source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J.,

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text:
    Dana WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. SC11-2198.
    Supreme Court of Florida.
    May 2, 2013.
    Rehearing Denied Oct. 8, 2013.
    Kevin J. Kulik, Fort Lauderdale, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

Dana Williamson appeals an order denying his motion to vacate his first-degree murder conviction and sentence of death under Florida Rule of Criminal Procedure 3.851, raising several claims of ineffective assistance of trial counsel. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm upon finding that Williamson has failed to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

OVERVIEW

Dana Williamson was convicted of first-degree murder, armed burglary, extortion, three counts of attempted murder, five counts of armed kidnapping, and four counts of armed robbery, and respectively sentenced to death and multiple terms of imprisonment. This Court affirmed on direct appeal, but later vacated Williamson’s convictions and sentences on the attempted murder charges. See Williamson v. State (Williamson I), 681 So.2d 688, 698 (Fla.1996); Williamson v. State (Williamson II), 994 So.2d 1000, 1017 (Fla.2008).

The State’s key witness at trial was Charles Panoyan, who claimed that he did not identify Williamson as the murderer for over three years because Williamson had threatened to torture and kill Panoy-an’s family if he did. Williamson I, 681 So.2d at 692-93. The State called sociologist Dr. Richard J. Ofshe to testify that Panoyan’s delay displayed a pattern of someone who had been terrorized and was acting in response to a credible threat. Williamson II, 994 So.2d at 1008-09. Trial counsel did not voir dire Dr. Ofshe, request a Frye hearing, or request a curative instruction relating to his opinion of whether the threat was credible. Id. at 1009-11.

Williamson argued in his postconviction motion that trial counsel was thereby ineffective, but the postconviction court summarily denied relief on those and all other claims raised in the motion. Id. at 1005. This Court affirmed on appeal, except as to the claims regarding Dr. Ofshe, on which it reversed and remanded for an evidentiary hearing. Id. at 1008-11. After holding such a hearing, the postconviction court denied relief. Williamson now appeals.

BACKGROUND

The facts are fully set forth in our opinion on direct appeal. See Williamson I, 681 So.2d at 690-94. As relevant to the present postconviction appeal, Charles Pa-noyan was watching television in the Decker home with Robert Decker and Robert’s father, Clyde, on the evening of November 4, 1988, when a masked gunman entered, subdued the men, and rummaged through the house. Robert’s wife Donna arrived home, was likewise subdued, and stabbed to death. The assailant shot Robert, Clyde, and the Decker’s two-year-old son Carl, but all three survived. Id. at 690-93.

Panoyan was unharmed and reported the incident but did not immediately identify Williamson as the assailant. Both Panoyan (who had been a suspect for some time) and Williamson (based on an anonymous tip) were arrested and charged with murder in 1990 and detained in the same jail, but Panoyan was released on his own recognizance eighteen months later. Several months after that, a total of approximately three years after the crime, Panoyan identified Williamson as the assailant. He testified that he did not come forward sooner because on the night of the crimes Williamson had threatened to torture and kill members of Panoyan’s family if he did, and later, while in jail, Williamson exploited Panoyan’s fear of him in order to maintain complete control over Panoyan. Panoyan explained that he finally came forward because he discovered that Williamson and Williamson’s brother were the only two people involved in the crime. Williamson had told Panoyan that there were a number of other men involved who would help carry out his threats but, shortly before his release, Panoyan discovered through a conversation with Williamson that the claims regarding the involvement of other men were false. Williamson I, 681 So.2d at 690-93.

Panoyan was the State’s key witness, and sociologist Dr. Richard J. Ofshe testified for the State, as an expert in the field of extreme techniques of influence and control, that Panoyan’s delay in identifying Williamson displayed “a pattern of someone who has ... been terrorized, and someone who is acting in response to a credible threat[.]” Williamson II, 994 So.2d at 1009. Williamson was found guilty of all charges based on this and other evidence, and the trial court followed the jury’s 11-1 recommendation to impose the death penalty. This Court affirmed on direct appeal. Williamson I, 681 So.2d at 694.

Williamson later raised a number of claims in his initial motion for postconviction relief, including that (1) trial counsel was ineffective because he failed to voir dire Dr. Ofshe on “influence and control,” obviating a hearing under Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and (2) trial counsel was ineffective because he failed to request a curative instruction after the court sustained a defense objection to testimony by Dr. Ofshe who vouched for the credibility of Panoyan. Williamson II, 994 So.2d at 1005. The postconviction court summarily denied relief on all claims, and Williamson appealed. This Court affirmed except as to the two claims regarding Dr. Ofshe:

As to these claims, the record reflects that during the trial, while the State was still presenting the testimony from Pa-noyan, the State asked if it could take a witness out of turn because its expert witness, Dr. Ofshe, needed to get back to California that night. Defense counsel informed the court that although counsel had read through the expert’s statement and read through the expert’s interview with Panoyan, defense counsel had not yet had an opportunity to question this out-of-state expert witness. Defense counsel asked to question Dr. Ofshe before Panoyan’s cross-examination began, asserting that he did not want his cross-examination of Panoyan to be split up by the expert witness. The trial judge agreed, and counsel was given an opportunity to talk to Dr. Ofshe. The State then called Dr. Ofshe and questioned him about his qualifications, establishing that Dr. Ofshe received a Ph.D. in sociology, specialized in tactics of influence, authored a book on individual decision-making, and authored numerous articles on the subject of extreme and extraordinary techniques of influence and control. The State tendered Dr. Ofshe as an expert in the field of extreme techniques of influence and control, and after defense counsel declined to voir dire the witness, the court declared him to be an expert in that subject.
On direct examination, Dr. Ofshe testified that he reviewed two depositions taken of Panoyan, examined statements Panoyan gave to the police, and interviewed Panoyan. Dr. Ofshe then provided his opinion as to this case:
Q. [The State] But did you have the opportunity to discern any kind of control or influence that had been exercised by Dana Williamson according to the attestation of Charles Panoyan, which degrees or kinds of control you recognized?
A. [Dr. Ofshe] Yes.
Q. Would you tell us, please.
A. Well, in reviewing the history of Mr. Panoyan’s experience in connection with the invasion and the death and the assaults at the Decker residence, and over the course of the investigation that followed, including his incarceration and ultimate decision to speak about what happened, the pattern that he displays is a pattern of someone who has, for [want] of a better word, been terrorized, and someone who is acting in response to a credible threat, not only to himself, but also, and to some degree, more importantly, to members of his family. And that the manner in which he responds at various points indicates quite clearly that he has a great concern about something happening to his family, which he revealed to me in the interview I did with him, and I gather, revealed again in testimony that you heard.
And there is a sequence over the course of his involvement that’s consistent with this, including who he tried to compromise between the fear that he had for himself, the fear that he had for his family and his desire to aid the Decker family.
The point at which he chose to do certain things reflects the kind of threat and fear he was acting under, and the particular decisions that he made to me are completely consistent with what he says about the sort of threats that he was exposed to.
We conclude that this testimony is the kind of expert opinion testimony which should have been tested by the trial court in accord with the Frye standard before the testimony was admitted into evidence. The postconviction court, however, summarily denied Williamson’s claim pertaining to the lack of any voir dire, first holding that this claim was insufficiently pled because Williamson failed to specifically allege what information he would have elicited to exclude Dr. Ofshe’s testimony. We disagree that the claim was insufficiently pled. As a part of this claim, Williamson asserted that his trial counsel did not request a Frye hearing as to Dr. Ofshe and Dr. Ofshe’s testimony that Panoy-an’s reaction fit the profile of one who had experienced the type of threat claimed by Panoyan. This Court has recognized in Frye hearings that “[t]he proponent of the evidence bears the burden of establishing by a preponderance of the evidence the general acceptance of the underlying scientific principles and methodology.” Castillo v. E.I. Du Pont De Nemours & Co., Inc., 854 So.2d 1264, 1268 (Fla.2003). Because we conclude that this testimony required a Frye hearing, Williamson does not need to provide specific factual allegations as to what his trial counsel should have elicited from the expert. It was defense counsel’s obligation to request a Frye hearing regarding the general acceptance of the underlying scientific principles and methodology, and if he had done so, the burden would have shifted to the State to show that Dr. Ofshe’s testimony could meet the Frye test.
We recognize that the postconviction court did further hold that even if it reviewed the merits of the claim, summary denial of the claim was appropriate because there was competent and substantial evidence to support the trial court’s finding that Dr. Ofshe was an expert in his field and his testimony was not subject to a Frye analysis because Dr. Ofshe was providing pure opinion testimony. We disagree.
As noted earlier, in accord with the Frye standard, we have held “in order to introduce expert testimony deduced from a scientific principle or discovery, the principle or discovery ‘must be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Flanagan v. State, 625 So.2d 827, 828 (Fla.1993) (quoting Frye, 293 F. at 1014). The postconviction trial court recognized our adherence to Frye and was correct in also recognizing that we have held that a Frye hearing is not necessary in respect to what we have characterized as “pure opinion” testimony. See Flanagan, 625 So.2d at 828. But we do not agree with the circuit court that Dr. Ofshe’s testimony was such “pure opinion testimony.” We conclude that Dr. Ofshe’s testimony was the kind of expert testimony which we held in Flanagan and in Hadden v. State, 690 So.2d 573 (Fla.1997), to require a Frye evaluation by the trial judge. In Hadden, the State proffered expert opinion testimony from a mental health counselor which was “offered to prove the alleged victim of sexual abuse exhibited] symptoms consistent with one who has been sexually abused.” Id. at 575. Defense counsel objected, asserting that the testimony lacked scientific reliability. The trial court overruled the objection and permitted the expert to testify. Hadden was subsequently convicted of lewd assault. On appeal, the First District Court of Appeal held that this testimony did not need to be subject to a Frye test because this type of expert testimony was not new or novel or, alternatively, the testimony was opinion testimony not covered by Frye. Id. at 576. This Court disagreed, holding that syndrome testimony in child abuse prosecutions is not pure opinion testimony.
In this case, Dr. Ofshe testified that Panoyan “displayed a pattern of someone who has ... been terrorized, and someone who is acting in response to a credible threat.” We find that, similar to Hadden, this was syndrome testimony and should have been tested as to whether it was sufficiently established to have general acceptance in the particular field in which it belongs. Frye, 293 F. at 1014. We find summary denial of this claim is inappropriate and thus reverse the circuit court’s order and remand the claim for an evidentiary hearing. At the evidentiary hearing, the circuit court should consider evidence concerning the effectiveness of counsel, including the reasons counsel failed to request a Frye hearing. In respect to prejudice, the circuit court is to make a determination as to whether this evidence was generally accepted in its particular field. If the circuit court determines that the evidence should not have been admitted into evidence, the court should determine whether the admission of the evidence was prejudicial under Strickland, i.e., whether there is a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. As we stressed above, “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
In a related claim, Williamson asserts that his counsel was ineffective in failing to request a curative instruction after the court sustained an objection pertaining to Dr. Ofshe’s opinion as to whether the threat was credible. The postcon-viction trial court denied this claim, finding that Williamson mischaracterized the circumstances surrounding Dr. Ofshe’s testimony because after trial counsel objected to Dr. Ofshe’s testimony, the court conducted a sidebar conference so that the jury did not hear Dr. Ofshe’s answer to the question to which counsel objected. We find that the post-conviction court interpreted the defendant’s claim too narrowly. In looking to the specific claim that Williamson presents, Williamson does not assert that trial counsel was ineffective because the jury heard testimony and argument presented during the sidebar conference. Instead, Williamson asserts that his counsel was ineffective because counsel resisted only at sidebar when the State attempted to link a hypothetical with the believability and credibility of the threat to which Panoyan testified and that his counsel was ineffective when the trial court sustained his objections and counsel did not seek curative instructions based on the prior testimony. Since the actual statements to which defense counsel objects are the subject of the claim upon which we reverse and remand for an evidentiary hearing, we likewise remand this claim to the postconviction court for an evidentiary hearing.

Williamson II, 994 So.2d at 1008-1011. The postconviction court accordingly held an evidentiary hearing on remand and, upon considering the testimony and the parties’ arguments, ruled that trial counsel had not been ineffective as to either claim. Williamson now appeals that ruling.

ANALYSIS

The standard of review for ineffective of counsel claims is as follows:

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted)....
Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence, but reviewing the trial court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

Taylor v. State, 62 So.3d 1101, 1109-10 (Fla.2011) (quoting Pagan v. State, 29 So.3d 938, 948-49 (Fla.2009)) (parallel citations omitted).

We recognized on direct appeal that “Panoyan’s credibility was a material issue on which the State’s case depended,” Williamson I, 681 So.2d at 695 (emphasis added), but stress that we did not state it was the material issue in the case. We reject Williamson’s contrary assertion that “[tjhis case ... came down to a swearing match between Williamson on the one hand, and Panoyan on the other.” We acknowledge that Dr. Ofshe’s testimony could have had an impact in the case, but “could have” is not enough. Rather, to establish prejudice under Strickland, “[t]he defendant must show that there is a reasonable probability that, ... the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052.

“In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury,” and “a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” Id. at 695-96, 104 S.Ct. 2052. Considering the totality of the evidence in this case, we do not find it reasonably probable that the result would have been different even if Dr. Ofshe’s testimony had been entirely excluded, or if the urged curative instruction had been read as to a part of that testimony. As the postconviction court ruled:

[Ejven if Dr. Ofshe’s testimony were inadmissible, this Court would find that the admission of the evidence was not prejudicial. There is no reasonable probability, sufficient to undermine this Court’s confidence, that the outcome of the case would have been different if Dr. Ofshe’s testimony had not been admitted into evidence. Several witnesses other than Panoyan testified about his fear and paranoid behavior. Several other witnesses corroborated Panoyan’s identification of [Williamson]. Finally, three inmates testified about [Williamson’s] in-culpatory statements made in jail. All of this testimony would remain even if Dr. Ofshe’s testimony had not been admitted.

In addition, this Court on direct appeal recognized that the State presented evidence demonstrating that Williamson owned a hat similar to the one found following the murder at the Decker residence; evidence linking Williamson and his brother to a utility belt on which there were keys to the handcuffs used to bind Robert and Carl Decker; evidence demonstrating that Williamson had knowledge of legal forms, where the gunman during the crime had asked the Deckers to sign their names to a legal-sized piece of paper; and other circumstantial evidence. See Williamson I, 681 So.2d at 694, 697. The Court also upheld the admissibility of an inmate’s testimony that Williamson told him he had previously killed a child, as it was relevant to the credibility of Panoyan’s testimony that his fear of Williamson was based in part on his knowledge that he had previously killed a baby. Id. at 695-96. Indeed, without referencing Dr. Ofshe at all, we concluded on direct appeal that “[t]he testimony recounted in this opinion in conjunction with the circumstantial evidence presented at trial provides competent, substantial evidence of [Williamson’s] guilt.” Id. at mi.

Claims of prejudice under Strickland are routinely rejected where, as here, the totality of the evidence of guilt so dictates. See, e.g., Cox v. State, 966 So.2d 337, 354 (Fla.2007) (no prejudice for failing to object to medical examiner’s statement that it was certainly possible that a person who had experienced injuries similar to those of the victim would recognize that he was in serious danger of dying, where there was copious other evidence through which the jury could have independently reached the conclusion that the victim was aware of his impending death); Cole v. State, 841 So.2d 409, 418 (Fla.2003)(no prejudice for failing to object to testimony bolstering rape victim’s credibility where record contained “substantial other evidence corroborating [the victim’s] testimony” — i.e., testimony that the defendant had confessed to the rape, and nails removed from the trees where the victim was tied up, with twine still attached to one of the nails); see also Catlett v. State, 627 So.2d 558, 559 (Fla. 3d DCA 1993)(no prejudice for failing to request cautionary instruction on similar crimes evidence, where “there is no reasonable probability ... [that] the result at trial would have been different — given the uncontradicted and unimpeached evidence of guilt adduced at trial against the defendant”).

As to Panoyan’s credibility, our decision in Brown v. State, 846 So.2d 1114 (Fla.2003), is instructive. In that case defendant Brown claimed that another person (McGuire) was the murderer, and that Brown’s trial counsel was ineffective for failing to object to improper opinion bolstering when McGuire testified that his own testimony against Brown was truthful. Id. at 1119, 1122. The postconviction court denied relief on this and all of Brown’s other claims after holding an evi-dentiary hearing, and this Court affirmed on appeal finding no prejudice under Strickland and holding in pertinent part:

Of course, McGuire’s testimony was preceded by the administration of an oath, by which McGuire attested that his testimony was truthful. Further, although McGuire was permitted to indicate that he was telling the truth, his testimony to that effect, as indicated in Brown’s own brief, also stated that he was telling the truth to help himself. Furthermore, this testimony occurred on direct examination, after which trial counsel had the opportunity to cross-examine McGuire, and did so. Therefore, any harm done to Brown by McGuire’s statement that he was telling the truth was countered by the fact that the jury was presented with evidence showing that McGuire had his own motives for testifying.

Brown, 846 So.2d at 1123. Much the same can be said in the present case. In rejecting another of Williamson’s ineffective assistance of counsel claims in his postconviction appeal, this Court held:

In his third claim, Williamson asserts that his trial counsel was ineffective in failing to question Panoyan as to a prior contradictory statement Panoyan initially gave to police officers when Panoyan told them that he never saw the assailant without his mask and could not determine even the assailant’s race. The postconviction court denied relief as follows:
Having reviewed the record, this Court agrees with the State that Capital Collateral Counsel initially mis-characterized Panoyan’s November 1988 statements. Additionally, the jury was informed that Panoyan failed to identify the Defendant or his brother in Panoyan’s initial statement to the police that evening, even though Panoyan provided an account of what happened at the Decker home. However, he gave inaccurate information as to the identity of the assailant. On direct examination, the State elicited from Panoyan that because he was afraid, he gave an inaccurate description to the police because of what he saw at the Decker home that evening and what Dana Williamson said he would do to Panoyan’s family.
The record also reflects that defense counsel attacked Panoyan’s credibility from the onset of the trial, starting with his opening statement arguing that “Panoyan was going to come in and tell the jury ‘one hell of a story’ to avoid the electric chair.” Furthermore, defense counsel also reminded the jury that Panoyan was an original co-defendant in the case who never identified the Williamsons until three years after the crimes were committed and counsel also warned the jury that “the State had made a deal with the devil and that [the jury] should listen closely to Panoyan’s account of the events which did not match ... the statements of the other two innocent victims.”
The instant record reflects that on Panoyan’s cross examination, trial counsel did elicit from Panoyan that he was originally a defendant in the case, was arrested in May of 1990 and he was held without bond for eighteen months until he was “inexplicably” released on his own recognizance in November of 1992. Trial counsel also elicited testimony from Panoyan that he never requested a court order to be kept separate and apart from Williamson while both were held in the same jail during that year and one half (1/2) and that Panoyan maintained a “friendship” with Williamson, and he laughed and joked with Williamson in jail. Panoyan was also impeached as to his deposition testimony regarding how he had spent his time waiting for Robert Decker to return to his home and Panoyan was also impeached about the cowboy hat worn by Dana Williamson.
Contrary to the Defendant’s assertions, this Court finds that trial counsel continued to attack Panoyan’s credibility describing each of the conflicts in Panoyan’s testimony and trial counsel was constantly reminding the jury that Panoyan was initially thought to have been guilty of the crimes.
We find no error in the postconviction trial court’s conclusion that Williamson failed to demonstrate that his counsel was ineffective. As the postconviction court aptly pointed out, the jury was aware that Panoyan did not reveal any information about the assailant until three years after the crime, and defense counsel continuously attacked Panoyan’s credibility throughout the trial. Since the record refutes Williamson’s claim as to ineffective assistance of counsel, Williamson is not entitled to relief on this claim.

Williamson II, 994 So.2d at 1007-08 (citation omitted). We likewise find that Williamson is not entitled to relief on his present ineffective assistance of counsel claims.

CONCLUSION

In sum, we do not make a specific ruling on Strickland’s performance component, as it is clear that the prejudice component is not satisfied in this case given the totality of the evidence of both Williamson’s guilt and Panoyan’s credibility. In other words, even assuming trial counsel’s alleged deficiencies, we do not find that they have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. We accordingly affirm.

It is so ordered.

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

CANADY, J., concurs in result.

PARIENTE, J., dissents with an opinion.

PARIENTE, J.,

dissenting.

I dissent from the affirmance of the order denying postconviction relief based on the majority’s conclusion that there was a lack of prejudice for two reasons. First, the majority erroneously focuses on a reasonable probability of a different result when it concludes that “we do not find it reasonably probable that the result would have been different even if Dr. Ofshe’s testimony had been entirely excluded.” Majority op. at 1066. Instead of examining whether confidence in the jury’s finding of guilt was undermined where the State presented an expert witness who, unimpeached, bolstered the main witness, the majority improperly focuses on other evidence of Williamson’s guilt. Second, the majority’s analysis of prejudice fails to recognize the important effect that an expert witness can have on a jury’s determination, as was more fully explained in Justice Wells’s opinion in 2008. See Williamson v. State (Williamson II), 994 So.2d 1000, 1017-18 (Fla.2008)(Wells, J., specially concurring).

As to the first point regarding the majority’s prejudice analysis that appears to be outcome determinative, such a result runs contrary to our precedent that expressly recognizes that under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “the prejudice component [i]s not an outcome-determinative test and there [i]s no requirement to show that counsel’s deficiency actually altered the outcome of the case.” Thompson v. State, 990 So.2d 482, 488 (Fla.2008). Rather, “it is extremely important to emphasize that the prejudice prong of Strickland is an inquiry of whether there is ‘a probability sufficient to undermine confidence in the outcome.’ ” Walton v. State, 77 So.3d 639, 645 (Fla.2011)(Pariente, J., specially concurring) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). In fact, the United States Supreme Court more recently reiterated that the defendant does not need to “show ‘that counsel’s deficient conduct more likely than not altered the outcome’ of his ... proceeding, but rather that he establish ‘a probability sufficient to undermine confidence in [that] outcome.’ ” Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 455-56, 175 L.Ed.2d 398 (2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

In contrast to ineffective assistance of counsel claims, the prejudice prong of a newly discovered evidence claim has a higher, outcome-determinative threshold because such a claim “presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged.” Robinson v. State, 770 So.2d 1167, 1171 (Fla.2000) (Anstead, J., specially concurring) (quoting Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052). Both the United States Supreme Court and this Court have recognized that because an ineffective assistance claim is asserting the absence of one of the critical constitutional guarantees that assures that the result of the proceeding is reliable, “finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower” for ineffective assistance of counsel claims. Robinson v. State, 913 So.2d 514, 522 n. 7 (Fla.2005) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Accordingly, “[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Id.; see also Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (holding that an ineffective assistance of counsel analysis “focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective”).

As to the second issue regarding the majority’s analysis of the evidence, I would conclude, as did Justice Wells in 2008, that the erroneous admission of Dr. Ofshe’s expert testimony to bolster the main witness’s testimony as to why he had delayed in identifying the defendant resulted in prejudice such that our confidence in the outcome of the guilt phase is undermined:

I concur with the majority opinion in all parts except that I would reverse and remand for a new trial rather than an evidentiary hearing. The decision as to guilt in this case was essentially a decision as to the credibility of Mr. Panoyan. I conclude that the admission of the testimony of Dr. Ofshe was error and that the error was prejudicial because Dr. Ofshe’s testimony improperly bolstered the credibility of Mr. Panoyan.
I concur that counsel was ineffective for not requesting a Frye hearing before Dr. Ofshe was allowed to express his opinion to the jury. However, my analysis goes one step further. I would hold that Dr. Ofshe’s opinion testimony was sufficiently similar to the profile and syndrome testimony we found to be inadmissible in Flanagan v. State, 625 So.2d 827 (Fla.1993), and Hadden v. State, 690 So.2d 573 (Fla.1997), that the opinion testimony should have been held inadmissible under Frye. I specifically point to Dr. Ofshe’s stated methodology of reaching his conclusions by comparing Mr. Panoyan’s history and the “pattern he displays with the pattern of someone who has been terrorized.” In Hadden, we held that the appropriate standard of review of the Frye issue is de novo. I would here make the decision that Dr. Ofshe’s testimony was not generally accepted in the relevant field.
I believe that the relevant field would be psychology. Dr. Ofshe’s opinion was found to lack acceptance in the relevant scientific community in United States v. Fishman, 743 F.Supp. 713 (N.D.Cal.1990). In Fishman, the Court stated that neither the American Psychological Association nor the American Sociological Association had endorsed the views of Dr. Ofshe on coercive persuasion. Id. at 717. An Illinois court affirmed the exclusion of Dr. Ofshe’s testimony on the basis of Frye in People v. Rivera, 333 Ill.App.3d 1092, 267 Ill.Dec. 557, 777 N.E.2d 360 (2001). I agree with these decisions.
Additionally, though not specifically argued as a basis for reversal of the trial court’s denial of postconviction relief, I also find defense counsel was ineffective in not objecting to Dr. Ofshe’s testimony on the basis that the opinions of Dr, Ofshe were not of such a nature as to require any special knowledge or experience for the jury to form conclusions as to the subject about which Dr. Ofshe opined. In Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980), we noted that expert testimony should be excluded where the facts testified to are of such a nature as to not require any special knowledge or experience in order for the jury to form conclusions from the facts.
The essence of Dr. Ofshe’s opinion was that based on Mr. Panoyan’s testimony regarding what he witnessed during the Decker crimes and knowledge about Williamson’s prior violent criminal act, Mr. Panoyan’s earlier contrary statements to the police were made out of fear that Williamson would harm his family. I conclude that the jury was capable of evaluating the credibility of Mr. Panoyan on the basis of its own knowledge and experience. If the jury believed Mr. Panoyan, the jury did not need expert opinion as to whether Mr. Panoyan would fear for his family. Dr. Ofshe only served the purpose of being a witness with academic credentials who bolstered the credibility of Mr. Panoyan with an opinion which was within the common experience of average jurors.
Furthermore, I conclude that under the circumstances of this case, Dr. Ofshe’s testimony was prejudicial. The State relied upon Dr. Ofshe’s testimony in its closing argument. The value of hearing an expert vouch for Mr. Panoy-an clearly could have tipped the scales in this tragic case. Dr. Ofshe’s testimony undermines my confidence in the verdict.

Williamson II, 994 So.2d at 1017-18 (Wells, J., specially concurring).

Rather than focusing on the effect on the jury of having an expert vouch for the main witness’s credibility and accordingly whether that error undermines confidence in the outcome, the majority relies on what evidence would have remained, such as the testimony of three jailhouse informants, which is notoriously unreliable. By focusing on whether the exclusion of Dr. Ofshe would have made a difference, the majority slips into the error of conflating the standard for a new trial with respect to newly discovered evidence claims (i.e., would have made a difference) with the more defense-friendly standard applicable to claims of ineffective assistance of counsel where we should focus in this case. As explained above, this relatively high standard of proof and prejudice for newly discovered evidence claims has been explicitly rejected by both this Court and the United States Supreme Court as a standard for demonstrating prejudice in claims based upon the ineffective assistance of counsel.

In explaining the prejudice prong of the test, the United States Supreme Court in Strickland stated:

Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, United States v. Agurs, 427 U.S. 97, 104 [96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ], and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v. Valenzuela-Bernal, supra, 458 U.S. [858, 872-74, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) ]. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (emphasis added).

In conclusion, defense counsel was either asleep at the switch or making an unreasonable decision when he did not challenge the testimony of Dr. Ofshe based on Frye. If he had made the proper challenge, either Dr. Ofshe’s testimony would have been excluded at trial or there would have been a reversal on appeal since any error in admitting Dr. Ofshe’s testimony clearly would not have been harmless beyond a reasonable doubt. Allowing the main witness’s credibility to be bolstered by impermissible expert testimony certainly could have had an effect on the jury’s ultimate decision to find the defendant guilty and clearly results in a proceeding where confidence in the outcome is undermined. In this case, the defense lawyer’s decision was a matter of life or death. This case should be reversed for a new trial without the taint of the impermissible testimony of Dr. Ofshe.

For all these reasons, I dissent.

      . Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).


author: PER CURIAM.

text:
    Lesly JEAN-PHILIPPE, Appellant, v. STATE of Florida, Appellee.
    No. SC11-1274.
    Supreme Court of Florida.
    June 13, 2013.
    Rehearing Denied Oct. 3, 2013.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Lesly Jean-Philippe was convicted of first-degree murder for the 2009 murder of his wife, Elkie Jean-Philippe, and of aggravated battery for his attack on his sister-in-law, Roya Gordon. On a unanimous jury recommendation, the trial court sentenced the defendant to death for the murder, after finding three aggravating factors. This is appellant Jean-Philippe’s direct appeal. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Having considered the issues presented in this case, we affirm the appellant’s convictions and sentences.

I. BACKGROUND

Appellant was charged in January 2010 with one count each of first-degree murder in the death of his wife, burglary of a dwelling, and aggravated battery with a deadly weapon on his sister-in-law. The trial court subsequently dismissed the burglary charge, and the case proceeded to jury trial on the remaining charges.

A. Guilt Phase

The evidence presented during the guilt phase of the 2011 trial showed that at the time of her death in August 2009, Elkie Jean-Philippe was twenty-four years old. She had been married to appellant for three years, and they lived with her five-year-old child — from a previous relationship — in an apartment in Jacksonville. Elkie served as a medic in the United States Navy, and appellant, who was twenty-three, had left the Navy and was enrolled in college. The couple was not happy, and their marriage had begun to fall apart.

On August 21, 2009, Elkie went to the hospital where she worked and — in an emotional discussion — told her supervisor, Joe Alonso, of her marital difficulties. On his recommendation, she went to a hospital social worker’s office for counseling. While she was there, appellant arrived at the counselor’s office and asked to see his wife. The counselor refused to let him in, but appellant persisted, testing her locked door. Security personnel soon arrived, and after a brief discussion, appellant left the area. He went to a clinic, where his stepson was waiting for his mother with Alonso. Appellant apparently told his stepson “goodbye” and left. Soon thereafter, appellant flew to his parents’ home in Rhode Island.

Appellant stayed with his parents until August 26. During that time, he frequently contacted his wife by calling and sending her text messages. He also was in telephone contact with Elkie’s younger sister, Roya Gordon, who was also in the Navy and was stationed in California. Gordon knew from speaking with her sister and with appellant that Elkie wanted a divorce and appellant did not. Gordon advised the unhappy appellant to stop pushing Elkie to reunite, telling him that his efforts only pushed Elkie away. Gordon also told him of her plans to visit her sister.

On August 26, 2009, Gordon flew from California to Jacksonville. Unbeknownst to Gordon and Elkie, appellant also flew to Jacksonville that day, arriving at about 7:15 p.m. During the course of the day, he sent several text messages and left at least one voice message on Gordon’s cell phone. He also called his wife’s cell phone more than sixty times and sent text messages in which he quoted Bible verses and asked to talk to her. When he landed in Jacksonville, he took a taxi to the apartment complex where he had lived with his wife and stepson. He arrived there before 8:30 p.m. The taxi driver testified that he overheard appellant raising his voice while talking on a cell phone and saying, “Wait a minute, we can work it out.”

Appellant had texted his wife earlier in the evening, and she had responded that she could not talk because she was on the way to the airport. Elkie and her son picked Gordon up from the airport at about 9:30 p.m. As they traveled to Elkie’s apartment, appellant called both his wife’s and Gordon’s phones repeatedly. The calls went mostly unanswered. Gordon answered one call and lied to appellant, telling him that she was still waiting for Elkie to pick her up at the airport. Then, upon their arrival at the apartment complex where Elkie and her son still lived, Gordon answered a call and told appellant that they had just arrived but that Elkie would not talk to him. Appellant immediately called her back, accusing her of having lied about their whereabouts shortly before. Gordon made a flip response and hung up. Then Elkie and the young child went into the apartment. Elkie put her son in the bathtub, and she and Gordon talked about the difficulties between Elkie and appellant.

Within an hour after Elkie and the others went into the apartment, appellant walked to his wife’s car and removed the car jack from it. Carrying the jack, he walked to the apartment door and knocked but did not identify himself. Instead, he pretended to be a delivery person and announced that their pizza had arrived. Because neither Gordon nor Elkie had ordered a pizza, Elkie asked Gordon to accompany her to the door. Gordon said that the situation did not “feel right.” As Elkie slowly opened the door, appellant barged inside and immediately hit Gordon on the head with the jack, lacerating her head and knocking off her glasses. Bleeding profusely, Gordon ran to the back of the apartment.

After hitting Gordon, appellant turned on his wife, hitting her with the jack, as evidenced by the blunt force trauma wounds she sustained. The attack continued as they moved into the kitchen. There, appellant abandoned the jack, and after arming himself with an accessible knife, he began stabbing Elkie repeatedly. Gordon heard her sister screaming and pleading with appellant, and Gordon attempted to call 911 for help. Unable to complete the call, however, Gordon fled the apartment through the front door. As she passed the kitchen, she saw her sister lying on the floor and appellant standing over her, his arms raised in the air. When Gordon stopped in the parking lot to call 911, her head was still bleeding, and she was highly emotional. Seeing this, a resident of the apartment complex approached and assisted her with the call.

Meanwhile, Elkie’s next-door neighbor heard the victim’s screams and pleas for help and the cries of Elkie’s son. She tried to stop the attack in various ways. For example, she banged on Elkie’s apartment door, claiming to be the police. This neighbor also threw a bottle through the back window of Elkie’s apartment in an effort to distract the attacker. She testified that Elkie’s screams continued for some fifteen minutes.

When law enforcement officers subsequently entered the apartment, they found Elkie’s screaming child in the hall bathroom and discovered Elkie lying on the kitchen floor. She was covered in blood, but she was conscious and repeatedly said, “Help me.” Appellant, who also appeared to be bleeding, was found lying on the floor on the other side of the counter. When the emergency medical technicians arrived at the apartment, Elkie was still conscious and responsive, although she was bleeding profusely from the numerous wounds to her body. She remained conscious during the twenty-minute ambulance ride to the hospital and died there shortly after her arrival.

Dr. Jesse Giles, the forensic pathologist who performed the autopsy, testified that the victim was in shock and ultimately bled to death as a result of the numerous stab wounds. Specifically, she had fifty-two or fifty-three stab wounds and suffered injuries to her ear, lip, head, neck, nose, arms, fingers, shoulder, back, chest, breast, and abdomen. The pathologist testified that each of seven or eight of the stab wounds alone could have been fatal. This included penetrating wounds to the victim’s lung, liver, and stomach. In addition, the victim had defensive wounds to her arms and hands and had suffered several blunt force injuries. Because of the nature of the victim’s wounds, death was not instantaneous. She felt pain, was conscious, and could still talk, move, and fight her attacker throughout the assault.

After the State rested its case, appellant did not put on a defense. The jury returned a verdict of guilty on the charges of first-degree murder and aggravated battery with a deadly weapon. Upon appellant’s motion, the trial court had previously dismissed the armed burglary charge.

B. Penalty Phase and Sentencing

During the penalty phase, the State presented two witnesses with information about appellant’s aggressive behavior toward his wife. First, Angela Hill, a social worker at the naval hospital, testified regarding her discussion with a distraught Elkie at the hospital on August 21, 2009. Elkie told Hill that she wanted to leave appellant because he was controlling and that he had held her at knife-point and cut her hair the previous night. Next, a police officer from Virginia Beach, Virginia, testified regarding a domestic disturbance call to which he responded in July 2009. When the officer arrived at the hotel, appellant was angry and would not let his wife leave the room. He also refused to return her military identification and cell phone to her. Appellant told the officer that he suspected his wife was seeing someone else, and when the officer requested that appellant return the cell phone, he smashed it instead. Elkie then took her son and returned to the barracks. In addition, the victim’s mother, sister, and two friends gave victim impact statements.

Appellant declined to testify during the penalty phase, but a number of witnesses, including relatives, friends, ministers, and his college’s registrar, provided mitigating testimony. In rebuttal, the State presented a special agent of the Naval Criminal Investigative Service, who testified regarding appellant’s naval records. These records included various incidents of misconduct that resulted in his reduction in rank. On cross-examination, however, the agent testified that appellant also received a commendation and positive evaluations that contributed to his promotions in rank.

The jury unanimously recommended a sentence of death. At the ensuing Spencer hearing, the defendant offered evidence regarding an incident for which he was admitted for psychiatric evaluation. See Spencer v. State, 615 So.2d 688, 690-91 (Fla.1993) (requiring a hearing for presentation of additional evidence after jury recommends sentence). Appellant again declined to testify.

On June 2, 2011, the circuit court sentenced appellant to death upon finding the following three aggravating circumstances and ascribing each great weight: (1) appellant had a prior violent felony conviction based on the aggravated battery of Roya Gordon; (2) the murder was especially heinous, atrocious, or cruel (HAC); and (3) the murder was cold, calculated, and premeditated (CCP). See § 921.141(5), Fla. Stat. (2009). In mitigation, the trial court found the statutory mitigator of no significant history of criminal activity, giving it some weight, but rejected the statutory age mitigator. See § 921.141(6), Fla. Stat. (2009). The court also found the following nonstatutory mitigating factors and ascribed them the weights indicated: (1) defendant was born in St. Martin and moved to the United States as a child (little weight); (2) defendant was a good student, attended college, and wanted to be a doctor (little weight); (3) defendant was physically talented, excelling in football and track (little weight); (4) defendant’s father was strict and restricted his activities with friends and girls (no weight); (5) defendant was a good son, brother, and friend who helped others (some weight); (6) defendant’s family is very close (some weight); (7) defendant was raised in a Christian home, attended church regularly, and participated in a church youth program (some weight); (8) defendant has the love and support of his family, friends, and church (little weight); (9) defendant served in the United States Navy (some weight); (10) defendant was adopting the victim’s son (no weight); (11) defendant’s judgment was impaired (slight weight); (12) defendant showed remorse and accepted responsibility (little weight); (13) defendant’s courtroom demeanor was excellent (no weight); and (14) defendant can contribute to the improvement of other prisoners (slight weight). The trial court found the circumstance that appellant had a girlfriend who he took to the prom in high school was not established. Finally, the trial court determined several proposed circumstances — such as the motto of appellant’s home state of Rhode Island is “Hope” — did not constitute mitigation under Florida law.

After considering and weighing the aggravating and mitigating factors and the jury’s recommendation in the case, the trial court concluded that death was the appropriate penalty. On July 2, 2011, the court sentenced appellant to death for the first-degree murder of Elkie Jean-Philippe and imposed a fifteen-year sentence for the conviction of aggravated battery with a deadly weapon on Roya Gordon.

II. ANALYSIS

On appeal from his conviction for first-degree murder and sentence of death, Jean-Philippe raised the following claims: (1) whether the trial court erred in admitting evidence of text messages sent from appellant’s cell phone to his sister-in-law and to his wife; (2) whether the trial court erred in finding that the murder was CCP; (3) whether the trial court erred in giving great weight to the finding that the murder was HAC; (4) whether the sentence of death is proportionate; and (5) whether Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Below, we address these issues in turn and then independently review the record to determine whether competent, substantial evidence supports the verdict.

A. Admission of Text Messages

At trial, two different kinds of phone records were admitted into evidence: the phone company call logs of appellant’s cell phone and the text messages downloaded from the phone by law enforcement officers. The phone company’s records of calls made from and to appellant’s cell phone during the pertinent period of time were admitted under a business records exception to the hearsay rule. See §§ 90.803(6), .902(11), Fla. Stat. (2009). Although appellant objected to the admission of the call logs into evidence in the trial court, in this appeal he does not raise any error regarding their admission into evidence. With regard to the text messages, however, appellant claims that they were inadmissible. We first recount the evidence presented at trial regarding both the call logs and the text messages and then address appellant’s claims of error regarding the admission of the text messages. In determining whether the trial court erred, we apply the standard that the “[a]dmissibility of evidence is within the sound discretion of the trial court, and the trial court’s ruling will not be reversed unless there has been a clear abuse of that discretion.” Jones v. State, 963 So.2d 180, 185 (Fla.2007).

At trial, the cab driver who drove appellant from the Jacksonville airport to the apartment complex on the evening of August 26, 2009, testified. He overheard appellant talking on a cell phone and then raising his voice as he said, “Wait a minute, we can work it out.” The evidence established that a cell phone was recovered from appellant’s pocket at the crime scene. The phone company call records admitted at trial listed appellant as owner of that phone and listed a number of calls from appellant’s phone to the phone numbers of Elkie and her sister. In fact, there were repeated calls from appellant’s phone to the sisters’ phones on the day of the murder, including more than sixty calls to Elkie’s alone. In addition, these call records showed that as appellant traveled from Rhode Island to Jacksonville on the day of the murder, his phone did too. The records reflected that the phone’s servicing areas changed from Rhode Island to Washington, D.C., and finally to Jacksonville. Moreover, Gordon’s testimony corroborated this evidence. She testified that she and appellant communicated through their cell phones during the period that he was in Rhode Island and particularly on the day of the murder. On August 26, they used their cell phones to speak to each other by phone, to leave recorded messages, and to send and receive text messages. For example, Gordon told the jury that soon after she arrived in Jacksonville, she spoke to appellant when he called and that after Elkie picked her up, appellant called both of their phones repeatedly. Gordon further testified that before answering her phone upon arrival at Elkie’s apartment complex, Gordon recognized that appellant was calling, and when she answered, she spoke to appellant.

The text messages admitted at trial included exchanges between appellant and others on his phone’s contact list, including Elkie and Gordon, during the period from August 21, when Elkie sought counseling at the hospital, through August 26, the day of the murder. For example, on August 23, appellant sent a message asking Elkie to call him because he “realized some things” and wanted to talk. The next day, he responded to a friend’s text, stating a plan to call Elkie that evening and noting that Elkie’s mother favored a divorce. On August 25, he sent Elkie a text containing a Bible verse. The next day — the day of the murder — appellant called Elkie’s phone repeatedly and sent her several text messages. He sent her a Bible verse and later asked Elkie to call him during her lunch hour. In a text to Gordon, he asked that Gordon contact him. Still later on the day of the murder, he exchanged text messages with his wife as follows:

[Elkie:] My phone is going to die so stop calling[.]
[Appellant:] Just talk to me please[.]
[Appellant:] If we’re gonna get a divorce then fine, whatever but I don’t want this to end with you hating me[.]
[Appellant:] You told me to go to hell and told me fuck you, seriously how am I supposed to react to that. I know what I did was fucked up but I just wanna talk, seeing you the way you are now I’ll listen to reason and I won’t push the issue of us anymore[.]
[Elkie:] I only have 15% of battery left. Stop calling[.]
[Appellant:] Talk to me please[.]
[Elkie:] Later[.]
[Appellant:] Jus [sic] pick up and hear me out please, if you just jus [sic] talk to me I won’t keep callingf.]

Later that day, Elkie texted appellant, again telling him that she would talk to him later and stating that she was on the way to the airport.

With regard to the admission of the text messages, appellant first claims that they were erroneously admitted under the statutory business records provisions. Contrary to appellant’s contention, however, the text messages — unlike the call records — were not admitted as self-authenticating business records under those statutes. Accordingly, appellant’s reliance on cases such as Brooks v. State, 918 So.2d 181(Fla.2005), receded from, on other grounds by State v. Sturdivant, 94 So.3d 434 (Fla.2012), to support this claim is misplaced.

Appellant next contends that the text messages constituted inadmissible hearsay. By statutory definition, “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2009).

A statement may, however, be offered to prove a variety of things besides its truth. See Williams v. State, 338 So.2d 251 (Fla. 3d DCA 1976) (“Merely because a statement would not be admissible for one purpose (i.e., its truth or falsity) does not mean it is not admissible for another (e.g., to show the declar-ant’s state of mind.”)). A statement may be offered, for instance, to show motive, knowledge, or identity. Of course, the alternative purpose for which the statement is offered must relate to a material issue in the case and its probative value must not be substantially outweighed by its prejudicial effect.

Foster v. State, 778 So.2d 906, 914-15 (Fla.2000) (some citations omitted). Thus, a text message may be hearsay, but only if offered for the truth of the matter asserted. This principle is amply demonstrated in Bowe v. State, 785 So.2d 531 (Fla. 4th DCA 2001).

In Bowe, an informant sent a message to the defendant’s pager using a phone at the sheriffs office. 785 So.2d at 531-32. The text message that was sent consisted of the sheriffs office phone number and the number 40, indicating that the informant wanted to pay forty dollars for four co-came rocks. Soon thereafter, Bowe called the phone number, and the caller ID on the sheriffs phone displayed Bowe’s name. The informant answered the phone and set up the buy. When Bowe was subsequently arrested, authorities found his pager, and its readout displayed the information sent by the informant. On appeal, the court rejected the defendant’s contention that the “informant’s numerical communication to the pager” was hearsay.

If this statement had been offered to “prove the truth of the matter asserted” — that the informant wanted to purchase four cocaine rocks for $40 — then the statement would have been hearsay. See § 90.801(l)(c), Fla. Stat. (2000). However, the prosecution offered the “statement” not to prove the truth of the matter asserted, but to show that the recipient of the numerical message was the defendant, since the numbers appeared on his pager.

785 So.2d at 532-33. In addition, with regard to the display of the defendant’s identification information on the sheriffs caller ID, the court found “there was no message transmitted that fell within the definition of hearsay.” Id. at 533.

In the instant case, as in Bowe, most of the text messages from appellant’s phone were not hearsay because they were not offered to prove the truth of the matter asserted therein. See Foster, 778 So.2d at 915. They were admitted to show the course of appellant’s conduct and were relevant to appellant’s motive for killing his wife. Moreover, in the' text messages to Elide, both during the week they were apart and on the day of the murder, he pleaded with her to return his calls. His frustration at being unable to control the situation apparently heightened over time. His repeated calls to Elkie’s phone went unanswered on the day of the murder, and she rebuffed him each time he texted her. What was not in the texts was equally relevant. Although appellant communicated with Gordon regarding her plans to travel to Jacksonville, he never told her of his own travel plans for that day. And despite multiple texts to both, he never told Gordon or his wife that he was in Jacksonville and, in fact, waiting at the apartment complex the night of the murder. Finally, some of appellant’s statements in the text messages were admissible under section 90.803(18)(a), Florida Statutes (2009), which provides that regardless of the availability of the declar-ant, “[a] statement that is offered against a party and is ... [t]he party’s own statement” is admissible. Thus, for example, appellant’s text message to a friend stating that he was aware that Elide wanted a divorce and that he was concerned that her mother was encouraging that decision, would be admissible under this statute. Accordingly, the trial court did not abuse its discretion by admitting the text messages.

Appellant next argues that admission of the text messages violates the Supreme Court’s holding in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that the Confrontation Clause of the Sixth Amendment bars the admission of a witness’s testimonial statements unless the witness was unavailable to testify at trial and the defendant had a prior opportunity for cross-examination. See Davis v. Washington, 547 U.S. 813, 821,126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (“It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.”). We have already concluded that the text messages in this case did not constitute hearsay or were admissions; accordingly, there is no Crawford violation.

B. The CCP Aggravator

Appellant contends that the trial court erred in finding that the CCP aggra-vator applied in this case. Previously, we have explained the standard of review applicable to aggravating circumstances as follows:

“When reviewing a trial court’s finding of an aggravator, ‘it is not this Court’s function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt — that is the trial court’s job.’ ” Aguirre-Jarquin v. State, 9 So.3d 593, 608 (Fla.2009) (quoting Willacy v. State, 696 So.2d 693, 695 (Fla.1997)), cert. denied, [559 U.S. 942], 130 S.Ct. 1505, 176 L.Ed.2d 118 (2010). Rather, it is this Court’s task on appeal “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.” Id. (quoting Willacy, 696 So.2d at 695).

Williams v. State, 37 So.3d 187, 195 (Fla.2010). For the CCP aggravator to apply in a case, the following four factors must be established.

(1) the killing must have been the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); and (2) the defendant must have had a careful plan or prearranged design to commit murder before the fatal incident (calculated); and (3) the defendant must have exhibited heightened premeditation (premeditated); and (4) there must have been no pretense of moral or legal justification.

Lynch v. State, 841 So.2d 362, 371 (Fla.2003). In this case, appellant specifically argues that the evidence does not support the trial court’s finding that the murder was cold and calculated. We disagree.

Appellant acknowledges that this Court has rejected evidence of a troubled domestic relationship as a per se mitigating factor. See Lynch, 841 So.2d at 377 (“This Court does not recognize a domestic dispute exception in connection with death penalty analysis.”). Nevertheless, he relies on our decision in Santos v. State, 591 So.2d 160 (Fla.1991), to argue that the inflamed passions of the domestic dispute with his wife essentially negate both coldness and calculation in this murder. Our rejection of CCP in Santos, however, was “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” at the time of the murders. Allred v. State, 55 So.3d 1267, 1279 (Fla.2010) (quoting Santos, 591 So.2d at 163), cert. denied, — U.S. -, 132 S.Ct. 181, 181 L.Ed.2d 91 (2011). In contrast, these mitigating factors are not present in this case. As the trial court found, although the “incident [in this case] is domestic in nature, ... it is not a case of a frenzied murder born of passion after a spontaneous, unexpected argument.” State v. Jean-Philippe, No. 16-2009-CF-11429-AXXX-MA (Fla. 4th Cir. Ct. Sentencing Order filed June 2, 2011) at 15.

Appellant flew to Jacksonville, telling no one of his travel plans. He went immediately to the apartment complex where he and his wife had lived. He waited there for some time, knowing that his wife was picking up her sister at the airport. Upon their arrival, he called and briefly spoke to his sister-in-law, and then he waited some time before he armed himself with the car jack and used trickery to gain entry. Thus, although appellant contends that he went to the door to “discuss their relationship,” the evidence belies this claim. Appellant’s Initial Brief at 41. Immediately upon gaining entry, appellant attacked his sister-in-law and then turned on his wife. Contrary to appellant’s claim, the fact that appellant found the jack an unwieldy weapon and discarded it in favor of a knife in his kitchen does not negate his prior procurement of a weapon. He then used the knife to stab his wife at least fifty-two times during the ensuing quarter of an hour.

Appellant also claims that the coldness factor is negated by circumstantial evidence that he intended to kill his wife and then commit suicide. He cites the evidence that law enforcement officers found him lying face down and bleeding at the scene. Two knives lay nearby, and he was bleeding from wounds to his neck. We find that appellant’s reliance on this Court’s decision in Hardy v. State, 716 So.2d 761 (Fla.1998), to support his claim is misplaced. In that case, an armed defendant shot and killed an officer who was about to pat him down. Soon after fleeing the scene, Hardy shot himself in a failed suicide attempt. Hardy, 716 So.2d at 762. We rejected the finding of CCP in that case because Hardy’s decision to shoot the officer was “spur-of-the-moment” and then noted that Hardy’s suicide attempt was “not an action characteristic of someone who reflected on his decision to extinguish the life of another.” Id. at 766. That is, shooting the officer more likely stemmed from the defendant’s panic than it did from “calm and cool reflection.” Id. As explained above, the facts in the instant case in no way suggest that appellant’s decision to kill his wife was “spur-of-the-moment,” and any suicide attempt by appellant does not negate the CCP aggravator in this case.

Finally, we reject appellant’s claim that his failure to plan for the aftermath of the murder indicates that the murder was not calculated. Such evidence is not a requirement to establish the CCP aggravator. Moreover, if as appellant contends, he intended to commit suicide after killing his wife, he necessarily had a plan for the aftermath.

Accordingly, we conclude that competent, substantial evidence supports the finding of the CCP aggravator in this case.

C. The HAC Aggravator

As stated above, the trial court found that the murder was heinous, atrocious, or cruel, and ascribed the HAC ag-gravator great weight. In this appeal, appellant does not dispute the HAC finding. Instead, he contends that the trial court erred in giving the aggravator great weight. However, “[o]nce a trial court finds that an aggravating circumstance has been established beyond a reasonable doubt, the weight to be given ‘is within the discretion of the trial court, and it is subject to the abuse of discretion standard.’ ” Bright v. State, 90 So.3d 249, 261 (Fla.) (quoting Buzia v. State, 926 So.2d 1203, 1216 (Fla.2006)), cert. denied, - U.S. -, 133 S.Ct. 300, 184 L.Ed.2d 177 (2012).

Appellant argues that his attack on his wife illustrates his “loss of control” and diminishes the weight of the HAC aggravator. Appellant’s Initial Brief at 13. He mistakenly focuses on his own perspective and actions as determinative of this issue. With regard to the HAC aggravator, “ ‘the focus should be upon the victim’s perceptions of the circumstances as opposed to those of the perpetrator’ ” and the “evidence must show that the victim was conscious and aware of impending death.” Pham v. State, 70 So.3d 485, 497 (Fla.2011) (quoting Lynch v. State, 841 So.2d 362, 372 (Fla.2003)), cert. denied, — U.S. -, 132 S.Ct. 1752, 182 L.Ed.2d 541 (2012). In this case, appellant used a ruse to catch his wife off guard and attacked her over an extended period — repeatedly stabbing her while she screamed, begged, and fought for her life. She was aware and conscious throughout the attack. Moreover, although bleeding profusely, she was conscious when the paramedics arrived, and in the ambulance, she struggled to breathe on the way to the hospital, where she died soon after her arrival. Accordingly, we conclude that appellant has not demonstrated that the trial court abused its discretion in giving the HAC aggravator great weight in this case. See Pham, 70 So.3d at 491 n. 2, 497 (affirming HAC aggravator given great weight where victim received six stab wounds, suffered high degree of pain and defensive wounds, and daughter was present); Banks v. State, 46 So.3d 989, 1000 (Fla.2010) (affirming very great weight given HAC ag-gravator where victim received fourteen stab wounds, was conscious throughout the attack, and bled to death), cert. denied, — U.S. -, 131 S.Ct. 1689, 179 L.Ed.2d 627 (2011).

D. Death Sentence Proportionality

In each case in which a death sentence is imposed, this Court conducts a proportionality review in which we consider the totality of the circumstances in the case and compare it with similar capital cases to determine whether the capital case falls within the category of one of the most aggravated and least mitigated first-degree murders warranting a death sentence. See Lebron v. State, 982 So.2d 649, 668 (Fla.2008). This is a qualitative, rather than a quantitative, review. Thus, the Court does not merely compare the number of aggravating and mitigating circumstances. See Gill v. State, 14 So.3d 946, 963-64 (Fla.2009). In this case, the jury unanimously recommended death, and in imposing that sentence, the trial court found three aggravators — HAC, CCP, and prior violent felony conviction — and assigned each great weight. Each of these is among the most serious of the aggrava-tors. See Jackson v. State, 18 So.3d 1016, 1035 (Fla.2009); Chamberlain v. State, 881 So.2d 1087, 1108-09 (Fla.2004). With regard to mitigation, the trial court found one statutory mitigator — no significant history of criminal activity — and thirteen non-statutory mitigating factors and assigned slight to some weight to each.

Accordingly, we hold that under the totality of the circumstances, the sentence in this case is proportional in relation to similar cases in which we have affirmed death sentences. See Pham, 70 So.3d at 500-01 (holding death sentence proportionate where jury recommended death by ten-to-two vote for stabbing murder for which trial court found four aggra-vators — prior violent felony conviction, HAC, CCP, and committed in the course of a burglary/kidnapping — and the following mitigation — under influence of mental or emotional disturbance, somewhat impaired capacity to appreciate criminality or conform to requirements of law, traumatic childhood, and stable employment history); Banks, 46 So.3d at 1000 (holding death sentence proportionate for stabbing murder where jury recommended death by ten-to-two vote and trial court found HAC, CCP, and prior violent felony conviction aggravators, and five mitigating factors— low IQ, brain deficit, antisocial personality traits, not the only participant, and difficult youth); and Buzia, 926 So.2d at 1216-17 (holding death sentence proportionate where trial court found prior violent felony, HAC, CCP, and avoid arrest aggrava-tors, no statutory mitigators, and nonstatu-tory mitigators that included non-extreme mental or emotional disturbance, somewhat impaired capacity to appreciate criminality of conduct, gainful employment, appropriate courtroom behavior, difficult childhood, cooperation with law enforcement, and remorse).

E. Ring Issue

Appellant argues that this Court’s decisions in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), and King v. Moore, 831 So.2d 143 (Fla.2002), concluding that the Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), does not invalidate Florida’s death penalty scheme, were wrongly decided. We have “repeatedly rejected constitutional challenges to Florida’s death penalty under Ring.” Ault v. State, 53 So.3d 175, 206 (Fla.2010), cert. denied, — U.S. -, 132 S.Ct. 224, 181 L.Ed.2d 124 (2011). Moreover, in this case, one of the aggravating factors is a prior violent felony conviction based on the jury finding appellant guilty as charged for the aggravated battery on his sister-in-law. See Frances v. State, 970 So.2d 806, 822 (Fla.2007) (“This Court has repeatedly relied on the presence of the prior violent felony aggravating circumstance in denying Ring claims.”). In addition, the jury unanimously recommended the death sentence, and this Court has previously rejected Ring claims in cases involving unanimous jury recommendations of death. See Crain v. State, 894 So.2d 59, 78 (Fla.2004). Accordingly, we reject appellant’s claim.

F. Competent, Substantial Evidence

Although appellant did not challenge the sufficiency of the evidence supporting the verdict, this Court independently reviews the record in all death penalty cases to determine whether competent, substantial evidence supports the conviction. Pham, 70 So.3d at 501. “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); see Simpson v. State, 3 So.3d 1135, 1147 (Fla.2009) (applying competent, substantial evidence standard to determine sufficiency of the evidence).

In this case, appellant was indicted for the first-degree, premeditated murder of his wife. “Premeditation is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act.” Asay v. State, 580 So.2d 610, 612 (Fla.1991). The evidence shows that on the day of the murder, appellant flew to Jacksonville, waited outside his marital home for his wife to return, obtained a weapon, and employed a ruse to gain entry into the apartment. He then beat and repeatedly stabbed his wife, injuring her head, lung, breast, back, arms, and other parts of her body over an extended period of time as she screamed and pleaded for help. See Miller v. State, 42 So.3d 204, 228 (Fla.2010) (noting the location of wounds and force used in stabbings constituted competent, substantial evidence supporting premeditation), cert. denied, — U.S. -, 131 S.Ct. 935, 178 L.Ed.2d 776 (2011). In light of this evidence, we hold that competent, substantial evidence supports the jury’s finding of first-degree murder beyond a reasonable doubt.

III. CONCLUSION

Having reviewed the issues raised, including the sufficiency of the evidence and the proportionality of the sentence, we affirm appellant’s convictions and sentences.

It is so ordered.

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