during deliberations; (9) the trial court erred in precluding the jury from considering evidence of Lowe's limited role in the killing, disproportionate treatment compared to others, and a lawful evaluation of the aggravators; (10) the trial court erred in not instructing the jury to make a culpability finding before it considered imposing a death sentence; (11) the jury was misled regarding sentencing options by the trial court and the State; (12) the trial court erred in not independently weighing the aggravating and mitigating circumstances; (13) the aggravators found were not submitted to the jury properly and were not supported by competent, substantial evidence; (14) the trial court did not apply the correct law and its mitigation findings are not supported by record evidence; (15) the trial court erred in denying Lowe's special verdict form and instructions; (16) the incomplete record on appeal requires reversal; (17) death is not a proportionate punishment in this case; and (18) cumulative error. We address each issue in turn.
I. Cause Challenge to Prospective Juror
Based on the responses prospective juror Charles Simard provided on his juror questionnaire regarding the death penalty, the State conducted the following voir dire:
(Prosecutor) Mr. Butler: You indicated also on your questionnaire that you don't believe in the death penalty?
Charles Simard: That's right.
Mr. Butler: Now at first glance it would look then like it might be difficult for you to sit as a juror in a case where the only issue is whether the Defendant receives a death sentence or life without the possibility of parole for twenty-five years; is that fair?
Charles Simard: Yes.
....
Mr. Butler: Given your personal opposition to the death penalty, are you going to be able to engage in that weighing process, or do you think that because of where you stand personally you're always going to tilt those scales towards -- towards a life sentence?
*37Charles Simard: Yes, I'd probably go for life.
Mr. Butler: And that's even though the Judge would tell you you're supposed to weigh it?
Charles Simard: Yes.
....
(Defense counsel) Mr. Garland: Do you think as you sit here today that you could put aside your personal opinions, and listen to Judge Pegg's instructions and make a decision as to whether or not you could recommend life or death in this case?
Charles Simard: I think so.
Mr. Garland: You think you can follow the law?
Charles Simard: Uh-huh.
Mr. Garland: Is that a yes?
Charles Simard: Yes.
At sidebar, the State moved for a cause challenge, arguing that Mr. Simard told the defense he could follow the law, but told the State otherwise. The State argued that "there's certainly a reasonable doubt as to whether [Simard] can be fair and impartial." Defense counsel objected, arguing that Mr. Simard's responses did not rise to the level of a cause challenge, and suggesting that "if the State wants to use a peremptory that's up to them." The trial court granted the State's challenge, finding that it was "not convinced" by Mr. Simard. The State later withdrew its cause challenge and substituted a peremptory challenge before the jury was sworn in. Defense counsel did not make a specific objection to the substitution.
Lowe argues that Mr. Simard merely voiced a general objection to the death penalty and thus the trial court reversibly erred by granting the State's cause challenge. Lowe further argues that the error was not cured by the trial court's subsequent decision to allow the State to substitute a peremptory strike against Mr. Simard. Lowe relies on this Court's decision in Ault v. State ,
In Ault , we concluded that it was reversible error for the trial court to have dismissed a prospective juror for cause where the juror's responses to questioning indicated "that she could put her personal feelings aside and be fair in the penalty phase and that she could be fair in the guilt and penalty phases even though she opposed the death penalty."
At the outset, we note that unlike Ault , Gray , and other cases rejecting the "unexercised peremptory argument," this case involves the trial court permitting the State to substitute a peremptory strike before the jury was sworn, as opposed to the State presenting an argument on appeal regarding what the State would have done at trial. We also note that Lowe did not object to the substitution. Nevertheless, because we conclude that the trial court did not err in granting the initial cause challenge, we need not reach the question of whether such a substitution can cure an erroneous removal for cause.
*38We review a trial court's ruling on a cause challenge under an abuse of discretion standard. Singleton v. State ,
In Ault , we ordered a new penalty phase after concluding that the trial court erroneously dismissed a potential juror for cause based on the juror's "opposition to the death penalty." Ault ,
II. The State's Use of a Mannequin
During the State's direct examination of the medical examiner, the State sought to use a mannequin as a demonstrative aid in order to show the position of the gun in relation to Burnell's body. Defense counsel objected to the use of the mannequin, arguing that the anatomical figure had zero probative value "as far as assisting the jury in determining where the bullet came from" and noting that the medical examiner testified that he could not opine as to specific trajectories. The trial court overruled the objection, questioning what the difference was if the medical examiner was "off a few degrees one way or another" and noting that the mannequin was "just a gray faceless body part" and not a gruesome reproduction of the victim. The medical examiner then used the mannequin, which was slightly *39taller and thinner than Burnell and had dowels inserted into it, to demonstrate the relative trajectories of the three bullets that entered the victim's body. The medical examiner testified that because he could not state what position Burnell was actually in when she was shot, he could only give anatomical, not spatial, trajectories, and that the trajectories had a small degree of error.
"The standard of review for the use of a demonstrative aid at trial is abuse of discretion." Williams v. State ,
Demonstrative exhibits to aid the jury's understanding may be utilized when relevant to the issues in the case, but only if the exhibits constitute an accurate and reasonable reproduction of the object involved. The determination as to whether to allow the use of a demonstrative exhibit is a matter within the trial court's discretion.
Duncan ,
Here, the use of the mannequin satisfies Duncan . The mannequin was used to set out the circumstances of the crime and to attempt to establish aggravation. The mannequin was used to demonstrate the location of the gunshot wounds, the angle of impact against the skin, and the incapacitating nature of each gunshot. The jury was advised that the trajectories were anatomical, not spatial, and had a small degree of error. There only were slight differences between Burnell's size and the mannequin's dimensions, and there is nothing to suggest that the mannequin was altered to resemble Burnell. Accordingly, the trial court did not abuse its discretion, and Lowe is not entitled to relief as to this claim.
III. The State's Use of a Computer-Generated Diagram
During opening statements, the State used a computer-generated diagram of the crime scene, that is, the interior of the Nu-Pack convenience store. Defense counsel asked to approach the bench. At sidebar, defense counsel noted that the diagram "appears to be some sort of computer recreation of the event or the store." Defense counsel also noted that they had "never seen" the diagram and that they could not see it from the defense table. Defense counsel then noted that "it's just a diagram, but still." The State explained that "it's just the diagram," that there were no "figures or anything," and that it would not be introduced into evidence. Defense counsel then stated for the record that "it is animated and there's moving along as [the prosecutor] talks." The trial judge overruled defense counsel's objection and concluded that the diagram was a demonstrative aid, it was not a recreation of the crime scene, it was just "a picture," there was no animation of a building, and there were no people. The trial judge then sent out the jury and had the seating rearranged to accommodate defense counsel and Lowe. Lowe now argues that the trial court failed to conduct a proper *40Richardson
We review the trial court's decision to allow the use of the computer-generated diagram under an abuse of discretion standard. Williams ,
Here, the State used the computer-generated diagram as a demonstrative aid to help the jury visualize where the crime took place. The State used the picture to identify specific locations in the store that would be relevant to the aggravation the State hoped to prove in the case. There is nothing to suggest that the diagram was an inaccurate or unreasonable reproduction of the interior of the Nu-Pack store. Moreover, there is nothing to suggest that the diagram was an animated recreation of the crime or included depictions of the people involved.
Lowe fails to explain how this "diagram" that was "not a recreation situation," that was never admitted into evidence, and that was never used with any witness constitutes a discovery request violation. Even assuming that a Richardson inquiry was required, we see no conceivable prejudice to Lowe. See Smith v. State ,
The trial court did not abuse its discretion in allowing the State to use the computer-generated diagram. Consequently, we deny relief as to this claim.
IV. Officer Ambrum's Testimony
Lowe argues that Officer Ambrum, who was Lowe's probation officer at the time of Burnell's murder, erroneously testified regarding the maximum sentence Lowe faced for the violation of community control (VOCC) and that the erroneous testimony was used to mislead the jury regarding the avoid arrest aggravator. Lowe also contends that the State relied on this testimony during its closing to argue for the aggravator. We conclude that these arguments were not preserved at trial and that Lowe cannot demonstrate fundamental error.
During direct examination, after multiple sustained objections caused the State to have to rephrase its question, the State asked Officer Ambrum what "the maximum penalty Mr. Lowe would look at under the law at that time if he was violated under community control." Officer Ambrum testified that he "believe[d] it would be somewhere in the area of thirty years." Defense counsel did not object. On cross-examination, defense counsel asked Officer *41Ambrum about that testimony given that Lowe had been sentenced as a youthful offender for the previous robbery he committed in 1987. Officer Ambrum was clearly uncertain regarding how the youthful offender statute worked and the impact a new substantive crime would have on Lowe's community control:
Q. Now, certainly your answer would be different if you were told that the person were sentenced as a youthful offender; correct?
A. At that time I'm not sure what they -- I know that there's been some changes with the -- whether or not they were in violation, I'm not sure what the law was on that at that time.
....
Q. Isn't it true that someone sentenced as a youthful offender is looking at a different potential maximum sentence than someone convicted as an adult?
A. Possibly.
Q. Thus the different classifications; correct?
A. But I have seen youthful offenders go back to court on a violation. Are you talking about being out -- sentenced outside of youthful offender, too?
Q. So you're aware of the youthful offender statute; correct?
A. If I understand you correctly you're asking me if -- if he would have only be (sic) able to be sentenced to six years probation?
Q. I'm asking is there a difference between being sentenced as a youthful offender -- your knowledge, is there a difference between being sentenced as a youthful fender (sic) and as an adult?
A. Yes, absolutely.
Q. And the distinction is with regard to potential maximum penalty; correct?
A. To my knowledge it's the initial sentence, not potential.
Despite Officer Ambrum's clearly uncertain testimony, the State in its closing argument did make one mention of Officer Ambrum's testimony that Lowe "could get up to thirty years for violating his community control." The State did so in the overall context of arguing the avoid arrest aggravator and that Lowe "does not like to get caught" and knew he would go back to prison if he were arrested for the Nu-Pack robbery. The State also mentioned that Lowe would get more time for any new offense. Lowe did not object to the State's closing argument.
The State concedes on appeal that Officer Ambrum misstated the law and that in no event would the maximum sentence be more than six years, less credit for time served. However, the State argues that the misstatement does not render the sentence fundamentally unfair and does not detract from the evidence supporting the avoid arrest aggravator, given that Officer Ambrum's testimony was not the thrust of the State's argument for the aggravator. We agree.
Admission of evidence is within the trial court's discretion, and its ruling will be upheld absent an abuse of discretion. Williams v. State ,
We conclude that Officer Ambrum's testimony and the State's reliance on that testimony do not rise to the level of fundamental error. During the specific segment of closing argument in which the State argued for the avoid arrest aggravator, the State did not mention Officer Ambrum's testimony and instead largely focused on the fact that when Lowe walked into the Nu-Pack store, he recognized Burnell from another store where he had become friends with her. And the State argued that, unlike the previous robbery Lowe committed in 1987, he did not want to leave behind a witness who could identify him. The State then went through the facts that supported its conclusion that Lowe killed Burnell because he wanted to avoid arrest and not leave a witness. Namely, the State explained that: Lowe spent time in the store getting a soda and putting a hamburger in the microwave and had a chance to reflect before making the conscious choice to kill Burnell; Lowe then shot Burnell three times; common sense dictated that the first gunshot was to the top of Burnell's head as she was bent over tending to her three-year-old nephew
Why do you do that but to avoid an arrest, avoid being recognized, avoid being apprehended?
Why would you kill the clerk first? Because his motivation changed. He wanted to eliminate Donna Burnell who he knew, and who knew him from six months earlier at Fran's Market.
That's the aggravator of avoiding an arrest.
While the State did later mention Officer Ambrum's testimony, it was not central to the State's argument for the aggravator. Moreover, with respect to the aggravator, the trial court's sentencing order made no mention of the possible sentence Lowe would face for a VOCC and only mentioned that Lowe was on community control and would have returned to prison. The trial court also found that a death sentence was justified even without the avoid arrest aggravator.
Lowe has not shown that the aggravator, much less his death sentence, "could not have been obtained without the assistance of the alleged error." Doty ,
V. Trial Court's Restriction of Mitigation and Cross-Examination
Lowe argues the trial court erred in sustaining the State's objections to testimony implicating Lorenzo Sailor in the shooting and to the admission of Dwayne Blackmon's sworn affidavit. Testimony was presented that Lowe, Sailor, and Blackmon had twice before gone to the Nu-Pack *43store together intending to rob the store but left both times without committing the robbery due to the presence of potential witnesses. It was Lowe's position that Sailor and Blackmon were also involved in the third and final attempted robbery that resulted in Burnell's murder. Lowe claims that the trial court's rulings unlawfully restricted his mitigation presentation and limited his cross-examination of Officer Green.
Regarding Sailor, Lowe sought to present bad character testimony that Sailor and another individual, sometime before and unrelated to Burnell's murder, had been seen by Officer Ewert pointing guns at traffic after Officer Ewert responded to reports of shots being fired at an elementary school. Sailor later pointed the gun at Officer Ewert before he (Sailor) and the other individual dropped their guns and ran through the woods. Lowe argued that the testimony was relevant to the defense's theory that Sailor participated in the robbery of the Nu-Pack store and was a potential suspect who was not investigated. The defense further argued that the gun incident with Officer Ewert showed Sailor's "proclivity for pointing guns at law enforcement" and that Sailor was "not afraid to engage in gun play."
Admission of evidence is within the trial court's discretion, and its ruling will be affirmed absent an abuse of discretion. Williams ,
We conclude that the trial court properly excluded the testimony regarding Sailor. Even if credible evidence showed Sailor to be involved in Burnell's murder-which the trial court concluded was not shown-Sailor's prior criminal act of pointing a gun at traffic and at Officer Ewert had no relevance to any aspect of Lowe's character or record, or to any circumstances of the murder and attempted robbery.
Regarding Blackmon's affidavit, Blackmon, who was deceased at the time of the resentencing trial, had signed an affidavit in October 1990 in which he stated that Officer Green and another officer had made certain promises and threats. During cross-examination of Officer Green, Lowe attempted to impeach Officer Green with Blackmon's affidavit. The State objected to the introduction of the affidavit into evidence as well as to any direct reading from the affidavit. The trial court eventually sustained the objection but ruled that, among other things, defense counsel could directly ask Officer Green "any questions ... about whatever he said to Mr. Blackmon," including whether he intimidated or threatened Blackmon. Defense counsel then asked Officer Green whether he made certain specific promises and threats to Blackmon. Officer Green denied doing so.
"To impeach a witness by use of a prior inconsistent statement pursuant to section 90.608, Florida Statutes (2008), the *44prior statement must be both (1) inconsistent with the witness's in-court testimony, and (2) the statement of the witness." Wilcox v. State ,
Here, even assuming that Lowe should have been permitted to introduce Blackmon's affidavit-but only to the extent that the purported statements could be isolated to Officer Green, and only after the proper foundation had been laid and Officer Green first denied making the statements-any such error was harmless. Prior to the State's objection, defense counsel made the jury aware of Blackmon's affidavit (which defense counsel was holding) and the general accusations against Officer Green. After the objection was sustained, defense counsel directly questioned Officer Green regarding whether he ever threatened Blackmon with the electric chair, whether he mentioned to Blackmon that he could be prosecuted as an accomplice and serve fifty to one hundred years, and whether he told Blackmon that in order for Blackmon to receive reward money he would have to testify that Lowe committed the murder. It is clear from the context that the jury understood that Lowe was questioning Officer Green regarding the specific accusations Blackmon made against Officer Green. Accordingly, we conclude that Lowe is not entitled to relief as to this claim.
VI. Defense Expert's Testing Results
Lowe argues that the trial court, without an adequate Richardson hearing and consideration of alternatives, excluded scientific statistical evidence that would have supported the lack of future violence mitigator.
During the latter portion of defense counsel's direct examination of its medical expert, Dr. Riebsame, defense counsel asked him whether he had enough information *45to form a risk assessment regarding the likelihood or absence of Lowe's future violence. Dr. Riebsame answered in the affirmative and then discussed how he looks at certain risk factors in coming up with a probability of low, medium, or high risk of reoffending or doing something violent again. Dr. Riebsame went on to note that "we can even do what's known as an actuarial assessment like your insurance agent would do" and testified that "the most widely used actuarial statistical tool" for predicting future violence is called the "violence risk appraisal guide." After explaining that this tool involves looking to the presence or absence of various factors, Dr. Riebsame then briefly discussed those factors. When defense counsel then asked Dr. Riebsame "where does Mr. Lowe fall on that scale," the State objected and asked to approach. At sidebar, the State objected, on the basis of a discovery violation, to Dr. Riebsame discussing the specific test results. The State explained that it had deposed Dr. Riebsame one month earlier and that the statistical tool was neither discussed during the deposition nor listed in Dr. Riebsame's report that was provided to the State prior to the deposition.
The trial court concluded that the discovery violation was not intentional but was also not trivial and impaired the State's ability to cross-examine or to present its own testimony. The trial court noted that the violation was taking place "at the eleventh hour and fifty-ninth minute" and involved a subject with which the State was not familiar. The trial judge ruled that Dr. Riebsame was "not precluded from giving his opinion, he's just precluded from saying I conducted this test and on the basis of this test I'm concluding this." Defense counsel then pointed out that Dr. Riebsame had other bases to talk about his opinion, and the trial court made clear that Dr. Riebsame was free to testify to those things but was simply precluded from discussing the calculations he made after his deposition.
When the jury returned, Dr. Riebsame testified that he was able to render an expert opinion regarding Lowe's likelihood of future violence based on the information he knew about Lowe "and the testing" he carried out. Dr. Riebsame then explained the factors that diminished the risk of Lowe reoffending, as well as the risk factors that increased the likelihood of Lowe reoffending. He also testified that the risk varied based on whether Lowe was in or out of custody, with Lowe presenting "a minimal risk of a violent offense" if in *46custody. Finally, when asked whether there are "greater factors that lower or increase" the risk, Dr. Riebsame testified that the greater lowering factors were that Lowe was now forty years old as opposed to twenty years old when he carried out the violent offense and violated community control, that Lowe continued to have no history of a substance abuse problem, and that Lowe had no severe mental health disorder. On cross-examination, the State did not attack Dr. Riebsame's conclusions on the basis of a lack of statistical analysis testing. Instead, the State asked Dr. Riebsame whether he would agree that human behavior "is extremely unpredictable," and the doctor answered in the affirmative. The State then asked questions which indicated that Lowe previously behaved well while he was at a juvenile facility and again when he went to the Department of Corrections in 1988 but that each time when he got out he reoffended. And Dr. Riebsame testified "that's true."
When a trial court has notice of a discovery violation, Richardson holds that the trial court's discretion can only be properly exercised once it has determined: (1) whether the violation was willful or inadvertent; (2) whether it was trivial or substantial; and (3) whether it had a prejudicial effect on the opposing party's trial preparation. Richardson , 246 So.2d at 775. This Court will then review the record "to determine if this full inquiry was made and if the trial court's actions pursuant to the inquiry were proper." McDuffie v. State ,
Here, it appears the trial court excluded the testimony as a "first resort," id. at 163, as opposed to a last resort. Indeed, the trial court does not appear to have "considered less extreme alternatives before excluding the testimony." Dawson v. State ,
Prior to the State's objection, the jury was made aware that Dr. Riebsame conducted a risk assessment using a statistical model for predicting future violence known as the "violence risk appraisal guide." And the jury was made aware of the various factors that are relevant to that risk assessment. Defense counsel himself recognized that the defense had gone "well into" Dr. Riebsame's testimony on the subject before the State objected. After the State's objection, the jury was permitted to hear Dr. Riebsame's expert opinion regarding Lowe's likelihood of future violence, including Riebsame's other bases for his opinion. The full context of the record reveals that Dr. Riebsame's expert opinion was that there was a low risk of Lowe engaging in violence in the future. And Dr. Riebsame testified that he formed his expert opinion based on the information he knew about Lowe as well as "the testing" he "carried out." He further testified that he "appl[ied]
*47that information to what we know are specific factors associated with reoffending or not reoffending in a violent fashion." The jury was clearly informed that Dr. Riebsame's determination was that Lowe had a low risk of future dangerousness and that the determination was made, in part, by the use of a statistical model. Moreover, the trial court found the mitigator proven. We conclude that "there is no reasonable possibility" that the trial court's failure to consider any alternative remedies contributed to Lowe's death sentence. Delhall ,
VII. State's Comments during Closing Argument
Lowe argues that the State made several improper comments during its closing argument that warrant reversal. Specifically, he claims that the State used victim impact statements to compare the worth of Burnell and Lowe and that the State argued to the jury that Lowe had been sentenced to death before and should be again because nothing had changed since then.
Control of prosecutorial argument lies within the trial court's sound discretion, and will not be disturbed absent an abuse of discretion. Esty ,
Lowe points to the following statements made by the State during its closing arguments:
How about the Defendant has changed and grown spiritually since he was convicted of first-degree murder? Well, that's good, that's a good thing. But, really, when you stack it up against Donna Burnell's life, really, is that mitigating? Donna Burnell used her rosary every night. Is that really mitigating compared to what he did on July 3rd of 1990?
....
They [Lowe's family] care about him. They love him. Donna Burnell loved her family. Her family cared about her.
....
He is a caring and loving brother. We love the ones we have in our family. We love our family and we love that part of it. But Donna Burnell cared and loved her family, too.
....
We know he wasn't doing well, we know what he was up to. We know what he was up to. Planning robberies, guns. Murdering innocent store clerks.
Does this outweigh what happened to Donna Burnell? Does it?
Think about what Rodney Lowe did that morning. Think about what he came from, what he was doing, his activities. His behavior prior to that. Does that outweigh what happened to Donna Burnell?
....
Whether or not this Defendant matured over the last twenty years, behaved well in prison doesn't take away what happened to Donna Burnell.
*48Donna Burnell was a human being who cared about her family. Mr. Lowe should be held accountable for taking away that life.
Lowe did not contemporaneously object to any of these statements. Thus, Lowe is entitled to relief only if the "[u]nobjected-to comments ... rise to the level of fundamental error." Merck v. State ,
In Wheeler v. State ,
In light of Wheeler and Hayward , we conclude that the State's comments comparing Burnell's life and Lowe's life do not rise to the level of fundamental error. The comments at issue represented a very brief portion of the State's entire closing. Moreover, the comments were made in the context of discussing three nonstatutory mitigators-family relationships, religious faith, and maturity-each of which the trial court found and weighed in the sentencing calculus. On this record, including the evidence presented and the fact that the jury was instructed on the proper use of victim impact testimony, it cannot be said that the unobjected-to comments deprived Lowe of a fair penalty phase or were "so inflammatory" that a sentence of death could not have been obtained without it. Wheeler ,
Lowe also argues that the State impermissibly argued to the jury that he had been sentenced to death before and should be again because nothing had changed since then. Lowe did not make a contemporaneous objection to the State's closing, and we conclude that the State's references to the prior death sentence do not amount to fundamental error. In Teffeteller v. State ,
*49
Here, before the State's closing argument, several of Lowe's own witnesses-through testimony elicited by defense counsel-informed the jury of Lowe's prior status on death row. First, Dale Resinella testified that he was the chaplain on death row and that he had provided counsel to Lowe. Later, Ron McAndrew, a retired warden, was asked by defense counsel if Lowe was "housed on death row" in a cell by himself, to which McAndrew responded in the affirmative. Finally, Lowe's mental health expert, Dr. Riebsame, described Lowe's case as a "postconviction appeal" involving "a person [who] has been on death row for 20 years." Although the State mentioned during closing that Lowe had been on death row for twenty years, it was only after defense counsel elicited testimony from its witnesses of the same fact. Moreover, a review of the record reveals that the State did not make the prior sentence a key feature of the proceedings.
Accordingly, we deny relief as to this claim.
VIII. Evidence in Deliberation Room
Lowe argues that it was fundamental error for the trial court to allow a letter his mother, Sherri Lowe, wrote to him in 1988 to be given to the jury during deliberations, given that the letter was not admitted into evidence in the resentencing proceedings and contained prejudicial information. The letter was part of a box of personal contents that had been admitted into evidence as State's Exhibit 32 during the original trial. We reject Lowe's claim of fundamental error.
On cross-examination, the State presented Sherri with the letter and asked whether she recalled saying that, among other things, she thought the course Lowe was on "was leading to death." After Sherri testified that it "was certainly my handwriting, but I don't remember," defense counsel made a general objection and asked to approach. At sidebar, defense counsel asked if the letter was from the box of contents, and the prosecutor answered in the affirmative. The prosecutor explained that she was going to "admit it into evidence." Defense counsel countered that he did not know it was coming in and had not had a chance to read it. The trial judge then dismissed the jury for lunch, and defense counsel was given a chance to read the letter during the lunch break. After lunch, and before the jury was recalled, the trial judge asked if counsel for both sides had "worked out any problems with [the letter]." Both responded in the affirmative. Without objection, the State then asked more questions of Sherri regarding the letter, while apparently inadvertently failing to have the letter admitted into evidence. Sherri testified that she recognized her handwriting and the letter itself and that she was very concerned about Lowe's behavior. On redirect, defense counsel asked Sherri, "What else is in that letter?" She responded:
I was encouraging him to do what's right. I mean, we've always taught him bible principal, what is right and what is wrong, to obey or disobey. Now, of course I was encouraging him to go forth, to repent and turn around and go *50forth in a positive manner, according together [sic] scriptures.
Defense counsel then asked Sherri if she included a scripture verse in the letter, and she said "yes."
After closing arguments, the trial judge and counsel for both parties discussed the evidence that was going to be sent back to the jury. The trial judge specifically asked about the box identified as State's 32 and whether there was "a stipulation between the parties as to whether [the box] will go back to the jurors." The State responded that it had "agree[d] with the defense" that the box containing "a lot of personal items and some other stuff" would not be sent back to the jury. But the State specifically noted that the "letter that was used" would indeed be sent back. Defense counsel did not object or suggest that the State's response did not accurately reflect what had been agreed to. The trial court then asked defense counsel if he had agreed not to send the box back, and he responded in the affirmative.
"As a general rule, it is improper to allow materials into the jury's deliberation room that have not been admitted into evidence if the materials are of such character as to influence the jury." Gonzalez v. State ,
We have recognized that "[a] party may not invite error and then be heard to complain of that error on appeal." Pope v. State ,
Given this record, defense counsel's conduct goes well beyond mere acquiescence. Moreover, we conclude that any error was not fundamental. We agree with the State that the content of the letter was largely duplicative of Sherri's testimony-both on cross-examination and redirect-as well as certain other testimony, including from Dr. Riebsame. That is, Lowe had gotten into trouble at school and committed other crimes during his teen years, Sherri was concerned with his behavior, the family tried to counsel Lowe, Sherri encouraged Lowe to go forth and repent in accordance with the Bible, Lowe's brother had also been in trouble, and Lowe had been shunned by his family and their *51church congregation. See Bottoson v. State ,
IX. Evidence Not Considered by Jury
Lowe argues the jury was precluded from considering evidence of his limited role in the killing, his disproportionate treatment compared to others involved, and a lawful evaluation of the aggravators. In support, Lowe points to the juror questionnaires as well as the instructions given at the outset and conclusion of the penalty phase. The instructions informed the jury that Lowe had been found guilty of first-degree murder and that the jury should only consider the sentence to be imposed, not guilt. Lowe contends that these instructions prevented the jury from considering "substantial" mitigation and accurately assessing aggravation. We find Lowe's argument unavailing.
In this Court's previous decision to uphold the trial court's grant of a new penalty phase, we found ineffective assistance of counsel under Strickland
During the new penalty phase, the State's theory continued to be that Lowe acted alone. And the defense's theory was that Lowe was a minor participant. During its opening statement, defense counsel informed the jury that the evidence, including "statements that were made by others after the fact," would show that Lowe did not act alone and was not the shooter. Defense counsel later called Miller and Carter-former girlfriend and boyfriend who had fourteen felony convictions and eleven felony convictions, respectively-who testified about admissions made by Blackmon years later while Blackmon was threatening other people. Miller claimed that Blackmon admitted to being the shooter, and Miller also claimed to have brought Blackmon's confession to the attention of several detectives. Carter similarly claimed that Blackmon admitted to being the shooter, but Carter later claimed that Blackmon on several occasions said that Lorenzo Sailor was the shooter. Carter also denied ever telling the police about a conversation he overheard in which Lowe admitted he was the shooter. The State later presented several rebuttal witnesses to impeach both Miller and Carter. Those witnesses included Steve Kerby, a retired investigator with the State Attorney's Office, who testified that, a few days after Burnell's murder, Carter told him that he (Carter) overheard a conversation in which Lowe told Blackmon that he *52(Lowe) had attempted to rob the convenience store and had shot the attendant. During closing, defense counsel continued to argue that Lowe was not the shooter, instead asserting that Sailor was the shooter.
Defense counsel requested the minor participant mitigator instruction, which the trial court granted. The trial court instructed the jury that it could consider as a mitigating circumstance that Lowe "was an accomplice in a capital felony committed by another person, and his participation was relatively minor." The jury was also informed that "mitigating circumstances may include any aspect of the Defendant's character, background, or life, or any circumstance of the offense that reasonably may indicate that the death penalty is not an appropriate sentence in this case." And the jury was repeatedly informed that its recommendation must be based only upon the evidence and the instructions.
Despite being permitted to argue minor participation, including presenting the testimony of Miller and Carter, and despite the jury being instructed regarding the mitigator, Lowe argues that instructing the jury to not concern itself with Lowe's guilt misled the jury into believing it "could give no effect to" the minor participant mitigator. Lowe argues that although he was allowed to present the mitigation, the fact that the jury believed it could not consider the mitigation violates Lockett and Eddings v. Oklahoma ,
"Jury instructions are subject to the contemporaneous objection rule, and in the absence of a contemporaneous objection at trial, relief regarding error in the instructions can be granted on appeal only if that error is fundamental." Floyd v. State ,
As an initial matter, we note that defense counsel himself during closing "ma[d]e it clear" to the jury that the defense was "not contesting that Rodney Lowe is guilty of first degree murder" and was instead asking the jury "to look at the evidence" and "take into consideration that someone else was in that store with Rodney Lowe on July 3rd, 1990." Even putting aside that fact, we find no error in the instructions given to the jury. Moreover, in the absence of evidence to the contrary, we presume that jurors follow the trial court's instructions. See Hurst v. State (Hurst ),
*53X. Culpability Finding
Lowe argues that this Court's previous decision to remand for a new penalty phase required the trial court to make Enmund v. Florida ,
As an initial matter, nowhere in our previous decision did we mention Enmund or Tison let alone indicate that we were remanding for resentencing for an Enmund / Tison finding. Instead, as noted above, we found ineffective assistance of counsel under Strickland regarding counsel's failure to "discover[ ] evidence to call into question Blackmon's alibi and Blackmon's contention that he did not participate in the crimes." Lowe ,
During the charge conference, the trial judge specifically raised the issue of giving an Enmund / Tison instruction. After questioning whether either side was requesting the instruction, defense counsel stated, "Well, before we tell you we're not gonna ask for it, I again would just ask for the evening to make sure that I don't wanna ask for it." Defense counsel then indicated they would research the issue and email the prosecutor to "have that worked out." The next day, defense counsel did not ask for an Enmund / Tison instruction and instead announced they were "okay" with revised instructions that had been provided by the prosecutor. After the trial court instructed the jury, Lowe agreed the instructions were read in accordance with the trial court's rulings.
Jury instructions "are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred." State v. Delva ,
In Enmund , the Supreme Court held that, in the context of felony murder, it was unconstitutional to impose the death penalty on a defendant "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed."
*54In the wake of Enmund and Cabana , this Court, out of concern that an appellate court's factual findings may in some cases be inadequate, set forth a procedure for trial courts to follow "in appropriate cases." Jackson ,
In Tison , the Supreme Court expanded the Enmund culpability requirement, holding that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." 481 U.S. at 158,
As an initial matter, Lowe points us to no authority to support reversal, based on lack of an Enmund / Tison jury instruction, in a case in which the convicted defendant is the only person to have been conclusively linked to the crime and in which there is no evidence showing that any other person has ever even been charged with the same crime. Moreover, Lowe's mandatory reversal argument ignores that in Diaz , this Court, in rejecting a defendant's argument regarding lack of an Enmund instruction, itself made the requisite culpability finding, "[b]ased on our review of the record."
The record here supports the finding that Lowe "was not merely an aider or abetter in a felony where a murder was committed by others." Stephens v. State ,
XI. Sentencing Options
Because Lowe committed the first-degree murder in 1990, the two sentencing options available at the time of his new penalty phase were either death or life imprisonment without the possibility of parole for twenty-five years. See § 775.082(1), Fla. Stat. (1989). That is the case even though at the time of Lowe's new penalty phase, the Legislature had amended the sentencing statute to eliminate any possibility of parole in life sentences for first-degree murder. See Bates v. State ,
Before voir dire, the State filed a motion in limine seeking to preclude Lowe from arguing that, given how the parole system works, he would not be released after serving the mandatory twenty-five years of his sentence if the judge sentenced him to life. The trial court eventually ruled that neither side could argue anything related to the parole system, including that Lowe, who had already served approximately twenty years in prison, could get out in a few years if given a life sentence.
During voir dire, a potential juror asked the prosecutor whether with a life sentence, there is a chance for parole after twenty-five years. The prosecutor explained that Lowe would be eligible for parole after twenty-five years but that it did not mean he would get out, that Lowe would only be "eligible for parole," that the parole decision was not up to the courts, and that it was not something the prospective juror should consider. The prosecutor then asked the prospective juror whether he understood what she (the prosecutor) was saying, and the prospective juror responded in the affirmative.
Another prospective juror then asked the prosecutor whether Lowe would receive credit for time served and asked when Lowe was originally sentenced. The prosecutor answered that Lowe would receive credit for time served. As the prosecutor was answering the second part of the question, defense counsel objected and stated that it was improper to respond to such questions. During the ensuing sidebar, the trial court referenced this Court's case law, including Gore v. State ,
THE COURT: Also, but, as far as eligibility, none of us in the judicial system have anything to do with whether a person is either granted parole or not granted parole, so we're unable to speculate on the likelihood of parole and it just is out of our hands.
On the other hand, also, that should not be a consideration. The only consideration that you should make in making your determination is the aggravating factors and the mitigating factors. That should not enter into your decision making in your deliberations.
Neither of these two prospective jurors was selected to sit on the actual jury.
*56In instructing the jury prior to deliberations, the trial judge informed the jury of the two sentencing options. The trial judge also repeatedly explained that the jury was to base its decision only on the evidence and the jury instructions. The trial judge later explained: "Before you ballot you should carefully weigh, sift and consider the evidence, realizing that a human life is at stake, and bring your best judgment to bear in reaching your advisory sentence." After being instructed, the jury deliberated for approximately two hours before unanimously recommending a sentence of death.
Lowe fails to establish error. This Court has repeatedly addressed the issue of whether, in a resentencing proceeding for a defendant who committed a pre-1994 first-degree murder, the trial court abuses its discretion by answering (or not answering) questions posed by the actual jury regarding parole eligibility and credit for time served if given a life sentence. See, e.g. , Armstrong v. State ,
We also reject Lowe's reliance on Hitchcock v. State ,
XII. Sentencing Order
Lowe claims he is entitled to a new penalty phase on the grounds that the trial *57court did not independently weigh the aggravating and mitigating circumstances and thus did not comply with section 921.141, Florida Statutes, and Spencer . He argues that the sentencing order is a verbatim adoption of the State's sentencing memorandum with respect to the aggravation and analysis sections. And he points to some inconsistencies between the weight assigned to certain mitigators in the mitigation and analysis sections. We deny Lowe relief.
At the Spencer hearing, the trial court requested that both sides submit a sentencing memorandum. In its sentencing order, the trial court ended up adopting virtually all of the State's sentencing memorandum with respect to the aggravation section and most of the State's memorandum with respect to the analysis section. With respect to the mitigation section, the sentencing order did not wholly copy the memorandum of either party; rather, the sentencing order generally followed the format in Lowe's memorandum and then explained the trial court's findings with respect to each proposed mitigator. Although the trial court did overall adopt substantial portions of the State's memorandum verbatim, a review of the memoranda and the sentencing order reveals that the trial court independently engaged in the weighing process. For example, in rejecting the minor participation mitigator, the trial court noted that among other things it personally found both Lisa Miller and Ben Carter to be not credible or believable witnesses. In addition, the trial court personally assigned a weight to each of the aggravators in the aggravation section and to each of the mitigators in the mitigation section. The trial court also included several paragraphs of its own in the analysis section, including a discussion of the jury's unanimous recommendation.
Lowe cites to Morton v. State ,
Regarding the inconsistencies Lowe references in the trial court's weighing of certain mitigators, we find they do not show abdication by the trial judge of its responsibility and do not hamper this Court's review. These inconsistencies appear to stem from the fact that the trial court personally assigned a weight to each of the mitigators in the mitigation section and then later adopted most of the State's *58memorandum with respect to the analysis section, in which the State discussed weight to be assigned to the proposed mitigators. However, we agree with the State that these inconsistencies are generally minor, and we find that any error is harmless beyond a reasonable doubt. For example, there is no significant difference here between an initial finding that mitigation evidence is entitled to "little weight" and a subsequent mention of that mitigation being entitled to "little to no weight." Regarding the "good behavior while in confinement" mitigator, which the trial court initially assigned "moderate weight" but later mentioned in the analysis section as being not mitigating and "only entitled to little or no weight," we conclude that this inconsistency does not make a significant difference in the overall calculus, particularly given that the trial court found that four aggravators were proven and assigned each "great weight." Accordingly, Lowe is not entitled to relief as to this claim.
XIII. Aggravators
Lowe argues the following aggravators were unlawfully presented to the jury and applied to him as a basis for his death sentence: (1) on community control; (2) prior violent felony; and (3) avoid arrest. Lowe also argues that he was denied fundamental fairness under the principle of former jeopardy where the State had not sought the community control, avoid arrest, and pecuniary gain aggravators in the original penalty phase. We conclude that Lowe is not entitled to relief.
In reviewing the finding of an aggravating circumstance,
[I]t is not this Court's function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt-that is the trial court's job. Rather, [this Court's] task on appeal is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.
Willacy v. State ,
First, Lowe challenges the community control aggravator, notwithstanding the fact that he conceded the aggravator during closing argument. He argues that the aggravator only applies to those "on community control" and that individuals sentenced under the youthful offender statute-as was the case with Lowe and the previous robbery he committed in 1987-are instead put in a "community control program ." We disagree. A simple look at the relevant statutes reveals that the definition of "community control" under section 948.001(3), Florida Statutes (2011), is virtually identical to the definition of "community control program" in section 958.03(2), Florida Statutes (2011), of the Florida Youthful Offender Act. Moreover, chapter 948 itself repeatedly refers to a "community control program." In other words, the Legislature clearly uses the terms interchangeably. The trial court did not err in finding that Lowe qualified for the aggravator.
Second, Lowe challenges the prior violent felony aggravator, again notwithstanding the fact that he conceded the aggravator during closing argument. Lowe argues that the aggravator was unlawfully applied because his conviction was for robbery without a weapon for which he was given a youthful offender sentence, and the *59crime was not life threatening. "Whether a crime constitutes a prior violent felony is determined by the surrounding facts and circumstances of the prior crime." Gonzalez ,
For Lowe's prior conviction of robbery, the facts were that after the victim (Crosby) drove his van home from the library one evening and pulled into his own driveway, Lowe, who had earlier broken into and was quietly hiding in the back of Crosby's van, grabbed Crosby from behind, put something sharp up against Crosby's neck, which Crosby thought might have been a knife, told Crosby "don't move, don't turn around, I don't want to hurt you," and instructed Crosby to turn over his wallet and leave the keys on the dashboard. Crosby complied, and Lowe fled with the van before being apprehended. The trial court here relied on these surrounding facts and circumstances and did not err in finding that Lowe qualified for the aggravator.
Third, Lowe argues the avoid arrest aggravator was not supported by the evidence. He claims that the only relevant fact cited by the trial court was that he knew Burnell. "To establish the avoid arrest aggravating factor where the victim is not a law enforcement officer, the State must show beyond a reasonable doubt that the sole or dominant motive for the murder was the elimination of a witness." Connor v. State ,
Here, the sentencing order lays out all of the evidence from which the trial court concluded that there was no other plausible explanation for the murder other than to eliminate Burnell as a witness. That evidence included: Lowe's statement that he knew Burnell, that he was unaware she *60worked at the Nu-Pack store, and that he knew her from when she worked at a different store; Lowe was on community control and would return to prison if he committed another robbery; the absence of evidence showing any struggle or resistance; Burnell had a three-year-old child with her and posed no threat; the silent hold-up alarm was not activated; Lowe wore no mask or gloves; Lowe's fingerprints on the hamburger wrapper indicated he had time to reflect on his actions before the murder; Burnell was shot three times, including twice from very close range; the gunshot wound to the top of Burnell's head was likely the first shot and indicated she was bending over at the time; and various other pieces of evidence indicating that Burnell was shot before any attempt was made to remove money from the register, including the position of Burnell's body when she was found lying on her back. The trial court cited Jennings v. State ,
We conclude that any error in the trial court's decision to present the avoid arrest aggravator to the jury and to find that the aggravator was proved was harmless beyond a reasonable doubt. As an initial matter, Lowe's reliance on Calhoun v. State ,
Finally, Lowe argues that his constitutional rights were violated when the State sought, and the trial court found, aggravators that were not sought by the State and were not found by the trial court in the original penalty phase. Although the record reflects that Lowe sought only to exclude the CCP and HAC aggravators, he now argues that the State should not have been permitted to seek the aggravators of community control, avoid arrest, and pecuniary gain. We have repeatedly stated, in the same context of a resentencing proceeding stemming from a previously vacated death sentence, that this Court applies the "clean slate" rule. See, e.g. , Way v. State ,
XIV. Mitigators
Lowe argues that the trial court's treatment of mitigation rendered his capital sentence unconstitutional. He argues that the trial court: (1) unlawfully relied on the prior death sentence affirmance; (2) failed to apply the correct law and weight to the statutory age mitigator; (3) improperly assessed the "family relationships" mitigator and used it as aggravation; (4) improperly and arbitrarily used nonstatutory aggravation; and (5) failed to give any weight to uncontested mitigation. This Court requires the sentencing judge to "expressly evaluate in his or her written sentencing order each statutory and non-statutory mitigating circumstance proposed by the defendant." Ferrell v. State ,
First, Lowe claims that the trial court erroneously relied on this Court's prior affirmance of his original death sentence. This argument is insufficiently briefed and otherwise without merit. In the analysis section of its sentencing order, the trial court began by noting that, under Morton , it should not rely on the prior sentencing order. The trial court then noted as "instructive" the fact that this Court previously upheld Lowe's initial death sentence based upon the presence of only two aggravators. After pointing out that the new penalty phase involved the State proving *62those same two aggravators, as well as two additional ones, the trial court then set forth its lengthy analysis of the weighing process explaining why the four proven aggravators, each of which was assigned great weight, "far outweigh" "the mitigation offered by the defendant." Although the trial court referenced our previous decision, the trial court independently engaged in the weighing process.
Next, Lowe takes issue with the trial court's findings regarding the statutory age mitigator, given that Lowe was just over twenty years old at the time of the murder. He argues that the trial court unlawfully attributed "little weight" and then "little to no weight" to the mitigator and that greater weight should have been assigned due to "the scientifically and constitutionally recognized immaturity of youth and the profoundly mitigating effect of age, both in the caselaw and expert testimony" presented at trial. He also argues that the trial court erroneously required a nexus of age to the offense. We find no abuse of discretion.
As an initial matter, a trial court is not required to assign great weight to the age mitigator. "We have long held that the fact that a defendant is youthful, 'without more, is not significant.' " Mahn v. State ,
Next, Lowe argues that the trial court improperly assessed the "family relationships" mitigator and used it as aggravation by incorrectly finding that he came from a "loving, normal functioning family." He argues that the trial court should have instead found certain other mitigation, including that he was exposed to an alcoholic, brutally abusive father and was shunned by his family-despite the fact that Lowe never suggested to the trial *63court that he had proven such mitigation. In any event, we reject Lowe's claim and conclude that any error is harmless beyond a reasonable doubt.
In his sentencing memorandum, Lowe contended that the following relevant mitigating circumstance had been proven: "The Defendant is a loving family member and capable of maintaining family relationships." In its sentencing order, the trial court determined that Lowe had proven the following "family relationships" mitigator, which it assigned little weight: "The Defendant comes from a loving, normal functioning family. He has maintained relationships with his mother and sister during his long period of incarceration." In the analysis section of the sentencing order, the trial court discussed, as not particularly mitigating, Lowe's "love for his family and the emotional support he has provided them over the course of his confinement." The trial court later discussed Lowe's "normal upbringing, free from abuse or deprivation," and explained that Lowe's normal life did not mitigate a death sentence.
The essence of Lowe's argument is that instead of focusing solely on Lowe's love for his family, the trial court erred by also finding that Lowe's family loved him and that he had a normal upbringing. We disagree that the trial court used nonstatutory aggravation. At worst, the trial court misinterpreted the specific mitigation proposed by Lowe. However, it is difficult to fault the trial court for doing so, given that Lowe himself presented the testimony of his mother, Sherrie, who very much painted the picture of Lowe having a normal life in an average family that did lots of activities together, including many related to church. She testified that Lowe was an easy child to raise until about age fifteen, and she attributed Lowe's troubles as stemming entirely from peer pressures coming from outside the home, in particular from kids who had very lenient boundaries. She also painted the picture of Lowe's father as a very responsible family man. She did mention that she and Lowe's father separated for "a short time" when Lowe was twelve years old because Lowe's father usually drank one night per week and would sometimes use inappropriate language when doing so. But she also testified that during their six-week separation, Lowe's father made positive changes including that he stopped drinking. Lastly, she testified that she and Lowe's father had guidelines for disciplining their children depending on the infraction, including revoking privileges and administering some corporal punishment.
Although Lowe also presented the testimony of Dr. Riebsame, who testified that Lowe's criminal activity problems in middle adolescence began "in response to what's going on in the household"-i.e., running away from his father's discipline, being embarrassed by Jehovah's Witnesses evangelizing, and being shunned by his family and the congregation-the trial court was free to reject that testimony in favor of Lowe's mother's testimony. See Hampton v. State ,
In the end, even assuming that the trial court should not have considered Lowe's loving family and normal upbringing and should have instead found mitigation involving negative family relationships, there is no reasonable possibility that the mitigation *64would be sufficient to outweigh the substantial aggravation in this case. We deny relief.
Next, Lowe argues that the trial court used unfounded nonstatutory aggravation by making certain comments that were "totally unrelated to any of the aggravation." We disagree. When read in context, almost all of the complained-of comments-i.e., that Lowe unlawfully possessed a firearm, was given a great chance to rehabilitate himself, and otherwise made his own decision to commit a murder-go directly to explaining why the trial court assigned great weight to the community control aggravator. The trial court explained that Lowe committed the murder while being on community control for only a relatively short period of time, that the terms of his community control prohibited him from possessing a firearm, and that he blatantly flouted the rules by which he agreed to abide. There is nothing improper about the trial court's explanation of the weight it assigned to the aggravator in the overall context of weighing the aggravation and mitigation. To the extent any remark by the trial court can be considered improper, we conclude that it "does not reflect an underlying improper sentencing rationale." Oyola v. State ,
Finally, Lowe argues that the trial court assigned no weight to much nonstatutory mitigation without adequately explaining its decision, thus violating Trease . Here, the trial judge personally assigned "no weight" to three of the ten nonstatutory mitigators proposed by Lowe, and two of those three were determined by the trial judge to "not in fact" be mitigating circumstances. Although the sentencing order later contains some inconsistencies and may be "less than a model of clarity," Armstrong v. State ,
XV. Hurst v. Florida
Lowe relies on Ring v. Arizona ,
In Davis v. State ,
This Court has consistently relied on Davis to deny Hurst relief to defendants who have received a unanimous jury recommendation of death. See, e.g. , Cozzie v. State ,
XVI. Incomplete Record on Appeal
Lowe argues that certain missing items render the record incomplete and prevent a complete review. We reject Lowe's claim because, among other things, he fails to explain how he is prejudiced by any of the missing items or has been hindered from presenting meritorious appellate issues tied to any of the items. See Rodriguez v. State ,
First, Lowe claims that the absence of the completed juror questionnaires, which were destroyed, precludes proper review. Lowe's argument primarily focuses on the trial court's decision to grant the State's challenge for cause (later changed to a peremptory strike) regarding prospective juror Charles Simard-an issue we have already addressed. Lowe asserts that there are "substantial grounds for reversal based on the trial court's exclusion of Mr. Simard that cannot be developed adequately" without the questionnaires. But Lowe fails to identify any such grounds. See Armstrong v. State ,
Second, Lowe asserts that meaningful appellate review is precluded because the court reporter did not certify the accuracy of the transcription of certain recordings played during the resentencing, including Lowe's statement, and there are a number of inaudible sections. Here, the reporter transcribed what was played to the jury and certified that such was done to the best of her ability. Moreover, the reporter certified the accuracy of the transcript at the end of each volume. In any event, Lowe fails to identify what specific prejudice has resulted from the inaudible portions of the trial transcript. See Jones v. State ,
Finally, Lowe argues that without the computer-generated diagram used by the State during opening argument and the mannequin used by the medical examiner during his testimony, this Court cannot determine whether the use of either item was improper. As an initial matter, these items were not entered into evidence or otherwise documented by Lowe. They were not items that could supplement the record under Florida Rule of Appellate Procedure 9.200(a)(1). Moreover, as we explained earlier in this opinion, the trial court did not abuse its discretion in permitting the use of either item. We deny relief.
XVII. Proportionality Review
Lowe also challenges the proportionality of his death sentence. Proportionality review is not a quantitative analysis involving comparing the number of aggravators and mitigators, but a qualitative review of the underlying basis for each aggravating and mitigating factor and of the totality of the circumstances as compared to other capital cases. See Gregory v. State ,
In following the jury's unanimous recommendation of death, the trial court found the following five aggravating circumstances, merged to four: (1) under sentence of imprisonment/community control (great weight); (2) prior violent felony (great weight); (3A) murder in the course of a felony (great weight) merged with (3B) pecuniary gain; and (4) avoid arrest (great weight). The trial court found one statutory mitigator, statutory age (little weight). Regarding the ten nonstatutory mitigators argued by Lowe, the trial court gave them all little to no weight, except for good behavior while in confinement, which the trial court gave moderate weight. Lowe argues that this case is nowhere near the most aggravated and least mitigated of cases. We disagree and conclude that Lowe's death sentence is proportionate *67under Florida law, with or without the avoid arrest aggravator. We have affirmed other cases with similar aggravation and mitigation. See, e.g. , Bryant v. State ,
Lowe cites to Terry v. State ,
We also find Johnson v. State ,
XVIII. Cumulative Error
As his final claim, Lowe argues cumulative error. In this appeal, Lowe presented several preserved arguments claiming error.
*68We determined that those arguments either involved no errors or errors that were harmless and not prejudicial to Lowe. Lowe also presented several unpreserved arguments claiming error. See Evans v. State ,
CONCLUSION
For the reasons stated above, we affirm Lowe's death sentence.
It is so ordered.
LABARGA and LAWSON, JJ., concur.
CANADY, C.J., concurs specially with an opinion, in which POLSTON, J., concurs.
LEWIS, J., concurs in result and dissents in part with an opinion.
QUINCE, J., concurs in part and dissents in part with an opinion.
PARIENTE, J., dissents with an opinion.
CANADY, C.J., concurring specially.
I concur in the opinion except regarding the Hurst issue, on which I would conclude that there was no error. The jury's verdict convicting Lowe of attempted armed robbery with a firearm satisfies the requirement of Hurst v. Florida that an aggravator be found by the jury. See Hurst v. State ,
POLSTON, J., concurs.
LEWIS, J., concurring in result and dissenting in part.
Although I am in agreement with the result of the majority's opinion, I write to voice my disagreement with the majority's conclusion that Lowe's avoid arrest aggravator is supported by competent, substantial evidence. When the victim is not a law enforcement officer, proof of intent to avoid arrest and detection must be very strong. Green v. State ,
Lowe asserted that: (1) the trial court erred in denying Lowe's motion to suppress his confession; (2) the trial court erred in allowing the jury to hear certain portions of Lowe's taped interrogation; (3) the trial court erred in admitting a box of Lowe's personal items; (4) he was denied his constitutional rights to effective assistance of counsel and the equal protection of the law when the trial court declined to appoint two attorneys for his defense; (5) the trial court erred in failing to conduct a hearing under Nelson v. State ,
Huff v. State ,
Brady v. Maryland ,
Lowe claimed that:
(1) he was denied an adversarial testing at the guilt phase of his trial because trial counsel was ineffective, the State suppressed material exculpatory evidence, and newly discovered evidence has been disclosed, and for these reasons the jury did not know that Dwayne Blackmon was the shooter; (2) evidence that Lowe did not act alone was never presented to the jury because counsel failed to properly investigate and the State withheld evidence that multiple parties were involved in the crime; (3) because counsel was ineffective and the State withheld material evidence, critical impeachment of Dwayne Blackmon was never presented to the jury; (4) trial counsel rendered ineffective assistance by failing to object to irrelevant and inflammatory evidence; and (5) trial counsel rendered ineffective assistance by failing to challenge the admissibility of Lowe's statement on the ground that it was obtained in violation of his Fifth Amendment rights, and by failing to impeach Patricia White.
Lowe ,
Lowe claimed that:
(1) appellate counsel was ineffective for failing to raise several claims on direct appeal; (2) Florida's capital sentencing statute is unconstitutional on its face and as applied because it violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution; and (3) Lowe's death sentence is unconstitutional because the State used prior convictions based on acts committed by Lowe when he was a juvenile to establish an aggravating factor, in violation of the Eighth Amendment and Roper v. Simmons ,543 U.S. 551 ,125 S.Ct. 1183 ,161 L.Ed.2d 1 (2005).
Lowe ,
Spencer v. State ,
The trial court found five aggravators, merged to four: (1) under sentence of imprisonment/on community control (great weight); (2) prior violent felony (great weight); (3A) murder in the course of a felony (great weight) merged with (3B) pecuniary gain; and (4) avoid arrest (great weight). The trial court found one statutory mitigator-statutory age (little weight). The trial court rejected the statutory mitigator that Lowe was a minor participant in a homicide committed by another person. Regarding the ten nonstatutory mitigators argued by Lowe, the trial court made the following findings: (1) good behavior while in confinement (moderate weight); (2) family relationships (little weight); (3) creative ability (not a mitigating circumstance-no weight); (4) maturity (little weight); (5) religious faith (little weight); (6) work ethic (little weight); (7) extracurricular sporting activities (not a mitigating circumstance-no weight); (8) Lowe is emotionally supportive of his sister (no weight); (9) low risk of future danger (little weight); and (10) good courtroom behavior (little weight).
Richardson v. State ,
In our original decision affirming Lowe's conviction and death sentence, we referred to the three-year-old child as Burnell's son. Lowe ,
In any event, Lowe was improperly offering Sailor's prior act of misconduct solely to prove Sailor's bad character or propensity. See § 90.404(1), (2)(a), Fla. Stat. (2017).
We also note that during Lowe's prior postconviction case, Lowe argued to this Court that Blackmon had "attempted to recant his affidavit and accused the assistant public defenders of forcing him to sign the affidavit even though some of the facts in the affidavit were not true." Lowe ,
For unexplained reasons, Dr. Riebsame appears to have performed the statistical analysis at issue during the one-month period between the date of his deposition and the day he testified at trial, even though he testified that it was "the most widely used actuarial statistical tool for predicting violence in the future."
Frye v. United States ,
Strickland v. Washington ,
The prosecutor explained that the State would not be arguing that if given a life sentence, Lowe might get out in just a few short years.
In 2014, subsequent to Lowe's new penalty phase, Florida's Standard Criminal Jury Instruction 7.11 was amended based on Green . See In re Standard Jury Instructions in Criminal Cases-Report No. 2013-03 ,
Lowe also invites this Court to hold that even though he was adjudicated guilty and convicted of the previous robbery, the prior violent felony aggravator is inapplicable because he was a juvenile at the time and was sentenced as a youthful offender. We decline to do so. See Lowe ,
Concurring in Part
I concur with my colleagues that Lowe is not entitled to relief on the majority of his claims; however, I cannot agree that the Hurst error in this case is harmless beyond a reasonable doubt. The majority supports this conclusion by relying primarily on the jury's unanimous recommendation for death. The majority finds that because the jury unanimously recommended death, the Court can conclude beyond a reasonable doubt that a rational jury would have unanimously found all of the findings necessitated by Hurst ,
First, the trial judge improperly curtailed Lowe's ability to fully inform the jury regarding the operation of Florida's parole system and Lowe's consecutive fifteen-year sentence for robbery. Additionally, the prosecutor and the trial court explained to the jury that Lowe would get credit for time served and that the court could not speculate as to when Lowe would be released on parole. As the majority states, after the State told the jurors that Lowe would get credit for time served, the court explained:
Also, but, as far as eligibility, none of us in the judicial system have anything to do with whether a person is either granted parole or not granted parole, so we're unable to speculate on the likelihood of parole and it is just out of our hands.
On the other hand, also, that should not be a consideration. The only consideration that you should make in making your determination is the aggravating factors and the mitigating factors. That should not enter into your decision-making deliberations.
The majority concludes that there was no error in the trial court's instructions to the jury. In support of this holding, the Court relies on Armstrong , where we found no error where the jury was informed that the capital defendant on resentencing was entitled to credit for time served for life without the possibility of parole for twenty-five years option.
Armstrong argued "that the trial court abused its discretion when it failed to instruct the jury that [he] was not guaranteed parole at or after 25 years."
[E]ven if the trial court abused its discretion, it would be of no consequence, because any error is harmless. Armstrong *70had already been convicted of the crime. It cannot be said that this instruction would have caused the jury to arrive at a conclusion they would not have otherwise reached as there is substantial aggravation in the instant case that provides independent support for the jury recommendation. Accordingly, we conclude that the trial court did not abuse its discretion below.
Justice Pariente concurred in part and dissented in part in Armstrong , writing that she "would reverse for a new penalty phase" due to "the trial judge's answer to a question from the jury regarding sentencing options."
This explanation of how the trial court's incomplete explanation as to parole and credit for time served is even more compelling post- Hurst for the conclusion that defendants in this situation are entitled to a new penalty phase. It is impossible to know the true effect the information the jury received regarding Lowe's previous death sentence and the lack of appropriate information it received regarding the parole system and Lowe's other sentences had on its unanimous recommendation for death. However, it is clear these errors could have very easily influenced the jury's perception of the case and had an adverse impact on the jury's unanimous recommendation.
Second, the jury was improperly informed that Lowe had previously been sentenced to death. During the State's closing argument, it referenced Lowe's prior death sentence four times:
(1) "You've heard he's on - has been on death row for the last twenty years. We're asking you to impose the death sentence. Nothing has changed since 1990."
(2) "He's been on death row for twenty years, he's watched 24/7; of course he's gonna act well. He does well in a structured environment, absolutely. That's not the problem."
(3) "Now you've heard the testimony. Nothing has changed since 1990. Nothing. The Defendant's story is still the same, and we've shown you that it's not true, and as a result of that you should send him back to death row."
(4) "With your recommendations you can send Rodney Lowe back to death row, and that's what I'm asking you to do."
These statements, in my view, amount to fundamental error. The majority opinion correctly cites to Teffeteller , wherein we held that "a death sentence which has been vacated by this Court should not play a significant role in resentencing proceedings."
The defendant also argued that the State's comments during closing improperly informed the jury of his prior death sentence.
Third, we cannot know that the jury found each aggravating factor unanimously, despite the jury's unanimous death sentence recommendation. Because one of the aggravators found by the trial court for the murder in this case-that the capital felony was committed to avoid arrest-requires specific factual findings, Hurst requires that the jury, not the trial judge, make that determination. The jury made no such determination in Lowe's case. By ignoring the record and concluding that all aggravators were unanimously found by the jury, the majority is engaging in the exact type of conduct the United States Supreme Court cautioned against in Hurst v. Florida ,
Because harmless error review is neither a sufficiency of the evidence review nor "a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence," State v. DiGuilio ,
Dissenting Opinion
This is Lowe's direct appeal from resentencing. I dissent because several errors in Lowe's resentencing cry out for this Court to grant Lowe a new penalty phase. Not only did the jury consider an improper aggravating factor of avoid arrest, as explained by Justice Lewis's separate opinion,
Hurst necessarily changed how this Court reviews the information that the jury considered in making its recommendation as to the appropriate sentence in each case. This Court has made clear that a proper understanding of Florida's parole system and defendants receiving credit for time served affects the jury's ability to understand its sentencing options.
*72Hitchcock v. State ,
[E]ven assuming [the trial court's] response [to the jury's inquiry] was technically accurate, the response was clearly flawed for what it did not tell the jurors . First, we should be clear that the response given certainly did not favor the defendant since it told the jury that with a life sentence the defendant would soon be eligible for parole, not in twenty-five years, but in ten, a very short time, indeed, if the jury is concerned, as jurors logically would be, with keeping a killer off the streets for a long time.
[U]nlike the trial judge, the jury has no working knowledge of the actual length of the sentence that a defendant is facing if it recommends the option of life without the possibility of parole for 25 years. Therefore, to the extent that its vote for life or death may hinge on concerns that the defendant may be released from prison, the jury should be informed of all relevant information that bears upon the ultimate length of the prison sentence. In this context, the jury is solely dependent upon the instructions from the trial court and the answers to questions regarding the actual sentence.
In this case, the cumulative effect of the errors in Lowe's resentencing-the improper avoid arrest aggravating factor, misleading the jury as to the effect of its sentencing options, and references to Lowe's prior death sentence-require this Court to vacate Lowe's death sentence and remand for a new penalty phase pursuant to Hurst . As in Armstrong , the jury's inquiry in this case "regarding the effect of a recommendation of life" was a "very logical question," considering that Lowe had already served twenty "years of any sentence to be imposed."
Further, the trial court did not allow Lowe to inform the jury of his consecutive fifteen-year sentence for robbery. Even if Lowe was granted parole within a few years of resentencing, he would still be required to serve an additional fifteen years in prison. Therefore, despite the prosecutor's and trial court's suggestions, it was impossible that Lowe would be released sooner than twenty years after resentencing.
*73The majority concludes that Lowe has not established error, noting that "[n]either of the[ ] two prospective jurors" who asked questions prompting this explanation "was selected to sit on the actual jury." Majority op. at 55. However, regardless of whether the inquisitive prospective jurors were empaneled, the jury pool heard the information and could have understood the information to suggest that Lowe could be released soon after resentencing. This Court cannot speculate about the effect this incomplete information had on the jury. Once the jury was told that Lowe would receive credit for time served and was eligible for parole after twenty-five years, the defense should have been allowed to properly explain Florida's parole system and inform the jury of Lowe's consecutive fifteen-year sentence.
Exacerbating the error of misleading the jury as to its sentencing options, the jury heard multiple references to Lowe's prior death sentence throughout the resentencing. In one instance, Chaplain Resinella discussed during direct examination his time as the chaplain on death row and providing counsel to Lowe. In another instance, Warden McAndrew testified on direct examination:
DEFENSE: Now, you've heard that [Lowe] is housed on death row. He's by himself in a cell?
WARDEN: Yes he is.
See majority op. at 49. Dr. Riebsame also referenced Lowe's time on death row during his direct examination, stating:
RIEBSAME: Often times also more volumes, particularly in a case where there's, you know, a postconviction appeal and a person has been on death row for twenty years.
See
Finally, as Justice Quince explains, the prosecutor made four references to Lowe's prior death sentence during closing argument and argued that the jury should impose the same sentence imposed before. Concurring in part and dissenting in part op. at 69-70 (Quince, J.); see majority op. at 47-48, 48, 56. Contrary to the majority's assertions, the references to the prior death sentence in Teffeteller v. State ,
Considering the cumulative effect of these errors in Lowe's resentencing in conjunction with the improper aggravating factor of avoid arrest, as explained by Justice Lewis, it is clear that Lowe's defense was prejudiced. The jury was left with the improper impression that Lowe could have been released from prison shortly after resentencing if sentenced to life instead of death. This impression could have easily "influenced the jury and preconditioned it to recommend a death sentence." Concurring in part and dissenting in part op. at 71 (Quince, J.). Thus, it is impossible for this Court to determine how the inappropriate information the jury received and the information the jury did not receive affected the jury's unanimous recommendation for death.
CONCLUSION
As this Court stated in Wood v. State ,
Accordingly, I dissent.
Concurring in result and dissenting in part op. at 68-69 (Lewis, J.).
Concurring in part and dissenting in part op. at 69-71 (Quince, J.).
Hurst v. State (Hurst ),
Reference
- Full Case Name
- Rodney Tyrone LOWE, Appellant, v. STATE of Florida, Appellee.
- Cited By
- 24 cases
- Status
- Published