author: MURDOCK, Justice.

text:
    Ex parte Roger DIXON (In re Roger Dixon v. State of Alabama).
    1071564.
    Supreme Court of Alabama.
    June 30, 2010.

      Paul M. Harden, Sr., of Harden & Harden, LLC, Monroeville, for petitioner.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   MURDOCK, Justice.

Roger Dixon was convicted of attempted murder and of discharging a firearm into an occupied vehicle. Dixon filed a motion for a new trial alleging, among other things, (1) that several jurors failed to truthfully answer questions during voir dire, and (2) that the trial court improperly restricted Dixon’s cross-examination of a prosecution witness. Dixon’s motion for a new trial was denied after an evidentiary hearing. The Court of Criminal Appeals affirmed Dixon’s convictions and sentences by an unpublished memorandum, from which Judge Welch dissented, with an opinion. Dixon v. State, 55 So.3d 1250 (Ala.Crim.App.2008) (Welch, J., dissenting).

Dixon filed a petition for a writ of certio-rari contending, among other things, that the decision of the Court of Criminal Appeals conflicts with Ex parte Dobyne, 805 So.2d 763 (Ala.2001), and Tomlin v. State, 695 So.2d 157 (Ala.Crim.App.1996), regarding Dixon’s claims that several jurors failed to truthfully answer questions during voir dire. We reverse and remand. In light of our disposition of Dixon’s argument regarding the voir dire of one of the jurors, we pretermit consideration of Dixon’s other claims.

I. Facts

In light of the nature of the dispositive issue, only a brief summary of the substantive facts is necessary. Between June 2004 and May 2005, Dixon had repeated altercations with David Jackson concerning Dixon’s relationship with Jackson’s estranged wife. During the early morning hours of May 14, 2005, Dixon encountered Jackson and Brad Carey at a convenience store.

At trial, Dixon testified and disputed the State’s version of the facts regarding his encounter with Jackson and Carey. According to Jackson, Dixon threatened to kill him, fired several gunshots, one of which struck Carey’s vehicle, and then chased Carey and Jackson in his vehicle at a high rate of speed when they left the convenience store. In contrast, Dixon testified that he fired his gun into the air during the encounter because he was afraid of Jackson and Carey and that he did not follow Jackson and Carey when they left the convenience store.

As to the dispositive issue in this case, Dixon contends that L.A., who served as a juror at his trial, failed to respond correctly to the following question asked during voir dire of the venire:

“Have you or a member of your immediate family ever been a criminal defendant in a criminal case in either the district court or the circuit court in this county where [the district attorney or any of his assistants] prosecuted the case?”

L.A. did not respond to this question; however, criminal charges were pending against her at the time of Dixon’s trial. About two months before Dixon’s trial, L.A. had been twice charged by family members with a misdemeanor. The charges had been served on L.A., and she had posted an appearance bond in each case. About a week before Dixon’s trial, L.A.’s case had been continued by the trial court. At the time of Dixon’s trial, L.A. personally was engaged in discussing the disposition of the charges with the district attorney. Shortly after Dixon’s trial, L.A.’s case was placed in pretrial diversion status.

At the hearing on Dixon’s motion for a new trial, the trial court heard testimony from L.A. and from Dixon’s trial counsel. The trial court did not make any written findings of fact as to the claim regarding L.A.’s failure to disclose the pending criminal charges in response to the question posed on voir dire and did not indicate on the record the basis for its decision denying Dixon’s motion for a new trial. Comments by the trial court at the hearing suggest that it thought the question asked during voir dire was ambiguous.

II. Standard of Review

In Ex parte Dobyne, 805 So.2d at 772, this Court stated:

“[T]he proper standard to apply in determining whether a party is entitled to a new trial in this circumstance [where a juror fails' to respond correctly to a question on voir dire] is ‘whether the defendant might have been prejudiced by a veniremember’s failure to make a proper response.’ Ex parte Stewart, 659 So.2d [122] at 124 [ (Ala.1993) ]. Further, the determination of whether a party might have been prejudiced, i.e., whether there was probable prejudice, is a matter within the trial court’s discretion.”

Id. See also Reynolds v. City of Birmingham, 723 So.2d 822, 824 (Ala.Crim.App.1998) (“ ‘[T]he ruling of the trial judge denying a motion for new trial will not be disturbed in the absence of a showing of abuse of discretion, and this Court will indulge every presumption in favor of the correctness of his ruling.’ ” (quoting Hall v. State, 348 So.2d 870, 875 (Ala.Crim.App.1977))).

III. Analysis

Dixon contends that the trial court should have granted his motion for a new trial because L.A., who served on the jury that convicted him, failed to respond to the above-referenced question during voir dire. As noted, the trial court did not make any written findings of fact as to this issue and did not indicate on the record the basis for its decision to deny Dixon’s motion for a new trial, which was grounded, in part, on L.A.’s failure to respond to the question. In affirming Dixon’s conviction, the Court of Criminal Appeals concluded that L.A.’s failure to disclose information about the criminal charges pending against her was inadvertent, rather than willful. That court also determined that there was no prejudice to Dixon by L.A.’s failure to respond because she later testified that the fact that charges were pending against her did not affect her verdict. We granted certiorari to review Dixon’s claim that the decision of the Court of Criminal Appeals conflicts with Dobyne and Tomlin.

In Dobyne, this Court explained the standard for granting a new trial based on a juror’s failure to answer questions on voir dire truthfully:

“The proper standard for determining whether juror misconduct warrants a new trial, as set out by this Court’s precedent, is whether the misconduct might have prejudiced, not whether it actually did prejudice, the defendant. See Ex parte Stewart, 659 So.2d 122 (Ala.1993).... The ‘might-have-been-prejudiced’ standard, of course, casts a ‘lighter’ burden on the defendant than the actual-prejudice standard. See Tomlin v. State, supra, 695 So.2d at 170
“It is true that the parties in a case are entitled to true and honest answers to their questions on voir dire, so that they may exercise their peremptory strikes wisely. ... However, not every failure to respond properly to questions propounded during voir dire ‘automatically entitles [the defendant] to a new trial or reversal of the cause on appeal.’ Freeman v. Hall, 286 Ala. 161, 166, 238 So.2d 330, 335 (1970).... As stated previously, the proper standard to apply in determining whether a party is entitled to a new trial in this circumstance is ‘whether the defendant might have been prejudiced by a veniremember’s failure to make a proper response.’ Ex parte Stewart, 659 So.2d at 124. Further, the determination of whether a party might have been prejudiced, i.e., whether there was probable prejudice, is a matter within the trial court’s discretion. ...
“ ‘The determination of whether the complaining party was prejudiced by a juror’s failure to answer voir dire questions is a matter within the discretion of the trial court and will not be reversed unless the court has abused its discretion. Some of the factors that this Court has approved for using to determine whether there was probable prejudice include: “temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.” ’
“Union Mortgage Co. v. Barlow, 595 So.2d [1335] at 1342-43 [(Ala.1994)]
“The form of prejudice that would entitle a party to relief for a juror’s nondisclosure or falsification in voir dire would be its effect, if any, to cause the party to forgo challenging the juror for cause or exercising a peremptory challenge to strike the juror. Ex parte Ledbetter, 404 So.2d 731 (Ala.1981).... If the party establishes that the juror’s disclosure of the truth would have caused the party either to (successfully) challenge the juror for cause or to exercise a peremptory challenge to strike the juror, then the party has made a prima facie showing of prejudice. Id. Such prejudice can be established by the obvious tendency of the true facts to bias the juror, as in Ledbetter, supra, or by direct testimony of trial counsel that the true facts would have prompted a challenge against the juror, as in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992).”

Dobyne, 805 So.2d at 771-73 (footnote omitted; emphasis added).

In Tomlin, a case cited with approval in Dobyne, the Court of Criminal Appeals discussed in detail the application of the might-have-been-prejudiced standard to a juror’s failure to answer correctly questions posed on voir dire concerning the juror’s ties to law enforcement and the juror’s experience as a victim of a crime. That court stated:

“ ‘We start with the basic constitutional premise that every person is entitled to an impartial jury [pursuant to the Sixth Amendment to the United States Constitution].’ Knight v. State, 675 So.2d 487, 493-94 (Ala.Cr.App.1995).... ‘It is fundamental to our system of impartial justice that “ ‘[p]arties have a right to have questions answered truthfully by prospective jurors to enable them to exercise their discretion wisely in exercising their peremptory strikes.’ ” ’ State v. Freeman, 605 So.2d 1258, 1259 (Ala.Cr.App.1992) (quoting Ex parte O’Leary, 438 So.2d 1372, 1373 (Ala.1983), quoting in turn Ex parte O’Leary, 417 So.2d 232, 240 (Ala.1982)). ‘Voir dire’ is an ancient phrase which literally means ‘to speak the truth.’ W. LaFave & J. Israel, Criminal Procedure § 22.3(a) (2d. ed. 1992). ‘ “Where the party has examined the jurors concerning their qualifications, and they do not answer truly, it is manifest that he is deprived of his right of challenge for cause, and is deceived into foregoing his right of peremptory challenge.”’ Ex parte Ledbetter, 404 So.2d 731, 733 (Ala.1981) (quoting Leach v. State, 31 Ala.App. 390, 18 So.2d 285, cert. denied, 245 Ala. 539, 18 So.2d 289 (1944)). ‘Failure to enforce the right to elicit from prospective jurors truthful answers to material questions renders hollow the right of peremptory challenge.’ Knight v. State, 675 So.2d at 494 (quoting Mitchell v. State, 458 So.2d 819, 821 (Fla.Dist.Ct.App.1984)).
“In addressing the issue whether a defendant was deprived of the right to exercise peremptory strikes based on truthful answers from prospective jurors, the Alabama Supreme Court recently reiterated the test to be ‘whether the defendant might have been prejudiced by a veniremember’s failure to make a proper response.’ Ex parte Stewart, 659 So.2d 122, 124 (Ala.1993) (emphasis added). This test casts a ‘light burden’ on the defendant. ...”

Tomlin, 695 So.2d at 169-70.

In the present case, we conclude that the trial court exceeded its discretion in denying Dixon’s motion for a new trial based on L.A.’s failure to disclose in response to a question on voir dire that criminal charges were pending against her. An analysis of the Dobyne factors reveals that most of those factors indicate that Dixon was prejudiced by L.A.’s failure to respond.

The matter was not temporally remote — the criminal charges had been filed less than two months before Dixon’s trial and they were still under pending at the time of Dixon’s trial.

As to the ambiguity of the question propounded, we conclude that the question was sufficiently definite to require an affirmative response from L.A. At the evi-dentiary hearing on Dixon’s motion for a new trial, L.A. testified that her understanding of the question was such that it did not require an affirmative answer, but the record simply does not provide adequate support for this assertion. L.A. did not offer a single reason she would understand the question to not require an affirmative response; instead, she offered a shifting series of explanations for her failure to respond affirmatively to the question, including (1) that she had not been arrested, but had merely been “served papers,” (2) that she was not aware that the charges were criminal charges because they related to a family dispute, (3) that the matter “wasn’t trouble with the law, it was a family member,” and (4) that she knew that the charges were going to be dropped. We find these “hairsplitting” explanations to be wholly inadequate, especially in light of L.A.’s testimony that she herself had been negotiating with the district attorney about the disposition of those pending charges before Dixon’s trial and that she was aware that her case had been continued on April 3, 2007, approximately one week before the start of Dixon’s trial. At a minimum, the question was framed so as to require L.A. to mention the charges.

Even if the question was ambiguous, however, the district attorney could have avoided the need for a new trial had he disclosed the fact of the pending charges when L.A. failed to respond affirmatively to the question. The district attorney himself was negotiating the disposition of L.A.’s cases, and the prosecutor in this case has never denied knowledge of the pending charges against L.A. Although various Alabama courts have held that the State does not have a general obligation to disclose information on veniremembers, fairness dictates that the State cannot stand mute when a juror fails to respond (or responds incorrectly) to a question on voir dire and the prosecutor is aware of the true facts.

In Wright v. State, 678 So.2d 1216 (Ala.Crim.App.1996), the Court of Criminal Appeals reversed a conviction because one of the jurors failed to disclose a close family relationship with a staff member in the district attorney’s office, who was present in the courtroom. The court stated:

“We might have found [the juror’s] silence harmless and that the appellant suffered no prejudice ... were it not for the silence of [the staff member]. ... [W]e find the appearance of probable prejudice existed where both a member of the district attorney’s staff, who was seated at the prosecution’s table and who participated in jury selection, and a juror failed to disclose information inquired about during voir dire relevant to the defense in exercising its peremptory strikes.”

678 So.2d at 1220. See also Tomlin, 695 So.2d at 176 (juror failed to disclose pending drug-possession charge; there was no indication that prosecutors knew of the pending criminal charge, but “had the prosecutors known, we believe considerations of basic fairness would have created an affirmative duty on the part of the prosecutors to make the disclosure”); Berger v. United States, 295 U.S. 78, 87, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (“while [a prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”); Shields v. State, 680 So.2d 969, 974 (Ala.Crim.App.1996) (the “ ‘ “prudent prosecutor will resolve doubtful questions in favor of disclosure” ’ ” (quoting Kyles v. Whitley, 514 U.S. 419, 439, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), quoting in turn United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976))).

The materiality of L.A.’s failure to respond to the question and the prejudice to Dixon are evidenced by the testimony of Dixon’s trial counsel and by the nature of the information not disclosed. Dixon’s trial counsel testified at the evidentiary hearing that, had he known of the pending charges, he would have challenged L.A. for cause or exercised one his peremptory challenges to remove her. The direct testimony of Dixon’s trial counsel is prima facie evidence of prejudice to Dixon.

Further, even in the absence of such testimony, the potential for juror bias is obvious under the present circumstances. As Judge Welch stated in his dissent to the Court of Criminal Appeals’ unpublished memorandum:

“Certainly it would be a serious concern if a prospective juror was subject to the discretionary decisions of the district attorney. Human nature being what it is, it would have been natural for defense counsel to be suspicious about a juror who was beholden to the State, and to be reluctant to take the chance that the juror might be biased and wanting to curry favor with the State by voting to convict. Indeed, trial counsel testified that had L.A. been truthful he would have attempted to strike her for cause, and, failing that, he would have exercised a peremptory challenge and struck her from the venire.”

55 So.3d at 1254. See also Tomlin, 695 So.2d at 175 (juror’s failure to disclose pending charge of possession of cocaine warranted reversal of conviction).

The State contends that the presumption of prejudice was rebutted by L.A.’s testimony at the hearing on Dixon’s motion for a new trial that the fact that she had pending criminal charges against her did not affect her verdict. The State’s contention is based upon L.A.’s negative response when asked whether her verdict was prejudiced by circumstances relating to the pendency of the criminal charges against her. The State cites no authority and makes no legal argument to support the assertion that the presumption of prejudice can be rebutted merely by a juror’s conclusory statement that his or her verdict was not affected by the potential source of bias. In any event, the juror’s own testimony as to his or her impartiality in rendering a verdict does nothing to rebut evidence that trial counsel would have challenged the juror for cause or would have used a peremptory challenge to strike that juror had the juror responded truthfully to the question. The point of peremptory challenges is to reduce the effect of hidden or unconscious biases. See Bruner v. Cawthon, 681 So.2d 173 (Ala.1996) (Maddox, J., concurring in the result) (discussing possible use of written questionnaires to “disclose hidden prejudices that the juror might not even suspect he or she has”); Ex parte Branch, 526 So.2d 609, 628 (Al.1987) (discussing role of peremptory challenges in identifying and excluding jurors likely to be biased against a party).

Dobyne is distinguishable from the present case as to prejudice. The juror in Dobyne failed to disclose that many years before Dobyne’s trial she had had some limited contact with the defendant in her capacity as a special-education coordinator. She testified at the defendant’s Rule 32, Ala. R.Crim. P., hearing that she did not remember the defendant. The trial court found that no prejudice had occurred. Do-byne’s trial counsel testified at the Rule 32 hearing, but he did not state that he would have challenged the juror if he had known of the relationship. He also testified that, other than the juror’s prior contact with the defendant, he considered her to be a desirable juror. This Court concluded that there was no error in the trial court’s rejection of the defendant’s juror-misconduct claim.

In the present case, we conclude that the juror’s bare assertion of impartiality is not sufficient to rebut the prima facie evidence, both direct and inferential, that Dixon was prejudiced by her failure to disclose her pending criminal charges. As Judge Welch stated in his dissent:

“It would seem to me that it is intellectually dishonest to pretend that Dixon was not prejudiced by L.A.’s silence. The record clearly reflects that at the time of voir dire L.A. was a criminal defendant, who for all practical purposes was in the middle of negotiating a plea agreement with the State. I believe that it would be difficult for a juror in L.A.’s position to be unbiased. I certainly do not believe that we can presume, despite L.A.’s protest to the contrary, that she was unaffected by her relationship with the State.
“... Jurors know that it is their job to be fair and to avoid prejudice and bias. They are so instructed during the court’s oral charge. After a trial, asking a juror if her verdict was affected by anything that would reflect on her ability to be fair, especially after that juror has been thoroughly questioned by defense counsel, is extremely unlikely to elicit a positive response. In essence the juror would have to admit her misconduct or bias in open court and to testify that she intentionally disregarded her duty to be fair. The juror would be unfamiliar with what would be the personal consequences of such an admission and might very well fear that she would be held in contempt or charged with a crime such as obstruction of justice if she admitted that her verdict was tainted by her bias. For these reasons it is unwise to place great weight on an answer affirming a lack of bias.”

55 So.3d at 1254-55.

Therefore, we conclude that L.A.’s failure to disclose the pending criminal charges was material and that Dixon was prejudiced by L.A.’s failure to disclose those charges and her ongoing negotiations with the district attorney’s office at the very time of Dixon’s trial. Even if L.A. honestly believed that those charges would not affect her decision, the legal standard for bias is unquestionably met in this case. Further, we conclude that the prejudice was sufficient to warrant a new trial, particularly in view of the fact that the district attorney could easily have avoided the necessity for a new trial by disclosing the pending charges.

We reverse Dixon’s convictions and remand this case for the trial court to conduct a new trial.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

SHAW, J., recuses himself.

      . Dixon was sentenced to 20 years’ imprisonment on the attempted-murder charge; that sentence was split, and Dixon was ordered to serve 5 years in prison, followed by 5 years’ supervised probation. On the discharging-a-firearm charge, he was sentenced to 10 years' imprisonment, which sentence was also split, and he was ordered to serve 3 years in prison followed by 5 years’ supervised probation. The two sentences were to be served concurrently.

      . The charge in each case was making a harassing communication, in violation of Ala. Code 1975, § 13A — 11—8(b). The charges were filed by L.A.’s teenage daughter and her former husband and related to a family dispute.

      . Although the trial court made no express finding on this factor, it indicated at the hearing that the question applied only to cases that had been "prosecuted,” not to situations where the veniremember was "just charged with an offense.” L.A. did not make that distinction in any of her explanations for not responding to the question.

      . We note that other veniremembers appeared to err in the direction of treating various voir dire questions as over-inclusive and of disclosing remote events or relationships that were arguably responsive to the question. In response to the question at issue, one veniremember disclosed a prosecution of a relative (not a member of her immediate family). Likewise, several jurors responded broadly to a set of more general questions about the district attorney's office’s handling of bad-check cases and child-support collection. L.A. could not have heard those responses and honestly believed that her cramped interpretation of the question posed was legitimate.
      We also note that L.A. did not respond to the following question, which would seem to require disclosure of the pending charges and L.A.’s ongoing negotiations with the district attorney’s office:
      "Now do any of you know any reason why if you were selected as a juror in this case that you could not give both the defendant and the State of Alabama a fair and impartial trial?”

      .See, e.g., McGowan v. State, 990 So.2d 931, 967 (Ala.Crim.App.2003) (State has no duty to disclose information on prospective jurors; State has no duty to disclose information available to the defendant from other sources, including questions on voir dire).

        . See also Brazleton v. State, 66 Ala. 96, 98 (1880) (challenge for cause proper where juror was a surety on the defendant’s appearance bond; even temporary relationships may "import a just belief of a want of impartiality — that a juror cannot stand indifferent ... from the favor springing out of the relation”); Ex parte Ledbetter, 404 So.2d 731, 734 (Ala.1981) (juror who is also a crime victim or who was former law-enforcement officer "would stand less indifferent than a layman, free from the tug of such former professional influences”); Wallace v. Campbell, 475 So.2d 521 (Ala.1985) (civil case for injuries suffered during a high-speed police chase; new trial required where juror failed to disclose that she was related to the sheriff of the county where the accident occurred); Cavalier Ins. Corp. v. Faulk, 368 So.2d 6, 8 (Ala.1979) (new trial required in civil case where two jurors failed to disclose that they had previously been represented in a lawsuit by one of the law firms involved in the trial).

      . At the evidentiary hearing, the following exchange between L.A. and the prosecutor occurred:
      "Q: ... [D]id the family dispute that resulted in the charges in Exhibits One and Two and the fact that this case was possibly pending when you sat as a juror, did that have anything to do with your verdict in the case?
      "A: Absolutely not.”

      . Here, that evidence takes the form of both "the obvious tendency of the true facts to bias the juror, as in [Ex parte] Ledbetter, [404 So.2d 731 (Ala.1981)], [and] by direct testimony of trial counsel that the true facts would have prompted a challenge against the juror, as in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992).” Dobyne, 805 So.2d at 773.


source: Caselaw Access Project

author: KELLUM, Judge.

license: Public Domain

text:
    Roger DIXON v. STATE of Alabama.
    CR-06-1916.
    Court of Criminal Appeals of Alabama.
    Aug. 27, 2010.
    Paul M. Harden, Sr., Monroeville, for appellant.

      Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   On Remand from the Alabama Supreme Court

KELLUM, Judge.

The appellant, Roger Dixon, was convicted of attempted murder, a violation of §§ 13A-4-2 and 13A-6-2(a)(l), Ala.Code 1975, and of discharging a gun into an occupied vehicle, a violation of § 13A-11-61(b), Ala.Code 1975. The circuit court sentenced Dixon to 20 years’ imprisonment on the attempted-murder conviction; that sentence was split, and Dixon was sentenced to 5 years’ imprisonment, followed by 5 years’ supervised probation. On the discharging-a-firearm conviction, the circuit court sentenced Dixon to 10 years’ imprisonment, but split the sentence and ordered him to serve 3 years’ imprisonment followed by 5 years’ supervised probation. The circuit court ordered that the sentences were to run concurrently. ■ This Court affirmed Dixon’s conviction and sentence on June 27, 2008. See Dixon v. State, 55 So.3d 1250 (Ala.Crim.App.2008).

Dixon petitioned the Alabama Supreme Court for certiorari review, arguing, among other things, that the decision of this Court conflicted with Ex parte Dobyne, 805 So.2d 763 (Ala.2001), and Tomlin v. State, 695 So.2d 157 (Ala.Crim.App.1996), regarding his claim that L.A., who served as juror at Dixon’s trial, failed to truthfully answer a question during voir dire. The Supreme Court granted certio-rari review and, on June 30, 2010, reversed this Court’s judgment, holding that the circuit court “exceeded its discretion in denying Dixon’s motion for a new trial based on L.A.’s failure to disclose in response to a question on voir dire that criminal charges were pending against her”; it remanded the case to the circuit court to conduct a new trial. Ex parte Dixon, 55 So.3d 1257, 1261 (Ala.2010). In so holding, the Supreme Court concluded that under the factors set forth in Dobyne, Dixon was prejudiced by L.A.’s failure to disclose the fact that criminal charges were pending against her at the time of Dixon’s trial.

In light of the Supreme Court’s holding, Dixon’s convictions for attempted murder and discharging a gun into an occupied vehicle are reversed, and this case is remanded for the circuit court to conduct a new trial.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.

      . Judge Kellum was not a member of the Court of Criminal Appeals when the original decision in this case was released. This case was assigned to Judge Kellum on January 20, 2009.


author: PER CURIAM.

text:
    Andrew Richard ALLRED, Appellant, v. STATE of Florida, Appellee.
    No. SC08-2354.
    Supreme Court of Florida.
    Dec. 16, 2010.
    Rehearing Denied March 2, 2011.

      James S. Purdy, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Seventh Judicial Circuit, Dayto-na Beach, FL, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

Andrew Richard Allred was convicted of two counts of first-degree murder for the 2007 deaths of Tiffany Barwick and Michael Ruschak. The trial court accepted Allred’s guilty plea and, after receiving evidence in the penalty phase, sentenced Allred to death for both murders. This is Allred’s direct appeal. We have jurisdietion. See art. V, § 3(b)(1), Fla. Const. In accordance with our discussion below, we affirm the convictions and sentences.

I. BACKGROUND

A. Procedural Matters: Waivers and Guilty Plea

Allred was indicted on October 23, 2007, on the following charges alleged to have occurred on September 24, 2007: (1) first-degree premeditated murder of Michael Ruschak by shooting with a firearm; (2) first-degree premeditated murder of Tiffany Barwick by shooting with a firearm; (3) armed burglary of a dwelling while inflicting great bodily harm or death; (4) aggravated battery with a firearm (victim Eric Roberts) while inflicting great bodily harm or death; and (5) criminal mischief of a motor vehicle (Barwick’s car). Then, on April 30, 2008, Allred entered written and oral guilty pleas to all charges. The trial court conducted a plea colloquy of the defendant and accepted the guilty plea, concluding as follows:

The Court finds that you are an alert and an intelligent individual capable of exercising your best judgment, it’s your decision to enter a plea of guilty to these offenses, [the plea] has been made freely and voluntarily after [your] having received advice from your attorney with whom you’re satisfied, and a factual basis exist[s] for the pleas by your admission under oath. I’ll accept the pleas.

The next month, against the advice of counsel, Allred moved to waive his right to a jury in the penalty phase and to waive his right to be present during the proceedings. After determining that All-red understood the consequences of these waivers, the Court overruled the State’s objection and granted Allred’s requests.

At the conclusion of an August 2008 pretrial hearing, Allred unexpectedly blurted out that he wanted to fire the public defender’s office. The trial judge informed Allred that he would soon hold a hearing on this new request. At the September 4, 2008, hearing, Allred’s counsel recited the facts that Allred had requested dismissal of counsel in August and subsequently had given counsel a written request for a hearing on the request to represent himself. Defense counsel explained that the parties still had witnesses to depose and evidence to prepare before the penalty phase could commence. The trial court explained to Allred that a complete record in the case was necessary for Supreme Court review. Thus, if the trial court found after a Faretta hearing that Allred was capable of representing himself, the process would not speed up — it would actually slow down. Allred acknowledged his understanding of this explanation and withdrew his request to represent himself “[i]f [the proceedings] can be done soon.” The parties agreed that they would work expeditiously.

B. Penalty Phase: The State’s Case

The penalty phase was held September 22-24, 2008. Because Allred pleaded guilty, the State presented evidence regarding the murders to establish a basis for aggravating factors, after which the defense presented mitigation testimony.

On August 25, 2007, Allred celebrated his twenty-first birthday with a party at his family’s home in Oviedo. A number of people attended, including his best friend Michael Ruschak and Allred’s live-in girlfriend, Tiffany Barwick. Allred and Bar-wick had dated for about a year and lived together for the last several months. The relationship with Barwick, however, came to an abrupt and public end at the birthday party. When Barwick told Allred she “wanted her stuff back,” Allred went to the room they shared, gathered her belongings, and began throwing them over the property’s fence. Someone called the police, who upon arrival ordered Allred to stop but did not arrest him.

A few days later, Allred bought a Springfield XP .45 caliber handgun. Because of the legal waiting period, however, he did not take possession of it until September 7. On that day, he used pictures of Barwick for target practice and subsequently emailed Barwick a photo of the bullet-riddled pictures that were hanging on the wall of his room.

Witness testimony and digital messaging indicated that in the days shortly before the murders, Allred discovered that — subsequent to the breakup — Ruschak and Barwick had sexual intercourse. Allred became angry and sent threatening messages to his “ex-best friend” and his ex-girlfriend. He also discussed his feelings with friend Michael Siler. In an instant message exchange with Siler on September 23, Allred stated, “I pretty much just need to start killing people.” The next day, September 24, 2007, the day of the murders, Allred specifically threatened the lives of Barwick and Ruschak. In an instant message chat with Siler in the morning, Allred stated, “I’m pretty much gonna kill him ... Ruschak ... and her.” In an electronic conversation with victim Rusc-hak on that same day, Allred told him, “If [I] see you again, [I] will kill you, and yes that is a threat.” Finally, Allred and Bar-wick engaged in a heated and lengthy computer exchange on the day of the murder. Allred informed Barwiek that he had hacked into her computer, changed the passwords, deleted files, and sent emails to people on her contacts list. He also transferred all of the funds in her bank account to pay her credit card debt. Calling her a “whore” because of her relationship with Ruschak, Allred said he could not forgive her for that and threatened, “[I]f, I ever see [Ruschak] again I will kill him.”

Allred was fired from his job instructing on the use of computer software on the day of the murders. That evening, he and Siler went to dinner at a local restaurant. They talked about work and other subjects, but Allred seemed not to care about anything and often shrugged in response to questions. Allred drove Siler home about an hour later. Siler testified that as Allred left, the thought that Allred might be suicidal crossed his mind.

After dropping Siler off, Allred drove first to a grocery store and bought beer. Then he went home for a while, but he did not drink any of the beer. Later, knowing that Barwiek would be with Ruschak, All-red contacted Ruschak, stating that he was coming to Ruschak’s house. Allred then picked up the .45 he bought for his birthday and went out to his truck.

At the time of the murders, Ruschak was living in the home of friend Eric Roberts at 100 Shady Oak Lane. A neighbor, Steve McCavour, testified that at approximately 10 p.m. on September 24, 2007, he saw a large black truck repeatedly crashing into a white car. He called 911 and observed the driver go to the front door of Roberts’ house, kick and bang on it, and then head around the house.

Roberts and roommate Ruschak had invited friends over that night for dinner and to watch a popular television program. Tiffany Barwiek was living there temporarily, and the other guests present were Justin Kovacich, Philip Cammarata, Kathryn Cochran, and Charles Bateman. Soon after all the guests arrived, Ruschak told the group that he had just received a message from Allred stating that he was coming over. Ruschak suggested calling Allred’s mother to see if Allred had left home and someone suggested calling the police, but neither call was made. The message that Allred was coming over, however, put Barwiek “in full panic mode.”

Soon thereafter, witnesses sitting in the living room heard a loud noise outside the house, which Cochran testified sounded “like a mortar going off.” Ruschak, who was in the kitchen at the front of the house, looked out the window and announced that Allred had arrived. Ruschak then quickly locked the front door just before Allred banged loudly on it, yelling, “[L]et me in.”

When no one opened the door, Allred went to the back of the house, where the guests had assembled in the living room. He banged on the sliding glass door, and Barwiek ran up the hall to a bathroom near the front of the house. The glass door suddenly shattered when Allred fired a shot into it. He walked into the house, holding his gun. He recognized all of the people standing before him, but he said nothing. The people present began to scream and look for an escape route. Together, Cammarata and Kovacich ran up the hallway to the front door, unlocked it, and fled as they heard gunshots. Kova-cich then called 911.

Allred saw Ruschak peer around the corner from the kitchen, and Allred fired a shot up the hallway in his direction. All-red walked past Roberts, who had just come down the hallway from the front door, and went directly to the kitchen, where he shot Ruschak several times. At this point, Roberts grabbed Allred from behind and asked Allred what he was doing. Allred struggled with Roberts, telling him to let go. When Roberts did not release him, Allred pointed the gun downward and fired a shot that hit Roberts’ right leg. During this struggle, Bateman ran out the shattered back door and into the woods, where he called 911. Realizing he could escape the same way, Roberts let go of Allred and ran to a neighbor’s house. When his neighbors opened them door, Roberts asked them to call 911 and soon heard Allred drive off in his truck. Roberts realized he had been shot when his neighbors pointed to the blood on his pants.

At this point, only Barwiek and Cochran remained alive in the house with Allred. Barwiek was in the hall bathroom at the front of the house, where she fled when Allred first entered. Standing in the bathtub, Barwiek called 911. At the beginning of the call, Barwiek tried to provide the 911 dispatcher with the necessary information. However, as the gunshots sounded in the background, she began to scream and hyperventilate. Finally, the line went dead. In his confession, Allred recounted that after he gained his release from Roberts, he entered the bathroom. Then, without saying a word, he fired multiple shots into Barwiek. She collapsed in the tub and died.

While hidden in the master bathroom, Cochran heard the others yelling and running, and she heard the gunshots. Finally, she heard Barwick’s screaming, followed by more gunshots and then silence. Soon, Roberts returned to the house. He saw Ruschak lying face down in the front doorway and then found Cochran still hiding in the bathroom at the back of the house. Roberts told her that Aired was gone. The police arrived shortly thereafter.

Mter leaving the crime scene, appellant called 911. He reported that he had killed two people and threatened to commit suicide. When Deputy Sheriff David Kohn arrived at Alred’s home, Aired was standing at the end of his driveway near the road, with a cell phone in his hand and his gun on the ground. Upon initial contact, Aired told the officer, “I’m the guy you’re looking for.” Ater the officer secured him, Aired asked “if the people were dead,” but the officer told him he could not provide that information. Then, in the patrol car, Aired stated, “I knew I killed someone, I shot fourteen times.”

Aired was turned over to the Oviedo Police Department, and he was interviewed by two detectives after he was advised of his Miranda rights. In his confession, Aired largely admitted the above factual description as to the actual murders. He admitted firing fourteen shots during the incident, emptying the clip, but he denied sending any threatening messages. He stated that he bought the .45 pistol only because he “could” after he turned twenty-one. Athough he usually left his gun at home unless he was going to target practice, he gave no reason for taking it with him that night. He acknowledged using Barwick’s picture for target practice earlier in the month,. but he claimed that he did not think of killing her until the night of the murders. He denied, however, that he went to the house that night with the intent to shoot Barwiek and Ruschak and stated that he went there solely to ram her car. He explained that he killed Ruschak because his “ex-best friend” was “an asshole” who sided with Barwick in their breakup, but he gave no reason for the murder of Barwick. Allred did not speak to either victim before he shot them.

The medical examiner, Dr. Predrag Bulic, performed the autopsies on the victims. He testified that Ruschak had four gunshot wounds but there was no way to determine the order in which the shots were fired. Two wounds were nonlethal. One wound was potentially lethal if not treated within an hour. That bullet passed through the vertebral column, nicked the vena cava, and exited through the upper abdomen. Finally, the cause of death was a shot that entered the middle chest and travelled through the sternum, heart, and left lung.

Barwick had six gunshot wounds, and again the medical examiner was unable to determine the order in which the rapid shots were fired. Four of the wounds were nonlethal. The fifth gunshot wound would have been lethal if not treated quickly; the bullet collapsed a lung. The sixth wound, however, was immediately lethal. That bullet traveled diagonally through her left lung, heart, diaphragm, abdomen, and liver.

C. Penalty Phase: Mitigation

In mitigation, the defense presented the testimony of family members and teachers regarding Allred’s academic and social development. Allred’s mother, Tora Allred, testified that her son was a happy child until about age five or six, when he became “a different child,” “hyper,” and “emotional.” She took him to a pediatrician, who she said found no physical problems but suggested Allred had been sexually abused; he referred her to a psychiatrist. The psychiatrist, however, found Allred had a “well-defined tic disorder” (licking his hand and rubbing his eye) and diagnosed attention deficit hyperactivity disorder (ADHD); he prescribed medication. Allred’s mother said that his personality showed in many of his school pictures in which he did not smile. Tora Allred also testified that appellant’s paternal grandparents lived either in their home or next door for most of his life. She stated that once — she did not specify when — appellant’s much older cousin filed a police report accusing this same grandfather of sexually molesting him, but she admitted that appellant had never made such an allegation.

Regarding Allred’s progress in school, Tora Allred testified that in grade school, progress reports indicated that Allred was inattentive and did not do his work. Although it was suggested that Allred might have a learning disability, subsequent school testing revealed that he had a high IQ and qualified for gifted classes. Allred was less social than his brothers and quieter. He left school after eleventh grade and attended a community college to earn his high school diploma. Then, at another nearby college, he obtained a two-year degree in accounting.

After graduating from high school, All-red lived alone in a large room that had been added downstairs in the family home. Only Allred had access to the room after he installed a deadbolt lock on the door. Appellant painted the walls and ceiling black and covered the windows with black curtains. At the time of the murders, Allred was essentially self-sufficient. He was employed full time teaching the use of software, and he paid for his own car and cell phone.

Allred and Tiffany Barwiek had a good relationship and were happy until the birthday breakup. In fact, on the day he turned twenty-one, Tiffany gave him a card that read, “Andrew, happy birthday. I am so happy I’ve spent the last year with you. I love you, hope you like your gift.” Tora Allred, however, also testified that after the breakup, Tiffany gave Allred a T-shirt that had “Failed” written on it. A rebuttal witness, however, subsequently testified at the Spencer hearing that Tiffany gave Allred the T-shirt at his twentieth birthday party, a year before the murders. The word “failed” was Allred’s catchphrase, and the gift was “meant to be funny” because it was the word he used all the time. In fact, Allred laughed when he saw the shirt.

Both of Allred’s parents testified that the family kept guns in the house for hunting and skeet and target shooting. Further, when Allred was younger, his father experienced a period in which he had a drinking problem that resulted in multiple DUIs and incidents of domestic violence. On one occasion, Allred’s drunken father threatened to shoot himself, and his mother struggled with her husband. The then twelve-year-old Allred observed this and called the police. As a result, his father was arrested. Finally, both parents were concerned about appellant after the breakup with Tiffany, and the weekend after the breakup, his father considered that appellant might commit suicide. All-red’s parents tried to encourage appellant, telling him that he would “get over” Tiffany.

Allred’s paternal grandfather testified that he and his wife had lived with Allred’s family for ten years from the time Allred was a baby. Both grandparents then moved with their son’s family from Winter Park to Oviedo, where they lived on adjacent property. According to his grandfather, Allred studied, was good with his hands, and was a “computer nut.” Although he no longer lived next door, Allred visited him at his new home and brought Tiffany with him sometimes. He was not asked any questions about familial sexual abuse allegations.

Three of Allred’s teachers testified regarding his school life. A grade school teacher stated that he made good grades but was frequently tired and slept in class. He was generally withdrawn and “standoffish,” preferring not to participate, and he had trouble making friends. A middle school teacher testified that he had an IQ of at least 130 and qualified for gifted classes. The school was a mix of rural students, such as Allred, and more cosmopolitan students who had computers and academically advanced parents. As a result, the second group often picked on Allred because he did not have a computer at home and he often wore the same clothes two days in a row. Allred was quiet and a loner; he had friends but none in the gifted program. He took fewer gifted classes in seventh grade and then dropped out of the program in the eighth grade. Allred’s high school web design teacher agreed that Allred was a loner but said he nevertheless made Bs and Cs in school.

At the end of the hearing, victim impact statements from the victims’ families were read to the trial court. Afterwards, the prosecutor asked the trial court to inquire whether the defense intended to present mental health mitigation, noting that the defense hád listed an expert to testify. The defense responded that after discussion and consultations, they determined not to present such testimony.

D. Sentencing

On November 19, 2008, Allred was present for his sentencing hearing. He declined, however, to address the court. The judge then sentenced Allred to death for the murders of Ruschak and Barwick. Allred was given life sentences for armed burglary of a dwelling while inflicting great bodily harm or death and for aggravated battery with a firearm while inflicting great bodily harm on Eric Roberts. Finally, appellant was sentenced to five years for criminal mischief. All sentences were ordered to be served concurrently.

In sentencing Allred to death for the murders, the court found the following three aggravating factors and ascribed the weight indicated as to Allred’s murder of Michael Ruschak: (1) cold, calculated, and premeditated (CCP) — great weight; (2) murder committed while engaged in a burglary — little weight; and (3) prior capital or violent felony conviction (Barwick’s contemporaneous murder) — great weight. As to Barwick’s murder, the court found the following three aggravators and ascribed the weight indicated: (1) the murder was especially heinous, atrocious, or cruel (HAC) — great weight; (2) CCP — great weight; and (3) prior capital or violent felony conviction (Ruschak’s contemporaneous murder) — great weight. The court also considered the following mitigating circumstances and ascribed the weight indicated: (1) defendant accepted responsibility by entering guilty pleas — little weight; (2) defendant cooperated with law enforcement-moderate weight; (3) defendant suffered from an emotional disturbance-moderate weight; (4) defendant’s emotional and developmental age was less than his chronological age — not established; (5) other factors including that defendant was likely sexually abused — not established; and (6) defendant’s developmental problems at a young age impacted his educational and social development— little weight.

II. ISSUES ON APPEAL

First, Allred challenges the trial court’s finding of the CCP aggravator as to both murders. Second, he challenges the HAC aggravator as to Barwick’s murder. In the third issue, appellant argues that the trial court erred in its findings regarding several mitigating factors and abused its discretion in assigning the appropriate weight to the mitigation. In addition to the issues raised by Allred, we review the voluntariness of Allred’s plea, an issue that we independently review when the defendant enters a guilty plea. Finally, we address Allred’s argument that his death sentences are not proportionate.

A. CCP Aggravator

Appellant argues that the CCP aggravator does not apply to either Ruschak’s or Barwick’s murder, claiming that each was a “classic ‘hot blooded’ murder,” there was no prearranged design to commit the murders, and there was evidence of an ongoing domestic dispute. As explained below, appellant’s arguments lack merit.

In reviewing the trial court’s finding of an aggravator, we “review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.” Willacy v. State, 696 So.2d 693, 695 (Fla.1997). For CCP to apply, there must be a finding that

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); that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification.

Franklin v. State, 965 So.2d 79, 98 (Fla.2007) (citing Jackson v. State, 648 So.2d 85, 89 (Fla.1994)). Further, “CCP can be indicated by the circumstances if they point to 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.” Farina v. State, 801 So.2d 44, 54 (Fla.2001).

The trial court found the murders of both Ruschak and Barwick to be CCP. As to Ruschak’s murder, the trial court found the following:

The evidence, including the written messages from the defendant to the victim, to Tiffany Barwick, and to Michael Siler, the fact that the defendant purchased the .45 caliber pistol several days before the murders, and the fact that the defendant warned the victim that he was on his way to his location, establishes this aggravating factor beyond a reasonable doubt. The court rejects the defendant’s statement that he did not preplan the murders. The court assigns great weight to this aggravating circumstance.

As to Barwick’s murder, the court made the same findings and rejected the claim that Allred did not preplan the murders. The trial court added that “[Allred] stated that he knew Tiffany Barwick would be there [at the house] because she did not have anywhere else to be.”

After reviewing Allred’s claim under the standard cited previously, we determine that the aggravator is valid. On the day of the murders — a month after the breakup with Barwick — appellant told his friend Michael Siler in an instant message exchange that he intended to kill both Barwick and Ruschak. In similar messages to his victims that day, appellant said that he would kill Ruschak the next time he saw him and that he could not forgive Barwick for having sex with Rusc-hak. This anger, however, was not evident when he had dinner with Siler that evening. Instead, Allred was quiet and passive. After dinner, Allred went home to his room, and he did not drink the beer he had just bought. He knew that both Rusc-hak and Barwick would be at Roberts’ house, and after a time, he sent a message telling Ruschak that he was coming to the house. Allred had purchased a gun after he turned twenty-one, but he always left it in his room unless he went to target practice. That evening, after sending his warning, he took his loaded gun with him. Upon arriving at the house, he repeatedly rammed Barwick’s car, and then he again picked up his gun and walked to the front door. Upon being denied entry at both the front and back doors, Allred did not leave. Instead, he fired his pistol to gain entry by shattering the glass door. He spoke to no one and did not threaten or shoot at any of the people present in the room. Instead, he went directly to the kitchen and gunned Ruschak down. When Roberts tried to stop Allred, appellant was “somewhat calm” when he told Roberts to release him and then fired a single, nonfatal shot into Roberts’ leg. Allred then went to the bathroom where Barwick stood in the bathtub calling 911 and shot her six times. Thus, Allred only murdered the two people that he went to the house prepared to kill.

Appellant contends that the trial court erred in finding that he purchased a gun “several days before the murders,” because appellant purchased the gun on September 1, took possession on September 7, and committed the murders on September 24. Regardless of whether “several days” can mean about two weeks, the fact remains that appellant purchased the gun soon after the breakup and practiced with it by using a picture of Barwick for a target. That Allred purposely took this gun with him to the crime scene is evidenced by his own admission that he never took it from his room unless he intended to use it. Thus, the court’s finding that All-red procured the weapon in advance is relevant to the CCP finding and supported by competent, substantial evidence.

Citing our decision in Santos v. State, 591 So.2d 160 (Fla.1991), appellant also argues that his actions on that day resulted from an ongoing domestic dispute and therefore were not “cold” and “calculated.” In that case, we stated that a murder arising from a domestic dispute tended to negate the CCP aggravator. Id. at 162. Then, upon finding, based on a mental health expert’s testimony, that the “ongoing, highly emotional domestic dispute” had “severely deranged” Santos and that he was under extreme emotional distress and unable to appreciate the criminality of his conduct, we struck the aggravator. Id. at 163.

Appellant’s argument fails for two reasons. First, Allred presented no mental health testimony establishing that he was mentally impaired. Further, the record supports the trial court’s determinations that Allred was “suffering from an emotional disturbance” but that it was not severe or extreme and that appellant was able to conform his actions to the requirements of law. See Carter v. State, 980 So.2d 473, 481-82 (Fla.2008) (affirming CCP where defendant was jealous that his longtime girlfriend was seeing someone else, drove to her house, carried his rifle with him to the door, confronted his victims, and then shot and killed both). Second, any reliance on a so-called “domestic disturbance exception” to CCP is unavailing. As this Court recently stated in Turner v. State, 37 So.3d 212, 224 (Fla.2010), cert. denied, — U.S. -, 131 S.Ct. 426, 178 L.Ed.2d 332 (2010):

Twelve years after the Santos decision, this Court made it clear in Lynch [v. State, 841 So.2d 362, 377 (Fla.2003) ] that it “does not recognize a domestic dispute exception in connection with death penalty analysis.” Therefore, even if [a] murder did, in fact, “arise from a domestic disturbance,” such a defense would not preclude a finding of CCP.

Accordingly, we hold the trial court applied the correct rule of law in finding the CCP aggravator as to both murders and that competent, substantial evidence supports the finding.

B. HAC Aggravator

In his second issue, Allred contends that the HAC aggravator does not apply to Barwick’s murder. Our cases have established that the HAC aggravator applies to a murder that is “both conscienceless or pitiless and unnecessarily torturous to the victim.” Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992). “HAC focuses on the means and manner in which the death is inflicted and the immediate circumstances surrounding the death, ... where a victim experiences the torturous anxiety and fear of impending death.” Barnhill v. State, 834 So.2d 836, 849-50 (Fla.2002). Thus, the trial court considers “the victim’s perceptions of the circumstances as opposed to those of the perpetrator.” Lynch, 841 So.2d at 369; accord Schoenwetter v. State, 931 So.2d 857, 874 (Fla.2006). Further, the “victim’s mental state may be evaluated for purposes of such determination in accordance with a common-sense inference from the circumstances.” Swafford v. State, 533 So.2d 270, 277 (Fla.1988).

On appeal, Allred specifically argues that Barwick’s death from Allred’s rapid gunshots was nearly instantaneous and thus the victim’s fear of impending death could only have lasted a matter of seconds. In determining that HAC applied to Barwick’s murder, the trial court correctly acknowledged that “[generally, shooting deaths do not qualify as HAC because they are instantaneous, or nearly so ... unless the shooting is accompanied by additional acts resulting in mental or physical torture to the victim.” The trial court found that these additional factors were present in this case as follows:

However, this aggravating circumstance will apply in cases where the victim is terrorized before being shot or endures fear and emotional strain or the infliction of mental anguish. Lynch v. State, 841 So.2d 362, 369 (Fla.2003). All of these exceptional factors are present in this case and are forever memorialized in the 911 tape in evidence, during which the listener can hear the helpless victim anticipate her own death after hearing the other victim being shot, her pleas for assistance to the 911 operator, and her screams as she is repeatedly shot time and time again. This piece of evidence is the most horrific piece of evidence this court has heard in a homicide case in nearly twenty-three years as a trial judge. The fright and terror suffered by the victim during that 1:17 minute telephone call is difficult to imagine — yet it is plainly evident on the recording.

As explained below, we hold that the trial court applied the correct rule of law and that competent, substantial evidence supports the finding that the HAC aggra-vator applies to Barwick’s murder. The facts are undisputed that Barwick was panic-stricken upon learning that Allred was coming to the house that night and that he had threatened to kill Ruschak in an instant message exchange'with Barwick earlier that day. When Allred fired his pistol through the glass door to gain entry, Barwick immediately hid in a bathroom. Although she did not see Allred pump four shots into Ruschak, killing him, she undoubtedly heard the screams of her helpless friends and Allred’s repeated gunshots. After all, Cochran testified that she heard all of this from the other bathroom where she hid in the small house. More importantly, in Barwick’s one-minute, seventeen-second 911 call, her voice moves quickly from panic and fright as she hears the gunshots outside the bathroom to desperate, indescribable screams of terror as Allred enters the bathroom and begins firing six shots into her body. Regardless of whether the fatal shot was the first of the six shots, the helpless victim clearly knew Allred was coming for her and fully recognized her impending death.

The defendant argues that the 911 call was too short and thus negated the applicability of HAC, but we have held that the victim’s perception of imminent death need only last seconds for this aggravator to apply. Buzia v. State, 926 So.2d 1203, 1214 (Fla.2006). Further, as explained above, the victim’s terror lasted longer than a few seconds. Recently, we affirmed the applicability of the HAC aggravator in a similar case. There, we stated that “[cjommon sense would indicate that an elderly woman confined to a wheelchair, who is one room away from a brutal murder, and who witnesses her attacker walk into the room, face her and stab her through the heart with a ten-inch chefs knife would be ‘acutely aware’ of her ‘impending death.’” Aguirre-Jarquin v. State, 9 So.3d 593, 609 (Fla.2009) (quoting Buzia, 926 So.2d at 1214), cert. denied, — U.S. -, 130 S.Ct. 1505, 176 L.Ed.2d 118 (2010). Similarly, Barwick had no way out that night as she listened to the gunfire, and the 911 call makes it crystal clear that she was acutely aware of her impending death when Allred finally walked into that bathroom with his gun in hand and commenced firing at her. Accordingly, we hold that the trial court’s finding of this aggravator is supported by competent, substantial evidence and that the trial court correctly applied the law.

C. Mitigation Claims

Allred next takes issue with several of the trial court’s findings regarding mitigation and the weight the court ascribed. We address each of these claims in turn.

As we have previously stated:

The Court in Campbell v. State, 571 So.2d 415 (Fla.1990), established relevant standards of review for mitigating circumstances: 1) Whether a particular circumstance is truly mitigating in nature is a question of law and subject to de novo review by this Court; 2) whether a mitigating circumstances has been established by the evidence in a given case is a question of fact and subject to the competent substantial evidence standard; and finally 3) the weight assigned to a mitigating circumstance is within the trial court’s discretion and subject to the abuse of discretion standard.

Blanco v. State, 706 So.2d 7, 10 (Fla.1997) (footnotes omitted).

Allred first asserts that the trial court erred in ascribing little weight to the mitigating factor that he entered a guilty plea to all charges. Appellant argues that his plea, along with his waiver of a jury, greatly reduced the costs of the proceedings. Allred’s contention is without merit. As the trial court found, because of the number of witnesses to the crime, the plea certainly did not solve it. Further, while not having a jury trial was a savings, the State nevertheless had to present all guilt-phase evidence, including the testimony of fifteen witnesses, to establish the aggrava-tors beyond a reasonable doubt. Accordingly, the trial court did not abuse its discretion in assigning little weight to this circumstance.

Appellant next takes issue with the trial court’s rejection of the statutory mitigator that he was under an extreme emotional disturbance at the time of the murders. The trial court did not err in rejecting this mitigator. The trial court found that although Allred suffered from an emotional disturbance, it was not extreme. As recited previously, there is ample evidence that on the evening of the murders Allred was upset by the breakup. But Allred was passive and indifferent during dinner that evening with a friend. Later, knowing where both of his victims were, he warned Ruschak that he was coming to the house. He deliberately took his gun with him and, upon arrival at the house, methodically killed the two people he went there to kill. Even when he struggled with Roberts, he was “somewhat calm.” He left, reported his crime, and cooperated with police. As the trial court found, the evidence indicates execution of a plan. There is no evidence of extreme emotional disturbance. Accordingly, the trial court’s rejection of the statutory miti-gator and its finding of the nonstatutory circumstance of emotional disturbance are supported by competent, substantial evidence. Further, the finding that Allred experienced emotional distress does not, as appellant argues, negate the CCP aggravating factor. Finally, appellant has not demonstrated that the trial court abused its discretion in assigning this mitigation moderate weight.

Allred also contends that the trial court improperly rejected his age at the time of the murders as valid mitigation. We have previously stated that “[i]n Florida, numerical age alone may not be mitigating if not linked to some other material characteristic (e.g., immaturity).” Lebron v. State, 982 So.2d 649, 660 (Fla.2008). Allred was twenty-one, had a high IQ, held a two-year college degree, had a high proficiency with computer technology, held a full-time job, and paid for his own car. The record is bereft of expert or lay testimony indicating that appellant was immature. Accordingly, the court’s rejection of this mitigator is supported by the record.

Further, appellant takes issue with the trial court’s rejection of his contention that he was “likely” sexually abused as a child and the court’s findings regarding the long-term effect of his early developmental problems at age five or six. Appellant has not demonstrated error. First, because no evidence was presented that Allred was sexually abused, the trial court was correct to reject this proposed mitigating circumstance. Second, the sentencing court found that although All-red’s developmental problems at an early age “hindered” Allred’s social development and “may have contributed” to his reaction to the breakup with Barwick, the problem did not impact Allred’s subsequent education. The record supports the finding of no impact on Allred’s later education. As previously stated, the record clearly shows that Allred had a high IQ, an A.A. degree, and high proficiency with computers. We conclude that the court’s rejection of the sexual abuse circumstance and its findings regarding the effect of the developmental problems are supported by competent, substantial evidence and that the court did not abuse its discretion in assigning the latter factor little weight.

Finally, Allred contends that the trial court failed to consider as a mitigating circumstance the prior domestic violence in his home and his father’s drinking problem. Allred has not demonstrated error. Although the court “must expressly evaluate in its written order each mitigating circumstance proposed by the defendant,” Rogers v. State, 783 So.2d 980, 995 (Fla.2001), “a defendant must raise a proposed nonstatutory mitigating circumstance before the trial court in order to challenge on appeal the trial court’s decision about that nonstatutory mitigating factor.” Davis v. State, 2 So.3d 952, 962 (Fla.2008) (citing Lucas v. State, 568 So.2d 18, 23-24 (Fla.1990)), cert. denied, — U.S. -, 129 S.Ct. 2872, 174 L.Ed.2d 585 (2009). In his sentencing memorandum, Allred did not specifically propose these factors of his home environment as separate, nonstatutory mitigating factors. Rather, he included discussion of his home life with regard to his claim of impaired social and educational development resulting from his developmental problems at age five or six. See Campbell v. State, 571 So.2d 415, 419 n. 3 (Fla.1990) (“[P]roposed nonstatutory circumstances should generally be dealt with as categories of related conduct rather than as individual acts.”). Moreover, the order reflects elsewhere in the order’s findings of fact that the judge found Allred was exposed at age twelve to domestic violence between his parents at a time when his father was drinking excessively but that the family problems were “resolved long before” the murders occurred. Finally, any error is harmless. As evidenced by the trial court’s findings on this factor, the court would have assigned it minimal weight. Further, the trial court found minimal mitigation in this case and gave great weight to two significant aggravators in Ruschak’s murder (CCP and prior capital felony conviction) and to three in Barwick’s murder (HAC, CCP, and prior capital felony conviction). See Orme v. State, 25 So.3d 536, 549 (Fla.2009) (“Even though the trial court erred in its treatment of this mitigator, we find the error harmless. The trial court found three significant aggravators — HAC, pecuniary gain, and commission during a sexual battery — compared to relatively weak mitigation. Even if we consider the difficult childhood with the other mitigation, it does not change the balance of the aggravating and mitigating circumstances.” (citation omitted)), cert. denied, — U.S. -, 130 S.Ct. 3391, 177 L.Ed.2d 309 (2010); Taylor v. State, 855 So.2d 1, 30 (Fla.2003) (“[E]ven if the trial judge erred in rejecting this factor as nonmitigating or in failing to assign any weight, any error would be harmless, given the minimal amount of mitigation this factor would have provided.”).

D. Voluntariness of Guilty Plea

In every death penalty case, this Court is required to determine whether competent, substantial evidence supports the murder conviction. See Fla. R.App. P. 9.140(1). When a defendant pleads guilty, however, we instead review the knowing, intelligent, and voluntary nature of the plea. Winkles v. State, 894 So.2d 842, 847 (Fla.2005). “Proper review requires this Court to scrutinize the plea to ensure that the defendant was made aware of the consequences of his plea, was apprised of the constitutional rights he was waiving, and pled guilty voluntarily.” Ocha v. State, 826 So.2d 956, 965 (Fla.2002).

The record shows that the court informed appellant of the charges against him, and Allred acknowledged under oath that he had read, signed, and understood his written guilty plea. Upon questioning by the court, Allred stated that he (1) held an A.A. degree; (2) could read, write, and speak English; (3) was in good physical and mental health; and (4) had not consumed drugs or alcohol within twenty-four hours. The court specifically informed Allred of the rights he was waiving, including the rights to trial by jury, to cross-examine and call witnesses, to testify at trial, and to remain silent. Again, Allred acknowledged his understanding and stated that he had not been promised any reward for entry of the plea. In light of the trial court’s thorough plea colloquy, we hold that Allred knowingly and voluntarily entered his guilty plea and the trial court properly accepted it.

E. Proportionality

Finally, appellant claims that his death sentences are not proportionate. He argues that only two aggravators are valid and that the murders stemmed from an “ongoing and heated domestic dispute.” In Simmons v. State, 934 So.2d 1100, 1122 (Fla.2006), we explained proportionality review as follows:

The Court performs a proportionality-review to prevent the imposition of “unusual” punishments contrary to article I, section 17 of the Florida Constitution. See Tillman v. State, 591 So.2d 167, 169 (Fla.1991). “The death penalty is reserved for ‘the most aggravated and unmitigated of most serious crimes.’ ” Clark v. State, 609 So.2d 513, 516 (Fla.1992) (quoting State v. Dixon, 283 So.2d 1, 7 (Fla.1973)). In deciding whether death is a proportionate penalty, we consider the totality of the circumstances of the case and compare the case with other capital cases. See Urbin v. State, 714 So.2d 411, 417 (Fla.1998). However, this proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Sexton v. State, 775 So.2d 923, 935 (Fla.2000) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla.1990)).

In this double homicide case, the court found three of the most serious aggravating factors — CCP, prior capital felony conviction, and HAC — applicable to Barwick’s murder and that the first two applied to Ruschak’s murder as well. See Jackson v. State, 18 So.3d 1016, 1035 (Fla.2009) (stating HAC and CCP are “two of the most serious aggravators”), cert. denied, — U.S. -, 130 S.Ct. 1144, 175 L.Ed.2d 979 (2010); Chamberlain v. State, 881 So.2d 1087, 1109 (Fla.2004) (“CCP and prior violent felony conviction are considered among the more serious aggravating circumstances.”). As explained previously, we reject Allred’s challenges to two of the aggravators. With regard to mitigation, the sentencing court gave moderate to little weight to the nonstatutory mitigating circumstances established and found the aggravators “far outweigh[ed]” the mitigation.

We reject appellant’s argument that the sentences are disproportionate because they resulted from a domestic dispute. “This Court does not recognize a domestic dispute exception in connection with death penalty analysis.” Lynch, 841 So.2d at 377. Under the totality of the circumstances and after comparison of this case with similar cases, we conclude that the death sentences in this double homicide case are proportionate. See Frances v. State, 970 So.2d 806, 820-21 (Fla.2007) (affirming death sentences where two aggra-vators — prior capital felony conviction and committed in the course of a robbery— applied to both murders, HAC also applied to one victim, and one statutory mitigator and several nonstatutory mitigators were found); Lynch, 841 So.2d at 368 (affirming death sentences for murders of girlfriend and her daughter where two aggrava-tors — prior violent felony conviction and commission during a felony — applied to both murders; a third aggravator — HAC in one and CCP in the other — applied in each; and one statutory and eight nonstat-utory mitigators were found); Francis v. State, 808 So.2d 110, 141 & n. 12 (Fla.2002) (affirming death sentences where four ag-gravators — prior capital felony conviction, committed while engaged in a robbery, HAC, and victim vulnerability due to advanced age — were found as to each; two statutory mitigators — defendant’s age and under extreme mental or emotional disturbance — were established; and nonstatuto-ry mitigators including mental illness or emotional disturbance, no significant prior violent criminal activity, and ability to conform to the law may have been impaired were found).

III. CONCLUSION

Based on the foregoing, we affirm All-red’s convictions for first-degree murder and his sentences of death.

It is so ordered.

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

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . The trial judge wanted to assure Allred's availability to defense counsel. Accordingly, although Allred waived his presence in the courtroom during the penalty phase, he was nevertheless in the courthouse the first day and viewed the proceedings by live video from another room. On both of the subsequent two days, however, Allred was brought to the courthouse, where he waived his right to be at the courthouse and available to defense counsel and requested to be taken back to jail. The trial court granted the requests.

      .Allred lived in a large room that his parents had added downstairs from their home. The room had a separate entrance from the house.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Although appellant asked several times during the interview about the condition of his victims, the detectives did not inform him that they were dead.

      . Spencer v. State, 615 So.2d 688 (Fla.1993). At the Spencer hearing, defense counsel presented a written waiver of Allred’s presence and right to speak. The only witness at the hearing was Charles Bateman.

      . As to both murders, the trial court rejected the aggravating factor that Allred knowingly created a great risk to many persons because it was clear that "the defendant only intended to kill Tiffany Barwick and Michael Rusc-hak.”

      . The court also wrote that the defendant warned Ruschak that he was coming to the house, thus clarifying that Barwick did not directly receive that warning from Allred.

      . The contention was based on mere conjecture from the following disparate facts: (1) Allred's paternal grandparents lived with the family for ten years from the time Allred was a baby; (2) Allred was five or six when he became "hyper" and emotional; (3) the physician found no physical problems but suggested the possibility of sexual abuse and referred him to a psychiatrist; (4) the psychiatrist diagnosed Allred with ADHD; and (5) at some point in time, Allred's much older cousin accused their grandfather of sexual abuse and their grandfather denied it.