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of these errors had the effect of unfairly prejudicing Poole in the eyes of the jury because these errors created a risk that the jury would give undue weight to this information in recommending the death penalty.


Accordingly, we vacate Poole`s sentence of death and remand for a new penalty phase.


Prosecutorial Comments During Penalty Phase


Poole contends that he was denied a fundamentally fair penalty phase because the prosecutor made several improper comments during the penalty phase closing arguments. While Poole argues that the prosecutor made several improper comments, defense counsel only objected to the following comment that the prosecutor made near the end of his closing argument:


I don`t think when you look at it from the perspective that this decision is any more difficult than the other. I`m only thinking that when you go back in that room and make that vote and you head for your car this afternoon, you`re not going to find yourself feeling the same way. You`re just going to find that you did your job just like you promised to do when you raised your right hand and swore to that oath.


Defense counsel objected and moved for a mistrial, arguing that the prosecutor`s comment suggested that it was the jury`s duty to recommend death. The trial court denied the motion.


Poole now contends that this comment improperly suggested that the jurors promised and took an oath to recommend the death penalty. On the other hand, the





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State argues that the prosecutor was asking the jurors to weigh the evidence in aggravation and mitigation. We find that that the trial court did not abuse its discretion in denying defense`s motion for mistrial because the prosecutor was not suggesting that it was the jurors` sworn duty to recommend death. Throughout the closing argument, the prosecutor argued that the aggravators had been proven beyond a reasonable doubt and also attempted to rebut some of the mitigators. At the conclusion of making these arguments, the prosecutor, as an advocate for the State, was attempting to persuade the jury that based on the aggravators and mitigators, they should recommend a death sentence. The prosecutor made the last comment to inform the jury that they should do their jobs as they promised to do when they took the oath, which is to weigh the mitigators and aggravators. This type of comment is not improper.


Defense counsel failed to contemporaneously object to the other comments that Poole now contends were improper. As a result, these claims were not properly preserved for appellate review. Additionally, because none of these comments rise to the level of fundamental error, there are no grounds for reversal.


See Merck v. State, 975 So. 2d 1054, 1064 (Fla. 2007), cert. denied, 129 S. Ct. 73 (2008).


As to the first alleged improper comment, Poole argues that the prosecutor misled the jury by misstating the law concerning the weighing of aggravating and





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mitigating circumstances.4 The first part of the comment was not improper because in discussing the heinous, atrocious or cruel aggravator, the prosecutor was attempting to argue that this aggravator should be given significant weight, and that it alone outweighed the defense`s case in mitigation due to the overwhelming evidence that proved the aggravator. However, the second part of the comment was improper because the prosecutor was suggesting that unless the mitigating circumstances outweighed the aggravating circumstances, the jury had to vote for a death sentence. We have repeatedly held that a jury is not required to recommend a sentence of death when the aggravators outweigh the mitigators. See Brooks v. State, 762 So. 2d 879 (Fla. 2000); Henyard v. State, 689 So. 2d 239 (Fla. 1996). While this comment was improper, the comment still does not amount to







4. The prosecutor stated:


What sets this crime apart so much from other crimes that the death penalty is the only conclusion you can come to? The fourth aggravating factor, heinous, atrocious and cruel. . . . I submit to you that it is an overwhelming aggravating circumstance that can never be overcome in a case like this. . . . .


So now what weighs against that? I say to you that that scale is so far down here that there is nothing--and the judge will tell you once you find that sufficient aggravating circumstances exists [sic] to warrant the death penalty, unless you find that the mitigating circumstances outweigh them . . . unless something is going to push this scale back down, then your vote has got to be for the death penalty. I tell you that [it] has to be twelve to nothing again.





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fundamental error. The prosecutor did not repeat this statement during the rest of his closing arguments. Moreover, at the end of closing arguments, the trial judge read the standard jury instructions, which included an accurate statement of the law.


Poole next alleges that the prosecutor belittled evidence in mitigation and commented on matters not in evidence.5 This comment was not improper because the prosecutor was attempting to rebut mitigating evidence argued by the defense.


During the penalty phase, defense counsel admitted into evidence a photograph of Poole when he was a child and a photograph of the church Poole`s family attended.


Defense counsel used these photographs and asked Poole`s family members questions about attending church to demonstrate in mitigation that Poole was a good, loving person who came from a good family. The prosecutor responded during his closing argument that although Poole was a child who went to church at one time, he was not a child anymore, but a thirty-nine-year-old man who committed a crime.








5. The prosecutor argued:


This is what you saw. A picture of a church, isn`t that nice. When did he go to this church? When he was like 12, 16, 19. He is 39 years old when he murdered this boy. 39. Does it matter what he looked like in this picture? Was Ted Bundy okay in the fourth grade? I don`t care, and I think you shouldn`t care what he was doing in the fourth grade. A nice little picture in the fourth grade.





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Lastly, Poole alleges that the prosecutor misstated the law concerning brain damage as a mitigating circumstance: You--you are free to reject it if you want and say I don`t think brain damage mitigates against the death penalty. When we consider this comment in the context in which it was made, we find that the comment was not improper. The prosecutor acknowledged that it was uncontroverted that Poole had brain damage, but was arguing that it was not enough to recommend a life sentence. In fact, the prosecutor even emphasized that the jury should accept the brain damage mitigator as proven if there was evidence to demonstrate that Poole did, in fact, have brain damage.


Because the prosecutor`s comments were either not improper or did not constitute fundamental error, we deny relief on this claim.


Constitutionality of Section 921.141


Poole asserts that Florida`s death penalty statute violates the Sixth Amendment because it does not require express unanimous findings of aggravating circumstances by the jury. Poole argues that the United States Supreme Court`s decision in Ring v. Arizona, 536 U.S. 584 (2002), requires that all aggravators necessary for the imposition of the death penalty must be found by the jury. Poole also requests that we reconsider our holding in State v. Steele, 921 So. 2d 538 (Fla. 2005), in which we held that the finding of at least one aggravator is implicit in the jury`s recommendation of death.






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First, the Court`s decision in Ring does not require a finding that Florida`s capital sentencing scheme is unconstitutional. In Steele, we not only concluded, consistent with prior case law, that section 921.141, Florida Statutes (2007), does not require jury findings on aggravating circumstances, but we specifically held that it is a departure from the essential requirements of law to use a special verdict form detailing the jury`s determination on the aggravating circumstances. 921 So. 2d at 544-48. Moreover, since the Ring decision, we have rejected similar arguments that Florida`s death penalty statute is unconstitutional based on Ring.


See Marshall v. Crosby, 911 So. 2d 1129 (Fla. 2005); Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002); King v. Moore, 831 So. 2d 143 (Fla. 2002).


Moreover, the jury unanimously found that Poole committed the crimes of attempted first-degree murder of White, ***ual battery of White, armed burglary, and armed robbery, during the course of the first-degree murder of Scott. We have repeatedly found that the prior violent felony conviction aggravator takes a case outside the scope of Ring. Guardado v. State, 965 So. 2d 108 (Fla. 2007), cert. denied, 128 S. Ct. 1250 (2008); Smith v. State, 866 So. 2d 51, 68 (Fla. 2004); Johnston v. State, 863 So. 2d 271, 286 (Fla. 2003) (finding that the existence of a prior violent felony conviction satisfied the constitutional mandates because the conviction was heard by a jury and determined beyond a reasonable doubt).


Accordingly, relief is not warranted on this claim.





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Sufficiency of the Evidence


Poole has not argued the sufficiency of the evidence supporting the conviction. Nonetheless, it is our duty to independently review the entire record.


See Fla. R. App. P. 9.142(a)(6); see also Jones v. State, 963 So. 2d 180 (Fla. 2007).


It is abundantly clear from the physical evidence and eyewitness testimony that Poole committed the murder of Scott, as well as the attempted murder of White, ***ual battery of White, robbery, and burglary. Therefore, we uphold the first- degree murder conviction.


CONCLUSION


For the reasons expressed above, we affirm Poole`s convictions. However, based on the prosecutor`s improper cross-examination of defense witnesses, we vacate his sentence of death and remand the case to the trial court to conduct a new penalty phase proceeding consistent with this opinion.


It is so ordered.


QUINCE, C.J., and WELLS and LEWIS, JJ., concur.


PARIENTE, J., concurs in result only with an opinion in which ANSTEAD, J., concurs.


CANADY and POLSTON, JJ., did not participate.

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