author: PER CURIAM.

text:
    Harold Gene LUCAS, Appellant, v. STATE of Florida, Appellee. Harold Gene Lucas, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
    Nos. SC01-1633, SC02-314.
    Supreme Court of Florida.
    Jan. 9, 2003.
    Rehearing Denied March 14, 2003.

      Robert T. Strain, Assistant CCRC, and Elizabeth A. Williams, Staff Attorney, Capital Collateral Regional Counsel — Middle Region, Tampa, FL, for Appellant/Petitioner.

      Charlie Crist, Attorney General, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appellee/Re-spondent.
   PER CURIAM.

Harold Gene Lucas appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Lucas also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons set forth below, we affirm the trial court’s order denying Lucas’s motion for postconviction relief and deny Lucas’s petition for a writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

This case has an extensive procedural history that includes five direct appeals with decisions following from this Court. Having overturned the sentence of death in four previous appeals, this Court upheld Harold Gene Lucas’s death sentence in 1992 in his fifth direct appeal. See Lucas v. State, 613 So.2d 408 (Fla.1992) (“Lucas V”). Lucas was originally found guilty and sentenced to death for the first-degree murder of Jill Piper. See Lucas I, 376 So.2d at 1150. In that first direct appeal, this Court detailed the facts of the crime:

The victim, Jill Piper, was [Lucas’s] girlfriend. A week before her death, she and [Lucas] became embroiled in a heated argument which continued for several days. On the night of the murder, [Lucas] arrived at Jill’s house carrying a shotgun. Anticipating a visit by [Lucas], the victim and her friends, Terri Rice and Ricky Byrd, armed themselves. They were surprised, however, when [Lucas] suddenly appeared from the side of the house, catching them in the yard, and began shooting. Jill Piper was struck immediately, but Terri and Ricky ran unharmed into the house to hide in a bedroom. The evidence is unclear as to what next occurred. According to Ricky’s testimony, Jill came into the house, struggled with [Lucas], and was shot several more times. In any event, [Lucas] soon burst into the bedroom where Ricky and Terri were hiding and shot them. Jill’s body was found outside the house.

Id. at 1150.

The first direct appeal was the only proceeding in which Lucas challenged the guilt stage of his trial. In that action, he argued the trial court committed reversible error in allowing an undisclosed rebuttal witness to testify. See id. Although this Court determined that the State had in fact not complied with the rule which requires the State to notify the defense of any rebuttal witness that the State can reasonably anticipate calling, this Court concluded that the defense attorney had not made a timely objection, and therefore Lucas’s claim was denied and his conviction was upheld. See id. at 1151-52, 1154.

In his first direct appeal, Lucas also made several claims attacking his death sentence. Notably, he argued the trial court erred in finding the heinous, atrocious, or cruel (“HAC”) aggravating factor. See id. at 1153. This Court upheld the finding of HAC, writing: “The evidence shows (at least by one witness’s version) that appellant shot the victim, pursued her into the house, struggled with her, hit her, dragged her from the house, and finally shot her to death while she begged for her life.” Id. However, this Court remanded the case for resentencing without the benefit of a new sentence recommendation by a jury because the trial court erred in finding a nonstatutory aggravating factor, namely that the attempted murders were heinous and atrocious. See id.

In his second direct appeal, Lucas argued that in sentencing him to death a second time, the sentencing judge “abused his discretion by not properly reweighing and reevaluating the valid aggravating and mitigating circumstances.” Lucas II, 417 So.2d at 250. This Court agreed and again remanded for resentencing. See id. at 252.

Before his third sentencing, Lucas’s original trial judge died, and therefore his resentencing proceeding was conducted before a different judge. This judge refused to hear additional evidence, considered only the record before him, and again sentenced Lucas to death. See Lucas III, 490 So.2d at 945. On appeal, this Court held the sentencing judge should have permitted both sides to present additional testimony and argument, and therefore again reversed and remanded, this time instructing the trial judge to empanel a jury for a completely new penalty phase proceeding. See id. at 946.

The fourth penalty phase proceeding was held in 1987. The jury again recommended death, which the trial court imposed. See Lucas IV, 568 So.2d at 20. On appeal, Lucas raised several claims. This Court agreed with Lucas on one of his claims- — -that the trial court’s sentencing order did not clearly set forth the aggravating and mitigating factors that had been considered. See id. at 23. This Court once again remanded to the trial court, instructing the court to reconsider the findings of fact and permit both sides to present argument regarding the nonstatu-tory mitigating circumstances Lucas wished to have considered. See id. at 24.

In Lucas V, which followed the imposition of Lucas’s fifth death sentence, Lucas challenged, among other things, the trial court’s finding of HAC as to the murder of Jill Piper. See Lucas V, 613 So.2d at 410. This Court upheld the finding of HAC, noting that the facts showed the murder was heinous, atrocious, or cruel. As noted above, this Court upheld Lucas’ sentence of death for the murder of Jill Piper. See id. at 411.

Lucas filed his original rule 3.850 motion challenging his death sentence on October 3. 1994. He subsequently filed three amended motions, with the most recent amendment being filed on January 19, 1999. On July 6, 2000, the trial court held a Huff hearing and determined the court would hold an evidentiary hearing on two of Lucas’s seven claims, and decide the remaining claims, which the court ruled were purely legal in nature, based upon submissions of counsel. Following the ev-identiary hearing, held in August and October of 2000, the trial court denied all seven of Lucas’s claims. This appeal followed. At the time he filed his rule 3.850 appeal, Lucas also filed a petition for a writ of habeas corpus, in which he challenges the constitutionality of Florida’s death penalty statute.

3.850 APPEAL

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

A claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the proceeding that confidence in the outcome is undermined.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). This Court further explained that a court considering a claim of ineffectiveness of counsel “need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.” Id. This Court recently held that “[t]o establish prejudice, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Gaskin v. State, 822 So.2d 1243, 1246-47 (Fla.2002) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Because ineffective assistance of counsel claims present a mixed question of law and fact, they are subject to plenary review based on the Strickland test. See id.; see also Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). Under this standard, this Court conducts an independent review of the trial court’s legal conclusions, while giving deference to the trial court’s factual findings. See id.

Lucas contends that his counsel during his 1987 resentencing was ineffective for failing to show, through testimony from expert crime scene analysts, that Jill Piper was neither beaten nor dragged. He argues that with the presentation of such evidence, his counsel could have negated the HAC aggravator, and was ineffective in not doing so. In his final direct appeal, Lucas challenged the finding of HAC, asserting that the facts did not establish the aggravator. See Lucas V, 613 So.2d at 410. This Court disagreed and held the finding of HAC was proper. See id. at 411. In so doing, this Court detailed the facts, as found by the sentencing court, that supported HAC:

[DJuring several days preceding [the victim’s] murder the defendant communicated threats which, based upon the testimony and evidence surrounding events leading up to the fatal event, were reasonably interpreted by the victim to be death threats. The evidence establishes that the victim was cognizant of these threats and justifiably terrified by threats which involved the use of weapons. The defendant continued to threaten her during the hours preceding the murder. It is apparent from the victim’s action in seeking the company of friends, the availability of defensive weapons, and the possible concealment of her vehicle, that she was taking steps out of fear and apprehension of a possible attack on the evening she was murdered. From these circumstances the Court concludes that the victim was aware that she was in mortal danger and reacted to the tremendous fear created by the defendant’s threats.
The defendant sought the victim out at her residence where he had previously been arrested the preceding week for trespassing after a warning by law enforcement officers to stay away from [her]. The evidence establishes beyond a reasonable doubt that the defendant purposely and knowingly armed himself in preparation for this crime and stalked [the victim] at her home and carried out his murderous attack in a manner such that [she] was not able to reasonably defend herself. The defendant fired several shots from the dark shadows of the night outside of [her] residence, striking her in the back and severely wounding her. It is further established beyond every reasonable doubt that the victim did not die instantaneously nor painlessly, but that after these initial shots the defendant pursued the victim and proceeded to savagely beat her as she pled for her life with words to the effect, “Oh God, don’t kill me, Oh God, leave me alone.” The 16 year old girl fought in defense of her life and incurred defensive wounds which were not present prior to this crime. The severely wounded victim, who had every reasonable basis to be in great fear for her life based upon prior threats from the defendant, was now reduced to pitifully pleading for her life as the 24 year old defendant beat her and inflicted further injuries upon her. The Court finds that the evidence establishes beyond a reasonable doubt that [she] would have been in great physical pain from the gunshot wounds to the back and the savage beating she was receiving, as well as extreme mental anguish with the realization that the defendant was in fact carrying out his threats and that her life was in mortal danger.
With the 16 year old victim having endured these horrible circumstances of being threatened, wounded and beaten, the defendant then fired another series of shots which included the fatal shot. This shot struck the victim in the forehead at such an angle to establish beyond reasonable doubt the physical inferiority of the victim’s position and further establishing that the victim, severely injured and overpowered was continuing to beg for her life. Although it is established by Dr. Graves’ testimony that the victim was rendered unconscious instantaneously by the shot he identified as wound No. 1, it is more importantly apparent beyond a reasonable doubt that this wound was not received until the victim had endured prior gunshot wounds and a severe beating with the full realization that the' defendant intended to murder her. This was not an instantaneous nor painless death, but a savage and brutal death which was torturous to the victim upon whom a high degree of pain had been inflicted by the defendant with an utter indifference to and savage enjoyment of the suffering [she] was undergoing.

Id. at 411 n. 5.

Despite Lucas’s current contention that his 1987 penalty phase counsel should have presented more testimony in an attempt to rebut the finding of HAC, there is nothing in the current postconviction record to show that any additional testimony would have been persuasive. Initially, as to the evidence that could have been presented to possibly demonstrate that Piper was not dragged, any such evidence would have been irrelevant because the sentencing court did not place any reliance upon any evidence that Piper had been dragged when the court determined that the HAC aggravator had been established. See Lucas V, 613 So.2d at 411 n. 5. Lucas’ counsel could not have been ineffective for failing to refute evidence that was not relied upon in a material way by the court in its ruling. Because the court did not rely upon any evidence that was directed to showing that Piper had been dragged during the murder, Lucas was not prejudiced by his counsel’s failure to present evidence that Piper had not been dragged.

Further, Lucas’s counsel was also not ineffective for failing to present evidence rebutting the State’s claim that Piper suffered through a physical beating during the commission of the murder. During the postconviction evidentiary hearing, Lucas presented two experts in an attempt to demonstrate that Piper was not beaten during the crime. The medical examiner who performed the original autopsy on Piper testified that based on the entirety of his examination, there was no evidence to suggest Piper suffered any kind of beating. However, he also testified that Piper had cuts on her hands and arms that were characteristic of defensive wounds, as if Piper was fending off an attack by a knife or some other sharp instrument. Lucas’s second expert, a forensic consultant, testified that in his opinion, based on his study of the crime scene photographs, the evidence does not show that a beating occurred inside the house. However, during cross-examination, he testified that the evidence does not contradict the State’s assertion that Piper was shot several times outside the residence, was then inside the home screaming, and eventually suffered the fatal gunshot wound to the head outside her home.

It is clear that the additional evidence presented during the evidentiary hearing would not have affected the original 1987 ruling as to the existence of the HAC aggravator. The sentencing judge based his ruling on the totality of the circumstances, which included evidence that Piper was shot numerous times in the back and the head, was pursued into her home, and suffered defensive wounds. As this Court stated in Lucas’s first direct appeal when we upheld the finding of HAC, “The evidence shows (at least by one witness’s version) that appellant shot the victim, pursued her into the house, struggled with her, hit her, dragged her from the house, and finally shot her to death while she begged for her life.” Lucas I, 376 So.2d at 1153.

Lucas has not provided any conclusive, uncontroverted evidence that could have been presented in 1987 to dispel the findings of fact relied upon by the 1987 sentencing court, and this Court, to support the HAC aggravator. Lucas’s 1987 counsel, Robert Jacobs, testified during the evidentiary hearing that he attempted to argue that the HAC aggravator was not present based upon the fact that all six shell casings were found outside the home, that the only evidence that placed Piper inside the home was the testimony of one of the other victims, and that the medical examiner testified that the gunshot wound to the head had produced instantaneous death and that wound could have been the first inflicted. Further, the record from the 1987 sentencing proceeding shows that Jacobs fully challenged the evidence relating to the HAC aggravator. The finding of HAC was proper under the evidence, and the additional evidence asserted during the postconviction evidentiary hearing would not have altered that finding. Lucas’s counsel was not ineffective in his representation in the 1987 resentencing.

In his second claim, Lucas asserts that his 1977 trial counsel was ineffective for failing to determine the particular drug, aside from alcohol and marijuana, Lucas ingested on the day of the crime, and for failing to present evidence of the effect that drug had on him at the time the crime was committed. He contends that as a result of his original trial counsel’s inaction in 1977, he was limited during his resentencing in 1987 as to the drug evidence that could be introduced in mitigation. In other words, Lucas is claiming he was prejudiced in his 1987 resentencing as a result of the ineffectiveness of his 1977 trial counsel. Because the record clearly reflects Lucas did not suffer any prejudice in his 1987 resentencing, and in fact evidence regarding his use of drugs was introduced, it is unnecessary to consider the first prong of the Strickland test. Lucas’s claim fails under the second prong.

Initially, it is clear Lucas was not procedurally barred from introducing specific drug evidence during his 1987 re-sentencing as a result of specific drug evidence not being produced in his 1977 trial. This Court has held that a resentencing is a completely new proceeding. See, e.g., Way v. State, 760 So.2d 903, 917 (Fla.2000); Preston v. State, 607 So.2d 404, 409 (Fla.1992); Teffeteller v. State, 495 So.2d 744, 745 (Fla.1986). It therefore necessarily follows that a resentencing court is not limited by evidence presented (or not presented) in either the original guilt phase or sentencing phase. Further, in 1987, Florida’s death penalty statute had, at that time, as it does today, broad rules regarding the introduction of evidence during the penalty phase of a capital case:

In the proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (5) and (6). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida. The state and the defendant or the defendant’s counsel shall be permitted to present argument for or against sentence of death.

§ 921.141(1), Fla. Stat. (1987). Clearly, Lucas was not procedurally barred during his resentencing from introducing specific drug evidence that was not produced during his original trial in 1977.

Lucas maintains that his 1977 trial counsel should have investigated and determined conclusively that Lucas had ingested PCP on the day of the crime. Further, having determined his consumption of PCP, as opposed to another drug known as THC, his trial counsel should have presented evidence as to the effects of PCP. However, despite Lucas’s trial counsel’s failure to determine exactly what drug Lucas ingested on the day of the crime, it is clear Lucas was not prejudiced by this failure during his 1987 resen-tencing.

The record on appeal shows that at the time of Lucas’s resentencing in 1987, Lucas and his counsel had clearly determined that Lucas had taken PCP on the day of the crime. Evidence showing that Lucas had ingested PCP was presented to the jury. Further, Lucas’s counsel during his 1987 resentencing, Robert Jacobs, testified during the 3.850 evidentiary hearing that he tried to show the effects of PCP for mitigation purposes. The record supports this; during the resentencing, evidence regarding the effects of PCP was presented. Clearly, the fact that Lucas’s 1977 trial counsel did not determine conclusively that Lucas had taken PCP on the day of the crime had no effect on the presentation of drug evidence during his 1987 resentenc-ing.

Also, it must be noted that Lucas’s 1977 trial counsel testified during the evidentia-ry hearing that he did not present an intoxication defense; rather he attempted to demonstrate that Lucas could not have formed the necessary premeditation as a result of his alcohol and drug use on the day of the crime. He explained that he did not think it was necessary to determine exactly what drug Lucas had taken, because it was clear he had consumed an excessive quantity of alcohol and had smoked several marijuana cigarettes. The record shows that he presented evidence of Lucas’s alcohol consumption and marijuana use that day. It is clear that Lucas’s 1977 trial counsel provided reasonably competent performance in his defense of Lucas, and thus the first prong of the Strickland test is also not satisfied. Further, because Lucas suffered no prejudice as a result of the performance of his 1977 trial counsel, the second prong of Strickland is likewise not satisfied. Lucas’s second claim is therefore without merit.

In his third claim, Lucas argues that the trial court erred in denying him an evidentiary hearing on the issue of whether he has suffered cruel and unusual punishment as a result of the length of time he has been incarcerated on death row. This Court has repeatedly stated the standard of review for summary denial of a rule 3.850 claim:

To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record. Further, where no evidentiary hearing is held below, we must accept the defendant’s factual allegations to the extent they are not refuted by the record.

Peede v. State, 748 So.2d 253, 257 (Fla.1999) (citation omitted); see also Lawrence v. State, 831 So.2d 121 (Fla.2002); Foster v. State, 810 So.2d 910, 914 (Fla.2002), cert. denied, — U.S. -, 123 S.Ct. 470, 154 L.Ed.2d 359 (2002).

Because Lucas’s claim is facially invalid, the trial court did not err in refusing to grant Lucas an evidentiary hearing on the claim that his length of stay on death row has resulted in cruel and unusual punishment. This Court has held on numerous occasions that this claim is mer-itless. See Knight v. State, 746 So.2d 423, 437 (Fla.1998) (holding more than two decades on death row does not constitute cruel and unusual punishment); Rose v. State, 787 So.2d 786, 805 (Fla.2001) (holding cruel and unusual punishment claim of death row inmate," under death sentence since 1977, was without merit). As recently as February of 2002, this Court ruled that an inmate who had been on death row for over twenty-three years was not entitled to an evidentiary hearing on this precise claim because “[this Court has] previously held an extended stay on death row does not constitute cruel and unusual punishment.” Foster, 810 So.2d at 916.

Harold Lucas was originally sentenced to death in 1977; however, his death sentence did not become final until after his fifth direct appeal in 1992. At the time he filed his postconviction motion, he had been on death row for twenty-two years, and has now been on death row for over twenty-five years. Despite his length of stay, under this Court’s clear precedent, the trial court did not err in refusing to grant him an evidentiary hearing on his claim of cruel and unusual punishment. See Foster, 810 So.2d at 916. The trial court clearly stated in its order that Lucas had presented no legal authority to support his claim, and in fact, the law in Florida entirely refutes the claim. This Court has held such a claim, even in the case of an inmate who has been on death row for more than two decades, is without merit.

In the twenty-five years since he was first found guilty of the murder of Jill Piper, Lucas has exercised his constitutional rights in challenging both the finding of guilt and his death sentence. The finding of guilt was upheld in his first direct appeal in 1979 and was not challenged in any of the subsequent appeals. Lucas is clearly guilty of the murder of Jill Piper, and it has been determined that the proper sentence is death. Lucas’s exercise of his constitutional rights has prevented his sentence from being carried out. Lucas may not now claim that his punishment has been cruel and unusual as a result of his own actions in challenging his death sentence. Lucas’s claim that he was entitled to an evidentiary hearing on this issue is without merit and is denied.

PETITION FOR WRIT OF HABEAS CORPUS

Lucas argues that in fight of United States Supreme Court’s recent decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Florida’s death penalty statute violates the United States Constitution in numerous ways. This Court addressed a similar contention in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), and denied relief. We find that Lucas is likewise not entitled to relief on this claim.

CONCLUSION

In summary, we affirm the trial court’s denial of Lucas’s motion for postconviction relief, and further deny Lucas’s petition for a writ of habeas corpus.

It is so ordered.

ANSTEAD, C.J., and WELLS, LEWIS, and CANTERO, JJ., concur.

PARIENTE, J., and SHAW, Senior Justice, concur in result only.

QUINCE, J., recused.

      . See Lucas v. State, 568 So.2d 18 (Fla.1990) (“Lucas IV"); Lucas v. State, 490 So.2d 943 (Fla.1986) (“Lucas III"); Lucas v. State, 417 So.2d 250 (Fla.1982) (“Lucas II"); Lucas v. State, 376 So.2d 1149 (Fla.1979) (“Lucas I").

      . Both Terri Rice and Ricky Byrd survived being shot by Lucas. Lucas was found guilty of two counts of attempted first-degree murder for these shootings. Lucas was sentenced to thirty years imprisonment for each of these convictions, with all of his sentences to run consecutively.

      .In a lengthy footnote, this Court described the facts relied upon by the trial court to support the finding of HAC. See Lucas V, 613 So.2d at 411 n. 5. Of note to the current postconviction appeal, the trial court in Lucas V found the victim had been severely beaten by Lucas, but the court made no mention of Lucas having dragged the victim either into or out of the victim's home. See id.

      . Huff v. State, 622 So.2d 982 (Fla.1993).

      . The trial court held an evidentiary hearing as to Lucas’s claim of ineffective assistance of trial counsel during his guilt phase in 1977, and his claim of ineffective assistance of counsel during his fourth penalty phase held in 1987, which became the subject of the direct appeals in Lucas IV and Lucas V.

      . Of the five claims decided without an evi-dentiary hearing, Lucas appeals only one, the trial court's denial of an evidentiary hearing to determine whether Lucas has suffered cruel and unusual punishment as a result of the length of time he has been incarcerated on death row.

      . It should be noted that Lucas's 1977 trial counsel did not determine conclusively whether Lucas had ingested PCP or THC. During counsel's investigation, he interviewed numerous people, including associates of Lucas and Lucas himself. No one, including Lucas, could say with any certainty the particular drug Lucas consumed that day. Lucas, on different occasions, told his counsel, counsel’s investigator, and the court-appointed mental health expert that he had taken THC. On another occasion, he informed his counsel’s investigator that he had taken PCP. Defense counsel’s investigator interviewed an associate of Lucas who had taken drugs with Lucas on the day of the crime. The witness informed the investigator that they had taken THC. However, during the evidentiaiy hearing on Lucas’s 3.850 motion, Lucas presented expert testimony showing that it was common knowledge in the 1970s that THC was another term for PCP. Further, because Lucas consistently claimed to have taken a powdered drug, Lucas could not have ingested THC because THC is an oil, and therefore Lucas must have taken PCP. The expert testified that in 1976, technology was available, and Lucas’s counsel could have determined, what drug Lucas consumed.

      . Although recognizing a denial of certiorari does not constitute a ruling on the merits, we noted that the United States Supreme Court recently denied certiorari in Foster's case, refusing to consider the precise issue presented here, namely whether an extended stay on death row constitutes cruel and unusual punishment. See Foster v. Florida, - U.S. -, 123 S.Ct. 470, 154 L.Ed.2d 359 (2002).


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

license: Public Domain

text:
    Charles ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. SC95773.
    Supreme Court of Florida.
    Jan. 16, 2003.
    Rehearing Denied March 14, 2003.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellant.
    Charlie J. Crist, Jr., Attorney General, and Debra Rescigno and Melanie A. Dale, Assistant Attorneys General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

We have on appeal a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the conviction and sentence.

The record reveals the following facts. In 1980, Charles Anderson married Edwina. At the time of the marriage, Edwina had a five-year-old daughter (Keinya) from a previous relationship. In 1992, the Miami police became aware that Anderson was sexually abusing Keinya. He subsequently pled to eleven counts of attempted capital sexual battery and was sentenced to probation. One of the conditions of the probation was that he have no contact with Keinya. If Anderson violated probation, he faced the possibility of life in prison.

Despite the conditions of his probation, witnesses testified that Anderson continued to have contact with Edwina and Kein-ya. Apparently he spent several nights a week at Edwina’s house. On Wednesday, January 12, 1994, Keinya was supposed to leave her job at Publix at 6 p.m., yet she did not return home until much later. A Publix employee by the name of Patrick Allen drove Keinya home. After dropping Keinya off, Allen realized that he was being followed by an individual in another car. Allen ultimately eluded the individual. When Allen was later shown photographs of Anderson’s car, he was able to verify that the car that chased him belonged to Anderson.

Two nights later, on Friday, January 14, Allen brought Keinya home again. Anderson was sitting in his car waiting for Keinya to return, and as soon as Keinya got out of Allen’s car, Anderson’s car darted toward Allen. Another chase ensued, and this time Allen fired several gunshots at Anderson during the chase. When Anderson returned home, he and Keinya got into a heated argument. A neighbor testified that she overheard Anderson say to Keinya, “You told him. Why was he shooting at me?” and that Keinya responded, “I didn’t tell him nothing.” A cousin who was present during the argument testified that Anderson hit Keinya. Keinya then grabbed a knife and said, “Let me call the police.” She proceeded to dial 911, but when the operator picked up, Keinya hung up the phone. The 911 operator called back, but was unable to get an answer and therefore a police car was sent to the house. When the police arrived, both Anderson and Edwina went outside and talked to the police. Keinya locked herself in her room. Anderson and Edwina convinced the police that everything was okay and the police left. Keinya’s cousin testified that after the police left, Anderson walked to the room where Kein-ya was hiding and said that he was going to wait in Publix for twenty-four hours— that if he could not get Patrick, then he would come after her. Although Keinya was supposed to work on Saturday, she did not go to work because she was scared.

Keinya did go to work on Sunday, January 16, 1994. Her time card revealed that she left work at 6:01 p.m. Allen testified that he saw Anderson’s car waiting outside Publix.

On that same day, John Gowdy and Amelia Stringer were driving north on U.S. 27. Gowdy testified that he saw someone on the side of the road at approximately 7 p.m. Although it was dark at the time, Gowdy was able to see the person in the grass median between the northbound and southbound lanes. Gowdy observed the car in front of him make a U-turn and he did the same thing. Gowdy then witnessed the car in front of him swerve into the median and then back into the lane, apparently running over the person. Gow-dy immediately reported the incident to the police. Gowdy described the suspect’s car as a blue/gray four-door. Anderson’s car is dark blue with a gray top and has two doors. Stringer, who was in the car with Gowdy, saw the person in the median lie down in the grass and then sit up. She also witnessed the car in front of them run over the person in the median.

When the police arrived at the scene, they discovered blood on the pavement, some clothing items, and a name tag which read “Keinya.” Items were found in the northbound lane and in the median near the southbound lane. Four tire impressions were taken from the scene. Keinya’s dead body was found on Monday, January 17, by a fishing camp in the Everglades.

About a week after the murder, Anderson voluntarily agreed to be interviewed by the police. At one point during the interview, Anderson responded that he did pick up Keinya from work on Sunday night, but that he did not kill her. Within seconds of making this statement, Anderson recanted, claiming that he was being facetious. Anderson consented to a search of his car, although the police already had a warrant. The police took impressions of the car’s tires. An expert testified that of the four impressions taken from the scene, one could not have been made by Anderson’s tires, one was consistent with Anderson’s tires, and the other two impressions were of no value. There was damage to Anderson’s radiator, the splash guard was cracked, and an area under the car appeared to have been wiped. Another expert testified that grease marks found on Keinya’s jacket could have been made by two coils from underneath Anderson’s car. That expert also stated that two other coils from Anderson’s car could not have made the grease marks. Several spots in and under Anderson’s car were suspected to have blood. There was a positive presumptive result from the car’s splash pan, but the police could not get any DNA results from this spot, meaning that it could have been human blood or animal blood. However, a spot of blood on Anderson’s car seat matched Keinya’s DNA. Finally, a number of fibers were found under Anderson’s car. An expert testified that one of the fibers was consistent with fibers from Keinya’s pants. Twelve other fibers taken from the car did not match Keinya’s clothing.

During the trial, the parties agreed to the following stipulation, which was read to the jury:

It has been stipulated between parties that Keinya Smith is dead. That she died on January 16, 1994. And that she died as a result of blunt force trauma inflicted by a motor vehicle. It is further stipulated between parties that the items of evidence found on U.S. 27 by Lieutenant Vaughn and Detective Foley, including jewelry, blood stains, name tags and hair and scalp, originated from Keinya Smith.

The State also presented the testimony of Anderson’s probation officer, Lisa White, who stated that Anderson was on probation for eleven counts of attempted capital sexual battery on Keinya. White further stated that shortly after Keinya’s body was found, Anderson contacted her and asked whether he could have his family back now that Keinya was dead.

Anderson did not put on any evidence during the guilt phase. At the conclusion of the guilt phase, the jury convicted Anderson of first-degree murder.

During the penalty phase, the State presented the testimony of the medical examiner, who testified that in addition to various other injuries, Keinya’s neck was fractured when she was run over by the car, and the fractured neck led to rapid unconsciousness and death. The medical examiner stated that survival following the incident was seconds to minutes at the most. State witness Mitzy Clark testified that on the night of the murder, she was driving on U.S. 27 when she saw a person lunge at her car, trying to get Clark to stop. Clark stated that she did not stop because she was scared. The State also presented the testimony of Edwina, who described the circumstances of Keinya’s sexual abuse. Edwina made it clear that Anderson not only attempted, but actually completed the crime of sexual battery:

Q: Did [Keinya] tell you that [Anderson] inserted his penis inside her vagina on several occasions?
A: Yes.

Edwina also testified that on the Friday before the murder, Anderson said, “I’m going to prison, but somebody is going to be dead, I bet you that.” Finally, Edwina stated that Anderson called her on the day of the murder, asked if Keinya was working that day, and asked what time Keinya got off work. Officer Estopinan, the officer who investigated the previous sexual batteries, also testified about the circumstances of Keinya’s sexual abuse.

The defense called a number of- penalty-phase witnesses who described Anderson’s childhood and subsequent addiction to drugs. Anderson also testified on his own behalf. During the course of his testimony, Anderson admitted that he sexually abused Keinya.

The jury ultimately recommended death by an eight-four vote. The trial court found the following five aggravators: (1) Anderson had a previous conviction of a violent felony (the attempted sexual batteries), (2) the murder was committed while engaged in the commission of a felony (kidnapping), (3) the murder was committed to avoid arrest, (4) the murder was heinous, atrocious, or cruel, and (5) the murder was committed in a cold, calculated and premeditated manner without any pretense of legal justification. The trial court concluded that Anderson failed to establish the statutory mental mitigators. The court found the following nonstatutory mitigators: (1) Anderson suffers from sexual dementia (minimal weight), (2) Anderson confessed to his sexual relationship with Keinya during drug addiction counseling (medium weight), (3) Anderson suffered from drug addiction (minimal weight), (4) Anderson comes from a good family (minimal weight), (5) Anderson was a good child (minimal weight), (6) Anderson helped Edwina take care of his three natural children (minimal weight), (7) Anderson loves his children (minimal weight), (8) Anderson sends gifts to his kids while in custody (minimal weight), (9) Anderson is a very caring person (minimal weight), (10) Anderson served in the Coast Guard for five years (minimal weight), (11) society would be protected by Anderson serving a life sentence (minimal weight), (12) Anderson earned money playing the market while in custody and therefore can still be a productive member of society (minimal weight), and (13) Anderson has a gift for poetry and can help men who end up in prison (minimal weight). The trial court sentenced Anderson to death.

Anderson presents thirteen claims in this appeal. We address the guilt-phase claims first. In his first claim, Anderson argues that the evidence is insufficient to support first-degree murder. The trial judge instructed the jury on both premeditated and felony murder, and the jury returned a general verdict of first-degree murder. As explained in issue ten below, we agree with Anderson that the judge erred in denying his motion for judgment of acquittal as to felony murder premised on a kidnapping theory. Although the trial judge erred in this regard, we do not reverse Anderson’s first-degree murder conviction because the judge correctly denied the motion as to premeditation. See Mungin v. State, 689 So.2d 1026, 1029 (Fla.1995).

A motion for judgment of acquittal should be granted in a circumstantial evidence case if the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. See Gore v. State, 784 So.2d 418 (Fla.2001). After reviewing the record in this case, we conclude that the State presented sufficient evidence of premeditated murder and there is no reasonable hypothesis to the contrary. A witness testified that Anderson threatened Keinya two days prior to her murder. Other witnesses that observed the incident explained to the jury the manner in which the suspect’s car performed a U-turn and proceeded to mow down Keinya as she lay in the median. Forensic evidence linked Anderson’s car to the scene. Thus, although the trial court erred in denying the motion for judgment of acquittal as to felony murder, we find this error harmless since the jury properly convicted Anderson of first-degree murder under the theory of premeditation. See Mungin, 689 So.2d at 1029.

In his second claim, Anderson asserts that the trial court erred in admitting collateral bad act evidence. Prior to trial, Anderson moved to prevent the State from introducing evidence regarding his probation for the attempted capital sexual batteries on Keinya. The State argued that this evidence was relevant for two reasons. First, the State claimed that this evidence was necessary to explain the entire context of the crime to the jury. Second, the State contended that the convictions were necessary to establish motive. The trial court denied Anderson’s motion. During the guilt phase of the trial, State witness Lisa White, Anderson’s probation officer, testified that Anderson was on probation for eleven counts of attempted sexual battery on Keinya.

Section 90.404(2)(a), Florida Statutes (1998), provides:

Similar fact evidence of other crimes, ■wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

Anderson acknowledges that the fact that he was on probation was admissible. He claims, however, that it was unnecessary to inform the jury about the underlying crime. He argues that the attempted sexual battery convictions were overly prejudicial and became a feature of the case. Anderson relies on this Court’s decision in Garron v. State, 528 So.2d 353 (Fla.1988), to support his position. In Garron, a first-degree murder defendant challenged testimony concerning previous sexual misconduct:

The next issue raised by appellant involves the admission of certain “similar fact” evidence pursuant to the Florida Evidence Code, section 90.404(2), Florida Statutes (1981), and Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). The evidence admitted includes the testimony of Linda Garrón that appellant had previously engaged in alleged sexual misconduct with his two stepdaughters. This activity took place more than two years prior to the killings. The state claims that the evidence is relevant to show appellant’s motive for killing his wife and stepdaughter in that he was attempting to prevent his wife from taking the stepdaughters away to avoid his improper advances.
In closely examining similar fact evidence, one critical issue of concern is whether the evidence is being used to prove any relevant issue besides character. Here, the state’s theory is that the evidence of the alleged misconduct is relevant to appellant’s motive for the murders. The focal point of analysis is whether there is actually any similarity between the alleged misconduct and the crime for which appellant stands trial. That is, does the “similar” fact bear any logical resemblance to the charged crime. The state claims that Linda Garron’s testimony that prior to the shootings the appellant touched her thigh sufficiently establishes the requisite connection between the prior bad acts and the present crime. We believe that this “connection” is far too tenuous to support the admission of the similar fact evidence. Even if there were similarities between the events, they are in no way relevant to show motive.
In Williams, the similar fact evidence involved evidence that the defendant, who was charged with rape, had previously committed the same act in precisely the same manner. Williams had hidden in the back seat of the victim’s car, waited for the victim to return, and raped her. The state produced a witness who testified that Williams waited in her car and committed the identical act in the same parking lot at about the same hour as the attack on the victim. This Court allowed the evidence to be admitted under the theory that it showed Williams’ plan or pattern of operation. In this case, however, the alleged sexual misconduct in no way resembles the act for which appellant was convicted. Moreover, the prior acts are far too remote in time to support any allegation that they could have provided appellant with a motive for the killings.
As such, the only possible issue for which this evidence could be used is to prove character and propensity. As the statute states, these issues are not valid grounds for the admission of similar fact evidence. A danger of unfair prejudice arises if alleged acts of sexual misconduct are put before the jury when such evidence is not relevant to prove a material issue. This danger renders the evidence inadmissible. Here, the inflammatory effect of this type of evidence played a role in the conviction of appellant.

Garron, 528 So.2d at 357-58 (footnote omitted). We find Garrón distinguishable from the present case. Contrary to the evidence in Garrón, the contested evidence in the present case was not too remote or irrelevant. Rather, the evidence demonstrated Anderson’s ongoing possessive relationship with Keinya. This was bolstered by Andronda Brown’s testimony that Anderson would often screen Keinya’s incoming telephone calls. When considered together, all of this evidence helped explain Anderson’s motive for the murder. In this regard, the present case is similar to our recent decision in LaMarca v. State, 785 So.2d 1209 (Fla.2001). In that case, the defendant murdered his daughter’s husband and proceeded to rape his daughter (Tonya) hours later. We rejected the defendant’s claim that the trial court erred in admitting the evidence regarding the rape:

In the present case, the trial court did not abuse its discretion in admitting two pieces of inextricably intertwined evidence: (1) testimony that appellant told the victim that he had done something to Tina LaMarca — appellant’s stepdaughter — that caused her to cease living with him; and (2) testimony that appellant raped Tonya. The two pieces of evidence must be viewed together. The first piece of disputed testimony consisted of Tina affirming that there was an “incident” between appellant and herself and her testimony that what appellant “had done” to her prompted her to stop living with him. The appellant had allegedly raped Tina, although that was not expressly stated to the jury. Tina’s testimony was relevant because it puts into context the victim’s statement to appellant to keep away from Tonya. Absent the nexus to the “incident” between appellant and Tina, the jury would have been left wondering why the victim told appellant to stay away from Tonya. Thus, Tina’s testimony was relevant to prove motive and premeditation, and was focused and limited.
The second part of the contested testimony was provided by Tonya, who stated that after appellant and the victim left the bar, appellant returned alone and told her that she had to meet the victim at appellant’s relative’s house. They drove there and found the house unoccupied, and appellant raped her. Afterwards, appellant asked Tonya to leave Florida with him and told her that her feelings for the victim would not last.
Evidence that appellant raped his daughter and did something to cause Tina to move out puts into context appellant’s statements about his wanting Tonya to leave Florida with him and that her feelings for her husband (the victim) would not last. The testimony is therefore relevant to show appellant’s motive in killing the victim — to have Tonya for himself. If the testimony as to the rape and Tina being forced to move out by appellant is omitted, you simply have a father asking his daughter to leave Florida and stating that her feelings for her husband would go away. Thus, absent the testimony of Tonya and Tina relative to appellant’s actions, it would not be clear that the father desired his daughter in a way that would exclude his son-in-law and why the son-in-law wanted to separate appellant and Tonya and told appellani^-just hours before appellant killed him — that he could not be near his daughter because he knew of the “incident” with Tina. Thus, appellant’s incestuous desire for his daughter and the victim’s demand that appellant stay away are relevant to prove appellant’s motive to kill his son-in-law. The motive contradicts the defense strategy of attempting to prove that Tonya killed her husband and tends to prove appellant’s premeditation. Thus, the trial court did not abuse its discretion in admitting the evidence.

LaMarca, 785 So.2d at 1213. Similarly, we conclude that the trial court in the instant case did not err in permitting White to testify that Anderson was on probation for eleven counts of attempted sexual battery on Keinya.

Finally, Anderson claims that the trial court erred in admitting evidence regarding (1) the alleged incident in which Anderson chased Patrick Allen in his car and (2) the alleged incident in which Anderson struck Keinya. We find no merit to either of these arguments, as both incidents explained the nature of Anderson’s relationship with Keinya just prior to the murder and further put into context the reason for Anderson’s threatening remarks toward Keinya. Both incidents were therefore relevant to prove motive and were inextricably intertwined with the murder.

In claim three, Anderson alleges error concerning the testimony of Kevin Vaughn, an investigator for the Florida Highway Patrol. Lieutenant Vaughn testified as follows:

Vaughn: So I knew I had another crime scene on my hands and it wasn’t — -it is not typical that you would find evidence on both sides of the road.
Defense: I object to what is typical or not typical, Judge.
Court: You want to lay a foundation for that? I will sustain it at this time.
State: Do you have any training in traffic homicide investigations?
Vaughn: Yes, I do.
State: How much training do you have in that area?
Vaughn: I attended a — I have all the certificates everywhere I attended schools at.
State: Would you just tell me what those are?
Vaughn: Okay. Besides having the basic forty hour traffic accident investigation in the Florida Highway Patrol Academy I also attended an advanced traffic homicide investigation school. Excuse me just a minute while I go through these.
Defense: My objection is based on relevancy, not on lack of a predicate. I think it is irrelevant what is typical or atypical. Mr. Anderson’s on trial here for his life. It doesn’t matter what goes on in other cases. It matters what is going on in this — this case.
Court: Overruled. I will allow him to testify.
Vaughn: It is not typical we would find evidence of a hit and run on both sides of the road ninety feet apart, and essentially where the evidence is all southbound, there is evidence also that is north of the southbound evidence. So how would that evidence get there unless something had transpired previously? And it appeared that the evidence that we located and found was connected with the evidence that we found southbound. So at that time I felt that maybe this was not a traffic hit and run, a traffic case. I thought it was — So I — it was a — not a traffic homicide at this point. I didn’t think it was a traffic homicide, because of the circumstances of the evidence being in different locations so far apart in different directions. So I felt that we needed the assistance of the Broward Sheriffs Office homicide unit to see if we could get a homicide detective out there.

Anderson claims that Vaughn’s testimony-regarding what is typical was improper. Anderson relies on cases which hold that evidence regarding past crimes that did not involve the defendant cannot be introduced to demonstrate that the defendant committed the crime at issue in the present case. For example, in Nowitzke v. State, 572 So.2d 1346, 1355-56 (Fla.1990), this Court held that it was improper for the State to elicit testimony from a police officer about the criminal behavior pattern of drug addicts. However, the instant case is distinguishable from Nowitzke. Vaughn did not offer any testimony regarding past crimes or criminal behavior patterns. Rather, Vaughn was giving his opinion, based on his experience, that hit and runs are not normally found on both sides of the road. This testimony was relevant to establish that the victim’s death was not the result of an accident. Hence we find no merit to this claim.

In Anderson’s fourth claim, he argues that the trial court erred in allowing nonresponsive opinion testimony. This claim concerns the following testimony from witness Amelia Stringer:

State: What did you see next?
Stringer: Well, while John was waiting to get — he was driving. While he is waiting to get back onto U.S. 27 to go south, I looked out the back window and I saw — I didn’t know who it was. But I saw this person kind of sitting up, like they are — like if you were laying down and you are sitting yourself up.... So I saw that out of the back passenger window. And then as we were getting ready to get in line next to — you know, get in between traffic, like waiting for no cars to come, is when I saw this car in front of us run over whoever that was that was there trying to get up. And that surprised me. It shocked me. And I — I said, you know, “They ran over them.” And the car that ran over that person continued. And again, traffic is still going, so that the car got off of — out of traffic and ran over this person and then got back in traffic. And that is what was shocking, because the other cars didn’t blow — or they didn’t have to swerve or stop. And to me that — that made it that it wasn’t an accident, that it was intentional, because — and I am only using myself as an example—
Defense: I object as non-responsive.
State: I asked her what happened next....
Court: I am going to allow it.

(Emphasis added.) On appeal, Anderson claims that Stringer gave impermissible opinion testimony regarding the intent of the driver of the vehicle. In response, the State argues, and we agree, that this issue has not been preserved for review. “In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Tillman v. State, 471 So.2d 32, 35 (Fla.1985). At trial, Anderson objected to the testimony as being nonresponsive. On that ground, the trial court correctly overruled the objection. Anderson did not assert at trial that the testimony was improper opinion testimony. Therefore, he is barred from raising this argument on appeal.

In claim five, Anderson asserts that the trial court erred in admitting two photographs during the guilt phase. Both photographs depicted Keinya’s body when it was found by the fishing camp in the Everglades. The first photograph shows Kein-ya’s bare buttocks and the second shows Keinya only wearing a bra. Anderson claims that neither photograph was relevant given the stipulation that Keinya died as a result of blunt force trauma inflicted by a motor vehicle. Anderson further claims that the photos were prejudicial because they injected a sexual element into the case.

Photographs are admissible to the extent that they fairly and accurately establish a material fact and are not unduly prejudicial. See Pangburn v. State, 661 So.2d 1182, 1188 (Fla.1995). Absent a clear showing of abuse of discretion by the trial court, a ruling on admissibility of such evidence will not be disturbed. See Gudinas v. State, 693 So.2d 953, 963 (Fla.1997).

Both photographs in the present case show the location and condition of Keinya’s body when it was found. See Jones v. State, 648 So.2d 669, 679 (Fla.1994) (holding there was no error in admitting photographs that were relevant to show the condition and location of the body when discovered). The fact that Keinya’s buttocks and bra were exposed does not render the photographs inadmissible. See Grey v. State, 727 So.2d 1063, 1065 (Fla. 4th DCA 1999) (holding that trial court did not err in admitting photograph depicting injuries of victim’s head which extended down to include her naked breasts).

Anderson claims that the photographs were irrelevant in light of the following stipulation which was read to the jury:

I am going to read to you a stipulation. It states that it has been stipulated between — between the parties that Keinya Smith is dead. That she died on January 16, 1994. And that she died as a result of blunt force trauma inflicted by a motor vehicle. It is further stipulated between the parties that the items of evidence found on U.S. 27 by Lieutenant Vaughn and Detective Foley, including jewelry, blood stains, name tags and hair and scalp, originated from Keinya Smith.

The stipulation relied on by Anderson does not apply to the first photograph because that photograph was entered into evidence prior to the stipulation. Further, despite the stipulation, the second photograph was still relevant because it showed the condition of Keinya’s pants and bra after she was run over. The State later attempted to prove that the fibers from Keinya’s pants and bra were found under Anderson’s car. The fiber evidence was not covered by the stipulation. Hence, the trial court did not abuse its discretion by admitting the photographs.

In Anderson’s sixth claim, he alleges that the trial court erred in denying his motion for mistrial that he made in response to a comment made by the State during the guilt-phase closing arguments. During Anderson’s closing argument, defense counsel pointed to the fact that Anderson voluntarily spoke to the police and consented to having his car searched as proof that Anderson was not guilty (“he didn’t do anything wrong; he had nothing to hide”). The prosecutor’s alleged improper drug dealer comment was made in response to defense counsel’s argument:

The problem becomes, if you refuse to go to the police station, more attention is drawn to you, because as we try to analyze the situation, “Well, that is how a guilty person would act, so I got to go. Oh, they want to look at my car.” How many drug traffickers have you heard about that say “Go ahead, search my car”, as they are driving kilos of cocaine out of Miami—

Anderson objected, claiming the comment referred to matters outside the evidence. The court sustained defense counsel’s objection and instructed the jury to disregard the comment. Anderson argues on appeal that the trial court should have granted his motion for mistrial.

A ruling on a motion for mistrial is within the trial court’s discretion. See Hamilton v. State, 703 So.2d 1038, 1041 (Fla.1997). The use of a harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), is not necessary where the trial court recognizes the error, sustains the objection, and gives a curative instruction. See Goodwin v. State, 751 So.2d 537, 547 (Fla.1999). Rather, the correct appellate standard of review is whether the trial court abused its discretion in its denial of a mistrial. See id. A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial. See Hamilton, 703 So.2d at 1041.

In the present case, we find that the trial court did not abuse its discretion in denying Anderson’s motion for mistrial. It cannot be said that the prosecutor’s comment vitiated the entire trial. See Spencer v. State, 645 So.2d 377, 382-83 (Fla.1994) (motion for mistrial denied even though the prosecutor referred, in closing argument, to a fact that was not in evidence and that had been ruled inadmissible by the court; prosecutor’s single comment that the victim was carrying a rifle around her house because she was afraid of the defendant did not deprive the defendant of a fair trial); Pope v. Wainwright, 496 So.2d 798, 803 (Fla.1986) (comment outside the evidence — that the defendant had a preference for death — was clearly improper, but standing alone or read in combination with other improper comments cannot be said to have unduly affected the jury’s weighing process).

Anderson also complains about a number of other comments made by the prosecutor during his closing guilt-phase argument. Anderson did not object to any of the alleged improper comments and therefore he must resort to claiming fundamental error, 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. See Keen v. State, 775 So.2d 263, 279 (Fla.2000). After considering each of the comments, we find that none of them amounted to fundamental error. See Breedlove v. State, 413 So.2d 1, 8 (Fla.1982) (‘Wide latitude is permitted in arguing to a jury.”); Thomas v. State, 326 So.2d 413, 415 (Fla.1975) (“[CJomments of counsel in the progress of a trial before a jury are controllable in the judicial discretion of the trial court, and an appellate court will not interfere with the exercise of such discretion unless a clear abuse thereof has been made to appear.”).

We have also reviewed the State’s entire closing argument, with focus given to all of the preserved and nonpreserved alleged improper comments. As this Court stated in Card v. State, 803 So.2d 613, 622 (Fla.2001), ‘We do not examine allegedly improper comments in isolation. Rather, the Court examines the totality of the errors in the closing argument and determines whether the cumulative effect of the numerous improprieties deprived the defendant of a fair ... hearing.” With this in mind, we conclude that the alleged improper comments, taken both individually and collectively, did not deprive Anderson of a fair trial.

In his seventh claim, Anderson argues that the trial court erred in permitting the State to proceed on the theory of felony murder when the indictment only charged first-degree murder. The State brought up felony murder for the first time during the charge conference and Anderson argues that he was prejudiced by a lack of notice. Anderson acknowledges that this claim was decided adversely to him in Knight v. State, 338 So.2d 201, 204 (Fla.1976). See also Kearse v. State, 662 So.2d 677, 682 (Fla.1995). He offers no valid reason for receding from Knight. Hence there is no merit to this claim.

After reviewing all of the evidence in the record, we find that there is competent, substantial evidence to support Anderson’s conviction for first-degree murder. The remainder of the alleged claims of error concern the penalty phase.

In claim eight, Anderson complains about several remarks made by the State during its closing penalty phase argument. Anderson acknowledges that he did not object to any of the comments. Regardless of the lack of objection, he claims that the comments rose to the level of fundamental error. We disagree. As we did in issue six, we have considered all of the alleged improper penalty-phase comments to determine whether the cumulative effect of the comments deprived Anderson of a fair penalty phase hearing. We find that the alleged improper comments did not compromise the integrity of the judicial process.

In Anderson’s ninth claim, he alleges that the trial court erred in admitting three photographs during the penalty phase. The first shows Keinya’s skull, the second shows Keinya’s back and thighs, including her buttocks, and the third shows Keinya’s knees, pelvic area, and stomach. The photographs were taken at the medical examiner’s office. As he did in claim five, Anderson argues that this introduced a sexual element into the case.

As set forth in the analysis in issue five, photographs are admissible to the extent that they fairly and accurately establish a material fact and are not unduly prejudicial. The photographs in question were all relevant during the penalty phase. All of the photographs helped explain the nature of Keinya’s injuries and were therefore relevant to establish HAC. Additionally, the photograph of Keinya’s skull was utilized by the State to support the finding that the murder was committed in the course of felony (kidnapping)—that Keinya jumped out of Anderson’s car, which resulted in an injury to her skull, consistent with the hair and scalp fragments found on the northbound lane. Thus, the trial court below did not abuse its discretion in admitting the photographs.

In claim ten, Anderson maintains that the evidence did not support the aggravating circumstances found by the trial court in the sentencing order. A trial court’s ruling on an aggravating circumstance will be sustained on review as long as the court applied the right rule of law and its ruling is supported by competent, substantial evidence in the record. See Almeida v. State, 748 So.2d 922, 932 (Fla.1999). We address each of the aggravating circumstances in turn.

1. That the Murder Was Committed to Avoid Arrest

In Consalvo v. State, 697 So.2d 805 (Fla.1996), this Court stated the application of this aggravator as follows:

Typically, this aggravator is applied to the murder of law enforcement personnel. However, the above provision has been applied to the murder of a witness to a crime as well. In this instance, “the mere fact of a death is not enough to invoke this factor.... Proof of the requisite intent to avoid arrest and detection must be very strong in these cases.” In other words, the evidence must prove that the sole or dominant motive for the killing was to eliminate a witness. Mere speculation on the part of the state that witness elimination was the dominant motive behind a murder cannot support the avoid arrest aggravator. Likewise, the mere fact that the victim knew and could identify defendant, without more, is insufficient to prove this aggravator.
Additionally, a motive to eliminate a potential witness to an antecedent crime can provide the basis for this aggravating circumstance. And, it is not necessary that an arrest be imminent at the time of the murder. Finally, the avoid arrest aggravator can be supported by circumstantial evidence through inference from the facts shown.

Id. at 819 (citations omitted). Applying this standard to the present case, we find that the State has not established the avoid arrest aggravator beyond a reasonable doubt. At the time of the murder, Anderson was on probation, and one of the conditions of his probation was that he have no contact with Keinya. However, Anderson ignored this condition and had frequent contact with Keinya. The State’s theory was that Anderson murdered Kein-ya in order to avoid being sent to prison for violating his probation, as Keinya could turn Anderson in at any time based on his contact with her. While this theory is possible, it is also possible, based on the record, that Anderson simply murdered Keinya out of anger pursuant to their dispute on Friday, January 14, or that the murder stemmed from Anderson’s possessive relationship with Keinya. The State has failed to establish that the “sole or dominant motive” for the murder was to eliminate Keinya as a witness or to avoid arrest.

2. That the Murder Was Committed in the Course of a Felony

The State has also failed to establish that the murder was committed during the course of a felony. The State’s theory of this aggravator was that Anderson kidnapped Keinya prior to murdering her. To establish this aggravator, the State needed to prove beyond a reasonable doubt each of the elements of kidnapping. The State has failed to do so in this case.

First, the State failed to establish that Keinya was abducted against her will. The State’s theory was that Anderson picked up Keinya from work on Sunday, January 16, 1994. Patrick Allen testified that he saw Anderson outside of Publix on that day. However, the record also establishes that Anderson would often pick up Keinya from work and therefore it would not be unusual for Keinya to get in Anderson’s car willingly.

Further, the trial court’s order states the following:

It is clear that this ride turned against Keinya Smith’s will when she jumped out of the defendant’s moving car. She jumped hitting the back of her head on the pavement with such force as to leave her scalp and hair on the pavement. She then made her way across the median to the southbound lane and attempted, without success to flag down Mitzi Clark’s van. The evidence strongly suggests Keinya Smith was not pushed out of the defendant’s car, but jumped out. The evidence further shows she made her way across the median, attempting to get away from the defendant after she jumped out of his moving car.

(Emphasis added.) Contrary to the trial court’s finding, there is no evidence in the record to indicate whether Keinya jumped out or was pushed out. The State argued that Anderson was driving Keinya to a location where he could kill her and that Keinya must have realized this and therefore jumped out. But there was no evidence presented to support this theory. It is just as likely that Anderson’s plan was to push Keinya out of the ear and then run her over, or that Anderson and Keinya simply got into an argument which ended in her being pushed out of the car. Since the State failed to prove this aggravator beyond a reasonable doubt, the trial court erred in finding this aggravator.

3.That the Murder Was Cold, Calculated, and Premeditated

In order to prove the existence of the CCP aggravator, “the State must show a heightened level of premeditation establishing that the defendant had a careful plan or prearranged design to kill.” Bell v. State, 699 So.2d 674, 677 (Fla.1997). There is competent, substantial evidence in the record to support CCP in this case. Keinya’s cousin testified that two days before the murder, Anderson said “he was going to wait in Publix for 24 hours—if he can’t get Patrick, then he’s coming after her (Keinya).” Edwina testified that on the same night, Anderson said that “he was going to prison, but someone was going to be dead, I bet you that.” Edwina also testified that she spoke to Anderson on the day of Keinya’s murder and Anderson asked whether Keinya had gone to work that day and asked what time she would get off. Hence, there is evidence in the record that Anderson had a prearranged designed to kill Keinya at least 48 hours prior to her death.

4. That the Murder was Heinous, Atrocious, or Cruel

In order for HAC to apply, the murder must be conscienceless or pitiless and unnecessarily torturous to the victim. See Hartley v. State, 686 So.2d 1316, 1323 (Fla.1996). A finding of HAC is appropriate only when a murder evinces extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another. See Cheshire v. State, 568 So.2d 908, 912 (Fla.1990).

The medical examiner testified that in addition to various other injuries, the victim’s neck was fractured, and the fractured neck led to rapid unconsciousness and death. The medical examiner stated that survival following the accident was seconds to minutes at the most. Based on the record in this case, we find that the murder was conscienceless, pitiless, and unnecessarily torturous.

5. That the Defendant Had Been Convicted of a Prior Violent Felony

During the penalty phase, Edwina testified regarding the circumstances of Keinya’s sexual abuse. Edwina made it clear that Anderson not only attempted, but actually completed, the crime of sexual battery on Keinya:

Q: Did [Keinya] tell you that [Charles] inserted his penis inside her vagina on several occasions?
A: Yes.

Officer Estopinan, the officer who investigated the previous sexual batteries, also testified about the circumstances of Kein-ya’s sexual abuse. Anderson contends that since he pled to attempted sexual battery, it was error to permit Edwina and Officer Estopinan to describe the details of a completed crime. To support his position, Anderson relies on Donaldson v. State, 722 So.2d 177 (Fla.1998). In that case, the State sought to establish the prior violent felony aggravator by presenting evidence regarding a previous murder for which Donaldson pled guilty as an accessory after the fact. The State tried to prove that Donaldson was actually a principal to the previous murder. On appeal, this Court held that the trial court erred in admitting and considering the evidence regarding the previous murder. We concluded, as a matter of law, that a conviction for accessory after the fact to a crime of violence may not be used as a vehicle to implicate the defendant as a principal in the prior underlying crime of violence under section 921.141(5)(b), Florida Statutes (1993).

Donaldson, however, is distinguishable from the present case. Anderson was not convicted as an accessory after the fact to the sexual batteries; rather, Anderson was convicted of eleven counts of attempted sexual battery. Although Anderson argues that attempt crimes can never qualify as prior violent felonies, this Court has never made such a finding. Whether a crime constitutes a prior violent felony is determined by the surrounding facts and circumstances of the prior crime. See Gore v. State, 706 So.2d 1328, 1333 (Fla.1997). Hence, the trial court did not err in permitting the State to present evidence regarding the details of the attempted sexual batteries. Further, based on this evidence, the trial court did not err in concluding that the attempted sexual batteries qualified as prior violent felonies under section 921.141(5)(b), Florida Statutes (1993).

In conclusion, we hold that the trial court erred in finding the avoid arrest and committed in the course of a felony aggravators. Even if these aggravating factors were stricken, Anderson would not be entitled to relief. ‘Where an aggravating factor is stricken on appeal, the harmless error test is applied to determine whether there is no reasonable possibility that the error affected the sentence.” See Jennings v. State, 782 So.2d 853, 863 n. 9 (Fla.2001). In the present case, if the avoid arrest and committed in the course of a felony aggravators were stricken, Anderson would still have three remaining aggravators: CCP, HAC, and prior violent felony. Based on the record in this case, there is no reasonable possibility that Anderson would have received a life sentence. See Reaves v. State, 639 So.2d 1, 6 (Fla.1994) (‘We agree with Reaves that the deputy’s death from gunshot wounds was not heinous, atrocious, or cruel.... We find this error to be harmless, however, in view of the two other strong aggravating factors found and relatively weak mitigation. There is no possibility that the jury would have recommended or the judge would have imposed a lesser sentence.”) (footnote omitted).

In Anderson’s eleventh claim, he contends that the death sentence is disproportionate in this case. Due to the uniqueness of the penalty, this Court addresses the propriety of all death sentences in a proportionality review. See Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). In conducting this review, we make a comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, see Cooper v. State, 739 So.2d 82, 85 (Fla.1999), thereby assuring uniformity in the application of the sentence, see Urbin v. State, 714 So.2d 411, 416-17 (Fla.1998).

We do not find the death sentence disproportionate in the instant case. The court initially found five aggravators: (1) Anderson had a previous conviction of a violent felony (the attempted sexual batteries), (2) the murder was committed while engaged in the commission of a felony (kidnapping), (3) the murder was committed to avoid arrest, (4) the murder was heinous, atrocious, or cruel, and (5) the murder was committed in a cold, calculated and premeditated manner without any pretense of legal justification. As discussed in issue ten, supra, the second and third aggravators were inapplicable. However, we concluded that the proper finding of the remaining three aggravators renders the use of these two aggravators harmless.

The trial court concluded that Anderson failed to establish the statutory mental mitigators. The trial court found the following nonstatutory mitigators: (1) Anderson suffers from sexual dementia (minimal weight), (2) Anderson confessed to his sexual relationship with Keinya during drug addiction counseling (medium weight), (3) Anderson suffered from drug addiction (minimal weight), (4) Anderson comes from a good family (minimal weight), (5) Anderson was a good child (minimal weight), (6) Anderson helped Edwina take care of his three natural children (minimal weight), (7) Anderson loves his children (minimal weight), (8) Anderson sends gifts to his kids while in custody (minimal weight), (9) Anderson is a very caring person (minimal weight), (10) Anderson served in the Coast Guard for five years (minimal weight), (11) society would be protected by Anderson serving a life sentence (minimal weight), (12) Anderson earned money playing the market while in custody and therefore can still be a productive member of society (minimal weight), and (13) Anderson has a gift for poetry and can help men who end up in prison (minimal weight).

We have affirmed death sentences where there was even less aggravation than in the current case and somewhat comparable mitigation. See Geralds v. State, 674 So.2d 96, 105 (Fla.1996) (affirming death sentence where murder was HAC and committed during the commission of a robbery and both statutory and nonstatutory mitigation was afforded little weight); Davis v. State, 703 So.2d 1055, 1061-62, (Fla.1997) (affirming death sentence where murder was HAC and committed during the course of a sexual battery and nonstatutory mitigation was afforded some weight). Therefore, we find that death is a proportionate penalty in this case.

In claim twelve, Anderson argues that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the United States Supreme Court held that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt, and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), in which the Supreme Court ruled that Apprendi is applicable in the death penalty context. In Ring, the Supreme Court found the Arizona capital sentencing statute to be unconstitutional “to the. extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for the imposition of the death penalty.” Ring, 536 U.S. at 609, 122 S.Ct. at 2443. Anderson contends that Florida’s capital sentencing statute suffers the same constitutional infirmity. However, Anderson’s claim has already been addressed by this Court and decided adversely to him. See Bottoson v. Moore, 833 So.2d 693 (Fla.2002) (concluding that Bottoson was not entitled to relief under Bing).

In his final claim, Anderson asserts that the murder in the course of a felony aggravating circumstance is unconstitutional because it is an impermissible automatic ag-gravator. This claim has been rejected numerous times by this Court. See, e.g., Banks v. State, 700 So.2d 363, 367 (Fla.1997).

Accordingly, for the reasons stated in this opinion, we affirm the conviction for first-degree murder and sentence of death.

It is so ordered.

WELLS and QUINCE, JJ., and HARDING, Senior Justice, concur.

PARIENTE, J., concurs as to the conviction and concurs in result only as to the sentence with an opinion, in which SHAW, Senior Justice, concurs.

ANSTEAD, C.J., and LEWIS, J., concur as to the conviction and concur in result only as to the sentence.

PARIENTE, J.,

concurring as to the conviction and concurring in result only as to the sentence.

I concur fully in the affirmance of the conviction in this case, but concur in result only as to the affirmance of the death sentence. One of the aggravating circumstances found by the trial court was a prior violent felony, based on convictions of attempted sexual battery of the same victim as in this case. In Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), we denied relief under Ring v. Arizona, 536 U.S. 584, 122, S.Ct. 2428, 153 L.Ed.2d 556 (2002), to petitioners whose aggravating circumstances included prior violent felony convictions, in accord with the United States Supreme Court’s holding in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Emphasis supplied.) The Supreme Court extended Apprendi to capital sentencing schemes in Ring, but did not alter the exception for prior convictions. For this reason, I concur that Anderson is not entitled to relief under Ring.

SHAW, Senior Justice, concurs.

      . Anderson presents the following claims: (1) the evidence is insufficient for first-degree murder; (2) the trial court erred in admitting collateral bad act evidence; (3) the trial court erred in allowing a witness to testify concerning other traffic homicides; (4) the trial court erred in allowing nonresponsive opinion testimony as to the intent of the perpetrator; (5) the trial court erred in admitting inflammatoty photographs during the guilt phase; (6) the trial court erred in denying Anderson’s motion for mistrial during closing argument; (7) the trial court erred in allowing the State to proceed on a theory of felony murder; (8) the State's penalty phase argument was fundamental error; (9) the trial court erred in admitting inflammatory photographs during the penalty phase; (10) the evidence did not support the aggravating circumstances in this case; (11) the sentence is disproportionate; (12) the sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); and (13) the murder in the course of a felony aggravator is unconstitutional.

      .Section 787.01(l)(a), Florida Statutes (1993), provides, in part:
      The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his will and without lawful authority, with intent to:
      1. Hold for ransom or reward or as a shield or hostage.
      2. Commit or facilitate commission of any felony.
      3. Inflict bodily harm upon or to terrorize the victim or another person.
      4. Interfere with the performance of any governmental or political function.