source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J., QUINCE, J.,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Kevin DeWayne POWELL, Respondent.
    No. SC07-2295.
    Supreme Court of Florida.
    June 16, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Robert J. Krauss, Senior Assistant Attorney General, Bureau Chief, and Susan M. Shanahan, Assistant Attorney General, Tampa, FL, for Petitioner.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Respondent.
   PER CURIAM.

This case comes before this Court on remand from the decision of the United States Supreme Court in Florida v. Powell, - U.S. -, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010). The issue presented concerns the scope of the pre-interrogation warnings required by the Fifth Amendment to the United States Constitution, as described in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and by article I, section 9 of the Florida Constitution, as described in Traylor v. State, 596 So.2d 957 (Fla.1992). After giving due consideration to the Supreme Court’s decision in Powell, we find that the warnings given in this case adequately advised the respondent of his rights under the United States and Florida Constitutions.

STATEMENT OF THE CASE

Previously, in State v. Powell, 998 So.2d 531 (Fla.2008), we upheld a decision of the Second District Court of Appeal reversing respondent Kevin Powell’s conviction for possession of a firearm by a felon. The factual predicate for the conviction took place on August 10, 2004, when police officers discovered a nine-millimeter handgun after arriving at a residence to investigate the respondent. Powell was arrested and transported to police headquarters, where he was given the following warnings:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

Id. at 532. Powell agreed to talk to the officers and subsequently made incriminating statements during the interrogation. See id. At trial, Powell’s counsel objected to the introduction of the statements into evidence, arguing that the warnings were deficient because they did not expressly state that Powell had the right to have an attorney present during questioning. The trial court overruled the objection and admitted the statements. Powell was convicted by the jury and sentenced to ten years in prison. See id. at 532-33.

On appeal, the Second District Court of Appeal reversed the conviction, holding that the warnings were inadequate under both the Fifth Amendment and article I, section 9. See Powell v. State, 969 So.2d 1060, 1061 (Fla. 2d DCA 2007), approved, 998 So.2d 531 (Fla.2008). The district court reasoned that to advise a suspect that he “has the right ‘to talk to a lawyer before answering ... any of our questions’ constitutes a narrower and less functional warning than that required by Miranda.” Id. at 1064. However, the Second District certified the following question to this Court as a matter of great public importance:

DOES THE FAILURE TO PROVIDE EXPRESS ADVICE OF THE RIGHT TO THE PRESENCE OF COUNSEL DURING QUESTIONING VITIATE MIRANDA WARNINGS WHICH ADVISE OF BOTH (A) THE RIGHT TO TALK TO A LAWYER “BEFORE QUESTIONING” AND (B) THE “RIGHT TO USE” THE RIGHT TO CONSULT A LAWYER “AT ANY TIME” DURING QUESTIONING?

Id. at 1067-68.

This Court granted discretionary review, answered the certified question in the affirmative, and approved the decision of the Second District. See Powell, 998 So.2d at 532. In our decision, we agreed with the Second District that the warnings were deficient and that the trial court had erred in admitting Powell’s statements into evidence. See id. at 542. This Court first discussed the contours of the privilege against self-incrimination as afforded by both federal and Florida law. With regard to the requirements of the United States Constitution, we explained that the United States Supreme Court has held that the following warnings are required to ensure that any statement obtained during a custodial interrogation complies with the federal privilege against self-incrimination afforded by the Fifth Amendment:

[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Id. at 534 (quoting Miranda, 384 U.S. at 479, 86 S.Ct. 1602).

With regard to the requirements of Florida law, we explained that similar warnings are required by the self-incrimination clause of article I, section 9 of the Florida Constitution. Under article I, section 9, suspects must be informed:

[1] that they have a right to remain silent, [2] that anything they say will be used against them in court, [3] that they have a right to a lawyer’s help, and [4] that if they cannot pay for a lawyer one will be appointed to help them.

Powell, 998 So.2d at 535 (footnote omitted) (quoting Traylor, 596 So.2d at 966). We noted that the right to a lawyer’s help means that “the suspect has the right to consult with a lawyer before being interrogated and to have the lawyer present during interrogation.” Id. at 535 n. 2 (quoting Traylor, 596 So.2d at 966 n. 13). For the purposes of our decision on remand, however, we observe here that, “[t]hough our analysis in Traylor was grounded in the Florida Constitution, our conclusions were no different than those set forth in prior holdings of the United States Supreme Court.” State v. Owen, 696 So.2d 715, 719 (Fla.1997).

After evaluating the specific pre-interro-gation warnings that were read to Powell, we agreed with the Second District that the warnings were deficient. Our analysis focused on two portions of the warnings that were read by the interrogating officers. First, Powell was informed: “You have the right to talk to a lawyer before answering any of our questions.” Powell, 998 So.2d at 540. Second, a catch-all statement was included at the end of the warnings, which stated: “You have the right to use any of these rights at any time you want during this interview.” Id.

We determined that the Miranda rights as they were described to Powell did not advise him of his right to have an attorney present during questioning. See id. With regard to the first portion of the warning, we found the statement misleading because Powell was informed only that he had the right to speak with an attorney before answering any questions. We stated: “The ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.” Id. at 541.

We also concluded that the final statement, informing Powell of his right to use his rights “at any time ... during this interview” did not cure the deficiency:

The Second District ... found that language could not cure the deficiency because Powell was never unequivocally informed that he had the right to have an attorney present at all times during his custodial interrogation. See Powell, 969 So.2d at 1067. We agree with the Second District and hold that Powell should have been clearly informed of his right to the presence of counsel during the custodial interrogation. The catchall language did not effectively convey to Powell his right to the presence of counsel before and during police questioning. This last sentence could not effectively convey a right the defendant was never told he had. In other words, how can a defendant exercise at any time during an interrogation a right he did not know existed? The catch-all phrase did not supply the missing warning of the right to have counsel present during police questioning because a right that has never been expressed cannot be reiterated.

Id. Thus, we agreed with the Second District that the warnings were deficient. After finding that the admission of the statements was not harmless beyond a reasonable doubt, we upheld the district court’s decision. See id. at 541-42.

The United States Supreme Court subsequently granted certiorari and reversed this Court’s decision. See Florida v. Powell, — U.S. -, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010). The High Court first addressed the issue of its jurisdiction to decide the case. In Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the High Court explained that it would not “review a question of federal law decided by a state court if the decision ... rests on a state law ground that is independent of the federal question and adequate to support the judgment.” However,

when ... a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.

Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). Applying these principles to this Court’s decision in Powell, the Supreme Court found that although this Court had invoked Florida’s Constitution and precedent in addition to federal law, the decision “treated state and federal law as interchangeable and interwoven” and “at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda.” Powell, 130 S.Ct. at 1202 (citing Long, 463 U.S. at 1044, 103 S.Ct. 3469). Accordingly, the High Court determined that it had jurisdiction to resolve the question of federal law. See id. at 1203.

Turning to the sufficiency of the warnings, the Court explained that when reviewing the adequacy of Miranda warnings, “[t]he inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’ Id. at 1204 (quoting Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989)). With regard to the specific warnings that were given to Powell, the High Court disagreed with our conclusion that Powell was not warned of his right to an attorney:

The Tampa officers did not “entirely omi[t],” any information Miranda required them to impart. They informed Powell that he had “the right to talk to a lawyer before answering any of [their] questions” and “the right to use any of [his] rights at any time [he] want[ed] during th[e] interview.” The first statement communicated that Powell could consult with a lawyer before answering any particular question, and the second statement confirmed that he could exercise that right while the interrogation was underway. In combination, the two warnings reasonably conveyed Powell’s right to have an attorney present, not only at the outset of interrogation, but at all times.
To reach the opposite conclusion, i.e., that the attorney would not be present throughout the interrogation, the suspect would have to imagine an unlikely scenario: To consult counsel, he would be obliged to exit and reenter the interrogation room between each query. A reasonable suspect in a custodial setting who has just been read his rights, we believe, would not come to the counter-intuitive conclusion that he is obligated, or allowed, to hop in and out of the holding area to seek his attorney’s advice. Instead, the suspect would likely assume that he must stay put in the interrogation room and that his lawyer would be there with him the entire time.
The Florida Supreme Court found the warning misleading because it believed the temporal language — that Powell could “talk to a lawyer before answering any of [the officers’] questions” — suggested Powell could consult with an attorney only before the interrogation started. In context, however, the term “before” merely conveyed when Powell’s right to an attorney became effective— namely, before he answered any questions at all. Nothing in the words used indicated that counsel’s presence would be restricted after the questioning commenced. Instead, the warning communicated that the right to counsel carried forward to and through the interrogation: Powell could seek his attorney’s advice before responding to “any of [the officers’] questions” and “at any time ... during th[e] interview.” Although the warnings were not the clearest possible formulation of Miranda’s right-to-counsel advisement, they were sufficiently comprehensive and comprehensible when given a commonsense reading.

Powell, 130 S.Ct. at 1204-05 (footnotes and citations omitted) (alterations in original). The High Court therefore reversed the judgment of this Court and remanded for further proceedings not inconsistent with its opinion. See id. at 1206.

The Supreme Court’s decision leaves no doubt that, contrary to our original analysis, the warnings sufficiently advised Powell of his right to have an attorney present during questioning, as required by Miranda, and did not violate the requirements of the United States Constitution. On remand, Powell asks this Court to again hold that the warnings were deficient on the ground that the warnings, while sufficient under the Fifth Amendment, nonetheless failed to meet the requirements of article I, section 9 of the Florida Constitution, as described in Traylor. The Supreme Court acknowledged in its opinion that individual state constitutions may provide greater protections than the federal Constitution. See Powell, 130 S.Ct. at 1203 (“Nothing in our decision today, we emphasize, trenches on the Florida Supreme Court’s authority to impose, based on the State’s Constitution, any additional protections against coerced confessions it deems appropriate.”). Thus, pursuant to basic federalist principles, this Court retains the authority to again uphold the decision of the Second District if we find that the warnings were deficient under the Florida Constitution.

As we have previously explained, however, our conclusions in Traylor “were no different than those set forth in prior holdings of the United States Supreme Court.” Owen, 696 So.2d at 719. Moreover, we find no basis for concluding that different pre-interrogation warnings are required by the Florida Constitution than are required by the Fifth Amendment. Because the United States Supreme Court has determined that the warnings sufficiently conveyed the right to the presence of counsel as required by the Federal Constitution, we find that the warnings were likewise sufficient under the Florida Constitution. Accordingly, we now conclude that the trial court did not err in admitting Powell’s post-Miranda statements into evidence.

CONCLUSION

In light of the decision of the United States Supreme Court reversing our original decision, we hold that the Miranda warnings at issue in this case sufficiently advised the respondent of his rights as required by the Fifth Amendment to the United States Constitution and article I, section 9 of the Florida Constitution. Therefore, we now answer the certified question in the negative, quash the decision of the Second District, and remand this case to the district court for further proceedings not inconsistent with this opinion.

It is so ordered.

LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., dissents with an opinion, in which QUINCE, J., concurs.

QUINCE, J., dissents with an opinion, in which PARIENTE, J., concurs.

CANADY, C.J., recused.

PARIENTE, J.,

dissenting.

When the United States Supreme Court in Florida v. Powell, — U.S. -, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010), reversed our decision in State v. Powell, 998 So.2d 531 (Fla.2008), the Court expressly stated that “[n]othing in our decision today, we emphasize, trenches on the Florida Supreme Court’s authority to impose, based on the State’s Constitution, any additional protections against coerced confessions it deems appropriate.” 130 S.Ct. at 1203. I agree with Justice Quince’s dissent that it is appropriate and in keeping with this Court’s interpretation of Florida’s independent state constitutional right that we require specific warnings that expressly inform suspects of their right to an attorney before and during questioning. For that reason, I have joined in her dissenting opinion.

I write separately to urge law enforcement throughout this state to adopt standard warnings that specifically inform suspects of their right to an attorney before and during questioning. The majority of law enforcement agencies have already done so, and it is good law enforcement practice to make sure that the warnings are as clear as possible.

While the United States Supreme Court in Powell observed that the warnings given by the Tampa police to Powell were not deficient under the Federal Constitution, the Court also recognized that the warnings were not “the clearest possible formulation of Miranda’s right-to-counsel advisement.” 130 S.Ct. at 1205. The Court pointed to the following warnings as “exemplary”:

The standard warnings used by the Federal Bureau of Investigation are exemplary. They provide, in relevant part: “You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.”

Id. at 1206.

It is a worthwhile goal that does not cost any money for law enforcement agencies in this state to have the “clearest possible” formulation of Miranda’s advisement of constitutional rights. I would urge the Attorney General in conjunction with the state attorneys, Florida Highway Patrol, sheriffs, police chiefs, and any other law enforcement agencies to promulgate a standard form and to encourage law enforcement throughout the state to use the form pointed to by the United States Supreme Court so that we have an “exemplary” warning that would leave no doubt that a suspect was properly advised of his or her rights under both the Federal and Florida Constitutions.

QUINCE, J., concurs.

QUINCE, J.,

dissenting.

As in Rigterink v. State, 66 So.3d 866 (Fla.2011), I respectfully dissent because I conclude that the warnings in this case failed to meet the requirements of the Florida Constitution. We recognized in Traylor v. State, 596 So.2d 957, 962 (Fla.1992), that “[w]hen called upon to decide matters of fundamental rights, Florida’s state courts are bound under federalist principles to give primacy to our state Constitution and to give independent legal import to every phrase and clause contained therein.” We also explained that “the Self-Incrimination Clause of Article I, Section 9, Florida Constitution, requires that prior to custodial interrogation in Florida suspects must be told ... that they have a right to a lawyer’s help.” Id. at 966. Traylor explicitly states that this right “means that the suspect has the right to consult with a lawyer before being interrogated and to have the lawyer present during interrogation.” Id. at 966 n. 13. Thus, under the Florida Constitution a suspect has a greater right than that afforded under the Fifth Amendment.

In this case, however, Powell was not informed that he had the right to have a lawyer with him in the interrogation room during questioning. He was informed only that he had “the right to talk to a lawyer before answering any of [the officers’] questions.” State v. Powell, 998 So.2d 531, 532 (Fla.2008) (emphasis added). The clear insufficiency of this warning is not amended by the catch-all language informing the respondent that he had “the right to use any of these rights at any time ... during this interview.” Id. As we explained in our previous decision in this case, “The catch-all phrase did not supply the missing warning of the right to have counsel present during police questioning because a right that has never been expressed cannot be reiterated.” Id. at 541.

Notwithstanding the decision of the United States Supreme Court in Florida v. Powell, — U.S. -, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010), we cannot ignore our independent obligation to review all pre-interrogation warnings to determine whether they satisfy the requirements of our state Constitution. See Rigterink v. State, 2 So.3d 221, 241 (Fla.2009) (explaining that in the context of the rights afforded by article I, section 9, “the federal Constitution sets the floor, not the ceiling, and this Court retains the ability to interpret the right against self-incrimination afforded by the Florida Constitution more broadly than that afforded by its federal counterpart”). Here, where the warnings failed to meet the requirements of article I, section 9 of the Florida Constitution, as set out in Traylor, the trial court erred in allowing Powell’s statements to be used against him at trial. For that reason, I conclude that the proper result in this case is for this Court to once again approve the decision of the Second District.

PARIENTE, J., concurs.

      . See art. V, § 3(b)(4), Fla. Const.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Lemuel E. ISAAC, Respondent.
    No. SC05-2047.
    Supreme Court of Florida.
    June 16, 2011.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Christine Ann Guard, Assistant Attorneys General, Tallahassee, FL, for Petitioner.
    Isaac Ramon Ruiz-Carus of Wilkes and McHugh, P.A., Tampa, FL, for Respondent.
   PER CURIAM.

We previously granted review of Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), to resolve a certified conflict in the district courts regarding the applicability of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), to re-sentencing proceedings which became final after Apprendi and Blakely issued where the conviction and the original sentence were final before they issued. See art. V, § 3(b)(4), Fla. Const.; State v. Isaac, 4 So.3d 677 (Fla.2009) (granting review). We resolved this conflict, however, in State v. Fleming, 61 So.3d 399 (Fla.2011), revised (Fla. Apr. 28, 2011) (granting motion for clarification in part and remanding for harmless error analysis). Accordingly, we have determined to discharge jurisdiction in Isaac and dismiss this review proceeding.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA and PERRY, JJ., concur.

POLSTON, J., recused.


author: PER CURIAM. POLSTON, J.,

text:
    Roy Phillip BALLARD, Appellant, v. STATE of Florida, Appellee.
    No. SC08-2041.
    Supreme Court of Florida.
    June 30, 2011.

      James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee.
   PER CURIAM.

We have for review the judgment and sentence of the trial court adjudicating Roy Phillip Ballard guilty of first-degree murder and imposing a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated herein, we affirm the conviction, but vacate the sentence of death and reduce Ballard’s sentence to life imprisonment without the possibility of parole.

FACTS AND PROCEDURAL HISTORY

The evidence presented at trial indicated that Autumn Traub (Autumn) disappeared on September 13, 2006, after being in the company of Roy Phillip Ballard (Ballard), her stepfather. Ballard and his wife, Kathy Ballard, had temporary custody of Autumn’s minor daughter, Suny Houghtling (Suny). However, shortly before Autumn’s disappearance, Suny moved back in with Autumn and her husband, John Traub. On August 10, 2006, upset about Suny’s decision, Ballard confronted Autumn in an attempt to have Suny return to his home in Zephyrhills. The police were called and intervened, advising Ballard that the “custody paperwork” he had was insufficient to cause police to transfer custody of Suny back to the Ballards. Ballard stated to the officer he would do anything he needed to get his granddaughter back. After the investigation of the disappearance of Autumn, authorities became convinced that Ballard had killed Autumn in order to gain custody of Suny and continue his sexual relationship with her. Autumn’s body has never been found.

The evidence presented at trial showed that on September 2, 2006, Ballard was depicted in a Lowe’s hardware store surveillance video buying an eighteen-inch metal pipe and duct tape. The receipt for the items was found in his car trunk. On September 4, 2006, Ballard was rushed to the hospital after experiencing a series 'of seizures. During the course of the hospitalization, it was determined that he had suffered a number of small strokes. By September 6, 2006, Dr. Vyas (his treating physician) found that Ballard was cognizant and he was discharged on September 8, 2006. On September 11, 2006, Ballard returned to his job as maintenance supervisor at Atlantic Metals in Tampa, Florida. According to his supervisor, Tom Witzig-man, there were no observable changes in Ballard other than that he appeared somewhat tired.

On September 12, 2006, Ballard reported to work at approximately 5:40 a.m. but, later, was sent home by Witzigman after he reported not feeling well. Ballard did not show up for work on September 13, 2006, but returned September 14, 2006, and continued to work regularly thereafter.

On September 12, 2006, Ballard left work and traveled past his home in Zeph-yrhills to a remote area in North Lakeland as evidenced by his cell phone utilizing a cellular tower in that area. The morning Autumn disappeared, September 13, 2006, his cell phone was “captured” by the same cellular tower.

During the course of the continued investigation, Ballard’s ear trunk was searched. The search resulted in two Wal-Mart bags with small spots of blood on them. The results of the DNA tests performed on the blood found on the Wal-Mart bags showed a statistically certain match to Autumn’s DNA. There was some blood found on the duct tape, from which experts were able to obtain a partial DNA profile consistent with Autumn’s. The trunk also contained numerous shopping bags, one with a spot of Autumn’s blood on it; a shovel; concrete blocks; a cooler; the Lowe’s receipt for the metal pipe and duct tape; and a sex toy with Suny’s DNA on it. On September 21, 2006, Ballard made a taped statement to police in which he acknowledged buying some duct tape but said he could not remember why he bought the metal pipe or what he did with it. The trial court found this troubling because an eighteen-inch metal pipe is an unusual piece of hardware that would have a specific purpose. Ballard also told police that on September 13, 2006, he drove to Autumn’s residence. He situated himself so as not to be observable from Autumn’s home and waited for John to leave for work. He then approached Autumn to discuss Suny’s future, and convinced her to accompany him to get a drink and dropped her off at a Walgreens. However, the police found no evidence to corroborate Ballard’s statements other than that Autumn left her residence in his company. To the contrary, the evidence collected by investigators disproves Ballard’s description of what he and Autumn did that morning.

Further, Michael Needham (Ballard’s former cellmate) testified that Ballard told him he hit Autumn in the back of her head with the pipe. Then, after killing her, he knocked out her teeth to eliminate any comparison to dental records, placed her body in some type of acidic water, and held her down with concrete blocks. He then disposed of the murder weapon by grinding it down at his place of employment, a metal fabrication shop. Needham also testified Ballard confessed to having had a sexual relationship with Suny.

The jury convicted Ballard and recommended the death sentence on a vote of nine to three. The trial court sentenced Ballard to death.

ISSUES ON APPEAL

Ballard raises three issues on appeal: (1) whether the trial court erred in admitting collateral crime evidence; (2) whether the trial court erred in finding the CCP aggravator; and (3) whether the death sentence is proportionate. We affirm on issues 1 and 2. Additionally, we find competent, substantial evidence to support the conviction. However, upon our proportionality review, we conclude that the sentence should be reduced to life imprisonment without the possibility of parole.

GUILT PHASE

Sufficiency of the Evidence

While this issue is not contested by Ballard, we have a mandatory obligation to determine the sufficiency of the evidence to sustain the homicide conviction. We have outlined the evidence presented at trial and, upon review, find that evidence sufficient to sustain Ballard’s conviction of first-degree murder.

Admission of Collateral Crime Evidence

Ballard claims that the evidence relating to his sexual relationship with Suny was overly prejudicial and requires a new trial. We disagree.

“The admissibility of collateral crime evidence is within the discretion of the trial court, and the trial court’s ruling shall not be disturbed upon review absent an abuse of that discretion.” Hodges v. State, 885 So.2d 338, 357 (Fla.2004); see Sexton v. State, 697 So.2d 833, 837 (Fla.1997). However, a trial court’s discretion is limited by the rules of evidence. Johnston v. State, 863 So.2d 271, 278 (Fla.2003). “Discretion ... is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.” Huff v. State, 569 So.2d 1247, 1249 (Fla.1990) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)).

In Williams v. State, 110 So.2d 654 (Fla.1959), we articulated the following standard for the admission of such evidence:

Our view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy. The test of inadmissibility is a lack of relevancy.

Id. at 659-60. As codified in section 90.404(2), Florida Statutes (2006), “[similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Thus, relevant evidence of other crimes, wrongs, or acts is admissible if the probative value to show motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident outweighs any unfair prejudice, confusion of the issues, misleading of the jury, or needless presentation of cumulative evidence. See LaMarca v. State, 785 So.2d 1209 (Fla.2001). Finally, collateral crimes evidence is “inextricably intertwined” if the evidence is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s). Dorsett v. State, 944 So.2d 1207 (Fla. 3d DCA 2006).

Here, the State presented testimony from multiple witnesses that Ballard engaged in inappropriate conduct with Suny. Neighbors testified that they witnessed the pair kissing and fondling each other. Suny herself testified that they engaged in intercourse “every other weekend” her entire eighth grade year. She further testified that while Ballard was in the hospital, immediately prior to Autumn’s disappearance, he told Suny that he loved her and wanted to marry her. The State also presented evidence in the form of the sex toy found in the trunk of Ballard’s car that had traces of Suny’s DNA on it. The State alleges that this evidence is relevant to show motive and inextricably intertwined with the testimony needed to establish the crime. We agree.

The evidence presented that Ballard had a sexual relationship with Suny was not wholly inflammatory without any relevance to the case. The only testimony presented was relevant to establish why Ballard would want to murder Autumn to regain custody of Suny. As argued by the State, there was no reasonable way for the State to have excluded the testimony while accurately describing the chain of events that led to Autumn’s disappearance. See, e.g., LaMarca, 785 So.2d at 1212-13 (upholding the admission of evidence that the defendant raped his daughter because it was relevant to show the defendant’s motive to murder his daughter’s husband so that he could have his daughter to himself). Suny testified that she hid from Ballard when he first attempted to retrieve her from her mother’s home. John Traub testified that Suny had requested he get a restraining order against Ballard. Neither of these statements would make sense to the jury without the context of Ballard’s relationship with Suny. See id. at 1213 (noting that the testimony was relevant because it put into context the victim’s admonition to La-Marca to stay away from his wife).

Because the collateral crime evidence that Ballard was engaged in an illegal sexual relationship with Suny was relevant to establish motive and inextricably intertwined with the testimony of the chain of events, we deny relief on this claim.

SENTENCING PHASE

Cold, Calculated, and Premeditated Ag-gravator

Ballard next alleges that the trial court improperly found that the murder was cold, calculated, and premeditated. We disagree.

In reviewing the trial court’s finding of an aggravating circumstance, this Court’s “task on appeal is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” McWatters v. State, 36 So.3d 613, 641 (Fla.2010) (quoting Lynch v. State, 841 So.2d 362, 368 (Fla.2003)), cert. denied, — U.S. -, 131 S.Ct. 510, 178 L.Ed.2d 378 (2010).

We have stated:

To establish the CCP aggravator, the State must prove beyond a reasonable doubt that (1) the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); (2) the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); (3) the defendant exhibited heightened premeditation (premeditated); and (4) the murder was committed with no pretext of legal or moral justification.

McWatters, 36 So.3d at 640-41 (citing § 921.141(5)(i), Fla. Stat. (2009); Pearce v. State, 880 So.2d 561, 575-76 (Fla.2004)). “The CCP aggravator pertains specifically to the state of mind, intent, and motivation of the defendant.” Wright v. State, 19 So.3d 277, 298 (Fla.2009) (citing Brown v. State, 721 So.2d 274, 277 (Fla.1998)). The trial court’s determination of whether CCP is present in a case is based upon the totality of the circumstances. Hudson v. State, 992 So.2d 96 (Fla.2008), cert. denied, - U.S. -, 129 S.Ct. 1360, 173 L.Ed.2d 621 (2009).

Ballard argues that CCP was not proven because the facts used to establish the aggravator are based in speculation. This argument is without merit. CCP can be proven by circumstantial evidence. Pearce v. State, 880 So.2d 561 (Fla.2004). CCP can be indicated by the circumstances showing such facts as advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course. Swafford v. State, 533 So.2d 270 (Fla.1988).

The first element, “cold” means “cool and calm reflection, and not an act prompted by emotional frenzy; panic, or a fit of rage.” Jackson v. State, 648 So.2d 85, 89 (Fla.1994). This element was established by competent, substantial evidence. The evidence presented at trial showed that Ballard purchased the murder weapon weeks before the actual murder occurred. Ballard’s hospitalization only provided additional time for him to reflect on his actions and plan his attack.

The second element, “calculated” means the defendant had a “careful plan or prearranged design to commit murder.” Jackson, 648 So.2d at 89. This requires a careful plan or design to kill, not to commit another crime to which the murder was incidental. Id. There is competent, substantial evidence to support this element. Ballard told Needham that he took the murder weapon, an eighteen-inch pipe, to work and ground it down. Ballard further told Needham that he had hit Autumn in the back of the head to kill her, and struck her again to knock out her teeth to prevent her identification through dental records. The evidence showed that Ballard waited outside of Autumn’s home and did not approach the door until after her husband left for work. This evidence supports that Ballard had a careful plan or design to kill Autumn.

The third element, “premeditated” requires more than that required to prove first-degree murder. It is heightened premeditation, defined as “deliberate ruthlessness.” See Wuornos v. State, 644 So.2d 1000, 1008 (Fla.1994) (citing Walls v. State, 641 So.2d 381, 388 (Fla.1994)). There is competent, substantial evidence to support the finding of this element. Ballard purchased the materials used to murder Autumn weeks before the crime. He lay in wait while her husband prepared to leave for work. He escorted her from her home under false pretenses. Then, presumably, he took her to a remote location before striking her with the pipe he purchased for this specific purpose. This Court has previously upheld a finding of CCP where a defendant laid in wait for the victim’s arrival. See Dennis v. State, 817 So.2d 741, 765 (Fla.2002) (upholding CCP where facts showed defendant arrived at the apartment before the victim and waited for her arrival).

Accordingly, we find this aggravator was supported by competent, substantial evidence.

Proportionality

We find the imposition of the death penalty in this case to be disproportionate. This Court has previously stated that CCP is one of the weightiest aggravating circumstances. See Morton v. State, 995 So.2d 233, 243 (Fla.2008). However, this Court has also held that the death penalty is reserved only for those circumstances where the most aggravating and the least mitigating circumstances exist. See, e.g., State v. Dixon, 283 So.2d 1 (Fla.1973). This is not such a case. In this case, the trial court found CCP to be the only aggravating circumstance. The trial court also found three statutory mitigating factors — (1) the defendant was under the influence of extreme mental or emotional disturbance at the time the capital felony was committed, (2) the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and (3) the age of the defendant. Additionally, the trial court considered numerous nonstatutory mitigating factors. Accordingly, we find the death sentence to be disproportionate when comparing this case to other death penalty decisions. See, e.g., DeAngelo v. State, 616 So.2d 440 (Fla.1993) (concluding the defendant’s death sentence was disproportionate where the only aggravating circumstance found was CCP); Klokoc v. State, 589 So.2d 219 (Fla.1991) (finding the one aggravating circumstance, CCP, did not outweigh the mitigating factors when compared to other death penalty cases).

Ring

Ballard argues that Florida’s death penalty statute is unconstitutional. Because we are remanding this case for an entry of a sentence of life imprisonment, Ballard’s argument is now moot.

CONCLUSION

Because we find that there is sufficient evidence to uphold Ballard’s conviction for first-degree murder, we affirm the conviction. However, because we find the sentence to be disproportionate, we reverse the sentence of death and remand to the trial court for entry of an order sentencing Ballard to life imprisonment without the possibility of parole.

It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.

POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY, C.J., concurs.

POLSTON, J.,

concurring in part dissenting in part.

I agree with the majority’s decision to affirm Ballard’s conviction for first-degree murder. I also agree that there is competent substantial evidence to support the cold, calculated, and premeditated (CCP) aggravator. Unlike the majority, however, I would affirm Ballard’s death sentence because it is proportionate when compared to other death penalty cases. See, e.g., Butler v. State, 842 So.2d 817 (Fla.2003) (upholding death sentence where trial court found one aggravator and several mitigators); LaMarca v. State, 785 So.2d 1209 (Fla.2001) (upholding death sentence where trial court found one aggravator and less than substantial mitigation in case where father murdered son-in-law in order to have his daughter, who he had raped, for himself). Planning in advance and executing a brutal murder for the purpose of continuing an inappropriate and incestuous relationship with the victim’s minor daughter, with only mitigation of little and slight weight, certainly qualifies as one of the most aggravated and least mitigated of murders. See Window, v. State, 656 So.2d 432, 440 (Fla.1995) (“It is well settled that it is not the number of aggravating and mitigating circumstances that is critical but the weight to be given each of them.”).

The trial court here found the CCP ag-gravator based upon Ballard’s deliberate actions after he realized that his stepdaughter was not going to return custody of her minor daughter to Ballard, custody Ballard desired in order to continue his sexual relationship with the minor. Ballard began planning the murder of Autumn Traub in early September when he purchased an eighteen-inch metal pipe and duct tape from a hardware store. And the day before he killed her, Ballard scouted a remote area where he could commit the murder and dispose of the body. Then, Ballard coldly carried out his plan on the morning of September 13, 2006, when he lured his stepdaughter from her home and to her death after stealthily waiting for her husband to leave the house.

This Court has repeatedly stated that CCP is one of the most serious and weightiest aggravating circumstances. See Diaz v. State, 860 So.2d 960, 971 (Fla.2003); Morton v. State, 789 So.2d 324, 331 (Fla.2001); Larkins v. State, 739 So.2d 90, 95 (Fla.1999). This Court also has explained that “[w]hen one or more of the aggravating circumstances is found, death is presumed to be the proper sentence unless it or they are overridden by one or more of- the mitigating circumstances.” Diaz v. State, 860 So.2d at 971 (quoting State v. Dixon, 283 So.2d 1, 9 (Fla.1973)). However, in this case, the majority summarily vacates Ballard’s death sentence and reduces it to life by simply identifying CCP as the only aggravator. See majority op. at 919-20.

This Court has upheld death sentences based upon a single aggravating circumstance. See Butler, 842 So.2d 817; LaMarca, 785 So.2d 1209; Burns v. State, 699 So.2d 646 (Fla.1997); Ferrell v. State, 680 So.2d 390 (Fla.1996); Cardona v. State, 641 So.2d 361 (Fla.1994), postconviction relief granted on other grounds, 826 So.2d 968 (Fla.2002). While it is true that “[tjhis Court has vacated numerous death sentences where there was only one aggravating factor[,] those cases generally involved substantial mitigating circumstances.” LaMarca, 785 So.2d at 1216. Unlike those cases, the trial court here found the mitigation to be less than substantial. And it is not this Court’s function to reweigh the mitigating circumstances. See Merck v. State, 975 So.2d 1054, 1065 (Fla.2007) (“This Court reviews a trial court’s assignment of weight to proven mitigating factors under an abuse-of-discretion standard. Again, we do not reweigh the aggravating and mitigating factors. We defer to the trial court’s determination. ...”).

In this case, the trial court indicated that it was aware of this Court’s single aggravator decisions, but after weighing the single strong aggravator of CCP against the “very little” mitigation, the trial court found that the aggravating circumstance “far outweighs” the mitigating circumstances. More specifically, while the trial court found three statutory miti-gators and various nonstatutory miti-gators, it assigned this mitigation less than substantial weight. In regard to the statutory mitigator of extreme mental or emotional disturbance due to alleged stroke-induced brain damage, the trial court explained that it was only given “slight weight” because of testimony explaining that the MRI findings were not significant and testimony that there were “no outward signs of brain damage” and no changes in Ballard’s behavior or demean- or. And the trial court only gave the aggravator of capacity to appreciate the criminality of his conduct “slight weight” because the alleged drug toxicity exacerbating his medical problems would cause dizziness and slurred speech, not confusion or anything else that would lead to Ballard not being able to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Additionally, the trial court assigned the statutory age ag-gravator “little to slight weight,” because, although Ballard was 65 at the time of the murder, his aging “did not appear to slow him down” as he worked at a full-time job that started before 7:00 a.m. and “required both physical stamina and mental acuity.” Furthermore, much of the proposed non-statutory mitigation involved Ballard’s actual motive for killing his stepdaughter, namely his incestuous relationship with her minor daughter. See majority op. at 916-17 n. 1 (noting that the trial court considered that Ballard was charitable to his stepfamily (no weight), that Ballard had a lack of societal inhibition (little weight), that Ballard suffered from an obsession to regain custody of the minor girl (no weight), that Ballard had a past domestic relationship with his victim and her minor daughter (no weight), and that Ballard was involved in a quarrel with the victim over her daughter’s custody (no weight)). Therefore, because this case involved less than substantial mitigation, it is not similar to the single aggravator cases in which this Court has found the death sentence disproportionate. Cf. Besaraba v. State, 656 So.2d 441, 446-47 (Fla.1995) (finding death sentence disproportionate with single aggravator and “vast” mitigation); Nibert v. State, 574 So.2d 1059, 1062-63 (Fla.1990) (finding death sentence disproportionate with single aggravator and “substantial mitigation”).

This case is also not similar to the cases that the majority cites when concluding that Ballard’s death sentence was disproportionate. See majority op. at 920. In contrast to this case, the cases cited by the majority involved substantial mitigation, including evidence of severe and debilitating mental disorders. Specifically, the defendant in DeAngelo v. State, 616 So.2d 440, 443 (Fla.1993), had bipolar disorder, psychotic disorders, hallucinations, delusions, and paranoid thinking. And there was evidence that the defendant in Klokoc v. State, 589 So.2d 219, 221 (Fla.1991), suffered from bipolar affective disorder, manic type with paranoid features, among other mental problems.

To summarize, as found by the trial court, this case involves one of the most serious aggravators and less than substantial mitigation. It is not this Court’s function to reweigh these aggravating and mitigation circumstances. See Merck, 975 So.2d at 1065. The death sentence here is proportionate when compared to other death penalty cases. See, e.g., Butler, 842 So.2d 817; LaMarca, 785 So.2d 1209. Additionally, although the majority did not address it, Ballard’s claim that his death sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), is without merit. See Porter v. Crosby, 840 So.2d 981, 986 (Fla.2003) (holding in as-applied challenge that death is the statutory maximum sentence for first-degree murder); Butler v. State, 842 So.2d at 834 (upholding death sentence with HAC aggravator found by the trial court); see also Bottoson v. Moore, 833 So.2d 693 (Fla.2002); King v. Moore, 831 So.2d 143 (Fla.2002).

Accordingly, I would affirm both Ballard’s conviction and death sentence. I respectfully concur in part and dissent in part.

CANADY, C.J., concurs.

      . The trial court found the existence of one aggravating circumstance: that the capital felony was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification (CCP).
      The trial court found the following statutory mitigating factors: (1) the capital felony was committed while the Defendant was under the influence of extreme mental or emotional disturbance — slight weight; (2) the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired — slight weight; (3) The age of the Defendant at the time of the crime — little to slight weight. Additionally, the trial court considered the following nonstatutory mitigating factors: (1) Ballard has a close relationship with his wife — little to no weight; (2) Ballard can continue the relationship with his wife in prison — little to no weight; (3) Ballard has a strong work ethic. — slight weight; (4) Ballard was charitable to his stepfamily — no weight; (5)-(15) medical and mental problems — very slight weight when combined; (16) lack of impulse control — very little weight; (17) lack of societal inhibition — little weight; (18) Ballard suffered from an obsession to regain custody of Suny Houghtling— no weight; (19) Ballard had in the past a domestic relationship with Autumn Traub and Suny Houghtling — no weight; (20) Ballard was involved in an ongoing quarrel with the Traubs over Suny’s custody — no weight.

        . Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . The majority's ruling takes us further away from Florida's death penalty statute, which provides that the trial court must weigh miti-gators against aggravators. See § 921.141(3) (instructing the trial court to set forth written finding that the mitigators do not outweigh the sufficient aggravators). Nothing in the statute or constitution limits the weight or effect of a single aggravator.