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an aggravating factor' and that `lack of remorse should have no place in the consideration of aggravating factors.'" Tanzi v. State, 964 So. 2d 106, 114-15 (Fla. 2007) (quoting Pope v. State, 441 So. 2d 1073, 1078 (Fla. 1983)), cert. denied, 128 S. Ct. 1243 (2008). This Court has further held that the State ordinarily may not present evidence or argument about a defendant's lack of remorse in the context of discussing a diagnosis of antisocial personality disorder.


For example, in Atwater v. State, 626 So. 2d 1325, 1328 (Fla. 1993), the Court held that the trial court erred in permitting the State to ask on cross-examination whether persons with antisocial personality disorder showed remorse. See also Robinson v. State, 520 So. 2d 1, 5-6 (Fla. 1988). This Court has further held that the State may not circumvent the prohibition against lack-of-remorse evidence by using synonymous words and phrases. See, e.g., Sireci v. State, 587 So. 2d 450, 454 (Fla. 1991) (holding that trial court erred in allowing State witness to testify that "after Sireci read about the murder in the newspaper, `he seemed rather proud of it.'").4












4. The Court has recognized an exception to the prohibition against presenting evidence of lack of remorse. The Court held that evidence about lack of remorse may be used to rebut the proposed mitigating factors of remorse for the crime or rehabilitation. See Singleton v. State, 783 So. 2d 970, 978 (Fla. 2001). This exception is not applicable in this case. While Dr. Maher testified that due to Peterson's age, he expected that in prison Peterson would "tend to be less impulsive, less aggressive, less violent," the defense did not propose rehabilitation as a mitigating factor.







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Peterson argues that the State's cross-examination of expert witness Dr.


Maher about lack of empathy and contemptuousness as symptoms of antisocial personality disorder was tantamount to questioning and argument about lack of remorse. The State contends that the questioning about Peterson's lack of empathy and contempt for his victims was not improper because empathy refers to the defendant's mental and emotional state at the time of the crime whereas remorse refers to the defendant's mental and emotional state after the crime. We agree that this is a relevant distinction. Florida's statutory aggravating and mitigating factors recognize the defendant's mental and emotional state at the time of the crime as factors relevant to sentencing. See § 921.141(5)-(6), Fla. Stat. (2008). The majority of the State's questioning of Dr. Maher properly focused on Peterson's state of mind at the time of the offense as it related to the proposed statutory mitigating factor of substantially impaired capacity to appreciate the criminality of his conduct.5


A few of the State's questions did solicit testimony about Peterson's after- the-fact feelings towards the victims of his crimes. While these questions arguably












5. Peterson also challenges the State's closing argument based on Dr. Maher's testimony. After reviewing the record, we find that the prosecutor's closing argument did not discuss Peterson's state of mind after the crime. The prosecutor properly focused his argument on the proposed mitigating factors and did not discuss whether Peterson felt remorse or the equivalent thereof after the murder. Because we find that the State's closing argument was proper, there is no need to address whether this issue was preserved for review.







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solicited testimony about remorse without using the term "remorse," any error was harmless beyond a reasonable doubt. See Franklin v. State, 965 So. 2d 79, 95 (Fla. 2007) (applying harmless error analysis to erroneously admitted evidence). We find that the brief references to Peterson's refusal to acknowledge his wrongdoing did not influence the jury's recommendation or the trial court's sentencing decision. The State's closing argument was proper, and there was significant, undisputed aggravation and relatively weak mitigation--specifically Peterson had been convicted of thirteen prior felonies and was on probation at the time of the murder compared to no evidence of major mental illness or other compelling mitigating circumstances.6 Moreover, while the trial court considered the proper portions of Dr. Maher's testimony as it related to Peterson's state of mind at the time of the crime, it did not rely on the arguably improper evidence or argument in reaching its decision to impose the death penalty. Based on the foregoing,












6. Peterson argues that a St. Petersburg Times article demonstrates that the jury considered lack of remorse in reaching its recommendation. The article states that the jury forewoman stated that she wondered if there would have been another result had Peterson taken the stand and said he was sorry. This Court has held that a juror's consideration of a defendant's decision not to testify is a matter that inheres in the verdict. Sims v. State, 444 So. 2d 922, 925 (Fla. 1983). In Devoney



v. State, 717 So. 2d 501, 504-05 (Fla. 1998), the Court found that a juror's allegation that one or more jurors deliberated about a matter they were told to disregard was a matter inhering in the verdict. As a result, the majority of the Court held that the trial court erred in granting a new trial based on the jury's improper deliberation. Under Devoney, this Court may not consider the alleged comments by the jury forewoman in deciding whether Peterson was entitled to a new penalty phase.







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Peterson is not entitled to a new penalty phase. See Randolph v. State, 562 So. 2d 331, 338 (Fla. 1990) (holding one improper question about lack of remorse harmless beyond reasonable doubt in light of totality of evidence); Atwater, 626 So. 2d at 1328 (holding cross-examination of expert witness about whether persons with antisocial personality disorder show remorse was harmless error).





E. Ring Claims


Peterson argues that Florida's capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). This Court has repeatedly held that where a death sentence is supported by the prior violent felony aggravating factor, as is the case here, Florida's capital sentencing scheme does not violate Ring. See,




e.g., Frances v. State, 970 So. 2d 806, 822 (Fla. 2007), cert. denied, 128 S. Ct. 2441 (2008); Lebron v. State, 982 So. 2d 649 (Fla. 2008). This Court has found that "Ring did not alter the express exemption in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that prior convictions are exempt from the Sixth Amendment requirements announced in the cases." Frances, 970 So. 2d at 822; see also Johnston v. State, 863 So. 2d 271, 286 (Fla. 2003) ("[The] prior violent felony conviction alone satisfies constitutional mandates because the conviction was heard by a jury and determined beyond a reasonable doubt.").


Peterson's argument that this Court has erred in unanimously finding Ring inapplicable where the prior violent felony aggravating factor is present is







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procedurally barred because Peterson did not raise that argument to the trial court.


The argument is also without merit. Peterson argues that since, as held in Cox v. State, 819 So. 2d 705 (Fla. 2002), evidence may be admitted during the penalty phase to show more than the mere fact of a prior conviction, not requiring a unanimous jury finding that the aggravator was proven violates Ring. We disagree. Because the operative jury where the prior violent felony aggravating factor is present is the jury that convicted the defendant of the prior felony, not the sentencing jury, it is irrelevant for constitutional purposes that the sentencing jury may hear evidence beyond that required to prove the fact of conviction.





F. Penalty-Phase Jury Instructions


Peterson claims that the standard penalty-phase jury instructions given in his case unconstitutionally shifted the burden of proof to him to establish mitigating circumstances and to show that those factors outweighed the aggravating circumstances. His arguments are without merit. Similar arguments have been rejected previously by this Court. See, e.g., Johnson v. State, 969 So. 2d 938, 961- 62 (Fla. 2007) (rejecting arguments that standard instructions unconstitutionally place burden of proof on defendant to prove death sentence is inappropriate and that instructions improperly restrict evidence that jury may consider in mitigation).





G. Sufficiency of Evidence








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Peterson does not contest the sufficiency of the evidence, but in death penalty appeals, this Court independently reviews the record to confirm that the jury's verdict is supported by competent, substantial evidence. See Fla. R. App. P.







9.142(a)(6). In this case, the State argued that both felony murder and premeditated murder theories were applicable to the crime, and the jury delivered a general verdict. "A general guilty verdict rendered by a jury instructed on both first-degree murder alternatives may be upheld on appeal where the evidence is sufficient to establish either felony murder or premeditation." Crain v. State, 894 So. 2d 59, 73 (Fla. 2004).


While we find insufficient evidence of premeditation in this case, the first- degree murder conviction is supported by competent, substantial evidence of felony murder. The State proved beyond a reasonable doubt that a robbery occurred at the Big Lots store on December 24, 1997, and that John Cardoso was killed during that robbery. Karen Smith testified that a masked, gloved man forced her at gunpoint to collect money from the store and to give the money to him.


Maria Soto testified that an armed man threatened "to kill us, to do to us what he had done to . . . John." The State and defense stipulated that the body found in the Big Lots store after the robbery was John Cardoso and that Cardoso was dead. No witness testified that more than one person committed the robbery. The State also proved that Peterson was the man who robbed the store. In addition to the







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collateral crime evidence circumstantially connecting Peterson to the Big Lots robbery, as summarized above, the State presented several witnesses who identified Peterson as the robber. This evidence is sufficient to support the conviction under a felony murder theory. See, e.g., Blake, 972 So. 2d at 850 (holding evidence supported first-degree felony murder conviction where Blake admitted entering store with handgun to commit robbery and to shooting victim).


III. CONCLUSION




Based on the foregoing, we affirm Peterson's conviction for first-degree murder and his sentence of death.


It is so ordered.


QUINCE, C.J., WELLS, PARIENTE, LEWIS, CANADY, and POLSTON, JJ., and ANSTEAD, Senior Justice, concur.


NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.


An Appeal from the Circuit Court in and for Pinellas County,


Linda R. Allen, Judge ­ Case No. CRC 00-05107 CFANO





J. Marion Moorman, Public Defender, and Andrea M. Norgard, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant

Bill McCollum, Attorney General, Tallahassee, Florida, and Katherine V. Blanco, Assistant Attorney General, Tampa, Florida, for Appellee
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