          Supreme Court of Florida
                                  ____________

                                  No. SC11-1846
                                  ____________

                          MARK ANTHONY POOLE,
                                Appellant,

                                        vs.

                             STATE OF FLORIDA,
                                  Appellee.

                                  [June 26, 2014]



PER CURIAM.

      Mark Anthony Poole was convicted of the murder of Noah Scott, attempted

first-degree murder of Loretta White1, armed burglary, sexual battery of Loretta

White, and armed robbery. Poole v. State, 997 So. 2d 382, 387 (Fla. 2008).

Following the penalty phase, the jury recommended that Poole be sentenced to

death by a vote of twelve to zero, and the judge followed the jury’s

recommendation. Id. at 388. On direct appeal, based on the cumulative effect of


       1. Although the female victim has changed her name since the direct appeal
in this case, for consistency, we will refer to her by her previous surname, White,
throughout this opinion.
the errors made during the penalty phase of the trial, this Court vacated Poole’s

sentence of death and remanded the case for a new penalty phase. Id. at 394. On

remand, following the new penalty phase, the jury recommended death by a vote of

eleven to one, and the trial court followed the jury’s recommendation. Poole now

appeals his resentencing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

For the reasons outlined below, this Court affirms the trial court’s resentencing of

Poole to death.

                          Facts and Procedural History

      On the evening of October 12, 2001, after playing some video games
      in the bedroom of their mobile home, Noah Scott and Loretta White
      went to bed sometime between 11:30 p.m. and 12 a.m. Later during
      the night, White woke up with a pillow over her face and Poole sitting
      on top of her. Poole began to rape and sexually assault her as she
      begged Poole not to hurt her because she was pregnant. As White
      struggled and resisted, Poole repeatedly struck her with a tire iron.
      She put her hand up to protect her head, and one of her fingers and
      part of another finger were severed by the tire iron. While repeatedly
      striking White, Poole asked her where the money was. During this
      attack on White, Scott attempted to stop Poole, but was also
      repeatedly struck with the tire iron. As Scott struggled to defend
      White, Poole continued to strike Scott in the head until Scott died of
      blunt force head trauma. At some point after the attack, Poole left the
      bedroom and White was able to get off the bed and put on clothes but
      she passed out before leaving the bedroom. Poole came back in the
      bedroom and touched her vaginal area and said “thank you.” White
      was in and out of consciousness for the rest of the night. She was next
      aware of the time around 8 a.m. and 8:30 a.m. when her alarm went
      off.

             When her alarm went off, White retrieved her cell phone and
      called 911. Shortly thereafter, police officers were dispatched to the
      home. They found Scott unconscious in the bedroom and White

                                        -2-
severely injured in the hallway by the bedroom. White suffered a
concussion and multiple face and head wounds and was missing part
of her fingers. Scott was pronounced dead at the scene. Evidence at
the crime scene and in the surrounding area linked Poole to the
crimes. Several witnesses told police officers that they saw Poole or a
man matching Poole’s description near the victims’ trailer on the night
of the crimes. Stanley Carter stated that when he went to the trailer
park around 11:30 that night, he noticed a black male walking towards
the victims’ trailer. Carter’s observations were consistent with that of
Dawn Brisendine, who knew Poole and saw him walking towards the
victims’ trailer around 11:30 p.m. Pamela Johnson, Poole’s live-in
girlfriend, testified that on that evening, Poole left his house sometime
in the evening and did not return until 4:50 a.m.

       Poole was also identified as the person selling video game
systems owned by Scott and stolen during the crime. Ventura Rico,
who lived in the same trailer park as the victims, testified that on that
night, while he was home with his cousin’s girlfriend, Melissa Nixon,
a black male came to his trailer and offered to sell him some video
game systems. Rico agreed to buy them for $50, at which point the
black male handed him a plastic trash bag. During this exchange,
Nixon got a good look at the man and later identified Poole when the
police showed her several photographs. Nixon testified that the next
morning, when her son was going through the trash bag, he noticed
that one of the systems had blood on it.

       Pamela Johnson also testified that on the same morning, she
found a game controller at the doorstep of Poole’s house, she handed
it to Poole, and Poole put it in his nightstand. She indicated that she
had never seen that game controller before that morning and did not
know what it would be used for because neither she nor Poole owned
any video game systems. During the search of Poole’s residence, the
police retrieved this controller. In addition, the police retrieved a blue
Tommy Hilfiger polo shirt and a pair of Poole’s Van shoes, shoes
Poole said he had been wearing on the night of the crimes. A DNA
analysis confirmed that the blood found on the Sega Genesis box,
Super Nintendo, Sega Dreamcast box and controller matched the
DNA profile of Scott. Also, a stain found on the left sleeve of Poole’s
blue polo shirt matched White’s blood type. The testing of a vaginal
swab also confirmed that the semen in White was that of Poole. A

                                  -3-
footwear examination revealed that one of the two footwear
impressions found on a notebook in the victims’ trailer matched
Poole’s left Van shoe. The tire iron used in the crimes was found
underneath a motor home located near the victims’ trailer. A DNA
analysis determined that the blood found on this tire iron matched
Scott’s DNA profile.

        Based on this evidence, the jury returned a verdict finding
Poole guilty on all charges, including first-degree murder. Following
the penalty phase, the jury recommended death by a vote of twelve to
zero. The trial court followed the jury’s recommendation and
sentenced Poole to death. The trial court found two statutory
aggravating circumstances: (1) the defendant was previously
convicted of another capital felony or of a felony involving the use or
threat of violence to the person, and (2) the murder was especially
heinous, atrocious, or cruel. The court also found three statutory
mitigators and numerous nonstatutory mitigators. The statutory
mitigators were: (1) the crime for which Poole was to be sentenced
was committed while he was under the influence of extreme mental or
emotional disturbance (moderate weight); (2) Poole’s capacity to
conform his conduct to the requirements of law was substantially
impaired (moderate weight); and (3) Poole had no significant history
of prior criminal activity (little weight). The nonstatutory mitigators
were: (1) Poole is of borderline intelligence (some weight); (2) Poole
received a head injury, which created dementia (little weight); (3)
Poole’s age at the time of the crime linked with mental deficiency and
lack of serious criminal history (moderate weight); (4) Poole dropped
out of school due to his low intelligence and learning disabilities (little
weight); (5) Poole lost Mr. Bryant, his “best friend, father figure,
employer,” and that had an emotional effect on Poole and led to his
drug use (some weight); (6) Poole sought help for his drug problem in
the past (little weight); (7) Poole had an alcohol abuse problem at the
time of the crime (little weight); (8) Poole had a drug abuse problem
at the time of the crime (little weight); (9) Poole does not have
antisocial personality disorder nor is he psychopathic (some weight);
(10) Poole has and can continue a relationship with his son (minimum
weight); (11) Poole has a strong work ethic (little weight); (12) Poole
has a close relationship with his family (moderate weight); (13) Poole
is a religious person (little weight); and (14) the murder and rape were
impulsive excessive acts, not premeditated acts (little weight). The

                                   -4-
      trial court determined that these mitigating factors did not outweigh
      the aggravating circumstances and, as a result, the trial court
      sentenced Poole to death on the count of first-degree murder. The
      trial court also sentenced Poole to consecutive life sentences for the
      attempted first-degree murder of Loretta White, armed burglary,
      sexual battery of Loretta White, and armed robbery.

              [On direct] appeal, Poole raise[d] four issues: (1) whether the
      trial court abused its discretion in denying Poole’s motion for mistrial
      when the prosecutor repeatedly commented during closing argument
      on Poole’s failure to testify at trial and on his silence after his arrest;
      (2) whether the prosecutor violated Poole’s right to a fair penalty
      phase proceeding by cross-examining defense witnesses about the
      unproven prior arrests, the unproven content of a tattoo, and the lack
      of remorse; (3) whether the prosecutor violated Poole’s right to a fair
      penalty phase proceeding by misleading the jurors about their
      responsibilities in recommending a sentence; and (4) whether
      Florida’s death penalty statute violates the Sixth Amendment right to
      trial by jury.

Id. at 387-89 (footnote omitted). Based on the cumulative effect of the errors made

during the penalty phase of the trial, this Court vacated Poole’s death sentence and

remanded the case for a new penalty phase. Id. at 394.

                                    Resentencing

      On remand, following the new penalty phase, the jury recommended death

by a vote of eleven to one. Following a Spencer2 hearing, the trial court followed

the jury’s recommendation and sentenced Poole to death. The trial court found

four aggravating circumstances: (1) the contemporaneous conviction for the

attempted murder of Loretta White (very great weight); (2) capital felony occurred


      2. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

                                         -5-
during the commission of burglary, robbery and sexual battery (great weight); (3)

capital felony was committed for financial gain (merged with robbery, but not

merged with burglary or sexual battery) (less than moderate weight); and (4) the

capital felony was committed in a heinous, atrocious or cruel manner (HAC) (very

great weight).

      The trial court found two statutory mental mitigating circumstances: (1) the

capital felony was committed while the defendant was under the influence of

extreme mental or emotional disturbance (moderate to great weight); and (2)

defendant’s capacity to appreciate the criminality of his conduct or conform his

conduct to the requirements of the law was substantially impaired (great weight).

      The trial court also found eleven nonstatutory mitigating circumstances,

according them little or very little weight: (1) borderline intelligence (little weight);

(2) defendant dropped out of school (very little weight); (3) loss of father figure

had emotional effect and led to his drug abuse (very little weight); (4) defendant

sought help for drug problem (very little weight); (5) defendant had an alcohol

problem at time of crime (very little weight); (6) drug abuse problem at time of

crime (very little weight); (7) defendant has a relationship with son (very little

weight); (8) strong work ethic (very little weight); (9) defendant is a religious

person (very little weight); (10) dedicated uncle (very little weight); and (11)

defendant needs treatment for mental disorder unrelated to substance abuse (very


                                          -6-
little weight). The trial court determined that the proposed mitigator that the

defendant has severe chronic alcohol and cocaine problem for which he needs

treatment was not proven.

      The trial court sentenced Poole to death, finding that the aggravating

circumstances “far outweigh the mitigating circumstances” and that the “heinous,

atrocious, or cruel aggravator alone outweighs all the mitigating circumstances in

this case.” Poole now raises several claims related to his resentencing, all of which

are addressed below.

                            PEREMPTORY STRIKES

      Poole claims that the State’s race-neutral explanation for striking

venirepersons Wearing and Blandin, both African Americans, was actually a

pretext for discrimination. The defense repeatedly attacked the genuineness of the

State’s race-neutral explanations for striking these two jurors. The defense also

argued that the State engaged in disparate questioning as to these two jurors.

                            Deference to Trial Courts

      This Court has consistently held that trial courts have broad discretion in

determining the propriety of the exercise of a peremptory challenge. See Franqui

v. State, 699 So. 2d 1332, 1334-35 (Fla. 1997); Curtis v. State, 685 So. 2d 1234

(Fla. 1996). “Trial judge[s are] necessarily []vested with broad discretion in

determining whether peremptory challenges are racially intended. Only one who is


                                        -7-
present at the trial can discern the nuances of the spoken word and the demeanor of

those involved.” Reed v. State, 560 So. 2d 203, 206 (Fla. 1990) (citation omitted);

see also Files v. State, 613 So. 2d 1301, 1305 (Fla. 1992) (noting that this Court

“must rely on the superior vantage point of the trial judge, who is present, can

consider the demeanor of those involved, and can get a feel for what is going on in

the jury selection process.”).

      A trial court’s decision to allow a peremptory strike of a juror is based

primarily on an assessment of credibility. King v. State, 89 So. 3d 209, 229 (Fla.

2012) (citing Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996)), cert. denied,

133 S. Ct. 478 (2012). As a reviewing court, this Court must “acknowledge that

peremptory challenges are presumed to be exercised in a nondiscriminatory

manner.” Nowell v. State, 998 So. 2d 597, 602 (Fla. 2008). On appeal, the

appropriate standard to determine the likelihood that a peremptory challenge was

used discriminatorily is abuse of discretion. Id. As the trial court is generally in

the best position to assess the genuineness of the reason advanced, the decision

will be affirmed unless clearly erroneous. Id. Although appellate courts need to

defer to a trial court’s credibility assessment, this Court has recognized that this

deference does not require this Court to “rubber-stamp” a trial court’s ruling,

which is not supported by the record. See Hayes v. State, 94 So. 3d 452, 462 (Fla.

2012); Nowell, 998 So. 2d at 602.


                                         -8-
              Genuineness of the State’s Race-Neutral Explanation

      Discriminatory exercise of peremptory challenges based on race or ethnicity

violates a defendant’s rights to equal protection and to be tried by an impartial jury

under the United States and state constitutions. See, e.g., Batson v. Kentucky, 476

U.S. 79, 86-7 (1986). In Melbourne, 679 So. 2d at 763, this Court recognized that

the three-step guideline for resolving an allegation of discrimination in peremptory

challenges which was set out in State v. Neil, 457 So. 2d 481, 486-87 (Fla. 1984),

has been simplified in subsequent cases. This Court explained the considerations

at each step in the process:

             A party objecting to the other side’s use of a peremptory
      challenge on racial grounds must: a) make a timely objection on that
      basis, b) show that the venireperson is a member of a distinct racial
      group, and c) request that the court ask the striking party its reason for
      the strike. If these initial requirements are met (step 1), the court must
      ask the proponent of the strike to explain the reason for the strike.

             At this point, the burden of production shifts to the proponent
      of the strike to come forward with a race-neutral explanation (step 2).
      If the explanation is facially race-neutral, and the court believes that,
      given all the circumstances surrounding the strike, the explanation is
      not a pretext, the strike will be sustained (step 3) . . . Throughout this
      process, the burden of persuasion never leaves the opponent of the
      strike to prove purposeful racial discrimination.

Melbourne, 679 So. 2d at 764 (footnotes omitted). In deciding whether the

proffered race-neutral reason for the peremptory strike is a pretext, the Court

should focus on the genuineness of the explanation, not the reasonableness. Id.

                                         -9-
Reasonableness is one factor to be considered in assessing the genuineness of the

explanation. Id. at n.6. In making a genuineness determination, the Court should

consider all relevant circumstances surrounding the strike, which may include, but

are not limited to “the racial make-up of the venire; prior strikes exercised against

the same racial group; a strike based on a reason equally applicable to an

unchallenged juror; or singling the juror out for special treatment.” Nowell, 998

So. 2d at 602 (quoting Melbourne, 679 So. 2d at 764 n.8); Murray v. State, 3 So.

3d 1108, 1119 (Fla. 2009). In order to determine whether a trial court’s decision to

allow a peremptory strike of a juror was clearly erroneous, this Court must review

the proffered race-neutral explanations offered by the State and the circumstances

in which they were made. Nowell, 998 So. 2d at 604 (Fla. 2008).

      The trial court must make an indication on the record that it not only

accepted the race-neutral explanation, but actually engaged in a “genuineness”

analysis. Hayes, 94 So. 3d at 463-64. Although there is no script for the trial

judge to recite, to properly comply with Step 3 of Melbourne, a trial court must

weigh the genuineness of a proffered race-neutral explanation just as it would any

other disputed fact. Id. at 463. As the trial court proceeds to evaluate the

genuineness of the proffered reason, it can “inquire of the opponent of the strike,

who at that point bears the burden of persuasion, to demonstrate why the reason

was not genuine.” Id.


                                        - 10 -
                                        This Case

      During voir dire, the prosecutor questioned venirepersons Wearing and

Blandin about their feelings regarding the death penalty:

      PROSECUTOR: Okay. Ms. Wearing, how do you feel about this
      idea, just philosophically, that we put people to death as punishment
      for a crime?
      JUROR WEARING: I’m kind of like - - like a little mixed feeling,
      but at the same time, if the punishment fits the crime then, yeah, go
      ahead and do - - do away and put him to death. But if not, then like,
      you know, why take a life for a life? So it’s - - I’m just kind of in
      between.
      PROSECUTOR: How old are you?
      JUROR WEARING: 21.
      PROSECUTOR: How do you feel about being asked to do this job
      when you’re barely old enough to vote?
      JUROR WEARING: I’m kind of nervous, but at the same time,
      really confident that I can handle it.
      PROSECUTOR: If you were to be the person that went to the polls
      tomorrow and said we keep the death penalty in Florida or we just do
      away with it, people that get found guilty of murder just get life in
      prison, would you keep the death penalty or do away with it?
      JUROR WEARING: I’m not sure. It’s - -
      PROSECUTOR: That’s a fair enough answer. It doesn’t have to be
      a yes-or-no answer. I’m not sure is a perfectly good answer. I mean
      we’re asking very weighty questions here. Believe me, I understand
      what I’m asking. Mr. Blandin?
      JUROR BLANDIN: Yes, sir.
      PROSECUTOR: How do you feel about this idea philosophically
      that we say it’s okay to put people to death as punishment in Florida?
      JUROR BLANDIN: I’m like the rest of these guys. If it fits the
      crime they committed and - - but at the same time, I’m like, if I had to
      vote - - kind of like her, I don’t - - I don’t really know what I would
      vote for.




                                       - 11 -
Immediately prior to the prosecution’s strike of Juror Wearing, both the State and

the Defense accepted Juror Maruska. The State simultaneously sought to strike

both Venirepersons Wearing and Blandin based on the fact that they both answered

that they were “not sure” to his question regarding how they would vote if they had

the opportunity to vote to keep or abolish the death penalty in Florida:

            PROSECUTOR: . . . But I asked them if you had to go into
      the voting booth and vote, how would you vote?
            And I wrote it down verbatim. Ms. Wearing said: I’m not sure.
      And Mr. Blandin said: Not sure how I would vote.

The defense objected on the grounds that the question was not relevant to the case

at hand, and instead sought to determine the jurors’ political views on the death

penalty.

      The trial judge then asked the prosecutor, “Do you have any other race-

neutral reason besides that?” The prosecutor responded:

      PROSECUTOR: No I don’t. . . . And I believe that they’re weak
      death penalty jurors based on that answer. . . .There’s a lot of ways to
      figure out if people are weak death penalty jurors. That was one of
      them for me.
             ....
      PROSECUTOR: I can tell you that no one else on this panel
      answered that question that way. In fact, Ms. Ippert, who is also an
      African-American juror, said very clearly she would vote for the death
      penalty. That is, she would vote to keep the death penalty as an
      option.
      THE COURT: Well, we’re going to get to her, so let’s see what
      happens. I’ll for the time being, I’m going to accept those, and I’ll get
      back to you.




                                        - 12 -
The trial court determined that a juror’s political view on an issue is a sufficient

race-neutral reason to strike a venireperson. Shortly after the striking of

venirepersons Wearing and Blandin, the State decided to backstrike Juror Maruska,

stating that he is “also weak on the death penalty and young and white.”

      In an effort to clarify the record, the Court explained that the fact that the

prosecution “kept Ms. Ippert, who answered that she would vote for it, and she is

an African-American . . .” supported the prosecution’s proffered race-neutral

explanation. In closing, the trial judge commented that he assumed that

venirepersons Wearing and Blandin were being struck because they were too

young to be on the panel. The judge also implied that he assumed this was also the

State’s reason for striking Staresnick, a young white venireperson. At this point,

the prosecutor interjected with the following statement:

             Well, and I did say, when I struck Juror Maruska, that
      Staresnick, Maruska, and the two African-Americans who I had the
      race - - other race-neutral reason for, were all too young. They’re all
      in their early twenties.

The prosecution had not previously offered age as a reason for the striking of

Venirepersons Wearing and Blandin. At the time of the strikes, the only

race-neutral explanation he provided was that they had seemed like weak

death penalty jurors based on their answers to his voting question. The trial

judge accepted his striking of these jurors based on this race-neutral

explanation.

                                         - 13 -
      The next day, the prosecution revisited the striking of Venirepersons

Wearing and Blandin, stating for the record that there was case law to support age

as a race-neutral reason for a peremptory strike. The State mentioned that

Wearing, Blandin, Staresnick and Maruska were all young and that none of them

had any children. The State continued with the ages of the venirepersons who

were not struck, many in their fifties and sixties and many who had children. The

defense objected to the striking of Venirepersons Wearing and Blandin based on

this supplemental reason, arguing that the case law pertained to the maturity, not

the age, of the potential jurors, and that the jurors were not asked questions

regarding their maturity. The trial court did not make a contemporaneous finding

regarding this additional race-neutral explanation, simply stating, “Okay. All right.

Well, you both made your record.”

      Because the trial court followed the procedure outlined in Melbourne, and its

findings regarding the genuineness of the State’s reason for striking venirepersons

Wearing and Blandin were supported by the record, its decision to allow the strikes

was not clearly erroneous. The defense requested that this Court determine that the

State’s explanation is not genuine based on the State’s supplementing of the record

the next morning to add the race-neutral explanation that the stricken jurors were

young and had no children. In considering the trial court’s “genuineness” finding,

it is important to note that the trial court’s acceptance of the State’s race-neutral


                                         - 14 -
reason took place prior to the prosecution’s supplementing of the record the next

day. In determining that the trial court’s determination was not clearly erroneous,

we rely on the trial court’s acceptance of the State’s race-neutral reason offered

immediately at the time of the defense’s objection; this is different from the State’s

belated reliance on age and lack of children as the reason for the strike, which

could be considered less genuine. See Nowell, 998 So. 2d at 606; Franqui, 699 So.

2d at 1335.

      The strikes allowed in this case are unlike those in Nowell, where this Court

found that the trial court’s decision to allow the peremptory challenge to the

challenged juror was clearly erroneous because the State’s explanations, which

may have appeared to be race neutral, were pretextual. 998 So. 2d at 606. In

Nowell, the State sought to exercise a peremptory strike against Mr. Ortega, a

venireperson described as having a Hispanic background. Id. at 602. The defense

objected to the strike. Id. When prompted to provide a race neutral reason for the

strike, the prosecutor initially stated that his reasons for the strike were twofold: (1)

Mr. Ortega appeared to be of similar age to the defendant and would probably

relate to him based on age; and (2) Mr. Ortega’s wife worked at a childcare

nurturing facility, and “based on philosophies within the family,” he may not be

able to apply the law. Id. at 603. After the trial judge asked the prosecutor to

identify specific answers given by Mr. Ortega that would provide bases for the two


                                         - 15 -
supposed race-neutral peremptory challenges, the prosecutor stated that “[t]here

[are] no specific answers,” and went on to state a third reason for the strike: “[I]n

spite of the fact that he said he could follow the law . . . I don’t think he is going to

be the kind of juror that I would like.” Id. (emphasis omitted).

      In addition to defense counsel’s observation that Mr. Ortega possessed

qualities that the State of Florida usually sought in jurors, such as stable

employment and a sibling in law enforcement, this Court found that Mr. Ortega

possessed strikingly similar qualities to a white juror, Mr. Collins, who was not

challenged by the State. Id. at 603, 605. Both jurors were approximately the same

age, were fathers, and both stated that they believed the death penalty should be

reserved for the most serious crimes. Id. at 605, 606 n.7. Additionally, the victim

in Nowell was also in her mid-twenties, which further undermined the genuineness

of the State’s asserted justification that Mr. Ortega would likely identify with the

defendant—he was just as likely to identify with the victim, which would clearly

favor the State’s position. Id. at 605. This Court also found it persuasive that the

prosecutor could not identify behavior in the record to demonstrate why he did not

like Mr. Ortega, nor could the prosecutor identify statements in the record to

support its assertion that Mr. Ortega would not follow the law, but instead

acknowledged that Mr. Ortega stated that he would follow the law. Id. at 604-06.




                                          - 16 -
      In the case at hand, most notably, of the venirepersons who were asked the

question regarding how they would vote if they had the option, Wearing and

Blandin were the only two to state that they were “not sure.” Other jurors

answered in a manner that implied that, more likely than not, they would vote to

keep the death penalty as an option, as opposed to the blatant ambivalence

expressed by the two challenged venirepersons. Although it appears that Juror

Ippert was the only African-American member of the seated jury, it does not

appear likely that the peremptory strikes were used to discriminate against

venirepersons Wearing and Blandin based on race. Further, upon review of the

record and based on the totality of the circumstances, the prosecutor’s stated

reasons for the strikes of Wearing and Blandin do not appear to be pretextual. The

trial court did not abuse its discretion in allowing the strikes.

                                   Disparate Questioning

      Poole also argues that there was disparate questioning of venirepersons

Wearing and Blandin. Although it is true that “disparate treatment of similarly

situated jurors can give rise to a finding of pretext,” the record does not indicate

that the defense raised the issue of disparate questioning to the trial court. See

Hayes, 94 So. 3d at 467 (citing Melbourne, 679 So. 2d at 764 n.8). “Had the

[defense] done so, the trial judge would have been able to pursue this inquiry and

demand a response from the [State] relating to the suggestion of pretext.” Id.; see


                                         - 17 -
also King, 89 So. 3d at 230 (citing Davis v. State, 691 So. 2d 1180, 1181 (Fla. 3d

DCA 1997) (holding that a challenge to a peremptory strike based on disparate

treatment must be raised before the trial court or it is waived.).

      At trial, the defense did not state explicitly or imply that it wanted to allege

disparate questioning on behalf of the prosecutor; the defense based its objection

on venirepersons Wearing’s and Blandin’s race, and not the prosecution’s

questioning of them. In defending his explanation that venirepersons Wearing and

Blandin should be excused based on their answers to the voting question, the

prosecutor acknowledged that he did not ask everyone the question. However, the

defense now argues that venireperson Wearing’s responses to the prosecutor’s

questions were not very different from those given by a white juror, Ms. Westcott.

This argument was not raised before the trial court, and is therefore, waived.

Additionally, the record does not indicate that the prosecutor questioned the venire

in a discriminatory manner.

                 ADMISSIBILITY OF SEVERED FINGERTIP

      Poole next argues that the trial court abused its discretion in allowing the

State to introduce the severed fingertip of victim Loretta White, preserved in a jar

of formalin, into the new penalty phase. The defense claims that the probative

value of the evidence was substantially outweighed by the prejudicial value of the

severed fingertip, especially considering that the prosecutor offered no credible


                                         - 18 -
reason as to why the severed fingertip was relevant to any issue in the penalty

phase, much less any issue in dispute.

      This Court recognizes the broad discretion granted to trial courts in

determining the relevance of evidence; such a determination will not be disturbed

absent an abuse of discretion. See Heath v. State, 648 So. 2d 660, 664 (Fla. 1994).

However, relevant evidence is not automatically admissible. This Court has

explained the standard for trial courts to determine when relevant evidence is

admissible:

      [A]ny fact relevant to prove a fact in issue is admissible into evidence
      unless its admissibility is precluded by some specific rule of
      exclusion.” Section 90.403, Florida Statutes (2007), 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.” However, it has been observed that “[m]ost evidence that
      is admitted will be prejudicial or damaging to the party against whom
      it is offered.” The question under the statute is not prejudice, but
      instead, unfair prejudice.

King, 89 So. 3d at 227 (citations omitted). Thus, the trial judge must first

determine that the evidence is relevant for a specific purpose—it’s probative value;

next, the trial judge must weigh the importance of the evidence to the specific

purpose, against the possibility that the evidence will unfairly prejudice the party it

is offered against, confuse or mislead the jury or needlessly present evidence that

will already be presented to the jury. See Sexton v. State, 697 So. 2d 833, 837

(Fla. 1997).

                                         - 19 -
      When the State sought to admit the preserved fingertip into evidence,

defense counsel objected on the ground that it was inflammatory and that any

probative value would be far outweighed by its unfair prejudice. The defense also

objected to the admission of Ms. White’s natural fingernails with her skin attached.

The trial court overruled the objections, stating particularly that the preserved

fingertip was “really not . . . difficult to look at. It’s not unpleasant. There’s not

blood on it. It just shows what appears to be a large chunk of skin and the end of a

finger.”

      We find that the trial court did not abuse its discretion in admitting the

preserved fingertip. The fingertip was relevant because it was severed during the

same criminal episode at issue in this penalty phase. Also the preserved fingertip

was relevant to the amount of force used during the attempted first degree murder

of Ms. White, which was offered as an aggravator in this case. Additionally, we

find that any error in admitting the severed fingertip would be harmless. See State

v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).

                       PROSECUTORIAL MISCONDUCT

      Poole acknowledges that the arguments made in support of his allegation of

prosecutorial misconduct are largely unpreserved. The defense, however, argues

that the misconduct of the prosecutor was so severe that it resulted in fundamental




                                         - 20 -
error, requiring this Court to grant relief in the absence of the generally required

contemporaneous objection. See Brooks v. State, 762 So. 2d 879, 899 (Fla. 2000).

      Fundamental error has been defined as error that “reaches down into the

validity of the trial itself to the extent that a verdict of guilty could not have been

obtained without the assistance of the alleged error.” Id. (citations omitted). It has

also been described as error that is so significant that the sentence of death “could

not have been obtained without the assistance of the alleged error.” Snelgrove v.

State, 107 So. 3d 242, 257 (Fla. 2012) (quoting Simpson v. State, 3 So. 3d 1135,

1146 (Fla. 2009)). If this Court finds a comment to be improper, factors to be

weighed in determining whether an improper comment rises to the level of

fundamental error include whether the statement was repeated and whether the jury

was provided with an accurate statement of the law after the improper comment

was made. See Poole, 997 So. 2d at 395 (Fla. 2008).

      Of all the comments that the defense claims were improper, the only

comment that was objected to during the trial is the prosecutor’s reference in

closing argument to the testimony of the defendant’s family offered in mitigation

that the defendant had multiple head injuries. However, the trial court gave the

jury a curative instruction following that comment. Therefore, the defense is

required to demonstrate fundamental error to prevail on each prosecutorial

misconduct claim. We address each comment individually below.


                                          - 21 -
                        Prosecutor’s “All That Crap” Comment

      The prosecutor’s reference to the testimony of Poole’s family members as

“all that crap” during closing argument does not rise to the level of fundamental

error, as demonstrated by this Court’s decision in Mendoza v. State, 964 So. 2d

121 (Fla. 2007). In Mendoza, the prosecutor made comments during closing

arguments at the penalty phase which indicated that the defendant’s mitigating

evidence was an excuse and that testimony of one of the experts was “garbage.”

Id. at 133. This Court determined that the prosecutor’s comments “were not so

egregious or so continuous as to constitute the same type of fundamental error that

we have found in other cases.” Id.

      When the prosecutor referred to Poole’s family’s testimony as “all that

crap,” the trial judge informed the jury that the comment was improper and

instructed them to disregard it. Further, the prosecutor explained to the jury that he

was not attempting to tell them not to consider the evidence presented by Poole’s

family, but was instead requesting that the jury give more weight to the doctors’

evidence regarding the defendant’s head injuries. Under these circumstances, this

comment does not rise to the level of fundamental error.

                          Prosecutor’s “False Apology”

      The trial judge granted the defense a curative instruction after sustaining its

objection to the prosecutor’s “all that crap” comment. In apologizing to the jury


                                        - 22 -
for this comment, the prosecutor stated that he gets “wound up when [he] talk[s]

about murders, especially heinous, atrocious, or cruel murders.” The defense now

argues that this “false apology” constitutes fundamental error. This isolated

comment does not rise to the level of fundamental error. See Braddy v. State, 111

So. 3d 810, 848 (Fla. 2012).

                Prosecutor’s Mischaracterization of Intoxication Evidence

      The defendant argues that the prosecutor sought to mislead the jury to

believe that even if they found Dr. Kremper to be credible and even if they

believed that the defense had proved the impaired capacity mitigating factor, they

could give it no weight simply because Mr. Poole voluntarily drank and did drugs.

The defense also argues that the prosecutor mischaracterized psychological

testimony by stating that Poole’s impaired capacity was only due to his voluntary

intoxication, where the expert testified that it was also due to Poole’s low

intelligence.

      A prosecutor may request the jury to accord minimal weight to a mitigator

that the defendant has proven. The cases cited by the defense, Mahn v. State, 714

So. 2d 391, 401 (Fla. 1998) and Nibert v. State, 574 So. 2d 1059, 1063 (Fla. 1990),

stand for the proposition that if the greater weight of the testimony supports a

mitigator, the trial court must consider that mitigator to be proven; this is a separate

question from how much weight should be assigned to each mitigator, once


                                         - 23 -
proven. See Trease v. State, 768 So. 2d 1050, 1055 (Fla. 2000) (citing Hitchcock

v. Dugger, 481 U.S. 393, 394 (1987) and Lockett v. Ohio, 438 U.S. 586, 604

(1978) (A sentencing judge or jury must consider all mitigation offered by the

defendant to avoid the death penalty; nevertheless, the sentencer is allowed to

accord the mitigating factor no weight.)).

      The prosecutor in this case urged the jury members to use their individual

perceptions in deciding who to believe, stating “The judge will tell you that you

rely on your own conclusions about a witness. You can believe or disbelieve all or

any part of what a witness says, and that includes experts.” The prosecutor

continued, “I submit to you that when you think about that evidence, you need to

really think about whether that is a mitigating circumstance, whether it mitigates

the penalty that you should vote to impose, or whether that goes to sympathy that

you’re not allowed to consider.”

      After discussing the possible aggravators in the case and how weight should

be assigned, the prosecutor discussed how to assign weight to mitigators:

      The first two of these mitigators really rely on the testimony of these
      two doctors. They are that the capital felony was committed while the
      defendant was under the influence of extreme mental or emotional
      disturbance . . . if you are reasonably convinced that they proved it to
      you, then you should consider it.
      But here’s the rub: You don’t have to accept it as mitigating the death
      penalty at all. And I’m going to tell you why you shouldn’t. Because
      both of these doctors said that the only reason Mr. Scott [sic] hit this
      mitigator and the next one . . . was because he voluntarily drank and
      did drugs. The only reason they told you.

                                       - 24 -
The prosecutor does not refute that the mental mitigators were proven, rather the

prosecutor implies that perhaps the jury should give the mental mitigation a small

amount of weight because the defendant may have been the cause of his own

emotional distress and substantially impaired capacity. This was not improper.

      Similarly, on direct appeal, this Court determined that it was not improper

for this same prosecutor to tell the jury that it is allowed to reject brain damage if it

finds that brain damage does not mitigate the death penalty. Poole, 997 So. 2d at

396. Additionally, any error that the prosecutor made in telling the jury that

voluntary intoxication was the only reason that the experts gave to support Poole’s

impaired capacity was harmless, because the jurors were present for the experts’

testimony and were able to draw their own individual conclusions regarding what

the experts conveyed. These comments do not constitute fundamental error.

             Improper Instructions on Aggravating Circumstances

      While instructing the jury on “merger” in considering the aggravating

circumstances, the prosecutor stated, “ . . . the robbery and financial gain merge . . .

but all it really does is make you able to give more weight to the armed robbery

circumstance.” This Court has recognized in Brooks v. State, 762 So. 2d 879, 903

(Fla. 2000), that this is an improper comment, which violates the principles set

forth in Provence v. State, 337 So. 2d 783, 786 (Fla. 1976). “If we were to allow

the type of argument made by the prosecutor here, then an individual who commits


                                         - 25 -
a capital crime in the course of robbery would always begin with a ‘more weighty’

aggravating circumstance than those who commit a capital crime in the course of

any other enumerated felony.” Brooks, 762 So. 2d at 903. Similar to this case, the

defense counsel in Brooks did not object to the prosecutor’s line of argument on

this issue. Id. at 902 n.33.

      Although in Brooks this Court determined that the merger argument made

by the prosecutor was improper, this Court did not determine, or even imply, that

this comment alone would be a basis for finding fundamental error. This Court

granted Brooks a new penalty phase after it considered “the jury’s close seven-to-

five recommendation that Brooks be sentenced to death . . . and the objected-to

comments . . . when viewed in conjunction with the unobjected-to comments.” Id.

at 899. We find that in this case, where the jury recommended imposition of the

death penalty by an 11-1 vote and the comments that the defense raises in this

proceeding were not continuous, this improper instruction on the merged

aggravators does not rise to the level of fundamental error. This is especially true

when the trial court did not repeat this misstatement of the law when instructing

the jury on the merged aggravators, immediately prior to deliberations, and defense

counsel stated on the record that he had no objection to the court’s instruction.




                                        - 26 -
      The next comment that the defense argues was improper was the

prosecutor’s comment made to the jury in instructing the jury on the HAC

aggravator:

      Designed to inflict a high degree of pain with utter indifference to the
      suffering of Mr. Scott.
             Then the law goes a little further and tells you that the kind of
      crime that is intended here to be defined as heinous, atrocious or cruel
      is one accompanied by additional acts that show the crime was
      conscienceless or pitiless, and was unnecessarily tortuous to the
      victim.
             Now when you think about the death of Mr. Scott and what was
      going on in total in that room, what shows consciencelessness? He
      put his hand between Ms. White’s legs and said thank you, after he
      just beat the hell out of her and raped her. It wasn’t just rape. It was
      conscienceless and pitiless, and Mr. Scott was the person that suffered
      the death that Mr. Poole’s being punished for.

As recognized by the prosecutor in his argument, this Court has defined the HAC

aggravator as being “the conscienceless or pitiless crime which is unnecessarily

torturous to the victim.” See State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973) (emphasis

added).

      The State argues that the touching of White should be considered in the

HAC analysis, based on the totality of the circumstances. In Baker v. State, 71 So.

3d 802, 821 (Fla. 2011), this Court cited several instances where HAC could still

be found despite the fact that the victim ultimately died from summary execution,

such as a single gunshot wound to the head. This Court explained that “[t]he

common element in these cases is that, before the instantaneous death occurred, the


                                       - 27 -
victims were subjected to agony over the prospect that death was soon to occur.”

Id. at 821 (citing Routly v. State, 440 So. 2d 1257, 1265 (Fla.1983). Thus, HAC

was found based on the totality of the circumstances where “the facts of this case

demonstrate a series of acts, each of which was committed with utter indifference

to the suffering of the [murder] victim and subjected [the murder victim] to

prolonged physical and emotional torment.” Id.

      In this case, White testified that when Poole would try to rape her, Scott

would get up, and that Mr. Poole would pick up the tire iron and hit Scott in the

face with it. White then explained that Poole did, in fact, rape her. Id. White then

explained that after Poole left the room, she got off the bed and pulled on Scott and

could hear him breathe. She testified that after she vomited and fell to the floor

again, Poole came back into the room and touched her vaginal area and said “thank

you.” White does not mention any further contact between Poole and Scott after

Poole repeatedly hit Scott with the tire iron. While Scott was aware of Poole’s

attempts to rape White, there is no indication that Scott was still conscious when

Poole left the room and returned. Thus, Scott cannot be said to have suffered

emotional torment by Poole’s touching of White’s vaginal area and simultaneous

comment. Therefore, the proven facts do not support this statement.

      In light of defense counsel’s failure to object to this comment at trial, the

next inquiry is whether this misstatement amounts to fundamental error. As


                                        - 28 -
observed by the trial court’s sentencing order, this Court has “consistently upheld

HAC in beating deaths,” particularly where the victim is conscious for at least a

part of the attack and is aware of impending death. See Williams v. State, 37 So.

3d 187, 198-99 (Fla. 2010); Bogle v. State, 655 So. 2d 1103, 1109 (Fla. 1995).

Based on White’s testimony regarding the suffering experienced by Scott before he

was rendered unconscious, there is no reasonable doubt that the HAC aggravator

would have been found despite the prosecutor’s improper instruction to consider

what happened to White at the point where it is not clear whether Scott was

conscious to hear or see what took place. Additionally, this misstatement was not

repeated by the trial court when it instructed the jury on HAC immediately prior to

deliberations. Thus, the prosecutor’s direction does not constitute fundamental

error.

                          Cumulative Impact of All Errors

         We view the defense’s claims of prosecutorial misconduct in context of the

entire argument and the testimony presented to the jury and find that the

misconduct does not constitute fundamental error. The improper arguments made

by the prosecutor do not appear to be “so egregious as to warrant reversal” or

“reach[] critical mass of fundamental error,” because many of the errors

complained of are harmless.




                                         - 29 -
                              PROPORTIONALITY

      In reviewing a case to determine whether a death sentence is proportional,

this Court’s task is not to compare the number of aggravating and mitigating

circumstances; rather, this Court must thoughtfully consider the totality of the

circumstances in a case and compare it with other capital cases. Beasley v. State,

774 So. 2d 649, 673 (Fla. 2000) (internal quotation marks omitted).

      In this case, Poole was convicted of first-degree murder, attempted first-

degree murder, armed burglary with intent to commit an assault or battery with a

weapon, sexual battery with great force, and armed robbery with a deadly weapon.

The jury recommended the death penalty by a vote of eleven to one. The trial

court found that such a punishment was appropriate after considering all of the

evidence and properly weighing the aggravators against the mitigators.

Specifically, the court found four aggravating factors, two statutory mitigators, and

eleven nonstatutory mitigators. In sentencing Poole to death, the trial court

determined that “the heinous, atrocious or cruel aggravator alone outweighs all

mitigating circumstances in this case.”

      The circumstances of this case are similar to other cases in which this Court

has upheld the death penalty. See Orme v. State, 677 So. 2d 258, 263 (Fla. 1996)

(holding the death sentence proportional for the sexual battery, beating, and

strangulation of victim where there were three statutory aggravators—HAC,


                                          - 30 -
pecuniary gain, and sexual battery—and both statutory mental mitigators);

Johnston v. State, 841 So. 2d 349, 360-61 (Fla. 2002) (holding the death sentence

proportional with four aggravators found (prior violent felony, sexual battery,

pecuniary gain and HAC), and statutory mitigator that defendant’s ability to

conform his conduct to the requirements of the law was substantially impaired, in

addition to numerous nonstatutory mitigators)). Comparing these circumstances

with those of the foregoing and other capital cases, death is proportionate.

                               RING V. ARIZONA

      The defense submits that for all practical purposes, Florida is a “judge

sentencing” state within the meaning and constitutional analysis of Ring, 536 U.S.

584 (2002) and therefore its entire capital sentencing scheme violates the Sixth

Amendment. This same issue was rejected in Poole’s 2008 direct appeal of his

death sentence. Poole, 997 So. 2d at 396. This Court has repeatedly held that

Florida law does not require jury findings on aggravating circumstances. See State

v. Steele, 921 So. 2d 538 (Fla. 2005). This Court has also consistently held that

Ring, does not apply to cases when the prior violent felony or the prior capital

felony aggravating factor is applicable. See Martin v. State, 107 So. 3d 281, 322

(Fla. 2012); Hodges v. State, 55 So. 3d 515, 540 (Fla. 2010), cert. denied, 132 S.

Ct. 164 (2011). The jury unanimously found that Poole committed the crimes of

attempted first-degree murder of White, sexual battery of White, armed burglary


                                        - 31 -
and armed robbery, during the course of the first degree murder of Noah Scott.

Poole, 997 So. 2d at 396. Therefore, relief on this claim is not warranted.

                                      CONCLUSION

      For the reasons stated above, we uphold the trial court’s imposition of the

death penalty on resentencing.

POLSTON, C.J., and LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ.,
concur.
PARIENTE, J., concurs in result with an opinion.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.


PARIENTE, J., concurring in result.

      While I concur in the result that the majority reaches, I disagree with the

majority’s conclusion that the fingertip was admissible, particularly since the

majority fails to analyze whether less graphic methods were available to illustrate

the same point. Majority op. at 18-20. Defense counsel objected to the admission

of the fingertip on the basis that it was prejudicial and photographs could also

illustrate this injury without the extremely inflammatory effect of admitting a jar

containing the victim’s actual flesh. The prosecutor argued that the fingertip

should be admissible because Poole had been convicted of attempted first-degree

murder and the admission of this body part in a jar should not be considered

inflammatory because people would see this type of item in a biology class. The


                                        - 32 -
trial court accepted this argument and admitted the fingertip, concluding that the

fingertip was “not unpleasant” to see and simply appeared to be a large chunk of

skin and the end of a finger.

      I conclude that this ruling was error because the trial court failed to analyze

whether there was a less graphic method of illustrating the same point, such as

through the introduction of photographs. As this Court has held, even when

dealing with photographs of a murder victim that are deemed relevant, the key

question for determining admissibility is whether less graphic photographs are

available to illustrate the same point:

             “The test for admissibility of photographic evidence is
      relevancy rather than necessity.” Crime scene photographs are
      considered relevant when they establish 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. This
      Court has upheld the admission of autopsy photographs when they are
      necessary to explain a medical examiner’s testimony, the manner of
      death, or the location of the wounds.
             However, even where photographs are relevant, the trial court
      must still determine whether the “gruesomeness of the portrayal is so
      inflammatory as to create an undue prejudice in the minds of the
      jur[ors] and [distract] them from a fair and unimpassioned
      consideration of the evidence.” In making this determination, the trial
      court should “scrutinize such evidence carefully for prejudicial effect,
      particularly when less graphic photos are available to illustrate the
      same point.”

Doorbal v. State, 983 So. 2d 464, 497 (Fla. 2008) (emphasis added) (quoting

Douglas v. State, 878 So. 2d 1246, 1255 (Fla. 2004)).


                                          - 33 -
      Relevancy is the starting point, not the ending point. In this case, neither the

trial court nor this Court evaluated whether there was a less graphic means

available to illustrate the fact that Poole was previously convicted of attempted

first-degree murder. However, when this objection was raised, both the trial court

and the parties recognized that pictures demonstrated this injury, that the victim

herself would be testifying, and that her injury was still visible.

      In support of its argument that the trial court did not err, the State relies

solely upon out-of-state cases in which a human bone was admitted into evidence

to address a disputed fact. See State v. Pike, 978 S.W.2d 904, 911, 924 (Tenn.

1998) (introducing a piece of skull found in the defendant’s clothing and placing

this piece of bone into the victim’s reconstructed skull to show that the defendant

possessed a part of the victim’s skull—evidence that the court found was no more

prejudicial than the use of a model skull would have been); State v. Cazes, 875

S.W.2d 253, 263 (Tenn. 1994) (admitting a skull on the basis that a forensic

anthropologist found a “signature” for the murder weapon and thus the “cleaned,

reconstructed skull was highly relevant in establishing identity”); Hilbish v. State,

891 P.2d 841, 850 (Alaska Ct. App. 1995) (holding that the trial court did not err in

admitting a cleaned skull to assist the jury in understanding the location of the

gunshot wound and noting that the skull was less gruesome than available

photographs might have been).


                                         - 34 -
      However, a closer review of each case shows that the state courts allowed

the introduction of the cleaned bone to establish the identity of the murder victim

or address an issue in dispute and that each court considered both the relevancy of

the evidence and the ability of presenting the same information in a less prejudicial

or graphic format. In fact, in Crain v. State, 736 N.E.2d 1223, 1233 (Ind. 2000),

the Indiana Supreme Court expressed its concern regarding the State’s use of the

victim’s actual skull, but stressed that because the use of the skull was relevant

given the defendant’s claim of accidental death and because the skull was not

gruesome, but was only cleaned bone, the trial court did not abuse its discretion.

      A critical difference between those cases and this one is the fact that the

evidence at issue here is not a cleaned bone, but the surviving victim’s very flesh

that had been preserved in a jar. Moreover, the necessity of admitting this type of

evidence is questionable—here, the evidence is relevant only to show the force that

Poole exerted when he tried to kill the surviving victim, but the amount of force is

not relevant in proving the aggravator related to the attempted murder conviction.

The fact that Poole was convicted of attempted murder is not disputed. In addition

and importantly, the trial court never weighed the necessity of introducing the

flesh, as opposed to admitting this evidence through a less gruesome means, like

photographs as Poole requested.




                                        - 35 -
      I am concerned that the majority’s holding, which concludes that there was

no abuse of discretion and which does not analyze whether less gruesome methods

existed to demonstrate the same point, is an incomplete analysis. While I agree

that in this case the admission constitutes harmless error, I urge trial courts to

exercise caution before admitting an actual body part and to consider whether less

gruesome and prejudicial ways exist to demonstrate the same point.


An Appeal from the Circuit Court in and for Polk County,
     J. Michael Hunter, Judge - Case No. CF01-7078A-XX

James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public
Defender, Bartow, Florida,

      for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Scott Andrew
Browne, Assistant Attorney General, Tampa, Florida,

      for Appellee




                                         - 36 -
