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circumstances of the shooting were similar to other cases in which this Court has rejected HAC for gunshot murders that were not accompanied by circumstances showing that the killing was conscienceless, pitiless, or unnecessarily torturous to the victim. The State has cross-appealed this ruling.


In mitigation, the trial court found and accorded some weight to the statutory mitigator that the murder was committed while Wheeler was under the influence of extreme mental and emotional disturbance. See § 921.141(6)(b), Fla. Stat. (2005).


The court also found in mitigation that Wheeler's capacity to conform his conduct to the requirements of law was substantially impaired, and accorded it some weight. See § 921.141(6)(f), Fla. Stat. (2005). Other mitigators were also found and given "minimal" to "some" weight.3 The court concluded that "the aggravating circumstances far outweigh the mitigating circumstances," and sentenced Wheeler to death in accord with the jury's ten-to-two sentencing recommendation.















3. The court found these other mitigating circumstances: (1) appropriate courtroom behavior ­ minimal weight; (2) good family background and close knit, caring family ­ minimal weight; (3) Wheeler was a loving and devoted father ­ some weight; (4) Wheeler did well in grammar and middle school ­ minimal weight; (5) Wheeler engaged in public service ­ minimal weight; (6) Wheeler has friendship ties ­ minimal weight; (7) Wheeler was a hard worker ­ minimal weight; (8) Wheeler showed remorse ­ minimal weight; (9) Wheeler will live the rest his life paralyzed ­ some weight; (10) drug and alcohol use ­ minimal weight; (11) Wheeler was under stress from job loss, his relationship with Heckerman, and damage to his home ­ some weight. See § 921.141(6)(h), Fla. Stat. (2005).








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Wheeler raises five issues on appeal, four of which are related to the penalty phase of the trial.4 In addition to the issues raised by Wheeler, this Court is required to consider whether the evidence is sufficient to support his conviction and whether the death sentence is proportionate. These issues will be discussed in turn, beginning with the guilt phase issues.


GUILT-PHASE ISSUES





Failure to Give a Special Instruction on Heat of Passion






Wheeler contends the trial court committed reversible error in denying a special instruction on "heat of passion." We disagree and affirm the trial court's denial of the special instruction. The instruction sought by the defense stated:


It is a defense to 1st degree murder, if you find the killing of Wayne Koester was done by Jason Wheeler in the "heat of passion".


The killing of a person in the "heat of passion" is a legal concept which recognizes the temporary suspension and overthrow of the reason or judgment of the defendant by the sudden access of











4. Wheeler raised the following issues on appeal: (1) whether the victim impact evidence became such a feature of the penalty phase that it denied due process, fundamental fairness and a reliable jury recommendation; (2) whether the prosecutor's remarks were improper and inflammatory and tainted the jury during the penalty phase, rendering the entire proceeding fundamentally unfair; (3) whether the trial court reversibly erred in denying Wheeler's request for a special guilt phase jury instruction on heat of passion; (4) whether Florida's capital sentencing scheme and penalty phase jury instructions shifted the burden of persuasion to the defense, and whether they placed a higher burden on the defense to obtain a life sentence than on the State to obtain a death sentence by creating a presumption that death is appropriate and requiring mitigation to outweigh the aggravation in order to obtain a life sentence; and (5) whether Florida's death penalty scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002).










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passion. In such case the heat of passion negates the requirement of 1st degree murder that the act be done with premeditation.


Passion is the state of mind when it is powerfully acted upon and influenced by something external to itself. It is one of the emotions of the mind known as anger, rage, sudden resentment, or terror. The emotion must be present in the mind of the defendant as a result of such adequate and immediate provocation as might obscure the reason or dominate the volition of an ordinary reasonable person.


If you find that Jason Wheeler's acts caused the death of Wayne Koester and that he acted in the "heat of passion," you should find the defendant guilty of manslaughter.


At the charge conference, defense counsel argued that the instruction should be given based on inferences from the State's evidence that Wheeler was acting oddly, rushing in on the deputies, and later had a noose around his neck, which counsel said indicated that Wheeler was acting in the heat of passion. Defense counsel stated that he was not suggesting that just finding people on the property justifies a heat of passion instruction, but that the jury could "infer that [Wheeler] at least saw no reason for the officers to be there, no reason to be complained of by his wife, et cetera. This is a provocation." Wheeler supports the heat of passion instruction on appeal by citing the fact that he acted strangely and irrationally in carrying out the crime, was under stress, and was angry about Heckerman's sabotage of his repairs to the doublewide.


The trial court denied the special instruction on the basis that there was no evidence justifying it. The judge stated:


Passion is a state of mind which when it is powerfully acted upon and influenced by something external, the emotion must be present in







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the mind of the defendant as a result of adequate - - such adequate and immediate provocation as might obscure the reason or dominate the volition of an ordinarily reasonable person. I find no evidence to support that.


The judge did give the standard jury instruction on excusable homicide, which includes a reference to "heat of passion" in its definition, and the standard jury instruction on premeditation. "Florida law is clear that a defendant is entitled to have a jury instruction on any valid defense supported by the evidence," but "a trial judge is not required to give an instruction where there is no nexus between the evidence in the record and the requested instruction." Mora v. State, 814 So. 2d 322, 330 (Fla. 2002).


Moreover, "[i]n order to be entitled to a special jury instruction, [the defendant] must prove: (1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing." Stephens v. State, 787 So. 2d 747, 756 (Fla. 2001) (footnotes omitted).




In this case, no evidence was presented by the defense or the State to support the special heat of passion instruction. Indeed, the only provocation for the shooting that was cited by defense counsel to the trial court was the fact that Heckerman had called 911 and that deputies were on the property. The trial judge essentially found, and we agree, that the presence of deputies on the property was







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not evidence of "adequate and immediate provocation as might obscure the reason or dominate the volition of an ordinary reasonable person," as specified in the special requested instruction. Accordingly, we conclude that there was no error in failing to give the special instruction and further find that the standard instructions given by the court adequately advised the jury on the issue of premeditation.



Sufficiency of the Evidence




Wheeler has not challenged the sufficiency of the evidence, but this Court has a mandatory obligation to review the sufficiency of the evidence in every case in which a sentence of death has been imposed. Jones v. State, 963 So. 2d 180, 184 (Fla. 2007). Our complete review of the record demonstrates that the convictions are supported by competent substantial evidence. This case is not circumstantial--the State presented the eyewitness testimony of deputies Crotty and McKane. Deputy Crotty identified Wheeler as the person who was firing a shotgun at the deputies. The circumstances of the protracted gun battle with the deputies also provide competent, substantial evidence of premeditation. Wheeler was required to pump the shotgun each time to chamber a round of ammunition.

Wheeler pursued the deputies and engaged in several separate gun battles with them, even after seeking refuge in the woods and then coming back out of the woods to fire his gun. There was ample time for Wheeler to contemplate his actions in the gun battle and to cease firing after fleeing into the woods, but he did
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