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picked up a new knife from the kitchen floor after his knife broke; Davis told Dr. Krop that he attempted to strangle Wren after discovering that she was still alive; Dr. Krop did not testify that Davis's ADD or frontal lobe damage rendered him unable to plan on the night of the murder; and Davis did not harm the little boy who lived with the victims. Sentencing Order at 23-25. The trial court made virtually identical factual findings in analyzing the CCP factor for the murder of Albin, with the additional findings that Davis stabbed Albin eighteen times and that he obtained a third knife when the second knife broke. Id. at 31-34.


Davis argues that several of these factual findings are not supported by the record. Davis is correct that while there is evidence that Davis sat on the victims' front steps before knocking, there is no evidence that he sat there for two to thirty minutes contemplating his next actions. In reviewing the trial court's finding of CCP, this Court has considered Davis's admission that he paused on the victims' front stoop before knocking, but with the understanding that the pause may have been as brief as a "minute" as Davis testified. Davis's other arguments about the factual accuracy of the trial court's order are without merit. There is competent, substantial evidence supporting the trial court's findings that Davis wore extra clothing to the victims' trailer and carried a black bag with him to the trailer in anticipation of filling the bag with bloody clothing.







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After reviewing the record, we conclude that that the trial court applied the right rule of law and that competent, substantial evidence supports the trial court's finding of CCP. While the trial court found that Davis was experiencing extreme mental or emotional distress when he committed the murders, the evidence as a whole established that CCP was applicable.


The factual circumstances of the instant murders are comparable to those of a recent case where this Court held that CCP was properly found by the trial court.


In Carter v. State, 980 So. 2d 473 (Fla.), cert. denied, 129 S. Ct. 400 (2008), the defendant admitted driving to the home of Elizabeth Reed, his ex-fiancée, with a loaded rifle and entering the home with the rifle concealed against his leg and his finger on the trigger. Once in the home, Carter demanded that Reed answer questions about their relationship. When Reed reached for the rifle, Carter struggled and the gun discharged, fatally striking Reed's daughter. Carter then deliberately shot Reed and her boyfriend multiple times at close range. This Court found that the record sufficiently supported the finding of CCP for the murders of Reed and her boyfriend. Id. at 482.


The cases are similar in that both defendants knew their victims and deliberately went to their homes. Both defendants armed themselves in advance.


Just as Carter concealed his rifle by placing it against his leg, Davis testified that as he knocked on the victims' door he held the knife in his hand but "not like where







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[Wren] could see it." Also like Carter, Davis refrained from violence long enough to ask a few questions of one of the victims. Davis's heightened premeditation and his prearranged design to kill are further evidenced by his wearing extra clothes and taking a bag in which to place clothes that became bloodied.


This evidence refutes Davis's argument on appeal that the crime was impulsive and the product of an emotional disturbance, rather than calculated and demonstrative of heightened premeditation. Davis's case is distinguishable from Almeida v. State, 748 So. 2d 922 (Fla. 1999), Maulden v. State, 617 So. 2d 298 (Fla. 1993), and Santos v. State, 591 So. 2d 160 (Fla. 1991). While the trial court found that Davis was suffering from extreme mental or emotional distress at the time of the murders, there was no evidence that Davis's ability to control his conduct and understand his actions was impaired due to intoxication or severe mental illness, such as schizophrenia or psychosis.


Overall, given that the record supports the findings that Davis carried to the victims' trailer a knife, extra clothing, and a bag in which to hide bloody clothing, paused on the steps, and was not so disturbed as to not be able to control his behavior, we find that competent, substantial evidence supports the trial court's finding that the CCP aggravating factor was applicable to these murders.4












4. Davis also argues that the trial court erred in allowing the prosecutor to argue CCP to the jury and in instructing the jury on CCP. The trial court did not err in allowing the prosecutor to argue that CCP applied because there was







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B. Impaired Capacity as Nonstatutory Mitigating Factor


Davis argues that the trial court should have considered and weighed his "impaired capacity" as a nonstatutory mitigating factor. We disagree. The trial court did not err in failing to consider and weigh evidence of Davis's impaired capacity during the murder as a nonstatutory mitigating factor because Davis did not argue that factor as a proposed nonstatutory mitigating factor to the trial court.


Under Florida law, "[w]hen addressing mitigating circumstances, the sentencing court must expressly evaluate in its written order each mitigating circumstance proposed by the defendant to determine whether it is supported by the evidence and whether, in the case of nonstatutory factors, it is truly of a mitigating nature." Griffin v. State, 820 So. 2d 906, 913 (Fla. 2002) (quoting Campbell v. State, 571 So. 2d 415, 419-20 (Fla. 1990)). In Lucas v. State, 568 So. 2d 18, 23-24 (Fla. 1990), we explained that a defendant must raise a proposed


evidence from which CCP could be reasonably inferred. Counsel should be permitted wide latitude to advance all legitimate arguments and draw logical inferences from the evidence. McArthur v. State, 801 So. 2d 1037, 1040 (Fla. 5th DCA 2001) (citing Lukehart v. State, 776 So. 2d 906 (Fla. 2000)). As for Davis's challenge about instructing the jury on CCP, in Ford v. State, 802 So. 2d 1121, 1133 (Fla. 2001), this Court rejected a claim that the jury should not have been instructed on CCP and explained that a "trial court may give a requested jury instruction on an aggravating circumstance if the evidence adduced at trial is legally sufficient to support a finding of that aggravating circumstance." See also Diaz v. State, 860 So. 2d 960, 965 n.6 (Fla. 2003); Conahan v. State, 844 So. 2d 629, 638 (Fla. 2003). As discussed above, competent, substantial evidence supports the trial court's finding of CCP. Thus, the trial judge did not err in instructing the jury on the aggravating factor.







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nonstatutory mitigating circumstance before the trial court in order to challenge on appeal the trial court's decision about that nonstatutory mitigating factor:


As the state points out, Lucas did not point out to the trial court all of the nonstatutory mitigating circumstances he now faults the court for not considering. Because nonstatutory mitigating evidence is so individualized, the defense must share the burden and identify for the court the specific nonstatutory mitigating circumstances it is attempting to establish. This is not too much to ask if the court is to perform the meaningful analysis required in considering all the applicable aggravating and mitigating circumstances.


Pursuant to Lucas, a defendant may not manufacture a sentencing error by not requesting that the trial court specifically consider unproven statutory mitigating factors as potential nonstatutory mitigating factors.


In this case, the defense requested that the trial court consider the statutory mitigating factor of whether Davis's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. The defense did not specifically request that the trial court consider its argument that Davis suffered from "impaired capacity" at the time of the crime as nonstatutory mitigation.5 As a result, the trial court was not put on notice that the defense wished it to consider impaired capacity as nonstatutory mitigation in the












5. The defense requested that the trial court recognize that "Mr. Davis has a combination of significant mental health problems" as nonstatutory mitigation. While the defense listed numerous mental health problems, trial counsel did not argue that those factors impacted Davis's "capacity" on the night of the murders, as trial counsel did in the context of the proposed statutory mitigating factors.







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event that the trial court found the statutory mitigating factor unproven.


Accordingly, the trial court did not err in failing to find impaired capacity as a nonstatutory mitigating factor.


Moreover, if the defense had requested that the trial court consider whether Davis's capacity was impaired as nonstatutory mitigation, the sentencing order demonstrates that the trial court would not have found impaired capacity as an additional nonstatutory mitigating circumstance. After considering the evidence presented at trial, the trial court rejected the substantially impaired capacity statutory mitigating factor, stating:


There is no reasonable evidence that the Defendant's capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was substantially impaired. In fact, the evidence, as outlined above, establishes just the opposite. The evidence, when considered in total, presents a person who knew what he was doing was wrong when he committed these murders and who thought he had taken the necessary precautions to hide his crimes.


Sentencing Order at 50. The trial court found the facts of this case, particularly Davis's deliberate efforts to hide evidence of his crime and the testimony of the mental health experts who refused to opine that Davis lacked the ability to control his behavior at the time of the murder, to preclude any finding that Davis's ability to reason and control his behavior was impaired at the time of the crime, not just to negate a finding that his capacity to do so was substantially impaired.





C. No Significant History of Prior Criminal Activity








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Davis argues that the trial court abused its discretion by allowing the prosecutor to argue that Davis's behavior in school and jail could reduce the weight accorded to the mitigating factor of no significant history of prior criminal activity. Davis also argues that the trial court abused its discretion by considering postmurder activity and premurder activity for which he was not criminally prosecuted when assigning "little weight" to the mitigating factor.


This issue was preserved for review. The defense conceded that testimony about Davis's behavior in jail since his arrest and in school was admissible to rebut evidence offered as nonstatutory mitigation, such as Dr. Krop's opinion that Davis would function well in prison and lay witness testimony about Davis's good character. However, the defense made a motion in limine to prevent the State from using evidence about Davis's behavior in jail and his behavior in school to argue against according weight to the no significant history mitigating factor. After hearing argument from the parties, the trial court ruled that the State could argue that Davis's conduct in jail and in school diminished the no significant history mitigating factor. Defense counsel twice renewed its objection to this line of argument during the State's closing statement.


Appellate courts generally apply an abuse-of-discretion standard when considering whether a trial court erred in overruling objections to comments made during closing arguments. McArthur v. State, 801 So. 2d 1037, 1040 (Fla. 5th







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DCA 2001) (citing Moore v. State, 701 So. 2d 545 (Fla. 1997)). Counsel should be permitted wide latitude to advance all legitimate arguments and draw logical inferences from the evidence. Id. This Court likewise reviews a trial court's assignment of weight to proven mitigating factors under an abuse-of-discretion standard. The Court defers to the trial court's determination "unless no reasonable person would have assigned the weight the trial court did." Rodgers v. State, 948 So. 2d 655, 669 (Fla. 2006).


The State Attorney argued that when considering the mitigating factor of no significant history of prior criminal activity, the jury should factor in Davis's fights at school, his threatening of a teacher, his fights in jail, and his effort to disable his cell lock. The trial court expressly based its assignment of little weight to this mitigating factor on evidence of Davis's fights in jail, his destroying of a restraint chair, and his effort to disable his cell lock. Sentencing Order at 37. While the trial court discussed Davis's misbehavior at home and in school, it did not connect this evidence to its decision to apply little weight to the mitigating factor.


In Walton v. State, 547 So. 2d 622, 625 (Fla. 1989), this Court held that the State may rebut the no significant history of prior criminal activity statutory mitigating factor with evidence of "criminal activity," not solely convictions.


Evidence that Davis engaged in physical fights and that he threatened a teacher, assuming the threat rose to the level of an assault, is evidence of criminal activity







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that could properly be presented to the jury and considered by the trial court. The trial court did not abuse its discretion in allowing the State Attorney to argue this evidence to the jury or in relying on the evidence in its sentencing order.6


Davis argues that the evidence about his conduct in jail should not have been considered in the context of the no significant history mitigating factor because the criminal acts occurred after the murders. In Scull v. State, 533 So. 2d 1137, 1143 (Fla. 1988), this Court expressly receded from its decision in Ruffin v. State, 397 So. 2d 277, 283 (Fla. 1981), to the extent that language construing "prior" to mean prior to sentencing would authorize finding a history of prior criminal activity based on contemporaneous crimes. Following Scull, this Court held that the mitigating factor of no significant history of prior criminal activity "must be found if a defendant had no significant history of criminal activity prior to the transaction in which the instant murder occurred." Santos v. State, 629 So. 2d 838, 840 (Fla. 1994); see also Hess v. State, 794 So. 2d 1249, 1265 (Fla. 2001). We do not agree











6. In its sentencing order, the trial court also discussed Davis's noncriminal juvenile misbehavior when analyzing this mitigating factor. Such evidence is not proper rebuttal pursuant to Walton. However, we find that the trial court did not abuse its discretion because the trial court did not rely on this evidence when determining the existence and weight of the mitigating factor. See Groover v. State, 489 So. 2d 15, 17 (Fla. 1986) (holding that trial court did not impermissibly rely on noncriminal activity to reject no significant history of prior criminal activity mitigating factor where trial court "simply made a statement concerning the fact that three lives had tragically ended over a fifty dollar drug debt"). In addition, as discussed below, any error would be harmless in light of the trial court's findings on aggravating factors.
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