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impact evidence does not impermissibly affect the weighing of aggravators and mitigators, and rejecting argument that victim impact evidence should be limited to a Spencer hearing); § 921.141(7), Fla. Stat. (2006). In this case, the trial court accommodated every specific objection to victim impact evidence that was voiced by defense counsel. Because Wheeler has identified no reversible error committed by the trial court in admission of the victim impact evidence, we deny relief on this claim.


Although, for the reasons set forth, we do not reverse based on the number of victim impact photographs presented in this case, we nevertheless caution prosecutors to be ever mindful of the limited purpose for which victim impact evidence may be introduced. Prosecutors should make every effort to ensure that the rights of victims and families, who naturally want their loved one to be remembered through testimony and pictures, do not interfere with the right of the defendant to a fair trial. We also remind prosecutors of the admonition in Payne that when presentation of victim impact evidence "is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief." 501 U.S. at 825. We encourage trial judges to assist in ensuring that the proper balance is struck.



Prosecutorial Argument During the Penalty Phase








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Wheeler next contends that the prosecutor repeatedly engaged in improper and prejudicial remarks to the jury during the penalty phase. Wheeler objected to only one of the alleged improper comments, and relies upon his general pretrial motions in limine for preservation of his claims of error for the remaining comments.6 The general pretrial motion in limine does not constitute a contemporaneous objection to the prosecutor's arguments, and the record demonstrates that even the one objected-to comment was not adequately preserved.


As to the comment for which defense counsel did object, the trial court did not sustain or overrule the objection, but asked the prosecutor to clarify his argument.


The prosecutor began by arguing: [Prosecutor] And if you just think back to yesterday you can recognize why that's so. It's obvious. The choices that Jason Wheeler made had a devastating impact on not just the family of Deputy Koester, but his family as well. If you tried to sit and count the number of people that have been affected by what was done, it numbers in the dozens just with Wayne Koester's nieces and nephews. There's six kids and two families each and four of his own.


Now, that - -



Defense counsel objected and said: "[T]his to me is like an aggravator based on the number of people that are more [affected]." The prosecutor












6. Section 90.104(1), Florida Statutes, was amended in 2003 to make a contemporaneous objection to admission or exclusion of evidence unnecessary in order to preserve the issue for appeal where a prior "definitive ruling" has been obtained. See ch. 2003-258, § 1, Laws of Fla. This statute does not apply here because it does not apply to claims of error in prosecutorial argument.








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responded:




It is not in any way intended to be argued as an aggravator. It is simply for them to understand that everybody has been affected by this. And my further comment will be, that's not what they can make their decision on.


The court then said, "Make that clear and limit it as best you can." The prosecutor then clarified his argument by telling the jury:


But you see, the rules tell you that that's not what you base your decision on. That's the whole purpose of the process is for you to try to look objectively at the choices that were made and what is the just consequence of those choices.


No further objection was made after this clarification, and no motion for mistrial was made. Because this objection was not preserved, and no other specific objections were made to any of the other arguments Wheeler cites on appeal, his claims are procedurally barred. Thus, any claim of error must be shown to be fundamental for the appellant to obtain relief. See Derrick, 983 So. 2d at 463 (quoting Delva, 575 So. 2d at 644-45). With one exception that we discuss below, we conclude that the arguments of the prosecutor constituted proper comment on the evidence and the law.




One unobjected-to argument, however, did exceed the proper scope of closing argument when the prosecutor, quoting writer Joseph Epstein, argued:





"But within all this realm of choicelessness, we do choose how we will live. Either courageously or cowardly, or honorably or dishonorably, with purpose or a drift, we decide what's important and trivial in life. We decide what makes us significant is either what we







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do or what we refuse to do.


But no matter how indifferent the entire universe may be to these choices, these choices and decisions are ours to make. We decide. We choose. And as we decide and as we choose, our destinies are formed."


That's what I want you to look at as we walk through this case and these facts and these aggravating and mitigating circumstances.


No specific objection was made to this argument, although just before penalty phase closing arguments, Wheeler had advised the trial judge that the prosecutor might attempt to argue that the jury could weigh victim impact evidence against the mitigators. Significantly, the prosecutor actually responded at that time that he did not intend to use victim impact evidence as an aggravator, but he "intended to use the victim impact as a contrast to the defendant's mitigation of his life and his character." The trial court was concerned whether such an argument would be proper and warned the prosecutor to couch his discussion of the victim impact evidence very circumspectly to avoid having it diminish defendant's mitigation.


Under the limited scope of the victim impact statute in Florida, victim impact evidence is not to be used by the jury to compare, contrast or weigh the relative worth of the life of the victim against that of the defendant in deciding whether to recommend the death penalty. To the extent that the prosecutor's argument urged the jury to compare the worth of the life of the victim against that of Jason Wheeler, the argument is erroneous. However, we conclude that reversal is not mandated because no contemporaneous objection was made, the error has







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not been shown to have deprived Wheeler of a fair penalty phase, and the error has not been shown to be so inflammatory that the jury's advisory verdict could not have been obtained without it. See Derrick, 983 So. 2d at 463. Nevertheless, we caution the State and its prosecutors to remain mindful of the limited purpose for which victim impact evidence may be introduced and to stay strictly within those parameters.



Florida's Capital Sentencing Statute and Penalty-Phase Jury Instructions





Wheeler next claims that Florida's capital sentencing statute and jury instructions are unconstitutional because they establish a presumption that death is the appropriate penalty and shift the burden of persuasion to the defendant.


Similar claims have consistently been rejected by this Court. See Lebron v. State, 982 So. 2d 649, 666 (Fla. 2008) (penalty-phase instructions do not improperly shift burden of proof to the defendant); Barnhill v. State, 971 So. 2d 106, 117 (Fla. 2007) (Florida's death penalty statute and jury instructions do not unconstitutionally shift the burden of proof); Rogers v. State, 957 So. 2d 538, 555 (Fla. 2007) (recognizing that the standard penalty-phase jury instructions do not "impermissibly shift the burden to the defense to prove that death is not the appropriate sentence"); Reynolds v. State, 934 So. 2d 1128, 1151 (Fla. 2006) (rejecting claim that capital sentencing statute and instruction unconstitutionally place a higher burden on the defendant to establish that life is the appropriate







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penalty than is placed on the State to establish that death is appropriate). Because this Court has previously rejected the same challenges to the death penalty statute and jury instructions, Wheeler's claim for relief on this issue is also denied.




Constitutionality of Florida's Capital Sentencing Statute under Ring








Wheeler next asserts that Florida's death penalty statute is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002), which held that a defendant has a Sixth Amendment right to have a jury find any facts upon which the legislature conditions an increase in his or her maximum punishment. Id. at 589. Wheeler contends that this principle applies even to the prior violent felony conviction aggravator.7 This case involves a prior violent felony conviction as a basis for the trial court's finding, which we have consistently held is outside of the dictates of Ring. See Johnson v. State, 969 So. 2d 938, 961 (Fla. 2007) (holding that relief is not available under Ring where one of the aggravators rests on the separate convictions for kidnapping and ***ual battery, which satisfies Sixth Amendment requirements), cert. denied, 128 S. Ct. 2056 (2008); Taylor v. State, 937 So. 2d 590 (Fla. 2006) (rejecting claim that the existence of a prior violent felony aggravator does not bar application of Ring); Reynolds v. State, 934 So. 2d 1128, 1160 (Fla. 2006) ("Furthermore, one of the aggravating circumstances found by the trial court in this case was prior convictions of a violent felony, `a factor which under










7.



See § 921.141(5)(b), Fla. Stat. (2006).







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Apprendi and Ring need not be found by the jury.'" (quoting Jones v. State, 855 So. 2d 611, 619 (Fla. 2003))); Doorbal v. State, 837 So. 2d 940, 963 (Fla. 2003) (rejecting Ring claim where one of the aggravating circumstances found by the trial judge was defendant's prior conviction for a violent felony). Because Wheeler was convicted by a unanimous jury of the contemporaneous violent felonies of attempted first-degree murder and aggravated battery with a firearm of deputies McKane and Crotty, relief is hereby denied on this claim.8


Proportionality of the Death Sentence


Wheeler does not challenge the proportionality of his death sentence, but this Court reviews the death sentence for proportionality "regardless of whether the issue is raised on appeal." England v. State, 940 So. 2d 389, 407 (Fla. 2006); see also Fla. R. App. P. 9.142(a)(6). The death penalty is "reserved only for those cases where the most aggravating and least mitigating circumstances exist." Terry




v. State, 668 So. 2d 954, 965 (Fla. 1996). In deciding whether death is a proportionate penalty, the Court makes a "comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence." Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003) (citation












8. A contemporaneous conviction involving another victim is included within the ambit of the prior violent felony aggravator. See Frances v. State, 970 So. 2d 806, 817 (Fla. 2007), cert. denied, 128 S. Ct. 2441 (2008).








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omitted). This analysis "is not a comparison between the number of aggravating and mitigating circumstances." Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990).


Rather, this entails "a qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis." Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998). This case involves the premeditated murder of a law enforcement officer who was acting in the course of his official duties and the attempted murder of two other deputies. Thus, there are multiple crimes involving law enforcement officers, and the murder was committed to avoid arrest. Not only was the murder committed without legal justification but the trial court concluded that the CCP aggravator was established. None of the aggravators found by the trial court has been challenged and they are all clearly supported by competent, substantial evidence. Statutory mental mitigation was found and accorded some weight by the trial court.


We conclude that the circumstances of the murder in this case are similar to, although more aggravated than, other cases involving law enforcement officers in which we have upheld the death penalty as proportional.9 In Burns v. State, 699 So. 2d 646 (Fla. 1997), we affirmed the death sentence where the victim was a law enforcement officer who was shot after a struggle, the trial court found one merged












9. We do not suggest that murder of a law enforcement officer alone will always render the death penalty proportionate.









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aggravator--that the murder was committed to avoid arrest and to hinder law enforcement--and further found one statutory mitigator, along with nonstatutory mitigation. In another case involving the gunshot murder of a law enforcement officer, Diaz v. State, 860 So. 2d 960 (Fla. 2003), the murder occurred after an altercation and a chase, and involved a separate attempted murder in the same incident. Id. at 964. The trial court found three aggravators, including HAC, and five statutory mitigating circumstances, including extreme mental or emotional disturbance and the defendant's diminished capacity to conform his conduct to the law. On appeal, this Court struck HAC and left two remaining aggravating circumstances--CCP and prior violent felony conviction. Even though there were five statutory mitigators, this Court found the death sentence to be proportionate based on the circumstances present in the case. Id. at 971. Based on the specific facts and circumstances of the murder, and the aggravators and mitigators found by the trial court in this case, we conclude that when compared with other capital cases, the death sentence in this case is proportionate. Accordingly, the death sentence is affirmed.



STATE'S CROSS-APPEAL





The State has cross-appealed the trial court's ruling that the murder in this case was not especially heinous, atrocious or cruel (HAC). Because we affirm the conviction and sentence in this case, we need not address the State's cross-appeal.







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CONCLUSION




After a thorough review of all the issues raised by Wheeler, and after our own independent review of the sufficiency of the evidence and the proportionality of the sentence, we affirm Wheeler's convictions for first-degree murder and the sentence of death. We also affirm his convictions for attempted murder and aggravated battery with a firearm and the sentences imposed for those offenses.




It is so ordered.


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


WELLS, J., concurs in result only with an opinion, in which CANADY and POLSTON, JJ., concur.


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


WELLS, J., concurring in result only.



I concur in the majority's opinion as to guilt-phase issues.



I concur in the majority's decision in respect to the penalty phase and affirming the death penalty. I do not join in the majority's opinion.



I agree that the victim impact evidence did not constitute fundamental error.


I do not join in the dicta statement in the majority opinion which states, with no reference to our case law, that "we recognize that evidence that places undue focus







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on victim impact, even if not objected to, can in some cases constitute a due process violation." Majority op. at 14-15.



I do not agree with the majority's conclusion that "one unobjected-to argument, however, did exceed the proper scope of closing argument." Majority op. at 22. The prosecution as well as defense counsel are to be given latitude in arguing the case to the jury. I do not conclude that the prosecution exceeded that latitude.


CANADY and POLSTON, JJ., concur.




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





T. Michael Johnson, Judge ­ Case No. 2005-CF01


James S. Purdy, Public Defender, and James R. Wulchak, Chief, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant/Cross-Appellee

Bill McCollum, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, Florida, for Appellee/Cross-Appellant
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