[align=left]
- 7 -

A hair was found on a piece of electrical tape used to bind a Phar-Mor employee. Testing of the hair established that mitochondrial DNA extracted from the hair was consistent with Peterson's known mitochondrial DNA profile. Shoe prints matching tennis shoes seized from a storage unit rented by Peterson were found in the Phar-Mor office. Gosha testified that in May 1998 she was asked by law enforcement officers to watch a surveillance video from the Phar-Mor robbery.


At that time, she identified the person entering the store as Peterson. The surveillance tape was played for the jury, and Gosha again identified the person she saw in the tape as Peterson. Similarly, Ron T. Hillman, Gosha's brother, testified that he was previously asked by law enforcement officers to watch part of the Phar-Mor surveillance tape and that he identified the person he saw as Peterson. While on the stand, Hillman was shown the tape and again identified Peterson.



Ann Weber, an employee who worked at a St. Petersburg McCrory's on August 29, 1998, testified that just before 6 p.m., she went to the back of the store to have a cigarette and throw out the trash. When she walked through the dark stockroom, a man wearing a stocking over his face came out of the employee bathroom. Weber described the man as having "high, pudgy cheek bones." She testified that the man held a small gun to her head and said, "Don't fucking look at me or I'll kill you." Weber explained that the man asked her to deactivate the







- 8 -

buzzer on the office door and then made her enter the office, crawl up the steps to where the money was kept so that no one in the store would see her, and open the safe. When Weber began to take the money out of the bags in which it was kept, the man said, "No, you stupid bitch." Weber testified that the man asked her, "You close at six, right?" Upon being told that McCrory's was open until 8 p.m., the man became "aggravated." Weber testified that after collecting the money, the man took her to the employee bathroom, made her lie face down, and asked if there was any rope. He exited the store through the back door. Weber testified that she identified her assailant from a photopack during the investigation of the robbery and identified Peterson in the courtroom as the man who had robbed her. She explained that she was able to see his face through the stocking when she first encountered him because she was using a lighter to light her cigarette.


A law enforcement officer testified that when searching the home of Peterson's father, he found a green bank bag behind a refrigerator in the garage.


Inside the bag, he found a white plastic McCrory's bag; about thirty documents including checks, a bank deposit slip, charge card receipts with McCrory's store number; an air freshener with a fifty-cent price tag; a McCrory's receipt for fifty cents; a $20 bill; and what appeared to be a firearm but was actually a pellet gun.


Weber identified the green bank bag as the one kept in the McCrory's safe and all the recovered documents as things that would have been kept in the bag--except







- 9 -

the McCrory's receipt for fifty cents. A latent print examiner testified that a fingerprint and a palm print matching Peterson's were found on a check and the receipt.


On July 27, 2005, the jury found Peterson guilty of first-degree murder by general verdict. The trial court conducted a one-day penalty phase during which the State and the defense presented evidence.


During the State's presentation, the parties stipulated that Peterson had been convicted previously of thirteen felonies involving the use or threat of violence, including multiple convictions for robbery with a firearm, ***ual battery, and false imprisonment, resulting in nine life sentences. The parties also stipulated that Peterson was on life parole from March 3, 1992, through October 20, 1998, which included December 24, 1997, the date of the homicide. The State then presented the testimony of one witness. Dale Smithson testified that he was on duty at a Jimmy Spur gas station in St. Petersburg, Florida, on April 30, 1981. Smithson explained that after locking the door at closing, he was confronted by a man with a gun who demanded money. The robber was later proven to be Peterson.


The defense called two mental health professionals and three lay witnesses to testify. On direct examination, Michael Scott Maher, M.D., a physician and psychiatrist, testified that Peterson functioned at the level of a mid-teenager, fourteen to sixteen years of age. He opined that "Mr. Peterson does have some







- 10 -

capacity to conform his behavior to the requirements of the law, but that capacity is less than an average adult, substantially less than an average adult." Based on Peterson's age and history of only minor infractions while in prison, Dr. Maher opined that Peterson is likely to be well-behaved in prison. On cross-examination, Dr. Maher testified that Peterson meets the criteria for antisocial personality disorder. He testified at length about the general characteristics of individuals with that disorder and whether Peterson displayed those characteristics. Dr. Valerie R.


McClain, a forensic psychologist, testified that she performed IQ testing on Peterson and that his full-scale score on the Wechsler Adult Intelligent Scale was 77, placing him in the borderline range. On cross-examination, Dr. McClain testified that Peterson graduated from high school with a 2.0 grade point average.


Linda Dyer, a classifications supervisor and custodian of records for the Pinellas County Sheriff's Office, testified that Peterson had received only one disciplinary report since he came into the custody of the Pinellas County Sheriff on January 19, 2001. She opined that one disciplinary report in that amount of time was a good record. Annie Peterson, Peterson's mother, testified that she never heard of Peterson getting in trouble in school and that after graduation he joined the Army. She testified that while paroled, Peterson worked in food and beverage service at the Marriott Hotel for seven years, part of that time as a manager.








- 11 -

Laquanda Monique Peterson, Peterson's niece, testified that Peterson was like a father to her.


On July 29, 2005, the jury recommended the death sentence by an eight-to- four vote. After conducting a hearing pursuant to Spencer v. State, 615 So. 2d 688 (Fla. 1993), and considering post-trial motions, the trial court followed the jury's recommendation and sentenced Peterson to death. State v. Peterson, No. CRC00- 05107-CFANO-I (Fla. 6th Cir. order filed Jan. 6, 2006) (Sentencing Order). The trial court found and assigned weight to three aggravating factors,1 one statutory mitigating factor,2 and five nonstatutory factors.3 Id. at 4-15.












1. The aggravating factors were: (1) Peterson was under a sentence of imprisonment at the time of the murder--life parole for three 1981 robberies (assigned great weight); (2) Peterson was previously convicted of a violent felony, based on thirteen convictions, resulting in a total of nine life sentences (assigned great weight); and (3) Peterson committed the murder during the commission of a robbery (assigned significant weight).









2. The trial court found the age statutory mitigating factor, despite Peterson's age of thirty-eight at the time of the offense, based on expert testimony that he functioned at the emotional level of a fourteen- to sixteen-year-old. This factor was given little weight.









3. The nonstatutory mitigating factors were: (1) Peterson had a low to normal IQ (assigned little weight); (2) Peterson had some limited mental impairment (assigned little weight); (3) Peterson had a good relationship with at least two family members (assigned some weight); (4) Peterson had a consistent work history (assigned some weight); and (5) Peterson had an exemplary disciplinary record in jail and likely will behave properly when placed in prison (assigned little weight).







- 12 -

In this appeal, Peterson argues that (A) the trial court erred by admitting evidence of three collateral robberies; (B) death by lethal injection constitutes cruel and unusual punishment; (C) his death sentence is disproportionate; (D) the trial court erred in denying defense counsel's motion for a new penalty phase due to the presentation of evidence and argument that Peterson lacked remorse; (E) Florida's capital sentencing process is unconstitutional pursuant to Ring v. Arizona, 536




U.S. 584 (2002); and (F) the penalty-phase jury instructions unconstitutionally shifted the burden of proof to the defendant. In addition to considering Peterson's arguments on appeal, this Court reviews the record to confirm that sufficient evidence supports the jury's verdict. See Fla. R. App. P. 9.142(a)(6).


II. ANALYSIS






A. Admission of Collateral Crime Evidence


In Williams, this Court held that "evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion." 110 So. 2d at 663. The rule has since been codified in section




90.404(2)(a), Florida Statutes (2005), which provides:


Similar fact evidence . . . is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.







- 13 -

This Court has held that before admitting collateral crime evidence, the trial court must make four determinations: whether there is sufficient evidence that defendant committed the collateral crime; whether the collateral crime meets the similarity requirements necessary to be relevant; whether the collateral crime is too remote, so as to diminish its relevance; and whether the prejudicial effect of the collateral crime substantially outweighs its probative value. Robertson v. State, 829 So. 2d 901, 907-08 (Fla. 2002). In McLean v. State, 934 So. 2d 1248, 1255 (Fla. 2006), this Court explained the substantial similarity requirement, stating:




[I]n cases where the purported relevancy of the collateral crime evidence is the identity of the defendant, we have required "identifiable points of similarity" between the collateral act and charged crime that "have some special character or [are] so unusual as to point to the defendant." Drake v. State, 400 So. 2d 1217, 1219 (Fla. 1981). This is because "[t]he mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared." Id. Thus, "[a] mere general similarity will not render the similar facts legally relevant to show identity." Id.


The Court considers both similarities and dissimilarities between the collateral crimes and the charged offense when reviewing whether "a sufficiently unique pattern of criminal activity [justifies] admission." Peek v. State, 488 So. 2d 52, 55 (Fla. 1986) (quoting Chandler v. State, 442 So. 2d 171, 173 (Fla. 1983)). A trial court's determination that evidence is relevant and admissible "will not be disturbed absent an abuse of discretion." Taylor v. State, 855 So. 2d 1, 21 (Fla. 2003) (quoting ***ton v. State, 697 So. 2d 833, 837 (Fla. 1997)).







- 14 -





Peterson does not dispute that he committed the collateral robberies. His appellate counsel informed this Court that Peterson was either convicted or pled guilty to each collateral robbery. Instead, Peterson argues that the Family Dollar, Phar-Mor, and McCrory's robberies were not sufficiently factually similar to the charged offense to be relevant and that the collateral crime evidence improperly became a feature of the trial. After reviewing the record, we find that the trial court did not abuse its discretion in allowing the collateral crime evidence.


In Rogers v. State, 511 So. 2d 526 (Fla. 1987), the defendant was charged with murdering a man as he exited a Winn-Dixie grocery store after attempting to rob the store. This Court found that evidence of two robberies committed subsequent to the charged homicide was admissible. The Court explained:


The trial court, listing the following similarities, correctly deemed the collateral-crimes evidence a "close, well-connected chain of similar facts" between all the robberies:

1) Target is a chain-type grocery store. 2) Robbery takes place just prior to closing. 3) Two white males involved, one slightly taller than the other. Both in the mid twenties or early thirties. 4) Both wear nylon stocking masks. 5) Each carries an automatic type firearm (handgun). 6) One robber directs his attention to the cash registers, while the other seeks out the office and office safe area containing cash receipts. 7) Both robbers direct patrons and employees to "lay on the floor." 8) Unnecessary violence and physical contact with victims is sought to be avoided. 9) Bags are used to secure money, plastic or pillow cases.
[/align]