source: Caselaw Access Project

author: PER CURIAM.

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text:
    Ray Lamar JOHNSTON, Appellant, v. STATE of Florida, Appellee; Ray Lamar Johnston, Petitioner, v. Kenneth S. Tucker, etc., Respondent.
    Nos. SC09-496, SC09-2148.
    Supreme Court of Florida.
    April 28, 2011.
    As Revised on Denial of Rehearing Sept. 8, 2011.

      Bill Jennings, Capital Collateral Regional Counsel, David D. Hendry and James Lawrence Driscoll, Jr., Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
   PER CURIAM.

Ray Lamar Johnston appeals the trial court’s order denying his motion filed under Florida Rule of Criminal Procedure 3.851 to vacate his conviction of first-degree murder and sentence of death. He also petitions this Court for a writ of habe-as corpus. For the reasons explained below, we affirm the trial court’s order denying postconviction relief. We also deny the habeas petition.

I. FACTS AND PROCEDURAL HISTORY

Johnston was found guilty of the first-degree murder of Janice Nugent. Johnston v. State, 863 So.2d 271 (Fla.2003). The evidence presented at trial revealed that Johnston and Nugent were acquaintances as regular patrons of a bar in Tampa. Id. at 275. A few weeks before the murder, Johnston had been to Nugent’s house after the two had gone on a date. Id. at 275 & n. 3. Later, Nugent’s dead body was discovered in her home by her son-in-law. Id. at 274. Her body, clothed only in underwear, was wrapped in a bed comforter and submerged in her bathtub. Id. She had been manually strangled as well as beaten on her buttocks and hips with a blunt instrument. Id. There were multiple deep bruises on Nugent’s neck and shoulders from being throttled, and there were defensive bruises and scratches on Nugent’s arms, hands, and face. Id.

Johnston’s fingerprints were found on a cup in Nugent’s kitchen and on the faucet in Nugent’s bathtub. Id. at 275. Shoe tracks consistent with shoes recovered from Johnston’s apartment were found in Nugent’s kitchen. Id. And a stain matching Johnston’s DNA profile was found on a sheet in Nugent’s bedroom. Id.

In imposing the death sentence, the trial court found two aggravating circumstances, one statutory mitigating circumstance, and numerous nonstatutory mitigating circumstances. Id. at 278 & n. 5. On appeal, this Court affirmed Johnston’s conviction and sentence. Id. at 286. Johnston subsequently filed a motion for postconviction relief in the trial court, which the trial court denied. Johnston now appeals the denial of postconviction relief. Johnston has also filed a habeas petition raising several claims.

II. JOHNSTON’S POSTCONVICTION CLAIMS

Johnston raises the following eight claims of trial court error and ineffective assistance of counsel; (1) counsel was ineffective for offering the testimony of Johnston’s brother; (2) counsel was ineffective in presenting the mental health mitigation; (3) counsel was ineffective in allowing the admission of Johnston’s confession to a prior murder; (4) the trial court erred in admitting evidence of Johnston’s prior murder conviction; (5) counsel was ineffective for failing to move to suppress Johnston’s statements to law enforcement; (6) counsel was ineffective for failing to inform the jury that Johnston was medicated during a prior, unrelated trial; (7) counsel was ineffective for failing to object to erroneous jury instructions; and (8) the trial court erred in summarily denying several of Johnston’s claims. As explained below, Johnston’s claims of trial court error are without merit. Also, because Johnston has failed to prove that his counsel’s performance was deficient or that any alleged deficient performance prejudiced him, we affirm the trial court’s denial of relief. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

A. Testimony of Johnston’s Brother at Penalty Phase

Johnston first claims that his trial counsel was ineffective for offering the testimony of Johnston’s brother, Max Allen, during the penalty phase. Johnston argues that there could be no rational justification for trial counsel to call Allen as a witness and asserts that counsel failed to investigate the potentially damaging content of Allen’s testimony. Johnston claims that these actions by his counsel were unreasonable and resulted in the jury’s eleven-to-one vote to recommend a death sentence. We affirm the trial court’s denial of this claim.

This Court has held that two requirements must be satisfied for ineffective assistance of counsel claims to be successful under the Strickland standard: First, a defendant must show that eoun-sel’s actions or omissions were deficient; and second, the deficiency established must further be shown to have so affected the proceeding that confidence in the outcome is undermined. Schoenwetter v. State, 46 So.3d 535, 545-46 (Fla.2010). To prove counsel’s performance was deficient, a defendant must “identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A reviewing court must then, in light of all the circumstances, determine whether “the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. However, this Court must strongly presume that defense counsel’s actions were reasonable at the time of the counsel’s conduct. Id. at 689, 104 S.Ct. 2052. Any such “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Howell v. State, 877 So.2d 697, 703 (Fla.2004) (quoting Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000)).

To establish prejudice, a defendant must demonstrate that because of counsel’s deficient performance, he was deprived of a fair trial with a rehable result. Bradley, 33 So.3d at 672 (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). The prejudice requirement is satisfied only if there is a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Mere speculation that counsel’s error affected the outcome of the proceeding is insufficient. Id. at 693, 104 S.Ct. 2052. And to establish ineffectiveness, both deficient performance and prejudice must be proven. Id. at 694, 104 S.Ct. 2052.

The trial court held an evidentiary hearing on this claim and determined that counsel was not ineffective because the strategic decision to offer Allen’s testimony was reasonable. The record shows that calling Allen as a witness was part of the defense strategy to portray Johnston as an individual with an extensive, documented history of mental health disorders. On the stand, Allen testified as an eyewitness to Johnston’s mental problems during youth, including his psychiatric hospitalization and extremely disturbed behavior. Defense counsel explained that Allen’s testimony was intended to give context to the mental health mitigation and to confirm that Johnston showed signs of frontal lobe issues since childhood, received shock therapy, and was overmedicated. The defense trial team had extensively discussed the strategy behind calling Allen as a witness. Further, when asked whether he desired the jury to recommend a life sentence for his brother, Allen stated, “I don’t think that it’s right for th[e] state to kill him.” For all these reasons, counsel’s strategic decision to call Allen to testify in the penalty phase was not deficient performance, and we affirm the trial court’s denial of relief on this ineffectiveness claim.

B. Presentation of Mental Health Mitigation

Johnston next argues that trial counsel was ineffective for failing to present significant information regarding his mental health issues. At the evidentiary hearing on this issue, Johnston offered the testimony of forensic expert Dr. Mark Cunningham, who testified that counsel did not put mental health mitigation evidence before the jury in sufficient detail. Johnston further argued that counsel diminished the significance of the available mitigation by referring to it as “stuff.” We disagree.

Counsel may “rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those evaluations may not have been as complete as others may desire.” Darling v. State, 966 So.2d 366, 377 (Fla.2007). This Court has held that counsel will not be rendered ineffective for relying on a mental health expert’s opinion during the penalty phase, even if in hindsight the testimony is “somehow incomplete or deficient in the opinion of others.” Id.

Here, Johnston’s counsel relied on the testimony of two qualified mental health experts during the penalty phase. The defense presented Dr. Krop, a board-certified neuropsychologist, who testified to Johnston’s long history of behavioral problems, his frontal lobe impairment, organic brain syndrome, and corroborating PET scan results. The defense also presented Dr. Maher, a board-certified forensic psychiatrist, who testified after interviewing Johnston and reviewing the following information: Johnston’s hospital, jail, and prison medical records; Dr. Krop’s findings and test results; and examination and test results from two other doctors who treated Johnston. Dr. Maher further explained multiple neurodiagnostic test results and testified that Johnston suffered from organic brain injury or frontal lobe damage. Thus, these experts presented thorough analyses for the defense on the issue of mental health mitigation, and counsel’s reliance on their testimony cannot be second-guessed in hindsight. See id. The trial court properly denied Johnston relief on this claim.

C. Admission of Johnston’s Confession to Prior Murder

Johnston also claims that his trial counsel was ineffective for allowing his confession to another murder to be introduced at trial. During the guilt phase, the State read into evidence Johnston’s confession made to the jury during the penalty phase of his prior trial for the first-degree murder of Leanne Coryell. Johnston argues that defense counsel during the Cor-yell penalty phase should have known about the future charge forthcoming for the murder of Ms. Nugent and was ineffective for allowing Johnston to confess to the murder of Ms. Coryell without warning him that such a confession could be used against him in a future prosecution. We disagree.

Johnston raises a claim that is not cognizable and therefore does not merit relief. It is axiomatic that an ineffective assistance of counsel claim must be based on the actions of defense counsel in the trial under review. Here, Johnston is claiming that his defense counsel was deficient under Strickland in a prior, unrelated murder trial. The Coryell and Nugent trials were entirely distinct, separated in time by several months, with different juries, different victims, and different defense teams. Defense counsel’s allegedly deficient performance at one trial cannot constitute ineffective assistance at another, entirely separate trial. Johnston has not alleged in this claim that any actions taken by defense counsel in the case under review were deficient. Therefore, this ineffective assistance of counsel claim must fail.

D. Admission of Williams Rule Evidence of Johnston’s Murder Conviction

At trial, evidence of Johnston’s conviction for the Coryell murder was admitted under the Williams rule. The trial court based its admission of this similar collateral crime on various facts, which it set forth in a “detailed, written pretrial order on the issue.” Johnston, 863 So.2d at 281. The trial court also emphasized pretrial the importance of medical examiner Dr. Julia Martin’s testimony regarding the similarity of the pattern bruising on the victims’ buttocks to the admission of the Williams rule evidence.

Johnston now argues that the State presented misleading testimony from Dr. Martin in order to obtain admission of the Williams rule evidence. Johnston asserts that Dr. Martin offered false opinions regarding the implement used to beat Ms. Nugent on the buttocks and that this misleading testimony resulted in the prejudicial admission of Johnston’s prior murder conviction. We disagree.

As the trial court correctly concluded, this claim is procedurally barred because it has already been raised and decided on direct appeal. Before trial, the State filed an Additional Notice of Discovery that accurately summarized the content of Dr. Martin’s telephone contact log regarding possible causes of the bruises on Nugent’s buttocks. In response, Johnston filed a motion to reconsider the Williams rule order allowing evidence of Johnston’s prior murder conviction, arguing that the disclosure demonstrated that Dr. Martin no longer believed the pattern bruises were caused by a belt. The trial court considered and denied this argument regarding Dr. Martin’s “true opinions.”

This Court thoroughly discussed and denied this claim on direct appeal. See Johnston, 863 So.2d at 280-83. We found no error in the trial court’s admission of the Williams rule evidence because “there are unusual and pervasive similarities between the Coryell and Nugent murders” and “[t]he dissimilarities between the two murders are insubstantial and are partially explained by Johnston’s own confession in the Coryell case.” Id. at 283. Specifically regarding Dr. Martin’s testimony, this Court stated the following:

The similar belt pattern injuries on the buttocks of both victims are possibly the most unique similarities between the Nugent and Coryell murders. Johnston alleges that the State failed to show that these injuries were similar. However, Dr. Martin, the medical examiner in the Nugent case, testified that within a reasonable medical probability, one or more of the patterned injuries on Nugent’s buttocks came from a belt. Likewise, the medical examiner in the Coryell case testified that Coryell was beaten on the buttocks with a belt. During the penalty phase of the Coryell case, Johnston confessed to beating Coryell’s buttocks with a belt.

Id. at 282. Therefore, because the admission of Williams rule evidence based on Dr. Martin’s testimony has already been challenged and upheld, Johnston’s claim is procedurally barred.

Moreover, Johnston’s claim on this issue is without merit. His contention that the State committed a Giglio violation in presenting Dr. Martin’s testimony is unfounded. A Giglio violation occurs when (1) the prosecutor presents or fails to correct false testimony, (2) the prosecutor knows the testimony is false, and (B) the false evidence is material. See Guzman v. State, 941 So.2d 1045, 1050 (Fla.2006). Here, there was no Giglio violation because Dr. Martin did not give false testimony. The trial court rejected Johnston’s assertion that Dr. Martin testified with false opinions that were contrary to her true opinions, explaining that Dr. Martin’s testimony at the evidentiary hearing refuted this allegation. Indeed, in her pretrial contact log and at trial, Dr. Martin opined that some of the bruises on Ms. Nugent’s buttocks were consistent with a belt. And at the evidentiary hearing, Dr. Martin testified that she stands by her trial testimony and explained her testimony that the pattern bruises were consistent with a belt. Therefore, as the trial court correctly concluded, Dr. Martin’s testimony was consistent throughout the case, and nothing indicates that the basis for the Williams rule evidence was unfounded. Accordingly, we affirm the trial court’s denial of relief on this claim.

E. Failure to Move to Suppress Johnston’s Statements to Law Enforcement

Johnston also argues that statements he made to law enforcement were obtained in violation of his constitutional rights and that guilt phase counsel was ineffective for failing to challenge the admissibility of these statements. We disagree.

First, Johnston’s claim that his statements to law enforcement officers were obtained in violation of his constitutional rights is proeedurally barred because it could have been but was not raised on direct appeal. See Willacy v. State, 967 So.2d 131, 141 (Fla.2007) (“Claims that could have been brought on direct appeal are proeedurally barred in postconviction proceedings.”). On direct appeal, Johnston challenged the admission of particular statements made to Detectives Noblitt and Stanton on the basis of relevance and did not raise any challenge to the method in which any statements were obtained from him. See Johnston, 863 So.2d at 278-80. Therefore, Johnston is not entitled to relief on his claim that trial court erred in admitting the statements at issue because that argument has been waived.

Johnston’s additional claim that his guilt phase counsel was ineffective for failing to move to suppress the statements at issue is also without merit. “[Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone, 768 So.2d at 1048. Here, as counsel explained during the postconviction evi-dentiary hearing, there was a strategic reason for allowing the introduction of Johnston’s statements regarding his alleged activity in the victim’s house. Because Johnston did not wish to testify at trial, defense counsel wanted an alternative method for getting an explanation before the jury as to why physical evidence placed Johnston inside the victim’s home. As counsel testified, he saw the statements to law enforcement as a strategic means of introducing an explanation for why Johnston’s fingerprints were in the victim’s bathroom, where the victim’s body was found. And as the trial court correctly concluded, counsel’s reasoned strategic decision to utilize Johnston’s exculpatory statements to law enforcement does not constitute deficient performance. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (explaining that counsel’s performance is deficient only if “the identified acts or omissions were outside the wide range of professionally competent assistance”). Therefore, counsel’s decision not to suppress the statements at issue does not constitute ineffective assistance and Johnston is not entitled to relief on this claim.

F.Failure to Inform Jury that Johnston was Medicated During Trial

Johnston next argues that deficient performance occurred during the Coryell trial, when counsel did not instruct the jury that Johnston was on psychotropic medications at the time of his testimony and confession at trial. The Coryell trial was an entirely separate proceeding from the Nugent case under review here, involving a different crime and a different jury. Therefore, Johnston’s allegations of deficient performance are irrelevant to the trial under review, and he is not entitled to relief.

Additionally, the defense’s failure to inform the Nugent guilt phase jury of the various medications that Johnston was taking during the Coryell trial and their side effects was not deficient performance. As the transcript from the evidentiary hearing reflects, Littman had no reason to believe that Johnston was “out of his mind on drugs” when he testified in the Coryell trial. Furthermore, because the defense strategically chose to offer Johnston’s confession during the Coryell penalty phase in hopes of obtaining a life sentence, it would be duplicitous for defense counsel to turn around and attack that confession as unknowing or defective. Therefore, the trial court correctly rejected this claim.

G.Failure to Object to Erroneous Jury Instructions

Johnston next claims he is entitled to relief for counsel’s failure to object to a verbal jury instruction containing a one-word misstatement. We disagree.

Johnston’s claim that counsel was ineffective for failing to challenge to the jury instructions is without merit because Johnston cannot establish prejudice. Even assuming it was deficient for counsel to fail to object, there is no reasonable probability that the jury would have voted instead for a life sentence. Although the verbal instructions given to the jury contained one wrong word, Johnston has not established that the single word could have misled the jury into believing in an incorrect standard for proving the mitigating circumstances. The word was part of a statement by the judge that “a mitigating circumstance may not be proved beyond a reasonable doubt. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.” This misstatement was made while the judge read the jury instructions aloud, but the jury was later provided with a correct written copy of the instruction on mitigation, which stated that “a mitigating circumstance need not be proved beyond a reasonable doubt. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.” Thus, the written instructions, which the jury took into the deliberation room while reaching a verdict, were completely correct. Therefore, there is no reasonable probability that any error in the verbal instructions could have encouraged the jury to vote for death. Accordingly, there is no reasonable probability that any alleged deficient performance in counsel’s failure to object undermines confidence in the outcome of the penalty phase, and Johnston is not entitled to relief.

H.Tidal Court’s Summary Denial of Several Claims

Johnston also argues that the lower court erred in refusing to grant an eviden-tiary hearing on several postconviction claims that required factual determination. We disagree.

The lower court correctly concluded that Johnston was not entitled to an evidentiary hearing on various ineffective assistance claims he raised in his postcon-viction motion below, because his allegations were facially insufficient. “A hearing is warranted on an ineffective assistance of counsel claim only where a defendant alleges specific facts, not conclusively rebutted by the record, which demonstrate a deficiency in counsel’s performance that prejudiced the defendant.” Pagan v. State, 29 So.3d 938, 955 (Fla.2009). Because Johnston presented only bare con-clusory allegations on these several issues, he was not entitled to an evidentiary hearing on the claims. Therefore, the lower court did not err in summarily denying these legally insufficient claims, and Johnston is not entitled to relief. See Hannon v. State, 941 So.2d 1109, 1138 (Fla.2006).

I. Failure to Challenge the Reliability of Fingerprint Evidence

Johnston next alleges that counsel was ineffective for failing to challenge the reliability of fingerprint evidence introduced at trial. Johnston asserts that counsel should have (1) called an expert witness to testify that fingerprinting is unreliable science and (2) objected to a question posed to the State’s fingerprint expert. We disagree.

Johnston specifically argues that counsel was ineffective for failing to consult and present an expert, namely Dr. Simon Cole, to rebut the State’s forensic fingerprint evidence. The trial court denied this sub-claim after reviewing Dr. Cole’s proffered testimony and finding that the testimony would not have been admissible. See Owen v. State, 986 So.2d 534, 546 (Fla.2008) (“Trial counsel cannot be deemed ineffective for failing to present inadmissible evidence.”). The trial court relied on State v. Armstrong, 920 So.2d 769, 770 (Fla. 3d DCA 2006), in which the Third District Court of Appeal specifically found inadmissible Dr. Cole’s testimony in an unrelated case. As in the Third District’s case, Dr. Cole’s opinion as to the reliability of fingerprint evidence had no connection to the latent fingerprints analyzed in this case and was not based on relevant facts. The trial court was therefore correct in determining that the proffered testimony would have been inadmissible and that counsel was not deficient for failing to present it.

Additionally, the trial court did not err in concluding that counsel’s failure to object to a particular question regarding fingerprint evidence did not constitute ineffective assistance. Johnston claims defense counsel should have objected to a question by the State on redirect on the basis that it addressed lay knowledge not proper for expert testimony. To the contrary, the State’s question clarified information the defense elicited from expert Jones on cross-examination and properly sought expert opinion about the effect of fingerprint overlays on the ability to do a comparison analysis on a given fingerprint — not something that is within common lay knowledge. Therefore, Johnston has not shown that there was any basis for an objection by the defense, and Johnston has not established any probability that the trial court would have sustained such an objection. And because trial counsel cannot be deemed ineffective for failing to raise a meritless challenge, Johnston did not satisfy his burden to demonstrate deficient performance under Strickland. See Heath v. State, 3 So.3d 1017, 1033 (Fla.2009). Accordingly, the trial court correctly rejected this claim.

III. JOHNSTON’S HABEAS CLAIMS

Johnston also filed a petition for habeas corpus raising five issues. As explained below, because all of Johnston’s claims are either without merit or procedurally barred, we hold that Johnston is not entitled to relief.

A. Challenge to Death Sentence Based on Johnston’s Mental Status

Johnston first claims that his mental disorders constitutionally bar imposition of the death penalty. Citing Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), Johnston seeks relief based on his mental status. Because Johnston’s claim is both procedurally barred and without merit, we deny relief.

This Court has repeatedly held that there is no per se bar to imposing the death penalty on individuals with mental illness. See, e.g., Nixon v. State, 2 So.3d 137, 146 (Fla.2009); Lawrence v. State, 969 So.2d 294, 300 n. 9 (Fla.2007). Specifically, this Court has recently considered and rejected the precise arguments that Johnston raises here regarding the evolving standards of decency in death penalty jurisprudence. See Johnston v. State, 27 So.3d 11, 26-27 (Fla.2010) (denying David Eugene Johnston’s claim, based on the reasoning in Atkins and Roper, that mental illness is a bar to execution), cert, denied, — U.S. -, 131 S.Ct. 459, 178 L.Ed.2d 292 (2010). And this Court has made clear that we “find no reason to depart from these precedents.” Id. at 27. Accordingly, we hold that Johnston is not entitled to relief on this claim.

B. Duplicate Claims

Johnston raises four additional claims in habeas that are procedurally barred because they are mere duplications of issues raised in his instant postconviction motion: (1) ineffective assistance of counsel for failure to object to the verbal jury instructions, (2) ineffective assistance of counsel for failure to challenge the fingerprint evidence, (3) ineffective assistance of counsel for failure to move to suppress Johnston’s statements to law enforcement, and (4) trial court error in admitting the Williams rule evidence of the Coryell murder. A habeas petition may not be used to litigate issues that have already been raised in a postconviction motion. See McDonald v. State, 952 So.2d 484, 498 (Fla.2006). Therefore, Johnston’s petition for writ of habeas corpus is denied.

IV. CONCLUSION

Based on the foregoing, we affirm the trial court’s order denying Johnston’s rule 3.851 motion, and we deny his habeas petition.

It is so ordered.

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

      . We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

      . The two aggravators were (1) Johnston was previously convicted of a felony involving the use or threat of violence to the person, and (2) Nugent's murder was especially heinous, atrocious, or cruel (HAC). Id. at 278 n. 5. The sole statutory mitigator was that Johnston’s capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired. Id. n. 6. The trial court considered the following nonstatutory mitigating circumstances:
      (1) defendant has a long history of mental illness [slight weight]; (2) defendant suffers from a dissociative disorder [no weight]; (3) defendant suffers from seizure disorder and blackouts [no weight]; (4) defendant did not plan to commit the offense in advance [not proven; no weight]; (5) defendant’s acts are closer to that of a man-child than that of a hard-blooded killer [not proven; no weight]; (6) defendant is haunted by poor impulse control [no weight]; (7) defendant is capable of strong, loving relationships [slight weight]; (8) defendant excels in a prison environment [slight weight]; (9) defendant could work and contribute while in prison [slight weight]; (10) defendant has extraordinary musical skills [no weight]; (11) defendant obtained additional education while he was in prison [no weight]; (12) defendant served in the U.S. Air Force and was honorably discharged [slight weight]; (13) defendant received a certificate of recognition from the Secretary of Defense for services rendered [slight weight]; (14) defendant excelled and was recommended for early termination while on parole [slight weight]; (15) defendant was a productive member of society after his release from prison [slight weight]; (16) defendant turned himself in to the police [slight weight]; (17) defendant demonstrated appropriate courtroom behavior during trial [slight weight]; (18) defendant has tried to conform his behavior to normal time after time [no weight]; (19) defendant has a special bond with children [no weight]; (20) defendant has the support of his mother, brother, and sister [slight weight]; (21) defendant has been a good son, brother, and uncle [no weight]; (22) defendant has a mother, sister, three brothers, three nieces, and two nephews who love him very much [slight weight]; (23) defendant maintained a Florida driver's license [no weight]; (24) defendant maintained credit cards and a bank account [no weight]; (25) defendant can be sentenced to multiple consecutive life sentences and will die in prison [no weight]; (26) the totality of the circumstances does not set this murder apart from the norm of other murders [no weight].

        Id. n. 7.

      . Because we find Johnston’s individual claims are without merit, we also deny his claim of cumulative error. See Bradley v. State, 33 So.3d 664, 684 (Fla.2010).

      . The trial court also denied relief on Johnston's subclaim that penalty phase counsel was ineffective for allegedly belittling Johnston, taking an adversarial position against Johnston, and making light of the mitigation. When denying this subclaim, the trial court discussed three allegedly ineffective actions by penalty phase counsel: (1) comments regarding victim impact statements; (2) the use of the word "stuff” in reference to mitigation evidence; and (3) a belittling response to Johnston's attempts to get counsel's attention. First, the trial court determined that Johnston mischaracterized counsel's statements during voir dire and that counsel had simply explained the concept of victim impact statements. Second, the trial court concluded that Johnston took counsel’s reference to "stuff” during a long discussion of Johnston;s mental health mitigation out of context. And considering the actual context in which counsel used the word "stuff" (when arguing that the mental health mitigation was not just "stuff” made up two weeks before trial), Johnston had not established prejudice. Third, the trial court concluded that counsel’s allegedly belittling response to Johnston’s attempt to get that counsel’s attention during the penalty phase was not deficient. Counsel testified that he wanted to use the courtroom interactions with Johnston to illustrate Johnston’s impulsiveness and impetuousness. This tactic accorded with the defense’s overall strategy to portray Johnston as an individual with uncontrollable behavior in an effort to emphasize the mental health mitigation evidence and obtain a life sentence. Therefore, we agree with the trial court that Johnston has not demonstrated that defense counsel's actions were "outside the wide range of professionally competent assistance.” See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. We affirm the denial of this subclaim.

      . The details of Johnston’s murder of Ms. Coryell are set forth in this Court's opinion affirming his conviction and death sentence for that crime. See Johnston v. State, 841 So.2d 349 (Fla.2002).

      . Williams v. State, 110 So.2d 654 (Fla. 1959).

      . As this Court summarized on direct appeal, the similarities between the murders included the following: the physical appearance of the victims; the victims' relationships and familiarity with Johnston; the presence of multiple blows from a fist to both victims’ upper bodies and heads; pattern bruises on both victims' buttocks; the manner of strangulation causing death; and the method of disposal of the victims' bodies. Id. at 281-82.

      . Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

      . Johnston challenges the summary denial of the following claims: (1) ineffective assistance of counsel for failure to move for a change of venue, (2) ineffective assistance of counsel for failure to object to the State's improper use of a "golden rule” argument, (3) ineffective assistance of counsel for failure to object to the State’s improper burden shifting during closing argument, (4) ineffective assistance of counsel for failure to have fingerprint testimony read back to the jury, (5) ineffective assistance of counsel for failure to object to jury instructions that shifted the burden to Johnston during the penalty phase, and (6) ineffective assistance of counsel for failure to argue there was a break in the chain of custody of fingerprint evidence. Johnston concedes that the following claims were not suitable for an evidentiary hearing but wishes to preserve them for federal review, pursuant to this Court’s instruction in Sireci v. State, 773 So.2d 34, 41 n. 14 (Fla.2000): (1) Johnston’s judgment and death sentence must be vacated in light of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (2) execution by lethal injection is cruel and unusual punishment; and (3) counsel was ineffective for failing to request a jury instruction and present mitigating evidence regarding Johnston’s parole eligibility, pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).

      . In Armstrong, 920 So.2d at 770, the Third District explained that Dr. Cole's proffered testimony was not probative and was therefore inadmissible:
      We quash the order permitting Dr. Cole to testify because his "informed hypothesis” is irrelevant to any material issue. See Fla. Stat. § 90.702 (an expert’s opinion "is admissible only if it can be applied to the evidence at trial”); Stano v. State, 473 So.2d 1282, 1285 (Fla.1985) ("To be relevant, and, therefore, admissible, evidence must prove or tend to prove a fact in issue.”). While Dr. Cole has raised a general concern about the use of latent fingerprint identification analysis in courts across the United States, he has not related that concern to the fingerprint identification made in this case. Dr. Cole concededly has no formal training in latent fingerprint identification analysis; he did not examine the latent fingerprints taken from the crime scene in this case; he does not question the latent fingerprint analysis actually performed in this case; and he has no opinion about the standards or methods used by the fingerprint examiner in this particular case. Dr. Cole’s testimony will, therefore, be no more than a general critique of the predicate underlying fingerprinting as a method of identification. His testimony will not be probative as to whether the latent prints lifted from the scene match Armstrong's fingerprints, that is, his testimony will not be probative of Armstrong's guilt or innocence. Consequently, his testimony is not admissible.

      . To the extent that Johnston challenges the admission of his statements to law enforcement directly, rather than as an ineffective assistance of counsel claim, that claim is procedurally barred because Johnston did not raise it on direct appeal. A habeas petition may not be used as a vehicle to address issues that could have been raised on direct appeal. Green v. State, 975 So.2d 1090, 1115 (Fla.2008).


text:
    TAI A. PHAM, Appellant, v. STATE of Florida, Appellee.
    No. SC08-2355.
    Supreme Court of Florida.
    June 16, 2011.
    Rehearing Denied Sept. 9, 2011.

      James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, Meredith Charbula and Kenneth Sloan Nunnelley, Assistant Attorneys General, Daytona Beach, FL, for Appellee.
   PER CURIAM.

This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm Pham’s conviction and sentence.

Overview

On March 7, 2008, Tai Pham (Pham) was convicted in Seminole County for the first-degree murder of his estranged wife Phi Pham (Phi), the attempted first-degree murder of her boyfriend Christopher Higgins (Higgins), the armed kidnapping of his stepdaughter Lana Pham (Lana), and armed burglary. Pham entered Phi’s apartment where her oldest daughter, his stepdaughter Lana, was alone and awaiting Phi’s return. After binding Lana, Pham hid in her bedroom for an hour, then stabbed Phi at least six times as she entered the room. Prior to returning to the apartment, Phi and Higgins were together at a party and returned in different vehicles. Phi’s stabbing occurred while Higgins secured his motorcycle outside. Once Higgins entered the apartment, he struggled with Pham. During the struggle, Lana was able to get free and call the police. Higgins was severely injured during the struggle, but was able to subdue Pham until the police arrived. Both Lana and Higgins testified at trial. Pham was the sole witness for the defense. On May 22, 2008, the jury, by a vote of ten to two, recommended the death penalty after the penalty phase. After the Spencer hearing held on November 14, 2008, the trial court found the aggravators outweighed the mitigation and entered a sentence of death. This is Pham’s direct appeal.

On appeal, Pham raises seven issues: (1) that the prosecutor’s improper statements during closing arguments entitle him to a new trial, (2) that juror misconduct entitles him to a new penalty phase, (8) that the trial court erred in finding the prior violent felony aggravator, (4) that his death sentence is unconstitutional because the aggravating circumstances were not alleged in the charging document, (5) that the trial court erred in finding the murder was heinous, atrocious, or cruel (HAC), (6) that the trial court erred in finding the murder cold, calculated, and premeditated (CCP), and (7) that his death sentence is not proportionate. Additionally, we review the sufficiency of the evidence to support Pham’s conviction.

Discussion

Pham raises seven issues on appeal. In addition, although the issue is not raised by Pham, we are required to review the sufficiency of the evidence to uphold Pham’s conviction. Because we find them to be without merit, we deny each of Pham’s claims on appeal. Additionally, we find that the evidence presented below is sufficient to support Pham’s conviction.

Prosecutorial Misconduct

Pham alleges that the State made two improper arguments that entitle him to a new trial. Contemporaneous objections were made to both statements, and, accordingly, they have been properly preserved for review. Because the prosecutor’s comments were a reasonable summary of the evidence presented at trial, we deny relief on this claim.

The first portion of the argument to which Pham objects states:

MR. STONE: But I just do want to quickly address the Defendant’s testimony-
And, you know, in a nutshell, the way that you can describe the Defendant’s testimony is a desperate man telling a desperate story. That’s exactly what it is.
I won’t spend more than a few moments on the Defendant’s testimony because that’s all it deserves, if that much, but there are a few points that I do want to make. And some of the things that he said are just nonsensical, that just don’t make sense.

The second portion of the argument to which Pham objects states:

MR. STONE: You know, Mr. Pham testified, the Defense chose to present a case in this case, they chose to present evidence, and still they have not provided an explanation as—

The law is well-settled that “[w]ide latitude is permitted in arguing to a jury.” Breed-love v. State, 413 So.2d 1, 8 (Fla.1982). Logical inferences may be drawn, and counsel is allowed to advance all legitimate arguments. Thomas v. State, 748 So.2d 970, 984 (Fla.1999). “It is within the judge’s discretion to control the comments made to a jury, and [this Court] will not interfere unless an abuse of discretion is shown.” Moore v. State, 701 So.2d 545, 551 (Fla.1997).

The State asserts that the prosecution’s comments were a fair and accurate description of the evidence presented to the jury. We agree. Pham’s testimony regarding Phi’s death was that he was not sure how she’d been stabbed but that he never stabbed her. Further, Pham testified that his teenaged step-daughter consented to being tied and bound even after arguing with him over his dismissal of her friends who had attempted to visit. Accordingly, we deny relief on this claim.

Juror Misconduct

Next, Pham alleges that the jurors prejudged him and began deliberations prior to receiving instructions. The crux of Pham’s claim is that his Vietnamese nationality figured prominently in the penalty phase and that the jury was prematurely disinclined to accept Pham’s nationality and upbringing as mitigation. Because it is not apparent on the record that the comments affected the verdict or sentence recommendation in any way, the trial court did not abuse its discretion in denying Pham’s motion for a new penalty phase and we deny Pham’s claim.

An alternate juror, Valenti, brought these allegations to the trial court’s attention. Valenti wrote a letter stating that he had overheard jurors making inappropriate statements. Based on the information contained in the letter, the trial court interviewed Valenti and two other jurors.

Juror Kristen Appleman stated that she heard a comment in passing: “I think just the comment of, you know yes, everyone had a rough life in some case, but you are — this is the law, this is — there is right and wrong, and, you know, if you wanted to come to America, you have to live by American standards, American Law.” Ap-pleman stated that the comment was made in passing and not directed at anyone — it was not a conversation. She further stated that she did not “get the sense that anyone ha[d] their mind made up or would not listen to a certain piece of information and take it in consideration.”

Juror Peter Perkins stated that he heard idle chitchat about people having tough luck, but that he did not know who said it. Perkins stated that the comments were made walking down the hallways, but not in the jury room.

The trial court reserved ruling on the defense’s motion for mistrial, but reminded the jury not to form any definite or fixed opinion on the merits of the case until all evidence had been presented. The court ultimately denied the motion. While we strongly discourage jurors from this sort of behavior, indeed any discussion of the case or parties at all prior to deliberations, we do not find that these comments rise to the level of ethnic bias.

The Court has addressed the issue of juror misconduct and a court’s power to discharge the jury and declare a mistrial:
“It has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in cases of absolute necessity.” Thomas v. State, 748 So.2d 970, 980 (Fla.1999) (citing Salvatore v. State, 366 So.2d 745, 750 (Fla.1978)). Moreover, addressing allegations of juror misconduct is left to the sound discretion of the trial judge. Doyle v. State, 460 So.2d 353, 357 (Fla.1984).
England v. State, 940 So.2d 389, 402 (Fla.2006). Specifically, with respect to a motion for mistrial, the Court has noted:
A motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial. Snipes v. State, 733 So.2d 1000, 1005 (Fla.1999). A trial court’s ruling on a motion for mistrial is subject to an abuse of discretion standard of review. Perez v. State, 919 So.2d 347 (Fla.2005), cert. denied, 547 U.S. 1182, 126 S.Ct. 2359, 165 L.Ed.2d 285 (2006).
England, 940 So.2d at 401-02.

Seibert v. State, 64 So.3d 67 (Fla.2010).

Any inquiry into juror misconduct must be limited to objective demonstration of overt acts committed by or in the presence of the jury or jurors which reasonably could have affected the verdict. Powell [v. Allstate Ins. Co.], 652 So.2d [354,] 356 [ (Fla.1995) ]; [Baptist Hospital of Miami, Inc. v.]; Maler, 579 So.2d [97,] 101 [ (Fla.1991) ]; State v. Hamilton, 574 So.2d 124, 128-29 (Fla.1991).

Wilding v. State, 674 So.2d 114, 117-118 (Fla.1996), receded from in part by Devoney v. State, 717 So.2d 501, 505 (Fla.1998) (“We recede from that portion of Wilding which says that, while the jurors’ subjective beliefs inhere in the verdict, any discussion of them can become an overt act of misconduct.”).

If the [misconduct is] such that [it] would probably influence the jury, and the evidence in the cause is conflicting, the onus is not on the accused to show he was prejudiced for the law presumes he was. But it should be clearly understood that not all [misconduct] will vitiate a verdict, even though such conduct may be improper. It is necessary either to show that prejudice resulted or that the [misconduct was] of such character as to raise a presumption of prejudice.

Amazon v. State, 487 So.2d 8, 11 (Fla.1986) (alterations in original) (quoting Russ v. State, 95 So.2d 594, 600-01 (Fla.1957)).

Pham’s argument here is basically one of ethnic bias — that some jurors were not willing to accept his mitigation based on his upbringing and societal differences in Vietnam. While we continue to condemn ethnic bias in jurors, the comments here did not rise to the level of ethnic bias. As determined by the trial court, the statements made were not open appeals to the bias in others. Therefore, the trial court correctly denied Pham’s request for a new penalty phase. Accordingly, we deny Pham’s claim.

Prior Violent Felony

Pham alleges that it was error to permit the State to present testimony of the alleged victim of the battery on a law enforcement officer over objection at the Spencer hearing. Pham does not argue that the finding of the prior violent felony aggravator is improper because his conviction for aggravated battery on a law enforcement officer did not precede the penalty phase below. Instead, it appears that Pham is arguing that the application of this aggravator violates Apprend and Ring because the crime has to be one involving the use of threat or violence and that this Court has held that battery on a law enforcement officer is not a “forcible felony” that can be used to enhance a subsequent felony. State v. Hearns, 961 So.2d 211 (Fla.2007). Thus, Pham argues his mere conviction was not enough to find this aggravator because the trial court had to consider extrinsic evidence that was not presented to the jury. As stated in the sentencing order, the evidence to support this aggravator that was considered by the trial court was as follows:

On March 7, 2008, [Pham] was found guilty by the jury of the Attempted First Degree Murder of Christopher Higgins. This conviction was contemporaneous to his conviction for the First Degree Murder of Phi Pham in this case.
At the Spencer hearing, the State introduced additional evidence in support of this aggravator by way of the [Pham’s] conviction on August 12, 2008, for Battery on a Law Enforcement Officer in Seminole County, Florida in Case No. 06^4879-CFA. Testimony of retired deputy Oleander Csisko, the victim, was also presented as to the events of October 12, 2006, which resulted in that conviction. Csisko testified that as [Pham] was being removed from the courtroom during a hearing in juvenile court, he stopped suddenly, and then became aggressive and combative. While Mr. Pham was hitting and kicking another deputy, Csisko grabbed his belly chains in an effort to regain control and escort him from the courtroom. She testified that [Pham] bent her fingers all the way back which resulted in pain and swelling. Subsequent medical examinations revealed a fracture to her arm.
The Judgment and Sentence, in Case No. 06-4879-CFA, paired with the testimony of the victim, proves [that Pham] has one prior conviction for a crime involving the use of violence and one contemporaneous conviction, for the attempted first degree murder of Christopher Higgins.
This aggravating factor has been proven beyond a reasonable doubt and is given great weight.

The trial court did not err in finding this aggravator.

During a penalty phase proceeding, the trial court has the discretion to admit evidence with regard to the details of a defendant’s previous conviction for a felony involving the use or threat of violence. See § 921.141(1), (5)(b), Fla. Stat. (2006); Rhodes v. State, 547 So.2d 1201, 1204 (Fla.1989); Tompkins v. State, 502 So.2d 415, 419 (Fla.1986). This Court reviews the admission or exclusion of evidence for an abuse of discretion. See San Martin v. State, 717 So.2d 462, 470-71 (Fla.1998).
... This Court has repeatedly held that the State is not restricted to the bare admission of a conviction when presenting evidence in support of the prior violent felony aggravating circumstance. See Rhodes, 547 So.2d at 1204; Delap v. State, 440 So.2d 1242, 1255-56 (Fla. 1983); Elledge v. State, 346 So.2d 998, 1001-02 (Fla.1977). Rather, the State may adduce any testimony that the trial court deems relevant to the nature of the crime and the character of the defendant. See § 921.141(1), Fla. Stat. (2006); Delap, 440 So.2d at 1255. “Whether a crime constitutes a prior violent felony is determined by the surrounding facts and circumstances of the prior crime.” Anderson v. State, 841 So.2d 390, 407 (Fla.2003) (holding that trial court did not err in admitting testimony that demonstrated the defendant’s conviction for attempted sexual battery was actually a completed sexual battery).

Miller v. State, 42 So.3d 204, 225 (Fla. 2010).

Florida law is well settled that contemporaneous convictions, like the conviction for the attempted murder of Christopher Higgins, establish the prior violent felony aggravator. See LeCroy v. State, 533 So.2d 750 (Fla.1988); King v. State, 390 So.2d 315 (Fla.1980). Because that is the law (and because Pham has not chal lenged this aspect of Florida law), this claim is without merit. The prior violent felony aggravator is established by virtue of the attempted murder conviction irrespective of the battery on a law enforcement officer conviction. Pham has not challenged the Higgins conviction and has waived any challenge to its application in aggravation. Accordingly, Pham has not provided a basis for relief on this claim.

Constitutionality

In this claim, Pham alleges that his death sentence is invalid because the trial court exceeded its authority in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Specifically, Pham contends that first-degree murder is not punishable by death because imposition of capital punishment requires that additional findings of fact be made after a defendant is convicted of premeditated murder, which is in violation of Ring and Apprendi.

This Court has repeatedly held that where a death sentence is supported by the prior violent felony aggravating circumstance, Florida’s capital sentencing scheme does not violate Ring or Apprendi. See, e.g., Frances v. State, 970 So.2d 806, 822 (Fla.2007) (citing Apprendi, 530 U.S. at 490, 120 S.Ct. 2348); Jones v. State, 855 So.2d 611, 619 (Fla.2003). A Florida jury unanimously found Pham guilty of three violent felonies. Therefore, the trial court found that the death sentence was supported by the prior violent felony aggravating circumstance, which satisfies express exceptions to Apprendi that were unaltered by Ring.

Additionally, this Court has repeatedly rejected the argument that aggravating circumstances must be alleged in the indictment. See, e.g., Coday v. State, 946 So.2d 988, 1006 (Fla.2006) (rejecting the defendant’s argument that the failure to allege the aggravating circumstances in the indictment renders a sentence unconstitutional under Ring); Ibar v. State, 938 So.2d 451, 473 (Fla.2006) (noting that the defendant’s claim that the indictment was defective because it did not provide notice of the aggravators had been addressed adversely to the defendant); Blackwelder v. State, 851 So.2d 650, 654 (Fla.2003) (observing that this Court had rejected the argument that aggravating circumstances must be alleged in the indictment); Kormondy v. State, 845 So.2d 41, 54 (Fla.2003) (explaining that Ring does not require notice of the aggravating factors that the State will present); see also Rogers v. State, 957 So.2d 538, 554 (Fla.2007) (noting that this Court has consistently held that neither Apprendi nor Ring requires that aggravating circumstances be alleged in the indictment).

“[W]e have rejected claims that Ring requires the aggravating circumstances to be alleged in the indictment.” Ferrell v. State, 918 So.2d 163, 180 (Fla.2005). A defendant is not entitled to notice of every aggravator in the indictment because the aggravators are clearly listed in the statutes. Lynch v. State, 841 So.2d 362, 378 (Fla.2003) (citing Vining v. State, 637 So.2d 921, 928 (Fla.1994)).... [0]ne of the aggravators in this case is the prior violent felony ag-gravator, which both the United States Supreme Court and this Court have recognized as an exception to the requirement that the jury must make all the findings necessary to enhance a defendant’s sentence. Ring, 536 U.S. at 597 n. 4, 122 S.Ct. 2428; see also Patton v. State, 878 So.2d 368, 377 (Fla.2004) (“The existence of this prior violent felony aggravator satisfies the mandates of the United States and Florida constitutions .... ”); Kormondy v. State, 845 So.2d 41, 54 n. 3 (Fla.2003) (finding the prior violent felony aggravator through contemporaneous charges of robbery, sexual assault, and battery included in the indictment and affirmed by the jury satisfies Ring’s requirements).

England v. State, 940 So.2d 389, 407 (Fla. 2006).

We have not receded from these cases. Thus, we reject Pham’s argument.

HAC Aggravator

Pham contends that because there was no intentional torture of the victim, the trial court erred in finding that the murder was especially heinous, atrocious, or cruel. The State argues that there is no legal basis for Pham’s claim because this Court has rejected the addition of an intent element to the aggravator. Because there is competent, substantial evidence to support the trial court’s finding, we deny this claim.

“In reviewing an aggravating factor challenged on appeal, this Court’s task ‘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.’ ” Douglas v. State, 878 So.2d 1246, 1260-61 (Fla.2004) (quoting Willacy v. State, 696 So.2d 693, 695 (Fla.1997)).

We have explained the meaning of the HAC aggravator as follows:

It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies— the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

State v. Dixon, 283 So.2d 1, 9 (Fla.1973); see also Guzman v. State, 721 So.2d 1155, 1159 (Fla.1998) (“The HAC aggravator applies only in torturous murders — those that evince extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another.”). We have also stated that “[ujnlike the cold, calculated and premeditated aggravator, which pertains specifically to the state of mind, intent and motivation of the defendant, the HAC ag-gravator focuses on the means and manner in which death is inflicted and the immediate circumstances surrounding the death.” Brown v. State, 721 So.2d 274, 277 (Fla.1998) (citing Stano v. State, 460 So.2d 890, 893 (Fla.1984)).

Furthermore, we have held that “[i]n determining whether the HAC factor was present, the focus should be upon the victim’s perceptions of the circumstances as opposed to those of the perpetrator.” Lynch v. State, 841 So.2d 362, 369 (Fla.2003). The victim’s mental state may be evaluated in accordance with common-sense inferences from the circumstances. Swafford v. State, 533 So.2d 270, 277 (Fla.1988). We have also held that to support this aggravating circumstance, the evidence must show that the victim was conscious and aware of impending death. Douglas v. State, 878 So.2d 1246, 1261 (Fla.2004). However, we have also explained that the actual length of the victim’s consciousness is not the only factor relevant to this aggravator. Beasley v. State, 774 So.2d 649, 669 (Fla.2000). “[F]ear, emotional strain, and terror of the victim during the events leading up to the murder may make an otherwise quick death especially heinous, atrocious, or cruel.” James v. State, 695 So.2d 1229, 1235 (Fla.1997); see also Swafford, 533 So.2d at 277. We have further held that the actions of the defendant preceding the actual killing are also relevant. Gore v. State, 706 So.2d 1328, 1335 (Fla.1997).

In Cox v. State, 819 So.2d 705 (Fla.2002), we noted, “Obviously, a victim’s suffering and awareness of his or her impending death certainly supports the finding of the heinous, atrocious, or cruel aggravating circumstance where there is a merciless attack ... as occurred here.” Id. at 720. Here, Phi was conscious during at least part of her attack. She was stabbed at least six times, and the medical examiner testified that the nature of her wounds would have caused her a high degree of pain. Further, her attack was unprovoked and witnessed by her daughter. The evidence established that Phi motioned for her daughter to leave the apartment and that one of her wounds was consistent with her having grabbed the blade of the knife. Accordingly, there is competent, substantial evidence to support the trial court’s finding of the HAC aggravator.

CCP Aggravator

Pham contends that the trial court erred in finding that the murder was cold, calculated, and premeditated. Because there is competent, substantial evidence to support the trial court’s finding, we deny this claim.

In deciding whether a lower court erred in its finding of an aggravator, this Court does not reweigh the evidence to determine whether an aggravator was proven beyond a reasonable doubt but instead “review[s] 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.” Franklin v. State, 965 So.2d 79, 98 (Fla. 2007) (quoting Willacy, 696 So.2d at 695). In order to find CCP as an aggravating factor:

[T]he jury must determine that the killing was a product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); and that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification.

Anderson v. State, 868 So.2d 169, 176-77 (Fla.2003) (quoting Jackson v. State, 648 So.2d 85, 89 (Fla.1994)). CCP can be established by evidence of “advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course.” Davis v. State, 859 So.2d 465, 479 (Fla. 2003).

It is the State’s burden to prove beyond a reasonable doubt that the murder was the product of cool and calm reflection and not an act of emotional frenzy or panic or a fit of rage. Walker v. State, 957 So.2d 560, 581 (Fla.2007). “[T]he facts supporting CCP must focus on the manner in which the crime was executed, e.g., advance procurement of weapon, lack of provocation, killing carried out as a matter of course.” Id. (quoting Lynch v. State, 841 So.2d 362, 372 (Fla.2003)). Premeditation for CCP may be indicated by circumstances showing taking a murder weapon to the scene, lack of victim resistance, and “the appearance of killing as a matter of course” such as in an “execution style” killing. Franklin, 965 So.2d at 98.

A determination of whether CCP is present is properly based on a consideration of the totality of the circumstances. Wike v. State, 698 So.2d 817, 823 (Fla.1997); see also Lynch, 841 So.2d at 372; Rodriguez v. State, 753 So.2d 29, 46 (Fla.2000); Occhicone v. State, 570 So.2d 902, 905 (Fla.1990). The scope of review is limited “to ensuring that the trial court applied the correct rule of law and, if so, that there is competent, substantial evidence to support its findings.” Caballero v. State, 851 So.2d 655, 661 (Fla.2003) (citing Willacy v. State, 696 So.2d 693, 695 (Fla.1997)). “Competent substantial evidence is tantamount to legally sufficient evidence, and [this Court] assesses] the record evidence for its sufficiency only, not its weight.” McCoy v. State, 853 So.2d 396, 407 (Fla.2003) (alterations in original) (quoting Almeida v. State, 748 So.2d 922, 932 (Fla.1999)).

We have also found the heightened premeditation required to support CCP where a defendant has a lengthy period of reflection and the opportunity to abandon the plan but, instead, commits the murder. Alston v. State, 723 So.2d 148, 162 (Fla.1998). We explained in Alston that where the defendant had ample opportunity to release the victim but instead, after substantial reflection, “acted out the plan [he] had conceived during the extended period in which [the] events occurred,” heightened premeditation was proven. Id. (alterations in original) (quoting Jackson v. State, 704 So.2d 500, 505 (Fla.1997)); see also Looney v. State, 803 So.2d 656, 679 (Fla.2001). Legally sufficient evidence also exists to support CCP where the defendant procures a murder weapon in advance, receives absolutely no resistance or provocation on the part of the victim, and carries out the killing as a matter of course. McCoy, 853 So.2d at 407.

In Lynch v. State, 841 So.2d 362, 368 (Fla.2003) (quoting Way v. State, 760 So.2d 903, 918 (Fla.2000)), we explained the standard of review of a trial court’s finding of an aggravating factor:

[I]t is not this Court’s function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt.... Rather, our 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.

Within the confínes of this deferential standard of review, we closely scrutinize the evidence to ensure that the CCP finding is supported. See, e.g., Santos v. State, 591 So.2d 160, 162 (Fla.1992) (“[T]he record discloses that the State failed to prove beyond a reasonable doubt that the present murder was cold, calculated, and premeditated.”); Mahn v. State, 714 So.2d 391 (Fla.1998) (finding trial court abused its discretion in finding CCP because “to satisfy the burden of proof, the circumstantial evidence must be inconsistent with any reasonable hypothesis which might negate the aggravating factor”) (quoting Geralds v. State, 601 So.2d 1157, 1163 (Fla.1992)). Moreover, we have explained that heightened premeditation exists “where a defendant has the opportunity to leave the crime scene and not commit the murder but, instead, commits the murder.” Owen v. State, 862 So.2d 687, 701 (Fla.2003).

Here, Pham arrived with two knives. He bound Lana to prevent her escape. He hid her phone to prevent her from calling for help. He waited for approximately one hour before Phi returned home and then attacked her immediately. Pham set up the murder scene by hiding the knives under Lana’s mattress while waiting for Phi to return home and hiding behind Lana’s closet door once she arrived. Accordingly, there is competent, substantial evidence to support the trial court’s finding of the CCP aggravator.

Proportionality

As explained by this Court in Tillman v. State, 591 So.2d 167 (Fla.1991):

The requirement that death be administered proportionately has a variety of sources in Florida law, including the Florida Constitution’s express prohibition against unusual punishments. Art. I, § 17, Fla. Const. It clearly is “unusual” to impose death based on facts similar to those in cases in which death previously was deemed improper. Id. Moreover, proportionality review in death cases rests at least in part on the recognition that death is a uniquely irrevocable penalty, requiring a more intensive level of judicial scrutiny or process than would lesser penalties. Art. I, § 17, Fla. Const.

Id. at 169 (footnote omitted). The purpose of this Court’s proportionality review is to “foster uniformity in death-penalty law.” Id. In performing this review, this Court “must never lose sight of the fact that the death penalty has long been reserved for only the most aggravated and least mitigated of first-degree murders.” Urbin v. State, 714 So.2d 411, 416 (Fla.1998). Furthermore, proportionality review is a consideration of the totality of the circumstances in a case in comparison with other capital cases. Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). It entails a “qualitative review by this Court of the underlying basis for each aggravator and miti-gator rather than a quantitative analysis.” Urbin, 714 So.2d at 416.

Proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Porter v. State, 564 So.2d 1060, 1064 (Fla.1990). Instead, the Court looks at the totality of the circumstances to determine if death is warranted in comparison to other cases where the sentence of death has been upheld. Id. This Court has made clear that HAC is one of the “most serious aggravators set out in the statutory sentencing scheme.” Larkins v. State, 739 So.2d 90, 95 (Fla.1999).

England, 940 So.2d at 408.

“Because death is a unique punishment, it is necessary in each case to engage in a thoughtful, deliberate proportionality review to consider the totality of circumstances in a case, and to compare it with other capital cases. It is not a comparison between the number of aggravating and mitigating circumstances.” Tillman, 591 So.2d at 169 (quoting Porter, 564 So.2d at 1064). This Court’s function is not to re-weigh the aggravators and miti-gators, but to accept the jury’s recommendation and the judge’s weighing of the evidence. Bates v. State, 750 So.2d 6 (Fla.1999).

This Court reviews and considers all the circumstances in a case relative to other capital cases when deciding whether death is a proportionate penalty and to ensure uniformity. See Johnson v. State, 720 So.2d 232 (Fla.1998); Urbin v. State, 714 So.2d 411, 416-17 (Fla.1998). The death penalty is reserved only for those cases where the most aggravating and least mitigating circumstances exist. See Kramer v. State, 619 So.2d 274, 278 (Fla.1993).

Under the totality of the circumstances, Pham’s sentence is proportional in relation to other death sentences that this Court has upheld. See, e.g., Banks v. State, 46 So.3d 989 (Fla.2010) (death sentence proportionate in a stabbing murder where the jury recommended death ten-to-two and the trial court found three aggravators: prior violent felony, HAC, and CCP; and five mitigating circumstances: low IQ, brain deficit, antisocial personality traits, not the only participant, and difficult youth); Merck v. State, 975 So.2d 1054 (Fla.2007) (death sentence proportionate for stabbing murder where trial court found prior violent felony and HAC aggra-vators, statutory age mitigator, and several nonstatutory mitigators, including a difficult family background, alcohol use the night of the murder, and a capacity to form positive relationships); Singleton v. State, 783 So.2d 970 (Fla.2001) (death sentence proportionate for stabbing murder where trial court found prior violent felony and HAC aggravators as well as substantial mitigation, including extreme mental or emotional disturbance, impaired capacity to appreciate criminality of conduct or to conform conduct to requirements of law, and that defendant was under influence of alcohol and possibly medication at time of offense); Blackwood v. State, 777 So.2d 399 (Fla.2000) (death sentence proportionate for strangulation murder where trial court found HAC aggravator, one statutory mitigator, and eight nonstatutory miti-gators).

The jury voted ten-to-two to recommend death. The trial court found in aggravation: (1) Pham was previously convicted of another capital felony or of a felony involving the use of threat of violence to the person; (2) the capital felony was committed while Pham was engaged in the commission of a burglary and kidnapping; (3) the capital felony was especially heinous, atrocious, or cruel; and (4) the capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. As mitigation, the trial court found: (1) the capital felony was committed while Pham was under the influence of mental or emotional disturbance; (2) Pham’s capability to appreciate the criminality of his conduct or conform to the requirements of law was impaired, although not substantially; (3) Pham’s traumatic childhood had a negative impact on his emotional and mental development; and (4) Pham had a stable employment history and was considered a hardworking employee. We find that this case meets the criteria of being aggravated with little mitigation. Thus, the death sentence is proportionate.

Sufficiency of the Evidence

Although Pham does not raise the issue of sufficiency of the evidence on appeal, this Court has an independent obligation to review the record to determine whether sufficient evidence exists to support Pham’s conviction. See Bevel v. State, 983 So.2d 505, 516 (Fla.2008); see also Fla. R.App. P. 9.142(a)(6) (“In death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief.”).

“In appeals where the death penalty has been imposed, this Court independently reviews the record to confirm that the jury’s verdict is supported by competent, substantial evidence.” Davis v. State, 2 So.3d 952, 966-67 (Fla.2008) (citing Fla. RApp. P. 9.142(a)(6)). “In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Simmons v. State, 934 So.2d 1100, 1111 (Fla.2006) (quoting Bradley v. State, 787 So.2d 732, 738 (Fla.2001)). Although Caraballo did not expressly challenge the sufficiency of the evidence as to each of his convictions, we conclude that sufficient evidence was presented at trial for the jury to find Caraballo guilty of all seven felonies.

Caraballo v. State, 39 So.3d 1234, 1243-44 (Fla.2010).

“This Court reviews ‘the record of a death penalty case to determine whether the evidence is sufficient to support the murder conviction.’ Winkles v. State, 894 So.2d 842, 847 (Fla.2005); see also Davis v. State, 859 So.2d 465, 480 (Fla.2003).” Banks, 46 So.3d at 999.

[T]his Court has a mandatory obligation to independently review the sufficiency of the evidence in every case in which a sentence of death has been imposed. See Blake v. State, 972 So.2d 839, 850 (Fla.2007); Fla. R.App. P. 9.142(a)(6). “In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Bradley v. State, 787 So.2d 732, 738 (Fla.2001) (citing Banks v. State, 732 So.2d 1065, 1068 n. 5 (Fla. 1999)).

Miller, 42 So.3d at 227.

Pham was convicted of first-degree premeditated murder, attempted first-degree premeditated murder, armed kidnapping, and armed burglary of a dwelling. The jury was instructed on both premeditated and felony first-degree murder, and found Pham guilty of first-degree murder. Because the jury was instructed on both theories of first-degree murder and found Pham guilty on a general verdict form, the evidence must support either premeditated or felony murder. See Dessaure v. State, 891 So.2d 455, 472 (Fla.2004). There is competent sufficient evidence to support both theories as well as attempted first-degree murder, armed kidnapping, and armed burglary of a dwelling.

First, there is competent, substantial evidence to support Pham’s conviction of first-degree murder under a theory of premeditated murder. See § 782.04(1)(a)1., Fla. Stat. (2005) (“The unlawful killing of a human being ... when perpetrated from a premeditated design to effect the death of the person killed or any human being ... is murder in the first degree and constitutes a capital felony.... ”). We have defined premeditation as follows:

Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to kill. This purpose may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.

Bradley v. State, 787 So.2d 732, 738 (Fla. 2001) (quoting Woods v. State, 733 So.2d 980, 985 (Fla.1999)); see also Buckner v. State, 714 So.2d 384, 387 (Fla.1998) (“Premeditation need only exist for such time as will allow the accused to be conscious of the nature of the act the accused is about to commit and the probable result of the act.”). In this case, there is both direct and circumstantial evidence that Pham killed the victim in a premeditated manner.

Lana Pham testified that Pham entered the apartment she shared with her mother and sisters without her permission. She further testified that he tied her up while they awaited her mother’s return. The picture evidence presented at trial supports that Lana had been tied. Further, Pham admitted to binding her, stating that she consented to it but that it was a mistake. After Phi returned to the apartment, Lana testified that she observed Pham strike her mother with one of the knives he had brought with him. Although Higgins did not enter the apartment until after Phi had been stabbed, his testimony supports Lana’s version of events. He testified that he heard screaming as he approached the apartment and that when he entered he saw Lana standing over her mother. Further, Higgins.testified that Pham lunged at him with a knife and that Higgins used his motorcycle helmet to fend off Pham’s attack. The 911 tape played at trial established that Pham and Higgins were fighting while Phi was dying, despite Pham’s testimony that the attack began when Higgins struck him and that he never stabbed Phi. Also captured on the tape is Lana’s distress and the struggle between Higgins and Pham. When officers arrived on the scene, Pham and Higgins were still involved in a struggle; Phi was dead; and Lana had possession of one of the knives.

Based on the direct and circumstantial evidence, there is competent, substantial evidence to support Pham’s conviction for first-degree murder under the theory of premeditated murder. The facts reveal that there was sufficient time before the killing for Pham to have formed a conscious intent to kill.

Second, thei’e is competent, substantial evidence to support Pham’s conviction of first-degree murder under the theory of felony murder. See § 782.04(1)(a)2., Fla. Stat. (2005) (“The unlawful killing of a human being ... When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any ... Burglary ... [or] Kidnapping ... is murder in the first degree and constitutes a capital felony....”). Likewise, it appears that there is competent, substantial evidence to support Pham’s convictions of attempted first-degree murder, armed kidnapping, and armed burglary of a dwelling.

In this case, there is competent, substantial evidence that Pham committed the murder while in the commission of an armed burglary and kidnapping. Lana testified that she did not open the door for Pham and was unaware of his presence until she was being dragged by her hair to her bedroom; that she looked up and saw her stepfather holding two knives; and that once in her room her wrists and ankles were tied to prevent her from leaving while her phone and the knives were placed under her mattress. Pham confessed at trial that he had bound Lana’s hands and feet.

Further, there is competent, substantial evidence to support Pham’s conviction of first-degree murder under the felony murder as well as the underlying felonies of attempted first-degree murder, armed kidnapping, and armed burglary of a dwelling. The facts reveal that Pham entered Phi’s apartment without permission intending to kill his ex-wife. As previously noted, the facts reveal that once inside, Pham dragged Lana by her hair into her bedroom and bound her to keep her from escaping or warning her mother. He then waited for approximately one hour for Phi to return home and stabbed her repeatedly without provocation. Finally, when Higgins attempted to stop him, he struck Higgins’ head with a meat cleaver.

In conclusion, upon review of the record, competent, substantial evidence exists to support Pham’s murder conviction on either theory of first-degree murder as well as his convictions of attempted first-degree murder, armed kidnapping, and armed burglary of a dwelling.

Based on the foregoing, we affirm Pham’s convictions and sentences.

It is so ordered.

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

LEWIS, J., concurs in result.

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

      . In aggravation, the court found the following: (1) Pham was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person— great weight; (2) the capital felony was committed while the defendant was engaged, or was an accomplice in the commission of or attempt to commit or flight after committing or attempting to commit robbery; sexual battery; aggravated child abuse; abuse of an elderly person or disabled adult resulting in great bodily harm, permanent disability, or permanent disfigurement; arson; burglary; kidnapping; aircraft piracy; or unlawful throwing, placing, or discharging of a destructive device or bomb — moderate weight; (3) the capital felony was especially heinous, atrocious, or cruel — great weight; (4) the capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification — no evidence of any moral or legal justification was presented and argued.

      .The following statutory or nonstatutory mitigating circumstances were considered; (1) the capital felony was committed while the Defendant was under the influence of extreme mental or emotional disturbance; the court did not find "extreme” mental or emotional disturbance — -moderate weight as a non-statutory mitigator; (2) capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired — moderate weight as a non-statutory mitigator; (3) existence of any other factor in the Defendant’s background — great weight; (4) Defendant had stable employment history — some weight; (5) Defendant was a good father and caring husband — -not established; (6) Defendant cared for his sister’s children for two weeks while their parents recuperated from a car accident — not a mitigating circumstance.

      . In an apparent oversight, this juror is referred to only as "Mr. Valenti” in the record and briefs.

      . Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

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

      N.2] Although the offense occurred after the capital felony in this case it can be considered as an aggravating circumstance because the conviction was entered prior to sentencing for the capital felony. Brown v. State, 473 So.2d 1260 (Fla.1985) and Elledge v. State, 346 So.2d 998 (Fla. 1977).

      . § 777.04(1), 782.04(l)(a), Fla. Stat. (2005).

      . § 787.01(l)(a)2, § 775.087(1), § 775.087(2)(a)l„ Fla. Stat. (2005).

      .§ 810.02(l)(b), § 810.02(2)09, § 810.07, Fla. Stat. (2005).