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with the State's contention that these cases do not preclude consideration of postmurder criminal behavior when assigning weight to the mitigating factor of no significant history. This Court's decisions from Scull to Hess consistently direct trial courts to not consider postmurder criminal behavior but instead focus on the defendant's behavior prior to the murder when deciding whether the defense has proven the mitigating factor of no significant history. Distinguishing between allowing the evidence for purposes of existence of the factor and for purposes of weight of the factor would indirectly allow the admission of evidence that Scull, Santos, and Hess were intended to exclude. Thus, we now clarify that the State may not present evidence of postmurder behavior or argue from such evidence for the purpose of diminishing the weight of the no significant history of prior criminal activity mitigating factor.


We do agree with the State that in this case any error in the sentencing order was harmless beyond a reasonable doubt. See Franklin v. State, 965 So. 2d 79, 95 (Fla. 2007) (applying harmless analysis to erroneously admitted evidence). The trial court assigned great weight to all four aggravating factors in each murder and found that "any of the considered aggravating circumstances found in this case, singularly applied to each victim and standing alone, would be sufficient to outweigh the mitigation in total." Sentencing Order at 81. Given this finding and the jury's vote in favor of the death penalty based on proper argument, it does not







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appear that the assignment of little weight to the no significant history mitigating factor impacted the trial court's decision to sentence Davis to death.





D. Proportionality




To ensure uniformity of sentencing in death penalty proceedings, this Court considers the totality of the circumstances and compares each case with other capital cases. The Court does not simply compare the number of aggravating and mitigating circumstances. Taylor v. State, 937 So. 2d 590, 601 (Fla. 2006). "In performing a proportionality review, a reviewing court must never lose sight of the fact that the death penalty has long been reserved for only the most aggravated and least mitigated of first-degree murders." Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998) (citing State v. Dixon, 283 So. 2d 1, 7 (Fla. 1973)). Davis argues that the death penalty is not warranted in this case because he committed the murders during a dissociative episode, he was severely emotionally disturbed and mentally handicapped, and he had no prior history of violence. We disagree. The death sentences imposed in this case are proportionate to death sentences that have been affirmed in other cases.


For example, the murders in this case are factually similar to the murders in Woodel v. State, 985 So. 2d 524 (Fla. 2008), cert. denied, (U.S. Nov. 17, 2008) (No. 08-6527). In Woodel, the defendant killed in their own home two residents of the trailer park where he lived. Like Davis, Woodel acted out of character and







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without any apparent motivation. The murders differ in that Woodel did not know his victims and used weapons of opportunity from their trailer rather than arriving at the scene armed. In that case, the trial court found four aggravating factors, three of which were given great weight: prior capital felony (contemporaneous murders); murder in the course of a felony based on burglary; HAC; and particularly vulnerable victim. Id. at 532. The Woodel trial court did not find CCP, and the crime there was thus arguably less aggravated than the crime in the instant case. In addition, the Woodel trial court found more weighty mitigation, including four statutory mitigating factors: no significant history of prior criminal activity; age; substantially impaired capacity; and extreme mental or emotional disturbance. On appeal, this Court affirmed Woodel's death sentences. Id. at 534.


In light of this precedent, the death sentences under review here are proportional, despite his lack of prior criminal activity and the inexplicable nature of these murders.


We also find persuasive the State's argument that the balance of mitigating and aggravating factors here is similar to that present in Smithers v. State, 826 So. 2d 916 (Fla. 2002). In Smithers, the defendant killed two women and attempted to hide their bodies. The trial court found the HAC, CCP, and previous violent felony (contemporaneous murder) aggravating factors for the first count, and the HAC and previous violent felony (contemporaneous murder) aggravating factors for the







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second count. Id. at 922. The trial court further found and gave moderate weight to both statutory mental health mitigating factors, based on expert testimony about Smithers' brain damage and chronic mental illness, and found nonstatutory mitigation, including that Smithers suffered abuse as a child. Id. While Davis's case may be slightly more mitigated due to Davis's young age, the trial court found more aggravation here, specifically that the aggravating factor of murder in the course of a felony applied because Davis forced his way into the victims' home to commit the murders. Accordingly, the death sentences in Davis are proportional with those imposed in Smithers.





E. Constitutionality of Florida's Capital Sentencing Procedures


This Court has repeatedly rejected claims based on Ring v. Arizona, 536




U.S. 584 (2002), where the prior violent felony aggravating factor is present. For example, in Frances v. State, 970 So. 2d 806, 822 (Fla. 2007), this Court found that Frances was not entitled to relief because the trial court found the aggravating circumstances of a prior violent felony conviction, based on contemporaneous convictions for murder and robbery, and because a unanimous jury found him guilty of two counts of premeditated murder and one count of robbery, thereby satisfying the mandates of the United States and Florida Constitutions. See also Salazar v. State, 991 So. 2d 364 (Fla. 2008) (rejecting Ring argument in light of contemporaneous conviction for attempted murder). In this case, the trial court







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found the aggravating factor of prior violent felony based on contemporaneous convictions for murder, and the jury unanimously found Davis guilty of first- degree murder under a felony-murder theory, which supports the aggravating factor of murder in the course of a felony. Davis has not offered any argument that distinguishes his case from Frances. Accordingly, Davis is not entitled to relief.





F. Sufficiency of Evidence




In appeals where the death penalty has been imposed, 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). The jury found Davis guilty of first-degree murder of the victims under two theories: felony murder and premeditated murder. The evidence is sufficient under both theories.


The jury heard Davis's taped confession to law enforcement officers and his live testimony that he forced his way into the victims' home and killed them.


Davis stated that he paused on the front steps of the victims' trailer, knocked on the door, asked Wren a few questions when she opened the door, and then stabbed her as he forced his way into the trailer. Davis further stated that when Albin entered the kitchen, he "just went to her next" and obtained a second knife to stab Albin







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after his knife broke while stabbing Wren. In addition to the confessions, the State presented physical evidence that connected Davis to the murders.7


This evidence supports convictions for felony murder of both victims based on the underlying felony of burglary because the jury reasonably could have inferred that Davis forcibly entered the victims' home with intent to commit at least an assault and then killed the victims. See Carter, 980 So. 2d at 481 (finding burglary aggravating factor supported in similar factual situation because "Carter either entered Reed's home uninvited with the intent to commit murder therein, or, notwithstanding an invitation, remained in her home to commit or attempt to commit a forcible felony."). The evidence supports a conviction for premeditated murder of Wren because the jury reasonably could have inferred that Davis formed a conscious purpose to kill from his bringing a knife to the trailer and his pause to question Wren before stabbing her. The evidence also supports a conviction for premeditated murder of Albin because the jury reasonably could have inferred a conscious purpose to kill Albin from Davis's apparently deliberate action to cease












7. Law enforcement officers recovered knives and bloody clothing from the locations designated by Davis. A partial knife blade found in Davis's shorts microscopically matched a partial knife blade found in the victims' kitchen sink. DNA found on the knife blade found in Davis's shorts matched Wren's DNA. DNA from blood stains found on Davis's blue jeans matched Albin. Davis's shoes could not be eliminated as having made impressions found at the crime scene. A knife found on the victims' kitchen floor had a mixture of DNA on it, to which Davis was the major contributor. And finally, DNA matching Davis was found on a bloody light switch plate in the victims' trailer.







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his attack on Wren to attack Albin. See Coday v. State, 946 So. 2d 988, 996 (Fla. 2006) (holding sufficient evidence of premeditation where defendant began attack with hammer and then walked into another room to obtain knife to complete murder); Sochor v. State, 619 So. 2d 285, 288-89 (Fla. 1993) (holding sufficient evidence of premeditation where Sochor briefly stopped attack on victim to yell at his brother and then resumed attack).


III. Conclusion




Based on the foregoing, we affirm Davis's convictions for first-degree murder and his sentences of death.


It is so ordered.


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


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


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


Lance M. Day, Judge ­ Case No. 03-10469 CFA


Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Appellant

Bill McCollum, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, Florida, for Appellee
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