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that given all the circumstances surrounding the strike, the explanation is not a pretext." Rodriguez v. State, 753 So. 2d 29, 40 (Fla. 2000). In determining whether or not a proffered race-neutral reason for a peremptory strike is a pretext, the court should focus on the genuineness of the race-neutral explanation as opposed to its reasonableness. See Farina, 801 So. 2d at 49; Rodriquez, 753 So. 2d at 40.
In making a genuineness determination, the court may consider all relevant circumstances surrounding the strike. See Melbourne, 679 So. 2d at 764.
"Relevant circumstances may include--but are not limited to--the following: the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment." Id. at 764 n.8 (citing State v. Slappy, 522 So. 2d 18 (Fla. 1988)); see also Booker v. State, 773 So. 2d 1079, 1088 (Fla. 2000) ("[W]e provided a nonexclusive list of factors a trial court may consider in determining whether the reason given for exercising a peremptory challenge is genuine . . . ." (citing Melbourne, 679 So. 2d at 764 n.8)).
"Accordingly, reviewing courts should keep in mind two principles when enforcing the above guidelines. First, peremptories are presumed to be exercised in a nondiscriminatory manner. Second, the trial court's decision turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly
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erroneous." Melbourne, 679 So. 2d at 764-65 (footnote omitted) (emphasis added); see also Rodriguez, 753 So. 2d at 40.
In Farina, 801 So. 2d at 50-51, this Court upheld the trial court's ruling on the defense's objection to the prosecution's strike of two African-American jurors, finding no pretext where both jurors seemed hesitant regarding the death penalty.
The trial judge stated that he was "supposed to just sustain the challenge if I find that the attorney making it is making it in his or her world of good faith, not whether I agree with it or not. . . . And I don't think [the prosecutor] is lying to me." Farina, 801 So. 2d at 50 (quoting trial court record).
Likewise here, we find that the trial court satisfied the Melbourne guidelines.
First, it made a sufficient step-one inquiry in asking the prosecution to provide a race-neutral reason for striking Mr. Jones. Subsequently, the prosecution satisfied step two when it provided a facially race-neutral reason by explaining that Mr. Jones was struck because of his feelings on the death penalty:
Prosecution: Your Honor, we strike juror number 26, Mr. Jones.
Court: Give us a race neutral reason.
Prosecution: Yes, sir. His feelings on the death penalty. He first stated that he wouldn't give a number when asked by Mr. Block I think it was.
Defense: My notes are opposite. He said yes to both on Mr. Jones.
Court: You got any other reasons?
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Prosecution: No, sir, just his feelings on the death penalty.
Court: I have a note that he agreed.
Prosecution: I thought he said it depends.
Thereafter, the trial court sustained the strike as Melbourne allows under step three when no pretext is found. Specifically, the judge stated:
Court: Well, at this point I would tentatively allow it because I know Ms. Hobbs is a black female and Mr. Ramsey is a black male and you haven't moved to strike them so I will allow it for now and see what happens because I don't believe there is a racial pattern if that's your recollection. It may well be true.
We find that the trial judge's statement that "it may well be true" indicates that he did not find pretext or believe that the prosecution was lying to him. See Farina, 801 So. 2d at 50. We therefore find that the trial judge satisfied the requirements of Melbourne, 679 So. 2d at 765 n.8.
Furthermore, after reviewing the record, we find that Mr. Jones's comments did indicate hesitancy regarding the death penalty, especially when compared to answers given by unchallenged jurors. Mr. Jones gave an unintelligible answer to the prosecution when he was asked how he felt about the death penalty:
Prosecution: All right. How do you feel about the death penalty?
Mr. Jones: Well, the way I feel about it whether he or she guilty or not guilty I don't have anything against it whether he or she guilty or not guilty. I don't - - you know, that's the way I feel about it right here. He or she guilty or not guilty I don't know.
Prosecution: Thank you sir.
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Also, when asked by defense counsel, he was unable to, or refused to, rate his feelings for the death penalty on a scale of one to five with five being "I strongly support it." To that question Mr. Jones answered, "I agree but I don't have a number." Although four other unchallenged jurors also declined to give any specific scaled number, each of the seated jurors gave direct and affirmative answers to the prosecution when they were asked how they felt about the death penalty. Nine of the twelve jurors simply said, "I agree with it" or "I agree." The other three stated that they agreed if the State proves its case. Those answers lie in stark contrast to the irresolute answer given by Mr. Jones. Therefore, we find the trial judge's ruling on genuineness not clearly erroneous under Melbourne.
Accordingly, we find no reversible error in allowing the prosecution to strike Mr. Jones.
G. Motion for Mistrial Based on Juror Misconduct
Murray next argues that the trial court erred in not granting his motion for mistrial based on alleged juror misconduct, namely juror Ramsey's mistaken belief that he personally knew one of the witnesses. We do not find that the trial court abused its discretion in refusing to grant a mistrial.
During trial, Ramsey informed the court that he thought he might know Detective O'Steen. Thereafter, the court called in juror Ramsey and both parties interviewed him regarding his acquaintance. He stated that he initially did not
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recognize the name, but then it "just clicked" that a police officer with the same last name lived in his neighborhood. He also mentioned to two other jurors that he "needed to speak to the bailiff because a name sounds familiar." The court then called in Detective O'Steen and, as soon as he saw him, juror Ramsey said, "It's not him."
Generally, a new trial will not be granted due to a juror's nondisclosure of facts, unless those facts are considered material. See McCauslin v. O'Conner, 985 So. 2d 558, 561(Fla. 5th DCA 2008). "A juror's nondisclosure of information during voir dire is considered material if it is so substantial that, if the facts were known, the defense likely would peremptorily exclude the juror from the jury." Id.
Even if material, the discovery of nondisclosure will warrant a new trial only if (1) the facts are relevant to the juror's service; (2) they were intentionally concealed on voir dire; and (3) the complaining party's failure to discover the concealed facts was not due to his own lack of diligence. Id. at 560-61 (citing De La Rosa v. Zequiera, 659 So. 2d 239, 241 (Fla. 1995)).
Here, Murray claims that he should be granted a mistrial because Ramsey did not reveal that he had a police officer as an acquaintance and neighbor.
However, the record does not reveal that Ramsey was ever asked whether he knew any police officers. But even if Ramsey did conceal that fact, it does not pass the Zequiera test for granting a new trial. First, the fact that Ramsey knew a police
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officer is not material. Ramsey stated that he rarely saw him and did not speak to him during the trial. Further it was not in any way relevant to his service as a juror. Finally, he did not intentionally conceal this fact because Ramsey himself came forward when he believed (albeit mistakenly) that he might know one of the witnesses.
Murray also claims that he was prejudiced by Ramsey's stating to two other jurors that he thought he knew a witness. We find that any prejudice was cured when the trial judge informed the entire jury that Ramsey did not, in fact, personally know any of the witnesses. Accordingly, we find that the trial court did not abuse its discretion in denying Murray's motion for a mistrial on this issue.7
7. Murray also alleges four other instances of juror misconduct, namely (1) juror Starkey's actual acquaintance with one of the witnesses; (2) juror Starkey's conversation with an official in the sheriff's office concerning the death penalty;
(3) allegations that the jury agreed to enter a guilty verdict in exchange for recommending a life sentence; and (4) the bailiff's telling the jury that it was okay for them to pray. However, issues one and two were not preserved for appeal. See Capron v. State, 948 So. 2d 954, 956 (Fla. 5th DCA 2007) ("All trial errors . . . must be preserved for appeal by making a contemporaneous objection."). If an issue is not properly preserved for appeal, then it must "be so prejudicial as to constitute fundamental error" in order to warrant a new trial. Capron, 948 So. 2d at 956 (citing Street v. State, 636 So. 2d 1297, 1303 (Fla. 1994)). A review of the record here reveals that the allegations of juror misconduct in issues one and two do not rise to the level of fundamental error.
Although issues three and four were preserved in Murray's written motion for mistrial, we do not find that the trial court abused its discretion in denying a mistrial based on these claims. See England v. State, 940 So. 2d 389, 402 (Fla. 2006) ("A trial court's ruling on a motion for mistrial is subject to an abuse of discretion standard of review."). Regarding issue three, during individual interviews conducted at Murray's request, each juror stated unambiguously that no
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H. Failure to Give Further Jury Instruction When Requested
Murray further alleges reversible error in the trial court's failure to give additional guidance on the term "abiding conviction of guilt," which is part of the reasonable doubt instruction. He also claims that the language in the standard instruction is similar to that which has been found to be unconstitutional. Here again, Murray failed to preserve this issue for appeal by making a contemporaneous objection. See Capron, 948 So. 2d at 956. Therefore, we review the allegation to determine if it is so prejudicial as to constitute fundamental error.
Id. (citing Street v. State, 636 So. 2d 1297, 1303 (Fla. 1994)). We find that it is not.
First, we note that the trial judge was not required to give any further instruction. See Victor v. Nebraska, 511 U.S. 1, 5 (1994). In Victor, the United States Supreme Court clarified that the trial court is not required to, or prohibited
agreement was made to recommend life imprisonment in exchange for a guilty verdict. Additionally, upon inquiry, each juror stated that he or she believed the evidence proved that the defendant committed the crimes beyond a reasonable doubt. Regarding issue four, upon inquiry, each juror except juror Starkey stated they had no recollection of any juror asking a bailiff if they were allowed to pray. The court also questioned the bailiff who testified that "no permission was asked or given." Therefore, the Court concluded that "Mr. Starkey was simply mistaken concerning a request. [The bailiff] has been in charge of jurors for years, and he would never answer a question without referring it to the court." Accordingly, we find that after thoroughly investigating the allegations, the trial judge "received the relevant testimony, and determined there was no misconduct. The trial judge did not abuse his discretion in accepting the jurors' testimony and denying the motion for a mistrial." Id.
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from, defining "reasonable doubt." Instead, to comply with its constitutional requirements, the trial court need only instruct the jury "that the defendant's guilt [must] be proved beyond a reasonable doubt." Id. Regarding the constitutionality of the language, the Supreme Court has stated that it is the very rare occasion in which a court will find that a definition of reasonable doubt violates due process.
Id. The only language it has deemed unconstitutional, was, in its determination, suggestive of a higher degree of doubt than that required under the reasonable doubt standard. See Cage v. Louisiana, 498 U.S. 39, 41 (1990) ("It is plain to us that the words `substantial' and `grave,' as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard.").
Here, the jury was given the standard jury instruction for reasonable doubt, which does not contain language suggesting a higher degree of doubt. When the jury asked for further clarification of "abiding conviction of guilt" the trial judge, with the agreement of both parties, informed the jury that the answer they were looking for was already in the instruction. He then reread the paragraphs defining reasonable doubt as having a conviction that is not stable.8
8. The actual quoted language of the instruction was:
Whenever the words "reasonable doubt" are used you must consider the following:
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We do not find that the language used here suggests a higher degree of doubt than that which is "reasonable," because the term "stable" does not conjure up the same meaning as "substantial" or "grave." See Cage, 498
U.S. at 41. Accordingly, we do not find error.
I. Allowing Former Trial Testimony to be Read to the Jury
Murray further claims that the trial court erred by allowing testimony of two witnesses from a prior proceeding to be read to the jury at his fourth trial. We disagree. As we have stated,
The use of prior testimony is allowed where (1) the testimony was taken in the course of a judicial proceeding; (2) the party against whom the evidence is being offered was a party in the former proceeding; (3) the issues in the prior case are similar to those in the case at hand; and (4) a substantial reason is shown why the original witness is not available.
A reasonable doubt is not a possible doubt, a speculative, imaginary or forced doubt. Such a doubt must not influence you to return a verdict of not guilty if you have an abiding conviction of guilt. On the other hand, if after carefully considering, comparing and weighing all the evidence, there is not an abiding conviction of guilt, or, if, having a conviction, it is one which is not stable but one which wavers and vacillates, then the charge is not proved beyond every reasonable doubt and you must find Gerald Murray not guilty because the doubt is reasonable. It is the evidence introduced upon this trial, and to it alone, that you are to look for that proof.
A reasonable doubt as to the guilt of Gerald Murray may arise from the evidence, conflict in the evidence or the lack of the evidence.
If you have a reasonable doubt, you should find Gerald Murray not Guilty.
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Holland v. State, 773 So. 2d 1065, 1074 (Fla. 2000) (quoting Thompson v. State, 619 So. 2d 261, 265 (Fla. 1993)). The only other requirement for admitting prior testimony is that the party opposed had an opportunity to cross-examine the witness at the prior proceeding. See Holland, 773 So. 2d at 1074.
Dr. Floro, the medical examiner who performed Ms. Vest's autopsy, was unavailable for Murray's fourth trial. Therefore, over Murray's objection, the trial court allowed his former testimony to be read to the jury. Despite the fact that the reading of Dr. Floro's testimony satisfied the above criteria, Murray claims the testimony prejudiced him because he was unable to cross-examine Dr. Floro on new issues that arose during this fourth trial. However, the record reveals that the only new facts that arose during the fourth trial pertained to the chain of custody of certain hair evidence. Because neither of these facts has anything to do with Ms.
Vest's autopsy, we find that Murray was not prejudiced by not being able to question Dr. Floro on new issues or by having his prior testimony read to the jury.
Murray also claims that he was prejudiced by the reading of Juanita White's testimony at his trial. Like Dr. Floro's testimony, Ms. White's testimony satisfied the Thompson criteria: Ms. White was unavailable, her testimony was taken during a prior judicial proceeding to which Murray was a party, the issues were unchanged, and Murray had a prior opportunity to cross-examine her. See Holland, 773 So. 2d at 1074. Nevertheless, Murray claims that her testimony
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never should have been allowed because it was more prejudicial than probative.
We disagree.
The issue of relevancy is within the purview of the trial court. Once the trial court has weighed the evidence to determine whether its value was more probative than prejudicial, this Court will not overturn its decision absent an abuse of discretion. See Thigpen v. United Parcel Services, Inc., 990 So. 2d 639, 645 (Fla. 4th DCA 2008) (citing Sims v. Brown, 574 So. 2d 131, 133 (Fla. 1991)).
Ms. White's testimony revealed probative and relevant facts to the jury. It placed Murray with Taylor and, coupled with Fisher's estimate of the time he dropped the two off near Murray's home, helped to establish a general timeline of when the two were together. Further, it placed Murray with Taylor in the general vicinity of the victim's home on the day of the murder. Accordingly, we find the trial court did not abuse its discretion in allowing the former testimony of Dr. Floro and Juanita White to be read to the jury.
J. Motion to Dismiss Due to Double Jeopardy
Murray claims that any prosecution against him should be barred because of double jeopardy since, at each successive trial, the State improves its case against him. Although he admits that this is not an instance where double jeopardy is normally implicated, he asserts there must be a "breaking point" since he has already been tried four times. We find that double jeopardy is not implicated here.
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"[T]he Double Jeopardy Clause's general prohibition against successive prosecutions does not prevent the State from retrying a defendant who succeeds in getting his conviction set aside on appeal due to some error in the proceedings below." Gore v. State, 784 So. 2d 418, 427 (Fla. 2001) (citing Lockhart v. Nelson, 488 U.S. 33, 38 (1988)); see also Ruiz v. State, 743 So. 2d 1, 8-10 & n.11 (Fla. 1999) (holding that double jeopardy did not bar State from retrying defendant despite the fact that prosecutors "attempted to tilt the playing field and obtain a conviction and death sentence"); Keen v. State, 504 So. 2d 396, 402 n.5 (Fla.1987) (holding double jeopardy did not prevent a retrial of defendant arising from prosecutorial misconduct). Thus, while it may be true that the State's case can improve, the rule of double jeopardy is clear. It does not bar the prosecution from retrying a case where, as here, the case was overturned due to error.
K. Sufficiency Review
Lastly, Murray claims that there is insufficient evidence to support his first- degree murder conviction. We disagree.
In death penalty cases, this Court conducts an independent review of the sufficiency of the evidence "to determine whether sufficient evidence exists to support a first-degree murder conviction." Snelgrove v. State, 921 So. 2d 560, 570 (Fla. 2005); see also Insko v. State, 969 So. 2d 992, 1002 (Fla. 2007). If the review reveals that "there is substantial, competent evidence to support the jury
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verdict," the decision of the trial court will not be reversed on appeal. Darling v. State, 808 So. 2d 145, 155 (Fla. 2002) (quoting State v. Law, 559 So. 2d 187, 188 (Fla. 1989)).
The following evidence presented at trial is consistent with Murray's guilt:
(1) the testimony of a jailhouse informant (Smith) detailing Murray's confession;
(2) the evidence collected from the scene and the testimony of the medical examiner which, together, confirmed the details of the crime as Murray related them to Smith; (3) the testimony of several witnesses who placed Murray with Taylor in the vicinity of the crime near the time the crime was committed; (4) testimony describing the presence of two different shoe prints as well as multiple weapons, implying that more than one person committed this crime; (5) the implication of consciousness of guilt since Murray left town the next day and later escaped from incarceration; (6) evidence connecting Murray and Taylor to Ms.
Vest's stolen jewelry; (7) the incriminating statements Murray made to Detective O'Steen; and (8) the presence of pubic hair recovered from Ms. Vest's body and nightgown which was found to have the same microscopic characteristics as Murray's known pubic hair. Based on all of the above, we find the evidence sufficient to support a first-degree murder conviction.
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III. PROPORTIONALITY REVIEW
Although Murray did not raise the issue of proportionality in his direct appeal, this Court reviews the proportionality of each death sentence. See Davis v. State, 859 So. 2d 465, 480 (Fla. 2003). In deciding whether death is a proportionate penalty, the Court considers the totality of the circumstances of the case and then compares the case with other similar capital cases. See Urbin v. State, 714 So. 2d 411, 417 (Fla. 1998).
The circumstances in the instant case reveal murder by strangulation preceded by beating, stabbing, burglary, and ***ual battery. The crime was committed for financial gain and was especially heinous, atrocious, and cruel.
Considering those circumstances, the aggravating and mitigating factors weighed by the trial court, and other cases with similar facts, we find the death sentence imposed on Murray is proportionate. See, e.g., Johnston v. State, 841 So. 2d 349 (Fla. 2002) (finding death sentence proportionate for ***ual battery, beating, and strangulation, where court found prior violent felony, murder in the course of a felony, pecuniary gain, and HAC aggravators); Mansfield v. State, 758 So. 2d 636 (Fla. 2000) (upholding death sentence where two aggravators, HAC and murder committed during the commission of a ***ual battery, outweighed five nonstatutory mitigators); Taylor v. State, 630 So. 2d 1038 (Fla. 1993) (finding
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