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conducted a warrants check on the defendant. The trial court found two aggravators (prior violent felonies and that the murder was committed to avoid a lawful arrest)6 and relatively weak mitigation. After reviewing the circumstances of the case, the aggravators, and the mitigators, this Court affirmed the death sentence. Id. at 6. The circumstances of Bailey's case are similar to Reaves.


Numerous other cases likewise support the conclusion that death is a proportional sentence. See, e.g., Gonzalez v. State, 786 So. 2d 559, 569 (Fla. 2001) (affirming the death sentence in a case which involved the killing of a police officer during the course of a robbery and contained three aggravating circumstances,7 the statutory mitigator that the defendant lacked a significant criminal history, and numerous nonstatutory mitigators); Armstrong v. State, 642 So. 2d 730, 740 (Fla. 1994) (affirming the death sentence in a case which involved the killing of a police officer during the course of a robbery and contained similar aggravation).












6. The trial court also found that the crime was heinous, atrocious, or cruel, but this Court struck that aggravating circumstance.









7. The trial court found six aggravators but merged numerous aggravators into a total of three aggravators: (1) the defendant had a prior violent felony conviction; (2) the crime occurred during the commission of a robbery, which was merged with the aggravator that it was committed for pecuniary gain; and (3) the crime was committed for the purpose of avoiding a lawful arrest, which was merged with the aggravators that the crime was committed to hinder the enforcement of laws and that the victim was a law enforcement officer who was performing his official duties.








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We find that the circuit court's rejection of the statutory mental mitigating factors is supported by competent, substantial evidence and that the court did not abuse its discretion in assigning the weight of the aggravating and mitigating factors. After reviewing the totality of the circumstances, we find this case is comparable to Burns, Reaves, and Gonzalez, and hold that the sentence of death is proportional.


In his second argument, Bailey asserts that fundamental error occurred when the prosecutor made four different arguments to the jury. Because defense counsel did not object to these numerous arguments during trial, in order to obtain relief on such claims, the comments must rise to the level of fundamental error. See, e.g., Merck v. State, 975 So. 2d 1054, 1061 (Fla. 2007) ("Counsel must contemporaneously object to improper comments to preserve a claim for appellate review. Unobjected-to comments are grounds for reversal only if they rise to the level of fundamental error."), cert. denied, 129 S. Ct. 73 (2008). This is a high burden which requires an error that "goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process." Johnson




v. State, 969 So. 2d 938, 955 (Fla. 2007) (quoting J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998)), cert. denied, 128 S. Ct. 2056 (2008).


Bailey first asserts that the prosecutor improperly positioned himself as a member of the jurors' community who represented the community's best interest







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when the prosecutor introduced himself to a panel of potential jurors as follows: "Good morning, I'm Steve Meadows, I'm the State Attorney for the 14th Circuit and I'm here representing the community." We reject Bailey's argument that this statement constitutes an improper argument. In Cox v. State, 819 So. 2d 705, 718 (Fla. 2002), the prosecutor told the jurors, "I stand before you again today on behalf of the decent law-abiding people of this community and this state, whom I represent." After noting that the State Attorney only stated whom he represented, this Court held that this was not the type of intolerable statement that appealed to the emotions and fears of the jury and did not constitute a wrongful "message to the community" argument. Id. In turning to Bailey's claim, the State Attorney's introduction of himself was in the same vein, only much less grandiose, and likewise, this statement cannot constitute error, much less fundamental error.


Next, Bailey asserts that the prosecutor committed fundamental error by repeatedly stressing a theme that demonized Bailey as evil and an outsider. In support of this contention, Bailey points to various statements that the prosecutor made during the opening statement, for example:


Easter Sunday, March 27th, 2005 began like many, many other Easters throughout this country over the years. But in our community on that day an ill wind began to blow, a strong wind, a wind that the people who were there will remember for the rest of their lives. It was brutal and it was continuing.









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The prosecutor made similar statements during closing arguments, as well as an argument that summarized an eyewitness's testimony as follows:


A bullet has just gone through the glass. He's seen the fire. He saw the [defendant's] face, a face he described as mean, angry. I submit evil.


Ladies and gentlemen, by the facts and the evidence that have been presented to you over the last two days you too have seen the face of the defendant.



In Carroll v. State, 815 So. 2d 601, 622 (Fla. 2002), the Court addressed a habeas claim where the defendant asserted that his appellate counsel was ineffective for failing to raise the prosecutor's improper arguments made during the penalty phase where the prosecutor stated that Carroll was the "boogie man" and a "creature that stalked the night" who "must die." This Court held that although the comments were improper and ill-advised, the comments were "not as egregious or cumulative in scope as in cases where this Court has found fundamental error." Id. Likewise, in Moore v. State, 820 So. 2d 199, 207 (Fla. 2002), this Court addressed a postconviction claim which alleged that defense counsel was ineffective in failing to object to two different occasions where the prosecutor called the defendant "the devil." Id. For example, during one of the arguments, the prosecutor told the jury, "Crime conceived in hell will not have any angels as witnesses. And, ladies and gentleman, as true as that statement is, Grand Park is hell. And that man right there is the devil." While the Court disapproved







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of the prosecutor's comment calling Carroll the devil, the Court held that the conduct was not so prejudicial as to vitiate the entire trial.


In turning to Bailey's claim, we reject Bailey's assertion that the prosecutor's comments vilified the defendant. The prosecutor commented on evidence before the jury regarding the wind on the night of the crime and regarding an expression on the defendant's face, suggesting that the expression was evil.


Even if this Court accepted Bailey's characterization of the statements, the statements are significantly less egregious than those in Moore and Carroll, and thus cannot establish fundamental error here.


In his third subclaim, Bailey asserts that the prosecutor made an improper golden rule argument when he made the following statement during closing arguments:


I ask that as you sit down in the juryroom to deliberate you do two things before you reach time to take a vote. I want you all just to put your finger 18 to 24 inches away from each other's face and see how close you are when your eyes are meeting, as his met those eyes on an Easter night in our community and in 18 to 24 inches away firing once, twice, and three times.


This Court has long prohibited golden rule arguments which "invite the jurors to place themselves in the victim's position" and `imagine the victim's final pain, terror and defenselessness.'" Merck, 975 So. 2d at 1062. Specifically, in Merck, the prosecutor timed one minute and then said:







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Now. That's one minute. How many thoughts went through your mind in that one minute? Did he live two minutes? Did he live three minutes? Four minutes? Enough time for his life to go, roll his eyes, to think about the people that he would never see again. Was that an unnecessarily torturous way for the man to lose his life that night for no good reason?

975 So. 2d at 1062. We held that the argument in Merck was not a golden rule argument or otherwise improper given its context, but was a comment that was designed to illustrate how long one minute can actually be. Id. at 1064. Similarly, we hold that the challenged arguments here in Bailey do not constitute a golden rule argument. The prosecutor was using the facts in evidence in the case which established that based on the stippling on Sergeant Kight's face, the gun was eighteen to twenty-four inches away when it was fired. This comment did not encourage the jurors to place themselves in the victim's position but instead was designed to help the jury to visualize the distance between the gun and the victim and was in response to the defendant's theory that Bailey did not intend to kill the officer. We hold that both individually and cumulatively Bailey is not entitled to relief on the now-challenged arguments which occurred during the guilt phase.



Bailey also asserts that the prosecutor committed fundamental error during the penalty phase by asserting that Bailey was "unworthy of the mitigation that was presented" when he made the following argument:


Ladies and gentlemen, the heart of the matter is that this is a cold, brutal, savage murder committed with aggravation that I have explained. The heart of this Defendant is one that is unworthy of the







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mitigation that has been presented. It has not been reasonably established. I ask that you apply the weight that is in your heart and that you render a verdict of justice, a verdict which rights the scales, a verdict where the sword goes unscabbard.


Bailey's characterization of the closing is inaccurate and out of context. The prosecutor explicitly argued that the jury should not accept Bailey's mitigation because it had "not been reasonably established." The statement, when viewed in its full context, does not amount to error, much less fundamental error.


In his final issue, Bailey asserts that this Court should hold that Florida's capital sentencing procedures are unconstitutional pursuant to Ring v. Arizona, 536




U.S. 584 (2002). As Bailey recognizes, this Court has repeatedly rejected this claim. See, e.g., Coday v. State, 946 So. 2d 988, 1005-06 (Fla. 2006) (explicitly rejecting the claim that the United States Supreme Court's decision in Ring requires a finding that the Florida capital sentencing scheme is unconstitutional, rejecting the claim that a jury must unanimously recommend death, and rejecting the claim that the State must allege the aggravating circumstances in the indictment); Woodel v. State, 985 So. 2d 524, 533 (Fla. 2008) (declining to revisit this issue), cert. denied, No. 08-6527 (U.S. Nov. 17, 2008). Accordingly, we deny this claim.


In the final issue to be addressed, this Court must review the sufficiency of the evidence as it relates to the murder conviction. Even though Bailey has not challenged the sufficiency of the evidence, this Court has "the independent duty to







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review the record in each death penalty case to determine whether competent, substantial evidence supports the murder conviction." Buzia v. State, 926 So. 2d 1203, 1217 (Fla. 2006).


In this case, the State presented evidence which showed that on the evening of March 27, 2005, Sergeant Kight stopped Bailey for minor traffic infractions and was running a license check on him. While the officer was engaged in the license check, Bailey told his friend Crawford that he did not have a valid license and that he was not going back to prison. At 10:26 p.m., Crawford heard Bailey tell his girlfriend that Bailey would "pop this cop" if the officer tried to arrest him. After he saw Bailey put a gun under his right leg, Crawford left the vehicle and was not present when the shooting occurred. However, the State presented eyewitness testimony from two people who were driving by at the time of the shooting and testified that they saw Bailey shoot the officer after the officer approached the vehicle with handcuffs in his hand. At 10:30 p.m., Officer Kight reported to dispatch that he had been shot. Corey Lawson testified that on the night of the crime, Bailey jumped into the back of the pickup truck in which he was riding and told Lawson that he had "just popped a cop" because he was wanted for a "bunch of stuff" and the only way that the police would catch him was if they killed him.


Bailey lifted up his shirt enough so that a gun was visible and directed the people in the truck to take him to a particular bar. When Bailey was caught the next day,







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he had the murder weapon tucked into the waistband of his pants. We find that competent, substantial evidence supports Bailey's first-degree murder conviction.


CONCLUSION




For the above reasons, we find all of Bailey's claims to be without merit.


Accordingly, we affirm Bailey's conviction and the sentence 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 Bay County,


Michael C. Overstreet, Judge ­ Case No. 05-CFMA-1093


Nancy A. Daniels, Public Defender, and W. C. McLain, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida for Appellant

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