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contemporaneous objection rule when the unobjected-to comments rise to the level of fundamental error, that is, an error that reaches down into the validity of the trial itself to the extent that a verdict of guilty or jury recommendation of death could not have been obtained without the assistance of the alleged error. Id. at




622. Neither of the two comments rises to the level of fundamental error because both comments were invited responses to the defense`s closing argument. During his closing argument, defense counsel stated that Poole acknowledged that he committed the crimes of ***ual battery, robbery, and burglary but denied that he was the person who inflicted the injuries on White and Scott. In response, the prosecutor was arguing that there was no evidence in the case to support the argument that Poole acknowledged that he committed those crimes or to support the argument that someone else inflicted the injuries on the victims. Because the prosecutor`s comments were invited responses, the comments cannot be deemed improper. See Walls v. State, 926 So. 2d 1156, 1166 (Fla. 2006); see also Dufour




v. State, 495 So. 2d 154, 160-61 (Fla. 1986). Therefore, these comments do not warrant reversal.


The final comment--And if Mr. Poole wants to tell the state and Detective Grice that somebody helped him commit this crime, then let him come forward because . . . . --was objected to. Moreover, we find that this comment was an improper comment on Poole`s failure to testify. Under article I, section 9 of the





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Florida Constitution, a defendant has the constitutional right to decline to testify against himself in a criminal proceeding. Therefore, any comment on, or which is fairly susceptible of being interpreted as referring to, a defendant`s failure to testify is error and is strongly discouraged. Rodriguez v. State, 753 So. 2d 29, 37 (Fla. 2000) (quoting State v. Marshall, 476 So. 2d 150, 153 (Fla. 1985)). In the instant case, the prosecutor`s comment impermissibly suggested a burden on Poole to prove his innocence by stating that he had to come forward and testify. Although this was an erroneous comment on Poole`s silence, we find that the trial court did not abuse its discretion in denying the motion for mistrial because in light of the evidence linking Poole to the crimes, the error was not so prejudicial as to vitiate the entire trial. Dessaure v. State, 891 So. 2d 455, 464-65 (Fla. 2004).3 The evidence presented demonstrates that Poole was seen heading towards the victims` trailer on the night of the crime; Poole sold video games like those taken from the victims` residence immediately after the attack; the semen found in White matched







3. We recognize that generally, the proper standard of review for an overruled objection based on a comment on a defendant`s right to remain silent or defendant`s failure to testify is a harmless error test. See Heath v. State, 648 So. 2d 660 (Fla. 1994); see also State v. Marshall, 476 So. 2d 150 (Fla. 1985).


However, this standard does not apply here because after defense counsel simultaneously objected and moved for a mistrial, the trial judge never ruled on the objection, but simply denied defense counsel`s motion for mistrial. As a result, the trial court`s ruling on the motion for mistrial is reviewed under an abuse of discretion standard. Dessaure v. State, 891 So. 2d 455, 464-65 & n.5 (Fla. 2004) (citing Cole v. State, 701 So. 2d 845 (Fla. 1997)).





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Poole; Poole`s shoeprint matched a shoeprint left inside the victims` trailer; and a stain found on Poole`s shirt matched White`s DNA profile.


Accordingly, relief is not warranted on this claim.


Prosecutor's Cross-Examination of Defense Witnesses


Poole next contends that the prosecutor violated his right to a fair penalty phase by cross-examining defense witnesses about unproven prior arrests, the unproven content of a tattoo, and lack of remorse. The questions regarding Poole`s lack of remorse were not followed by a contemporaneous objection, and therefore the claim is unpreserved. However, the trial court erred in overruling defense counsel`s objection after the prosecutor asked questions regarding unproven prior arrests and the unproven content of a tattoo. These errors were not harmless and require a new penalty phase proceeding.


Poole first argues that the trial court erred in permitting the prosecutor to use references to Poole`s prior criminal record to impeach a defense mitigation witness, Joe Poole, Jr., who was Poole`s older brother. During the prosecutor`s cross-examination of Joe Poole, Jr., the following questions were asked:


Q : If you`re that close to your brother, do you know if this was the first time he ever got arrested when he got arrested for this crime?

A : No. Q
: You don`t know?

A : No, it`s not his first time getting arrested. Q
: He got arrested in Georgia, South Carolina, Texas.





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Defense counsel objected based on improper impeachment and argued that the line of questioning was improper because the defense was not asking for lack of prior criminal history and defense counsel specifically indicated this in his motion for limine before the penalty phase. The prosecutor argued that the line of questioning was appropriate not only because the question went to the credibility issue of how well Poole`s older brother knew Poole, but also because the defense had put on evidence of Poole`s reputation. The trial judge overruled the objection but directed the prosecutor not to go into any further details.


The prosecutor`s line of questioning regarding Poole`s prior criminal history was improper, and the trial court erred in overruling the defense objection. At the beginning of the penalty phase, the defense filed a motion to exclude evidence of Poole`s prior criminal activity, which also indicated that the defense would not ask for the mitigator of no significant prior criminal history. The State agreed that the motion should be granted and also agreed that they would not bring up Poole`s criminal history unless the defense tried to put on such evidence. The trial court granted the motion by stipulation. Defense counsel followed through with the motion and did not put on any evidence of Poole`s prior criminal history.


However, the prosecutor still improperly presented inadmissible evidence of Poole`s prior criminal activity under the guise of witness impeachment. Under section 921.141, Florida Statutes (2007), the State is only permitted to present





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evidence of those aggravators listed under subsection 5, which does not include a defendant`s convictions for nonviolent felonies. See Hitchcock v. State, 673 So. 2d 859, 861 (Fla. 1996) ([T]he State is not permitted to present evidence of a defendant`s criminal history, which constitutes inadmissible nonstatutory aggravation, under the pretense that it is being admitted for some other purpose.).


The trial court`s error of overruling defense counsel`s objection to this line of questioning was not harmless. See Rodriguez v. State, 753 So. 2d 29 (Fla. 2000) (finding that the proper standard of review for an overruled objection is a harmless error standard). First, contrary to the State`s argument, while Joe Poole, Jr. did not answer the last question in this line of questioning, he did state that Poole had been arrested before; then the prosecutor explicitly listed the states where Poole had been arrested for other crimes. By this point, the damage had been done and the jury knew that Poole had a criminal history. Although information about Poole having committed burglaries came out through the testimony of the defense mental health expert, Dr. William Kremper, we cannot say whether, in the absence of prosecutor`s questions to Joe Poole, Jr., the jury would have still heard about this history through Dr. Kremper`s testimony. Dr. Kremper`s testimony followed Joe Poole, Jr.`s testimony, and we cannot now determine whether defense counsel would have presented such evidence if the





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prosecutor had not elicited testimony from Joe Poole Jr. about the defendant`s criminal history.


This error cannot be deemed harmless because the prosecutor`s questions to Poole, Jr. suggested that Poole was a career felon in numerous states, and he created a risk that the jury would give undue weight to such information in recommending a death sentence. We have consistently held that where the State presents evidence that constitutes inadmissible nonstatutory aggravation, the error is not harmless. See, e.g., Perry v. State, 801 So. 2d 78, 89 (Fla. 2001) (holding that the introduction of evidence that constituted impermissible nonstatutory aggravation was not harmless because the evidence was highly inflammatory and could have unduly influenced the penalty phase jury); see also Kormondy v. State, 703 So. 2d 454, 463 (Fla. 1997) (concluding that the admission of impermissible evidence of nonstatutory aggravation was not harmless error and stating that [t]he jury is charged with formulating a recommendation as to whether [the defendant] should live or die [and] turning a blind eye to the flagrant use of nonstatutory aggravation jeopardizes the very constitutionality of our death penalty statute); Geralds v. State, 601 So. 2d 1157, 1162-63 (Fla. 1992); Maggard v. State, 399 So. 2d 973 (Fla. 1981).


The prosecutor also improperly asked Joe Poole, Jr. questions regarding the content of a tattoo on Poole`s body. During cross-examination, the prosecutor





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asked Joe Poole, Jr. if Poole had tattoos on his body. Defense counsel objected and moved for a mistrial, arguing that the line of questioning was irrelevant. The prosecutor argued that the defense opened the door by making Poole look like an angel and that the Thug Life tattoo would show that there is another side to him. The trial court overruled the objection and found that the questions went to Joe Poole, Jr.`s credibility because he stated that he knew Poole better than anybody. The prosecutor then continued to ask Joe Poole, Jr. questions about the tattoo: Q: Do you know how many tattoos Mark`s got?
A: No, sir, I do not. I know of one. Q: What`s one say?
A: It should [say] MP. I have JLP. That`s the first one we put on and wished we never did that because we got in much, much trouble behind that. Q: From your parents?
A: From our parents. Q: Okay. Well, doesn`t he have a tattoo that says Thug Life right across his abdomen?
A: I haven`t looked at his stomach, sir. Q: So although you know him as well as you told this jury, you didn`t know he had that?
A: No. I haven`t examined his body. Q: Okay. Well, but you said you just saw him a few years ago. A: Right. Well, he had clothes on. He wasn`t naked.


Defense counsel objected again and moved for a mistrial, arguing that the prosecutor was improperly testifying to factual issues after Joe Poole, Jr. said he did not know about the Thug Life tattoo. The trial court overruled the objection again and denied the motion.





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Similar to the questions regarding Poole`s prior criminal activity, these questions regarding the Thug Life tattoo were improper because they constituted inadmissible nonstatutory aggravation. While the State argues that the questions went to Joe Poole, Jr.`s credibility, we reiterate the rule that the State cannot introduce inadmissible nonstatutory aggravation under the guise of impeachment.


See Geralds, 601 So. 2d at 1162. This error was not harmless because the information regarding the tattoo prejudiced Poole in the eyes of the jury and could have unduly influenced the jury in recommending the death penalty.


Poole also asserts that the prosecutor`s questions to Poole`s mother, older sister, and nephew about Poole`s lack of remorse were improper because lack of remorse is an inadmissible nonstatutory aggravator. This claim is unpreserved for appellate review because there was no objection made in the trial court. See Card, 803 So. 2d at 622. Defense counsel failed to object to any of the prosecutor`s questions regarding Poole`s lack of remorse during the testimony of the witnesses.


It was during a short recess, after all three witnesses testified, that defense counsel raised the issue about the lack of remorse questions. In fact, defense counsel did not object, but simply raised a concern that the prosecutor had impermissibly asked questions about Poole`s lack of remorse when the defense had not raised remorse as a mitigator. The prosecutor responded that defense counsel failed to object at any point during these questions, but agreed to stop asking such questions.






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Because defense counsel failed to object to the prosecutor`s questions on lack of remorse, this claim can only be raised on appeal if the alleged error is fundamental. Id.; see also McDonald v. State, 743 So. 2d 501, 505 (Fla. 1999).


Having reviewed the unobjected-to questions asked by the prosecutor, we conclude that none of the questions were so egregious as to reach down into the validity of the trial itself to the extent that a verdict of guilty or jury recommendation of death could not have been obtained without the assistance of the alleged error. Urbin v. State, 714 So. 2d 411, 418 n.8 (Fla. 1998) (quoting Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1996)). After defense counsel raised the concern regarding the prosecutor`s questions, the prosecutor stated that he would not continue to ask such questions. A review of the penalty phase proceeding demonstrates that the prosecutor did not in fact continue to ask any defense witness whether Poole was remorseful for his actions. The prosecutor also did not argue lack of remorse in his closing arguments. However, we continue to caution prosecutors that this type of questioning should not take place when the defendant has not made remorse an issue in the penalty phase.

While the questions on Poole`s lack of remorse do not individually amount to fundamental error, we find that the cumulative effect of this error and the error of presenting inadmissible nonstatutory aggravation of Poole`s criminal history and the content of his tattoo deprived Poole of a fair penalty phase. The combination
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