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not do so. Further, as Wheeler was firing the shotgun at Deputy Crotty in the vicinity of the patrol cars, he told Deputy Crotty, "I'm going to fucking kill you, man."


The evidence was clearly sufficient in every respect to support the conviction of first-degree premeditated murder of Deputy Koester and conviction of two counts of attempted murder and aggravated battery with a firearm involving deputies Crotty and McKane.



PENALTY PHASE CLAIMS



Victim Impact Evidence




Wheeler's primary point on appeal relates to the victim impact evidence, claiming that the victim impact evidence became such a feature of the penalty phase that it denied due process, fundamental fairness and a reliable jury recommendation. We first address the issue of preservation of any alleged error.


Before the penalty-phase proceeding commenced, the trial court reserved ruling on Wheeler's pretrial motion in limine in which he sought to exclude all victim impact evidence and testimony. Just prior to admission of the victim impact testimony in the penalty phase, the trial court reviewed each of the four written, proposed victim impact statements, granted defense counsel's requests for certain redactions involving three of the statements, and allowed the redacted versions to be read to the jury. The State also presented four exhibits showing a total of fifty-







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four photographs of the victim and members of his family. The trial court instructed the jury that the victim impact testimony was not to be used for finding aggravation and was not to be weighed as such in their deliberations.


During the entire presentation of victim impact evidence, Wheeler made no specific objections to any portion of the testimony or any particular aspect of the photographic evidence, although Wheeler renewed his general objection to presentation of any victim impact evidence. We conclude that the claim Wheeler now makes that the victim impact evidence was impermissibly made a feature of the penalty phase was not preserved by Wheeler's general pretrial objections addressed to all victim impact evidence, where he made no specific objections to any of the evidence presented and failed to object below on the grounds argued here. It is well-established that for a claim "to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below." F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (quoting Steinhorst




v. State, 412 So. 2d 332, 338 (Fla. 1982)). Moreover, in this appeal, Wheeler still fails to identify any specific error in admission of the victim impact testimony or photographs. See Deparvine v. State, 995 So. 2d 351, 378 (Fla. 2008) ("Initially, we reject this claim [of error in admission of victim impact evidence] because Deparvine . . . fails to sufficiently identify the error.")








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Nevertheless, we recognize that evidence that places undue focus on victim impact, even if not objected to, can in some cases constitute a due process violation. The United States Supreme Court in Payne v. Tennessee, 501 U.S. 808 (1991), held that where state law permits, the Eighth Amendment erects no per se bar to the state presenting evidence about the victim, the impact of the murder on the victim's family, and argument on these subjects. Id. at 827. However, the Supreme Court also stated: "In the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." Id. at 825 (emphasis added). The analysis to determine if admission of victim impact evidence has violated a defendant's due process rights in the penalty phase of a capital trial parallels the analysis for fundamental error.


See, e.g., F.B., 852 So. 2d at 229 ("[A]n error is deemed fundamental `when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.'"). Fundamental error is also defined as error that "reach[es] down into the validity of the trial itself to the extent that [the advisory verdict] could not have been obtained without the assistance of the error." Derrick




v. State, 983 So. 2d 443, 463 (Fla. 2008) (quoting State v. Delva, 575 So. 2d 643,







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644-45 (Fla. 1991)). Thus, we must determine if fundamental error or a violation of due process occurred in the admission of the victim impact evidence in this case.


In 1988, prior to Payne, the people of Florida adopted article I, section 16(b) of the Florida Constitution. That constitutional provision protects the right of victims of crimes or their representatives to be heard at all crucial stages of criminal proceedings, "to the extent that these rights do not interfere with the constitutional rights of the accused." Art. I, § 16(b), Fla. Const. We have cautioned, however, that "the rights provided to victims and victims' families under article I, section 16(b) are not absolute, as they are subordinate to the rights of an accused when the rights involved are in conflict." Booker v. State, 773 So. 2d 1079, 1095 (Fla. 2000).


In addition to the constitutional provision, Florida statutes also allow the admission of victim impact evidence within certain parameters as outlined in Payne.5 As the Court explained in ***ton v. State, 775 So. 2d 923 (Fla. 2000):












5. Section 921.141(7), Florida Statutes (2006), provided: VICTIM IMPACT EVIDENCE.--Once the prosecution has provided evidence of the existence of one or more aggravating circumstances as described in subsection (5), the prosecution may introduce, and subsequently argue, victim impact evidence to the jury. Such evidence shall be designed to demonstrate the victim's uniqueness as an individual human being and the resultant loss to the community's members by the victim's death. Characterizations and opinions about the crime, the defendant, and the appropriate sentence shall not be permitted as part of victim impact evidence.







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On the merits, section 921.141(7), Florida Statutes (1995), allows the State to introduce "victim impact" evidence, which shows "the victim's uniqueness as an individual human being and the resultant loss to the community's members by the victim's death." Damren v. State, 696 So. 2d 709, 712-14 (Fla. 1997); see Bonifay v. State, 680 So. 2d 413, 419-20 (Fla. 1996); Windom v. State, 656 So. 2d 432, 438-39 (Fla. 1995); see also Payne v. Tennessee, 501 U.S. 808, 821- 26, 111 S. Ct. 2597, 115 L.Ed.2d 720 (1991).


Although the United States Supreme Court and this Court have ruled that victim impact testimony is admissible, such testimony has specific limits. Those witnesses providing victim impact testimony are prohibited from giving characterizations and their opinions about the crime.



Id. at 932 (footnote omitted). In our most recent pronouncement on victim impact evidence, we explained that:


While being alert to the possibility of undue focus, this Court has never drawn a bright line holding that a certain number of victim impact witnesses are or are not permissible. In terms of numbers, this Court has affirmed up to four witnesses for one victim and consistently upheld three. Belcher v. State, 961 So. 2d 239, 257 (Fla.) (four witnesses), cert. denied, 128 S. Ct. 621 (2007); see also Schoenwetter, 931 So. 2d at 870 (three witnesses); Huggins v. State, 889 So. 2d 743, 765 (Fla. 2004) (same).


Deparvine, 995 So. 2d at 378. In Deparvine, the evidence of five victim impact witnesses was found admissible. Id. We also found no error in the admission of victim impact testimony of twelve witnesses in Farina v. State, 801 So. 2d 44 (Fla. 2001).


In this case, the trial court appropriately allowed four victim impact witnesses--Victor Koester, the victim's uncle; Paula Lynn Cassella, the victim's sister; Virginia Bevirt, the victim's first wife and mother of his two biological







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children; and Ashley Koester, the victim's current wife and mother of his stepchildren. Their testimony was for the most part confined to written victim impact statements that the trial court reviewed and redacted pursuant to specific objections of defense counsel. The testimony of these four witnesses discussed the uniqueness of Deputy Koester as an individual and explained how his death had caused a loss to both his family members and to the community. Therefore, the nature and extent of this testimony has not been shown to constitute error, fundamental or otherwise, and has not been shown to constitute a due process violation in this case.




Potentially more problematic is the State's presentation of photographic montages depicting Deputy Koester in various settings in the community and with his family. The State presented fifty-four victim and family photographs mounted on four poster boards showing the victim in different settings such as with family members, holding babies, serving in the National Guard, and coaching. There is nothing in our case law or the victim impact statute that prevents the State from presenting photographs as part of its victim impact evidence and, as with victim impact evidence from witnesses, we have never drawn a bright line as to the number of permissible photographs that the State may present. In this case we conclude that neither fundamental error nor a due process violation has been demonstrated in this case by the number of photographs alone, where Wheeler has







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not identified any particular photograph or group of photographs that was impermissibly prejudicial so as to render the penalty phase fundamentally unfair.


We do note that the trial judge was clearly concerned with the State's victim impact evidence, advising the prosecutor:


My preference would be that you offer this evidence at a Spencer hearing as opposed to in front of this jury, should we get that far. I believe that to offer it here today creates an opportunity, a significant opportunity, for error.


I have spent a lot of time yesterday reading the statements from the various family members. I have spent a lot of time reading the statute. I have spent a lot of time reading every case that I could find. And my view of all the various things that I have read strikes me that this particular area would be - - statements are a mine field waiting to create potentially some error that we don't have now.


My opinion with respect to testimony regarding Mr. Koester's uniqueness and the resulting loss to the community, coupled with my obligation to make sure that the probative value is not outweighed by the prejudicial effect, makes it doubly a matter in my view of much subjectivity. My opinion - - you know, I think that everybody could agree on what's on the fringes. But I think when you get to topics that fall in the center, that reasonable people could disagree. And I just think it's an area that could create error in this case where, in my view, no significant error exists, if any.


However, you have the right to present that if that's what you want to do. That's your - - I mean, you have the opportunity. I have the obligation to let you do that.


Despite these reservations, the trial court properly overruled the general objection to victim impact evidence because we have repeatedly held that the United States Supreme Court, as well as our state statute, allows its introduction within limits.

See, e.g., Floyd v. State, 850 So. 2d 383, 407 (Fla. 2002) (declining invitation to recede from Windom, reiterating that the statutory procedure for addressing victim
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