IN THE SUPREME COURT OF FLORIDA

CASE NO.: SC06-1381

NEIL K. SALAZAR

APPELLANT

VS.

STATE OF FLORIDA

APPELLEE

ON APPEAL FROM THE CIRCUIT COURT OF THE NINETHEENTH JUDICIAL CIRCUIT, IN AND FOR OKEECHOBEE COUNTY, FLORIDA,

(CRIMINAL DIVISION)

ANSWER BRIEF OF APPELLEE

BILL McCOLLUM Attorney General Tallahassee, FL

Leslie T. Campbell Assistant Attorney General Florida Bar No.: 0066631 1515 N. Flagler Dr.; Ste. 900 West Palm Beach, FL 33401 Telephone (561) 837-5000 Facsimile (561) 837-5108 Counsel for Appellee

ii

TABLE OF CONTENTS

PAGE NO.

TABLE OF CONTENTS ............................................ i AUTHORITIES CITED ........................................... iv PRELIMINARY STATEMENT ........................................ 1 STATEMENT OF THE CASE AND FACTS............................... 1 SUMMARY OF THE ARGUMENT ...................................... 9 ARGUMENT.................................................... 11 ISSUE I

THE COURT PROPERLY DENIED A MISTRIAL IN RESPONSE TO THE STATE’S ARGUMENT AS HOW THE JURY SHOULD CONSIDER THE DEAL GIVEN TO HATCHER (restated)............................. 17

ISSUE II

THE COURT DID NOT ABUSE ITS DISCRETION IN OVERRULING THE OBJECTION AND DENYING A MISTRIAL REGARDING THE OFFICER’S STATEMETNT THAT HE WAS “JUST TRYING TO FIND THE TRUTH” WHEN ASKED IF HE RUSHED HIS INVESTIGATION (restated) ......... 27

ISSUES III AND V

THE CCP AGGRAVATOR WAS FOUND AND APPLIED PROPERLY IN THIS CASE, THE STATE’S ARGUMENT WAS IN COMPLIANCE WITH THE LAW, AND THE INSTRUCTION WAS PROPER (restated) ............... 35

ISSUE IV THE COURT PROPERLY ADMITTED TETIMONY ABOUT VICTIMS BEING TERRORIZED DURING THE CRIMINAL (restated) 51

ISSUE VI

FLORIDA'S CAPITAL SENTENCING IS CONSTITUTIONAL (restated) 59

iii

ISSUE VII THE DEATH SENTENCE IS PROPORTIONAL (added issue) ........ 62

CONCLUSION.................................................. 66 CERTIFICATE OF SERVICE ...................................... 66 CERTIFICATE OF FONT COMPLIANCE............................... 66

iv

TABLE OF CITATIONS

CASES CITED Acosta v. State, 708 So. 2d 809 (Fla. 4th DCA 2001) ...... 32, 33 Anderson v. State, 841 So. 2d 390 (Fla. 2002) ................ 17 Barnhill v. State, 834 So. 2d 836 (Fla. 2002) ................ 56 Bates v. State, 750 So. 2d 6 (Fla. 1999) ..................... 62 Bell v. State, 699 So. 2d 674 (Fla. 1997) .................... 42 Bertolotti v. State, 476 So. 2d 130 (Fla. 1985) ...... 19, 49, 52 Blair v. State, 406 So. 2d 1103 (Fla. 1981) .................. 57

Blanco v. State, 7 So.2d 333 (Fla. 1942) ..................... 26 Bowles v. State, 804 So. 2d 1173 (Fla.2001) .................. 56 Boyd v. State, 910 So. 2d 167 (Fla. 2005) .................... 37 Breedlove v. State, 413 So. 2d 1 (Fla.1982) .......... 18, 48, 51

Brown v. State, 593 So. 2d 1210 (Fla. 2d DCA 1992) ........... 24 Butler v. State, 842 So. 2d 817 (Fla. 2003) .................. 65 Cave v. State, 727 So. 2d 227 (Fla. 1998) .................... 65

Chamberlain v. State, 881 So. 2d 1087 (Fla. 2004) ........ 46, 50 Clark v. State, 443 So. 2d 973 (Fla. 1983) ................... 58 Cole v. State, 701 So. 2d 845 (Fla. 1997) .................... 28 Colina v. State, 570 So. 2d 929 (Fla. 1990) .................. 57 Conde v. State, 860 So. 2d at 953............................ 37 Craig v. State, 510 So. 2d 857 (Fla. 1987), cert. denied, 484 U.S. 1020 (1988) ........................................ 65

v

Crain v. State, 894 So. 2d 59 (Fla. 2004), cert. denied, 126 S.Ct. 47 (2005) ......................................... 60 Donaldson v. State, 722 So. 2d 177 (Fla. 1998) ............... 50 Douglas v. State, 575 So. 2d 165 (Fla.1991) .................. 55 Downs v. State, 572 So. 2d 895 (Fla. 1990) ................... 63 Duest v. State, 462 So. 2d 446 (Fla. 1985) ................... 18

Elder v. Holloway, 510 U.S. 510 (1994)....................... 60 Elledge v State, 346 So. 2d 998 (Fla. 1977) .................. 57 Elledge v. State, 706 So. 2d 1340 (Fla. 1997) ................ 50 Esty v. State, 642 So. 2d 1074 (Fla. 1994), cert. denied, 514 U.S. 1027 (1995) .................................... 48, 51 Eutzy v. State, 458 So. 2d 755 (Fla. 1984) ................... 42 Farina v. State, 801 So. 2d 44 (Fla. 2001) ................... 40 Ferguson v. State, 417 So. 2d 639 (Fla. 1982) ................ 18 Ferrell v. State, 653 So. 2d 367 (Fla. 1995) ................. 65 Floyd v. State, 913 So. 2d 564 (Fla. 2005) ................... 62 Guardado v. State, 2007 WL 1836988 (Fla. Jun. 28, 2007)....... 41

Green v. State, 583 So. 2d 647 (Fla. 1991) ............... 45, 46

Hamblen v. State, 527 So. 2d 800 (Fla. 1988) ............. 45, 46 Harris v. State, 438 So. 2d 787 (Fla. 1983) .................. 34 Huff v. State, 437 So.2d 1087 (Fla. 1983) .................... 24 Huff v. State, 569 So.2d 1247 (Fla. 1990) .................... 24 Ibar v. State, 938 So. 2d 451 (Fla. 2006) ............ 17, 44, 50 James v. State, 695 So. 2d 1229 (Fla. 1997) .............. 50, 55

vi

Johnston v. State, 863 So. 2d 271 (Fla. 2003) ................ 65

Kearse v. State, 770 So. 2d 1119 (Fla. 2000) ................. 26 King v. Moore, 831 So. 2d 143 (Fla. 2002) .................... 61 King v. State, 623 So. 2d 486 (Fla.1993) ............. 18, 49, 51 Larzelere v. State, 676 So. 2d 394 (Fla. 1996) ............... 65 Looney v. State, 803 So. 2d 656 (Fla. 2001) .................. 41 Lynch v. State, 841 So. 2d 362 (Fla. 2003) ................... 41

Madison v. State, 726 So.2d 835 (Fla. 4th DCA 1999) ........... 25 Mansfield v. State, 758 So. 2d 636 (Fla.2000) ................ 56 McCoy v. State, 853 So. 2d 396 (Fla.2003) .................... 45 Mills v. Moore, 786 So. 2d 532 (Fla. 2001) ................... 60 Mordenti v. State, 630 So. 2d 1080 (Fla. 1994) ............... 63 Muhammad v. State, 782 So. 2d 343 (Fla. 2001) ............ 54, 57 Nelson v. State, 850 So. 2d 514 (Fla. 2003) ................. 44 Olivera v. State, 813 So. 2d 996 (Fla. 4th DCA 2002) ......... 33 Paul v. State, 790 So. 2d 508 (Fla. 5th DCA 2001) ............ 33 Pearce v. State, 880 So. 2d 561 (Fla. 2004) .................. 42 Perez v. State, 919 So. 2d 347 (Fla. 2005) ................... 60 Philmore v. State, 820 So. 2d 919 (Fla. 2002) ............ 40, 42 Pooler v. State, 704 So. 2d 1375 (Fla. 1997) ................. 55 Porter v. Crosby, 840 So. 2d 981 (Fla. 2003) ................. 60 Porter v. State, 564 So. 2d 1060 (Fla. 1990) ................. 62 Power v. State, 605 So. 2d 856 (Fla. 1992) ............... 45, 46

vii

Rahmings v. State, 425 So.2d 1217 (Fla. 2d DCA 1983) ......... 25 Ray v. State, 755 So. 2d 604 (Fla. 2000) ..................... 28

Richardson v. State, 604 So. 2d 1107 (Fla. 1992) ............. 26 Riley v. State, 366 So. 2d 19 (Fla. 1979) .................... 58 Ring v. Arizona, 536 U.S. 584 (2002)..................... 59, 60 Rivera v. State, 561 So. 2d 536 (Fla.1990) ................... 55

Rhodes v. State, 547 So. 2d 1201 (Fla. 1989) ................. 26

Rogers v. State, 511 So. 2d 526 (Fla. 1987) .............. 45, 46

Rozier v. State, 636 So.2d 1386 (Fla. 4th DCA 1994) ........... 25 Shere v. Moore, 830 So. 2d 56 (Fla. 2002) .................... 63 Smithers v. State, 826 So. 2d 916 (Fla. 2002) ................ 17 Sochor v. State, 580 So. 2d 595 (Fla. 1991), rev'd other grounds, 112 S.Ct 2114 (1992) ............................... 56 Spencer v. State, 133 So. 2d 729 (Fla. 1961), cert. denied, 372 U.S. 904 (1963) ................................. 18, 48, 51 State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) ....... 27, 35, 57

State v. Price, 491 So.2d 536 (Fla. 1986) .................... 25 Steinhorst v. State, 412 So. 2d 332 (Fla. 1982) .............. 48 Stephens v. State, 787 So. 2d 747 (Fla. 2001) ................ 50 Swafford v. State, 533 So. 2d 270 (Fla.1988) ................. 56 Taylor v. State, 937 So. 2d 590 (Fla. 2006) .................. 60

Teffeteller v. State, 439 So. 2d 840 (Fla. 1983) ............. 25 Thompson v. State, 648 So. 2d 692 (Fla. 1994) ........ 42, 45, 46 Tindal v. State, 803 So. 2d 806 (Fla. 4th DCA 2001) .......... 34

viii

Trease v. State, 768 So. 2d 1050 (Fla. 2000) ............. 29, 50 Urbin v. State, 714 So. 2d 411 (Fla. 1998) ................... 62

Walker v. State, 473 So. 2d 694 (Fla. 1st DCA 1983) ........... 26 Walker v. State, 707 So. 2d 300 (Fla. 1997) .................. 51 Walton v. State, 847 So. 2d 438 (Fla. 2003) .................. 64 Watts v. State, 593 So. 2d 198 (Fla.), cert. denied, 505 U.S. 1210 (1992) ........................................ 19, 49 Williams v. State, 2007 WL 1774389 (Fla. 2007) ............... 37 Williamson v. State, 511 So. 2d 289 (Fla. 1987) .......... 42, 45 Witted v. State, 362 So. 2d 668 (Fla. 1978) .................. 33 Wuornos v. State, 644 So. 2d 1000 (Fla. 1994) ............ 42, 43

Wyatt v. State, 641 So. 2d 355 (Fla. 1994) ............... 45, 46 Wyatt v. State, 641 So. 2d 1336 (Fla. 1994) .............. 45, 46 Zack v. State, 753 So. 2d 9 (Fla. 2000)...................... 28

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PRELIMINARY STATEMENT Appellant, Neil K. Salazar, Defendant below, will be

referred to as “Salazar”. Appellee, State of Florida, will be

referred to as “State”. Reference to the appellate record will

be by “r”; to supplemental materials by “SR”, and to Salazar’s

brief by “IB”, followed by the appropriate volume and page

number(s).

STATEMENT OF THE CASE AND FACTS

On July 19, 2000, Salazar and co-defendant, Julius Hatcher

(“Hatcher”), were indicted for first-degree murder of Evelyn

Jean Nutter (“Nutter”), attempted first-degree murder of Ronze

Cummings (“Cummings”), burglary of a dwelling while armed, and

grand theft of a motor vehicle. The instant crimes took place

on or about June 26 and 27, 2000. (R.1 14-17) It was not until

August 1, 2001 that Salazar was arrested. (R.1 23-24) Opening

statements commenced on March 6, 2006. (R.13 1292) On March 9,

2006, the jury returned guilty verdicts with special

interrogatories, convicting Salazar of first-degree murder while

carrying, displaying, or using a firearm under both the

premeditated and felony murder theories; of attempted first-

degree murder while carrying, displaying, or using a firearm;

burglary during which an assault was committed; and theft of a

motor vehicle. (R.4 609-11).

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Following the penalty phase, the jury unanimously

recommended a sentence of death. (R.4 612). Upon the trial

court’s consideration, on May 30, 2006, Salazar was sentenced to

death for Nutter’s murder. (R.4 658-63). The judgment and

sentencing documents for the non-capital cases was entered on

June 12, 2006 and showed that Salazar received life sentences

for the attempted first degree murder of Cummings and the

burglary. The court imposed a five year term of imprisonment

for the theft of the motor vehicle conviction. The non-capital

sentences were to run concurrently with each other, but

consecutive to the death sentence. (R.4 664-74). On June 22,

2006, Salazar’s counsel filed the Notice of Appeal. (R.4 675)

The record reveals that near 1:00 p.m. on the afternoon of

June 26, 2000, Hatcher went to the Miami home of his cousin,

Fred Cummings1 (“Fred”), but instead of finding Fred home,

Salazar opened the door. When Hatcher entered, Salazar

indicated he had something to show him and led Hatcher to the

bedroom. When Hatcher saw nothing, then turned around, Salazar

had a sub-machine gun, maybe a Mac-10, pointing had Hatcher’s

head. According to Hatcher, Salazar was acting very paranoid,

accusing Hatcher of being “too clean” and talking to the FBI

1 The record shows that Hatcher, Cummings, and Fred are cousins; however, at the time of the crimes, Hatcher did not know he and Cummings were cousins. As it turned out, they are distant cousins who had not seen each other since they were about three-years old. (R.1712-13)

3

about Salazar’s drug dealings. Salazar duct taped Hatcher and

pushed his head under the bed telling him that he had to do

something for Salazar. There, Hatcher remained all afternoon.

(R.16 1652, 1974-80)

In the early evening hours, Fred arrived home and spoke to

Hatcher. He asked what Hatcher had done to infuriate Salazar

and told Hatcher that he was trying to alleviate the situation.

Shortly thereafter, Salazar removed Hatcher from under the bed,

and put him in a green rental car Shirleen Baker (“Baker”),

Fred’s girlfriend, had obtained. With Baker driving and Salazar

pointing his gun a Hatcher, the group took I-95 North. Hatcher

remained duct taped from Miami to somewhere between Pompano and

Boca Raton. (R.16 1678-80, 1682-84)

Eventually, the group arrived in Fort Drum, Okeechobee

County. Between 10:30 p.m. and 11:00 p.m., Baker stopped the

car a distance from a home located in an orange grove. Getting

out of the car, Salazar and Hatcher made their way to the back

door on the home where Salazar used a knife, or something, to

“pop” the lock and enter. Inside, they found Cummings, Nutter,

and their two-year old son watching television. Salazar,

brandishing his sub-machine gun, pointed it at Cummings and

ordered Hatcher to duct tape the adults with the tape he brought

from Miami. During this encounter, Salazar is accusing the

couple of talking to Rico of the FBI. Failing to get any

4

answers regarding his accusation that Nutter informed the FBI of

Salazar’s drug business, he orders Hatcher to put plastic bags

over the victims’ heads. According to Hatcher, he put holes in

the plastic bags, however, no hole was found in Nutter bag, but

Cummings admitted a hole was put in his bag. Next, Salazar

orders Hatcher to duct tape the bottom of the bags around the

victims’ necks. Whenever, Hatcher balked at Salazar’s orders,

Salazar would threaten to leave Hatcher dead at the home. (R.14

1464-1476; R.16 1650-58, 1662-63, 1686-87)

After having Cummings and Nutter duct taped, Salazar

ordered Hatcher to move Cummings and Nutter into different

bedroom. Once this was accomplished, Salazar asked if the

Victims’ were death. When Hatcher said they were dead, Salazar

checked. Finding the victims still alive and the attempted

suffocation taking too long, Salazar demanded Hatcher slit their

throats. However, Hatcher refused adamantly, finding he could

not do such a personal killing. In response, Salazar handed

Hatcher a .38 caliber revolver he carried, and ordered Hatcher

to shoot the victims. Hatcher took the gun, and as Salazar,

still armed with the sub-machine gun stood in the door way to

the room where Nutter was placed, Hatcher enters and shoots her

in the head through a pillow as ordered. He then moved to where

Cummings was, and told him to play dead before shooting him in

the head through a pillow. After the first shot was fired,

5

Cummings stood up, but was put back on the floor and shot a

second time in the head. Cummings remained on the floor after

the second shot. (R.14 1477-82; R.16 1658-65, 1685-91)

Salazar then handed Hatcher the keys to the white car which

had been parked at the victims’ home and announced he was

leaving and that Hatcher should take the white car and follow.

Once outside, Hatcher saw the Baker has driven to the home and

he watched as she and Salazar drove off. Not knowing how to get

back to Miami, Hatcher hurried to catch up with them.

Eventually, he reaches their car, and at some point along I-95,

Hatcher signaled to Salazar that he was stopping for gasoline.

Later, Hatcher dropped the car off near Fred’s home and spent

the night in a hotel. (R.14 1482-83; R.16 1665-66, 1668-71,

1692-94)

Both Cummings and Hatcher gave similar accounts of

Salazar’s actions and statements in the home that night.

Cummings reported that he saw someone “twist out” his back porch

light just before Salazar opened the door with his sub-machine

gun in hand. Hatcher said Salazar unscrewed the light. The

door had been closed and locked before the assailant used

something strong to “pop” the lock. With Salazar was another

man, Cummings came to know was Hatcher, a distant cousin. Both

Cummings and Hatchers related how Salazar held the gun on

Cummings and Nutter as he questioned Nutter, and told her he had

6

come to get answers - that his operation was “falling apart” and

that “Before I leave here tonight, somebody dies tonight.”

Salazar claimed Nutter knew what he was talking about and why he

was there, but Nutter denied any knowledge of Salazar’s purpose.

In response, Salazar announced that “Before I leave tonight,

somebody die tonight.” This interrogation took place in the

living room and lasted 15 to 20 minutes. It was Salazar who

ordered the victims to the floor, ordered Hatcher to get plastic

bags and a knife from the kitchen; handed Hatcher duct tape he

had brought with him from Miami, and order Hatcher to tape

Cummings and Nutter around the feet and with their hands behind

their backs. Salazar required Hatcher to put the plastic bags

over the victim’s heads and duct tape them closed about their

necks as Salazar stood over them with his gun in hand. Hatcher

punched a hole in Cummings’s bag, and told him he would do the

same for Nutter. Cummings heard Salazar order Hatcher to cut

his throat, and heard Hatcher refuse. This was the first time

Hatcher disobeyed Salazar. Cummings could see Salazar standing

in the hallway as Hatcher went into Nutter’s room and shot her

before coming to Cummings room and shooting him twice. (R.14

1463-73; R.15 1583-85; R.16 1652-53, 1655-65; 1685-91).

Shortly after the shootings, Cummings was able to get up.

He checked on Nutter, only to find her dead. Making his way to

the living room, he looked out the window and saw Baker with

7

Hatcher and Salazar. Eventually, he made contact with the 911

operator using the office phone, because he thought the

telephone line was cut. Near 12:30 a.m. the next day, Deputy

Sheriffs Chapman and Gonzalez arrived at the grove. There they

found Cummings in his pick-up truck awaiting them. The deputies

followed Cummings back to the house. They saw he was nervous,

covered in blood, and bleeding profusely from the chin and

mouth. A torn Wal-Mart plastic bag hung around his neck and

pieces of duct tape were seen on his wrists, feet and arms.

Cummings had his son with him as he reported that his wife had

been killed. (R.13 1318-25, 1330-35, 1337-39, 1346-47)

The deputies entered the home and found Nutter dead. There

was blood spatter throughout the home and on the front porch.

Cummings, with slurred speech, and coughing and spitting up

blood, making it difficult to understand him, related that three

Jamaican males had entered his home through the back door. One

male had an Uzi, another had a .38 revolver, and the third was

unarmed. Cummings reported to the responding deputies that

“Neil” had done this to his family, but he did not give a last

name when asked. Instead, Cummings answered that he had met

“Neil” at a Fort Lauderdale recycling plant where they had

worked together and that “Neil” had lived with him for a while.

Also, Cummings reported that the assailants had taken Nutter’s

8

car. Deputy Chapman found it difficult to keep Cummings

coherent. (R.13 1318-24, 1330-35, 1337-39, 1342-47)

As the deputies talked to Cummings, the paramedics arrived

and began treating him. Ollie Hedrick, of the Okeechobee County

Fire Rescue, found Cummings’s head wound to have entrance and

exit wounds, which were bleeding. Although Cummings was

awake/alert, and answering questions and reporting he knew the

person from Fort Lauderdale who shot him and stole Nutter’s car,

Henrick became concerned Cummings would pass-out or go into

shock. An intravenous line was set up and Cummings’s vital were

taken. Because of his condition, a helicopter was called, and

it was Deputy Chapman’s impression that he did not get a last

name for “Neil” due to the time constraints and the arrival of

the trauma helicopter. (R.13 1333-35, 1348-50, 1353-58)

When law enforcement entered the home, Nutter was found in

a back bedroom, dead from a single gunshot wound to the head.

Her plastic bag was intact, but it was clear she had been alive

and breathing in the bag for a period of time before being shot.

(R13. 1339, 1349-50; R.14 1388)

When the forensic team arrived, they photographed and

videotaped the scene. Blood was found throughout the home,

including on the walls, in the kitchen, in the bathroom and on

the porch. Wal-Mart plastic bags were found on the kitchen

floor. The telephone was unplugged, but the line was not cut.

9

Forensics found a pillow in northeast bedroom with two bullet

holes in it, but no shell casing, and a foot-long kitchen knife

on top of the dresser. There was no blood on the knife and it

matched a set in the kitchen. In the second bedroom, Nutter was

found lying where she fell, with duct tape on one ankle. There

was a bloody handprint above her head as though someone had

checked her. The pillow near Nutter had one bullet hole in it.

(R.14 1381-89, 1400-02, 1436-37).

The duct tape roll recovered from the crime scene revealed

that all of the duct tape pieces recovered from the victims and

from around the home were consistent with that roll. The knife

recovered from the bed room and the bag which had covered

Nutter’s head were admitted into evidence. However, the knife

was not process for prints or duct tape glue. Likewise, there

was no blood collected or analyzed. Noel Stephens, who

videotaped the doors to the home, indicated that the back door

showed signs of pry markings on it. (R.14 1409-18, 1422-26,

1429-31, 1435-36).

Noel Stephens attended Nutter’s autopsy and took into

evidence the bullet removed from the victim’s head. Dr. Hobin,

the medical examiner, testified Nutter’s hands were duct taped

behind her back and there were remnants of tape around her

ankles. A plastic bag was tightly bound her around the lower

portion of her head, not her neck. When the bag was removed,

10

Dr. Hobin found Nutter’s eyes and moth had been taped. The tape

covering her mouth was very close to her nostrils. All the tape

was put on very tightly. This caused a tourniquet effect on her

ankles and hands. The tape was applied when Nutter was alive,

but Dr. Hobin could not determine for how long Nutter was bound

before death. However, the time was of “some duration” to cause

the discoloration to her hands and feet that Dr. Hobin observed

during the autopsy. Typically, emergency personnel are trained

to release tourniquets every five to ten minutes to avoid the

tourniquet effect/discoloration of the skin (R.14 1392-93; R.15

1590-98).

Once the duct tape was removed from Nutter’s face, it

became clear that she had suffered cyanosis and had edema fluids

exuding from her lungs due to prolonged poor respiration before

death. The poor respiration was due to the plastic bag over her

head and the bindings around the head which restricted her

breathing. It was a form of asphyxiation. (R.15 1600-01).

The bullet which killed Nutter entered slightly in front of

her left ear lobe, hit her lower jaw, which shattered, and

struck her upper pharynx and then the outer base of the skull,

burying itself in her sphenoid bode. The bullet did not enter

the brain cavity, nor did it facture her skull. However, Nutter

was rendered unconscious immediately upon being shot. It was an

atypical wound, indicating the bullet may have passed through an

11

object, such as a pillow, before entering Nutter’s head. The

bullet was recovered and given to Noel Stephens. There were no

drugs or alcohol in Nutter’s system at the time of her death.

According to Dr. Hobin, had Nutter not died from the gun shot

wound, she would have died relatively quickly from asphyxiation

as she had been suffering a lack of oxygen for “some minutes.”

At the start of her asphyxiation, Nutter would have been

conscious only to fall into a coma, with death coming gradually.

There would have been pain and suffering associated with this.

Had there been a total lack of oxygen, death would take three to

five minutes. Because Nutter was getting some oxygen, she lived

longer than three to five minutes, but Dr. Hobin could not given

an exact time before the gun shot. Initially, a person

experiencing asphyxiation would feel the need to breathe and

would try to breathe vigorously. Only after a struggle would

the oxygen deprived person feel a numbing effect and then

numbing effect. (R.15 1602-12).

While in the hospital, and again once he got out, Cummings

gave described the events for Detective Brock. Cummings was

consistent that Salazar was his assailant even though he merely

gave Salazar’s first name during his statements. Cummings

provided additional information identifying Salazar; he gave the

place of employment where they had met in Fort Lauderdale and a

video tape he had made of an outing to the beach they had shared

12

when living together. He also provided a video tape of Salazar.

Cummings attributed any inconsistencies between his trial

testimony and statements made on the night of the crime to the

fact he had been shot, was bleeding, and everything “was in a

rush.” (R.14 1487-90, 1494-95, 1508-11, 1541, 1544-47, 1574-80,

1583-85).

Upon this information, the jury convicted Salazar, making

special findings. Salazar was found guilty of first-degree

murder under both premeditated and felony murder theories while

carrying, displaying, or using a firearm. He was convicted also

of attempted first-degree murder while possessing, displaying,

or using a firearm, burglary with an assault both while and

theft of a motor vehicle. (R.4 609-11).

Following Salazar’s conviction, the court held a penalty

phase. During this, the State presented victim impact letters,

and the defense called or presented via video tape, the

testimony of Salazar’s sisters, Michelle Lambert and Arlene

Lambert. They discussed Salazar’s background growing up in

Trinidad after his parents divorced and mother moved to Texas

with his three sisters. In Trinidad, the economic level was the

equivalent of poverty in the United State. Salazar remained in

Trinidad with his brother and father. Later Salazar moved to

the United States and helped put his sister through school by

working in construction. Also revealed was Salazar’s schooling

13

in woodwork at a vocational school in Trinidad. He was also

described as being very athletic; he was a good soccer player

whom the fans loved to watch (R.19 2131-42, 2151-56). On March

17, 2006, the jury returned a unanimous recommendation of death

for Nutter’s murder. (R.4 612).

At the subsequent Spencer hearing, the State presented a

Deputy Sheriff to testify as to contraband in the form of an

eight-inch sharpened piece of metal and a piece of wire were

found in Salazar’s cell as he awaited trial. (R.20 2242-48).

Detective Brock reported Salazar’s admission to being a drug

dealer with large sales in Trinidad, Jamaica, Miami, and other

parts of the United States. Salazar also told Brock that he was

part of a Muslim group, studying under Abubaker, and that while

in the group in Trinidad, he committed several crimes (thefts

and robberies), and that he was warned to relocate for his

protection. Brock did not learn of any convictions of Salazar

stemming from his self-report. (R.20 2263-68).

Given the jury’s recommendation and the court’s independent

review, Salazar was sentenced to death. The court found four

aggravators: (1) prior violent felony (contemporaneous felony)

(some weight); felony murder (burglary) (little/some weight);

heinous atrocious or cruel (“HAC”) (great weight); and cold

calculated and premeditated (“CCP”) (great weight); no statutory

mitigation; and six non-statutory mitigation of: (1) not actual

14

shooter (little/some weight); (2) broken home/divorced parents

(little weight); (3) raised in an impoverished country (minimal

weight); (4) good relationship with family (minimal weight); (5)

good student/received vocational degree (little weight); and (6)

good courtroom behavior (minimal weight). (R.4 656-63) This

appeal followed. (R4 675).

15

SUMMARY OF THE ARGUMENT

Issue I – The State’s closing argument related to the deal

made with Hatcher in exchange for his testimony did not require

a mistrial. When read in context, with the State’s

clarification, the argument did not vitiate the entire trial or

sentencing.

Issue II – The trial court correctly denied a mistrial when

Detective Brock replied that he was merely seeking the truth in

his investigation. The comment did not bolster any witnesses

nor did it comment on facts not in evidence. The response was

appropriate and did not vitiate the entire trial.

Issues III and V – The CCP aggravator, as found by the

trial court, is supported by competent, substantial evidence.

Furthermore, it is constitutional and the State made appropriate

arguments in support of the aggravating factor that were within

his forensic talents.

Issue IV – There was no error in the State penalty phase

closing argument addressed to the felony murder/burglary

aggravator directing the jury’s attention to the terror the

victim felt at the hands of Salazar. Such was a discussion of

the facts attendant to the burglary and helped support the HAC

aggravator. The mistrial was denied properly.

16

Issue VI - Neither Salazar’s unanimous jury recommendation

for death nor Florida’s capital sentencing are impacted by Ring

v. Arizona.

Issue VII – The sentence is proportional.

17

ARGUMENT

ISSUE I

THE COURT PROPERLY DENIED A MISTRIAL IN RESPONSE TO THE STATE’S ARGUMENT AS HOW THE JURY SHOULD CONSIDER THE DEAL GIVEN TO HATCHER (restated)

Salazar asserts that a mistrial should have declared when

the prosecutor argued in closing that there may be valid reasons

to give Hatcher, the actual shooter, a deal in order to gain his

testimony against Salazar, such as to avoid another attempt on

the victim’s life, but that such was not a concern for the jury

except if it thought it made Hatcher’s testimony unreliable.

The trial court denied the mistrial, and did not give a curative

because defense counsel telegraphed that he did not want one,

but only asked so that he could preserve the issue for appeal.

Further, the trial court did not believe the comment would have

any effect on the jury as the State did not go very far into the

argument. This was a proper decision as statement which drew an

objection and then as clarified by the prosecutor did not

vitiate the entire trial. This Court should affirm.

“A motion for a mistrial is addressed to the sound

discretion of the trial judge, and the trial judge's ruling on

such a motion will not be reversed absent an abuse of

discretion.” Ibar v. State, 938 So.2d 451, 470-71 (Fla. 2006).

See Smith v. State, 866 So.2d 51, 58-59 (Fla. 2004); Anderson v.

State, 841 So. 2d 390 (Fla. 2002); Smithers v. State, 826 So. 2d

18

916, 930 (Fla. 2002). “A motion for mistrial is addressed to

the sound discretion of the trial judge and ‘the power to

declare a mistrial and discharge the jury should be exercised

with great care and should be done only in cases of absolute

necessity.’” Ferguson v. State, 417 So.2d 639, 641 (Fla. 1982)

(quoting Salvatore v. State, 366 So.2d 745, 750 (Fla. 1978)). A

mistrial should be granted only in circumstances where “the

error committed was so prejudicial as to vitiate the entire

trial.” Duest v. State, 462 So.2d 446, 448 (Fla. 1985).

Further, a court has discretion in deciding the scope of a

prosecutor’s argument and its ruling will not be disturbed

absent an abuse of discretion. See Esty v. State, 642 So.2d

1074, 1079 (Fla. 1994), cert. denied, 514 U.S. 1027 (1995).

Prosecutors have wide latitude in their arguments to a jury.

Counsel is allowed to draw logical inferences and to advance all

legitimate arguments. Breedlove v. State, 413 So.2d 1, 8

(Fla.1982). In arguing to a jury “[p]ublic prosecutors are

allowed to advance to the jury all legitimate arguments within

the limits of their forensic talents in order to effectuate

their enforcement of the criminal laws.” Spencer v. State, 133

So.2d 729, 731 (Fla. 1961), cert. denied, 372 U.S. 904 (1963).

“Any error in prosecutorial comments is harmless, however, if

there is no reasonable possibility that those comments affected

the verdict.” King v. State, 623 So.2d 486, 488 (Fla.1993);

19

Watts v. State, 593 So.2d 198 (Fla.), cert. denied, 505 U.S.

1210 (1992). Comments which do not vitiate the whole trial or

"inflame the minds and passions of the jurors so that their

verdict reflects an emotional response to the crime or the

defendant" do not require reversal. Bertolotti v. State, 476

So.2d 130, 134 (Fla. 1985).

The State argued in closing:

We talked about ... people testifying, people making deals, and in jury selection, you kind of get to free-wheel it ... we talked and I asked about when you have someone testifying and they get something for their testimony, does it necessarily mean it’s not true? Of course not. I think every one of you said “No, we’ll consider the individual, we’ll consider the testimony.” One of the things that you consider in the testimony of any witness, as Mr. Atkins (defense counsel) ... has earlier pointed out, is is that testimony consistent with the testimony of other people. And in this case it clearly is consistent on the major points with the testimony of Ronze Cummings. Consider is this somebody who sits in jail for a while and says “I got to make a deal because, you know, my life in on the line here, so I need to get something for so I don’t die.” And the State is in this deal came off the death penalty and “You will get life if we convict you, still go to trial, present your defense.” I think Mr. Akins has said this duress or “somebody forced me to do this or “told me to do this threatened me that he would kill me too if I didn’t do it” is not a defense to the taking of a life of a human being or an attempt to take the life of another human being. It may be a mitigating factor, but it’s not a defense and it doesn’t make him any less guilty of first-degree murder. You cannot save your own life by killing another person, no matter what threat

20

you’re under. Whether that’s fair or not fair, that’s the law. ...Hatcher gets life and if the system works, he gets life and he may speculate about “I’d like better,” wouldn’t be human if he wasn’t, but he also said nobody has offered him anything better than that. And in return for that, he has to give truthful testimony. Truthful testimony. And the testimony, the knowledge that you are aware of that we all had was Ronze has already told us what happened. Ronze, the guy who is shot, who lost a wife and had a child probably traumatized for life who was standing next to him, and he’s told us what the role of the two men was in this. So going in we know this. We know that Hatcher’s deal is based on the first statement. You know, we talked about this, what do you think is more likely to be true and accurate, somebody who comes in after the fact and says “I want to testify, I’ve got my discovery packet her, I know all of this stuff that the State has and I just want to make you happy and testify against somebody else and I want something for it and here is my price tag” or somebody before any of that happens who says “Here is what happened.” The statement came first, the statement came on July 5th of the year 2000. I think you’ve heard that it was actually 2002 or so that this arrangement was cut with Hatcher and he had to give a proffer, had to tell us, you know, “Here is what happened, I’ll give you more details.” You may or may not like the deal, you may or may not like the concept that the State would give the shooter in this case some consideration, give him his life; not give him his freedom, give him his life. You may not like that. Nobody is happy about that. Nobody is happy about having to make any accommodation. But this is the real world, and if Hatcher is not available to the State as a witness, the person who did this act, who directed this act, who had it done and who not only took the life of one person, and for all practical purposes has taken the life of Hatcher by putting him in a position where he’s committed an offense that will put him in prison, I’m sure, for the rest of his life, would walk. He

21

could have walked out of here. So we made this case a little better by bringing in the other person who made a statement real early saying that Neil was the one directing everything. We also did something else by doing that. We’ve had in this case a man come from Miami with another man, broke into a house, killed one person, certainly left there thinking they had killed two people, people they knew, people they had been friendly with, he (indicating) had been friendly with, and we have at the outset Ronze Cummings who has survived and who is alive today, six years later, and would the State in this circumstance have a reasonable concern that there could be another attempt on Ronze’s life, attempt to finish him – ... Ladies and Gentlemen, the fact the State made a deal with the murderer is not an issue in this case and it is not something that you should be concerned with. All of us can speculate or you can wonder in your own mind why or think of reasons why it might have been the right thing to do, but the bottom line is the issue for all of you here is did what the State did make this testimony so unreliable that we cannot believe him. And to make that determination, you have to go back and look at the reasonableness of the testimony, you have to go back and look at is it consistent with other testimony in this case that we have heard, testimony for him, testimony from Ronze Cummings, the statement he gave, the statement that you’ve heard quoted from portions of the statement that Ronze Cummings made on June 30th about who did what and Neil’s role in all this, and – and the fact that he made an early statement long before there was any deal saying what happened when he was getting nothing for saying that. What the State has acquired is we have acquired his availability as a witness, because he has agreed as part of what he got to testify to come in here and say “I will say the truth,” and we’ve gotten that by doing what we did. We did not get or buy his testimony. We didn’t give him a script and say “This is what we want to hear.” We had what he said, we had

22

what Ronze said and you have, far more important than what we have, or had in this case, is what you have. You have on your plate the statements that the two men made and can draw your own conclusions about “Are we hearing the truth here.” You can decide they’re both saying it and they don’t even know each other. They happen to be related, a distant cousin, I think Julius Hatcher said, that hadn’t seen Ronze since he was like three years old and didn’t remember that.

(R.18 1966-70, 1976-77). The defense objected after the State

had raised the specter that a possible reason to give Hatcher a

deal was that Salazar knew Cummings and now knew that he had not

accomplished his goal of killing Cummings. (R.18 1970).

Defense counsel objected on the grounds the argument was

improper as it was discussing facts not in evidence and was

appealing to the sympathy of the jury. (R.18 1970. It was

during the sidebar discussion that the State offered it’s

“insurance policy” argument. It was to this argument that the

court noted it failed the “stink test.”2 However, the trial

court, in denying the defense motion for mistrial found “I don’t

believe that what was said so far would have any effect on the

jury, and he didn’t – certainly State didn’t go into it very

far....” (R.18 1973) The jury heard none of the State’s

rationale. Instead it heard the State have to admit that its

2 It should be noted that upon the denial of defense counsel’s motion for mistrial, he asked for a curative instruction. However, he admitted he did not want a curative, but was asking for one merely because he thought it was necessary to preserve the issue for appeal. (R.18 1973).

23

basis for giving a deal to Hatcher was not an issue in the case

or something to concern the jury. Rather, the jury should

evaluate whether Hatcher was offering truthful testimony as

corroborated by other witnesses and evidence. The jury was

informed, “but the bottom line is the issue for all of you here

is did what the State did make this testimony so unreliable that

we cannot believe him.” The State also offered that it was

When read in entirety, the argument was proper and did not

completely vitiate the entire trial.

In addition to Hatcher’s testimony, Cummings established

each element of the crimes for which Salazar was convicted.

Even absent Hatcher’s testimony the evidence against Salazar was

overwhelming, that a minor issue, later noted by the State as

speculation for the deal, should not be found to have caused the

convictions. Moreover, the State’s argument was merely advising

the jury that by giving Hatcher a deal, it provided further

corroboration of Cumming’s account. It asked the jury to look

at both testimonies and evaluate them based on their great

similarities and minor differences. Also, the jury was to look

at Hatcher’s testimony, which was based on his July, 2000

confession given after Ronze had given his statements. The

State’s overall argument was proper, and the minor flaw, as

found by the trial court, had no effect on the jury. The

mistrial was denied properly.

24

Salazar points to Huff v. State, 437 So.2d 1087, 1090 (Fla.

1983) for support of his claim that the State was discussing

facts not in evidence. However, as noted above, the jury was

also told that the basis for the State’s deal with Hatcher was

of no concern to them; it was not an element in any of the

crimes charged. As such, the State retracted its own statement;

it did not dwell on the matter and offered additional support,

from the case evidence to support the convictions in this case.

Contrary to Salazar’s position, the brief comment was not

invoking sympathy for the victim. The State never asked for

sympathy, nor did it press an argument that Cummings’ life

remained in danger. Likewise, the State did not seek sympathy

for Hatcher. Rather it told the jury Hatcher’s actions were not

a defense to first-degree murder and that he faced life in

prison. The lone, corrected comment did not vitiate the common

sense of the jury; their passions were not inflamed. As such,

Edwards v. State, 428 So.2d 357 (Fla. 3d DCA 1983) and Brown v.

State, 593 So.2d 1210 (Fla. 2d DCA 1992) do not assist Hatcher.

At no time did the State suggest that there had been a

second attempt on Cummings’ life by Salazar. It merely

initially offered, then withdrew the argument was such future

possibility may have prompted the State to make a deal with

Hatcher. Additionally, the State did not offer evidence that

this was the basis for the deal. What it did argue in closing

25

was that Hatcher was made available to the jury to consider

along with other evidence and testimony. Such is quite

different than what transpired in Rozier v. State, 636 So.2d

1386 (Fla. 4th DCA 19940; Madison v. State, 726 So.2d 835 (Fla.

4th DCA 1999) and State v. Price, 491 So.2d 536 (Fla. 1986) where

testimony/evidence was offered to the jury.

Likewise, the State never suggested that Salazar’s

conviction would prevent future crimes. As noted above, at

worst, it initially suggested future actions may be a basis for

giving a deal to a testifying co-defendant, but it never

suggested that there was any evidence of this. Rather, the

State told the jury to not concern itself with anything but the

fact a deal was made and how such impacted the jury’s confidence

in Hatcher’s testimony. As a result, Salazar’s cited cases

where there was a direct request from the prosecutor to the jury

not to let the defendant free to commit other crimes do not

further his position. Gomez v. State, 415 So.2d 822 (Fla. 3d

DCA 1982); Rahmings v. State, 425 So.2d 1217 (Fla. 2d DCA 1983);

McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982); Singer v.

State, 109 So.2d 7 (Fla. 1959); Teffeteller v. State, 439 So.2d

840 (Fla. 1983) all incite the jury to find the defendant guilty

so that he would not commit similar acts in the future, while

here, the State withdrew its suggestion that there may be a

basis for the deal it made with Hatcher; it did not tell the

26

jury to convict because Salazar may retaliate against Cummings.

See Kearse v. State, 770 So.2d 1119, 1130 (Fla. 2000) (opining

that “single erroneous comment was not so egregious as to

require reversal of the entire resentencing proceeding”);

Richardson v. State, 604 So.2d 1107, 1109 (Fla. 1992) (finding

in light of the entire record, single comment regarding “no

mercy” was harmless beyond a reasonable doubt); Rhodes v. State,

547 So.2d 1201, 1206 (Fla. 1989) (rejecting cumulative effect of

five egregious comments as none of the comments “standing alone

may have been so egregious as to warrant a mistrial”). See also

Walker v. State, 473 So.2d 694, 697 (Fla. 1st DCA 1985) (finding

overwhelming evidence of guilt rendered harmless patently

improper comments by prosecutor that he had additional knowledge

or reasons for believing certain witnesses were credible);

Broomfield v. State, 436 So.2d 435 (Fla. 4th DCA 1983) (finding

comment that release would foster more criminal activity found

to be harmless in light of overwhelming evidence of guilt).

Moreover, the State’s comment was a single lone suggestion,

which was corrected. The minor, short duration of the State’s

argument on this point distinguishes the instant matter from

Blanco v. State, 7 So.2d 333, 339 (Fla. 1942) where the

prosecutor argued at length regarding inappropriate matters.

Again, the State did not suggest that there would be another

27

homicide if Salazar were released, as such, Williams v. State,

68 So.2d 583 (Fla. 1953) does not further the defense claim.

Salazar also submits that the comment was improper and

requires reversal as to his sentence. Such is not the case as

there was strong aggravation developed from the manner in which

the murder was planned, CCP, carried out, HAC, and the

contemporaneous attempted murder of Cummings, prior violent

felony. A Single comment as to a possible, speculative basis

for giving Hatcher a deal for his testimony can hardly be the

cause of a 12-0 jury recommendation of death. This is

especially true in light of the weak mitigation, no statutory

mitigators, found. As the trial court found, the State had not

gone very far into the objectionable argument, and it did not

vitiate the entire trial.

The instant comment did not go to the heart of the case; it

did not cause the jury to convict nor did it cause the jury to

unanimously recommend death. Under State v. DiGuilio, 491 So.2d

1129 (Fla. 1986), such comment should be found harmless beyond a

reasonable doubt under the circumstances of this case especially

given where the surviving victim knew his attacker, identified

him to the police by name and provided a video tape of the

assailant, and the co-defendant admitted to committing the

murder and corroborated the surviving victim’s account.

28

ISSUE II

THE COURT DID NOT ABUSE ITS DISCRETION IN OVERRULING THE OBJECTION AND DENYING A MISTRIAL REGARDING THE OFFICER’S STATEMETNT THAT HE WAS “JUST TRYING TO FIND THE TRUTH” WHEN ASKED IF HE RUSHED HIS INVESTIGATION (restated)

Salazar asserts that the court erred in overruling his

objection and denying his subsequent motion for mistrial

regarding Detective Brock’s (“Brock”) response that he was “Just

trying to find the truth” when asked if he rushed to judgment or

conducted a “quick once-over” investigation. (IB 48, 51; R.17

1835-37, 1869-79). It is Salazar’s claim that this response was

improper bolstering and was not harmless error. When viewed in

context, the statement was not bolstering, but was merely

explaining the depth/breadth of the investigation. There was no

abuse of discretion as it was an admissible response and the

trial court’s evidentiary ruling should be affirmed.

The admissibility of evidence is within the sound

discretion of the trial court, and the trial court’s ruling will

not be reversed unless there has been a clear abuse of that

discretion. Ray v. State, 755 So.2d 604, 610 (Fla. 2000); Zack

v. State, 753 So.2d 9, 25 (Fla. 2000); Cole v. State, 701 So.2d

845, 854 (Fla. 1997). Discretion is abused only when the

judicial action is arbitrary, fanciful, or unreasonable, which

is another way of saying that discretion is abused only where no

reasonable person would take the view adopted by the trial

29

court. Trease v. State, 768 So.2d 1050, 1053, n. 2 (Fla. 2000),

citing Huff v. State, 569 So.2d 1247, 1249 (Fla. 1990).

The defense theme during opening statement was that there

was no evidence against Salazar except the impeached statements

of the victim, Cummings, and the self-serving confession and

plea induced testimony of Hatcher, both of whom were related

and, and as family, were acting against the outsider, Salazar.

(R.13 1314-17). On cross-examination of the forensic expert,

Major Noel Stephens, the defense attempted to highlight the poor

investigation conducted. Throughout his cross-examination, the

defense questioned his decisions regarding the collection of

forensic evidence, documentation of the scene, and conclusions

drawn there from. (R.14 1427-48). In the examination of

Cummings, the defense pointed out inconsistencies in his various

accounts given at the time he was bleeding profusely from two

gunshot wounds to the head, on the day he was released from the

hospital, and in later deposition/trial accounts. Again, the

intent was to show that the cousins, Hatcher and Cummings, were

working together to blame Salazar for the crimes. (R.14 1504-54,

1558-67; R.16 1681-83, 1686-92, 1694-1709).

Just after Brock reported he had interviewed between 50 and

100 people in this case from Miami to Okeechobee County, but

before he discussed why or for how long he investigated, defense

counsel sought a proffer and argued that the State was getting

30

close to the time when it would have to proffer the necessity of

Brock’s testimony. This was an apparent reference to Salazar’s

flight to St. Vincent and Puerto Rico (neither location was

Salazar’s residence – he was a resident of Trinidad), then

extradition back to Florida and the significance of same. (R.

1831-32, 1838-69). In the proffer, the State noted that it

wanted Brock to discuss how many people and different locations

were visited, that a large investigation book was complied, that

the investigation was on-going and not a rush to judgment.

Specifically, the prosecutor was not asking for what the

interviewees reported. (R.17 1832-33). It was the defense

suggestion that this line of questioning was the State’s

surreptitious way of letting the jury know of Salazar’s “crime

ring.” The State denied the allegation and the court ruled that

the jury was:

...entitled to know that from the standpoint of – I don’t know what the Defense will argue, but certainly it’s relevant to contradict a potential defense that they rushed to decide that Salazar did it. I think it’s relevant for that purpose. And I appreciate – it wasn’t really an objection, it was “Let’s approach and talk about it so we won’t have future problems,” but like I say, I appreciate that. You know, obviously I think you’re trying to keep it limited to that.

(R.17 1834).

In response to questions by the prosecutor, Brock

testified:

31

Q Detective Brock, I think you testified you were in the Miami area, you were in the Okeechobee area, obviously Fort Drum area, other parts of Okeechobee maybe. You talked to people in Melbourne? A Yes. Q Your investigation was physically wide ranging, and wide ranging in terms of the number of people that you talked to? A Yes. Q Okay. It’s appropriate for a homicide case, right? A Absolutely. Q Okay. No rush to judgment? A Right. Q No sudden – no quick once-over in a homicide case? A Just trying to find the truth. Q Yes, sir. MR. AKINS [Defense counsel]: Objection, Your Honor. Can we approach? THE COURT: No, I’ll overrule the objection.

(R.17 1835).

Following Brock’s testimony on that subject, a break was

taken to discuss his next line of questioning, namely, whether

the State could discuss Salazar’s discovery in Puerto Rico and

extradition as evidence of flight. The court ruled that the

State could discuss the fact Salazar left the crime scene, went

to Miami, then left the country, only to be arrested later in

32

Miami, but could not discuss the extradition as such was for

another murder charge from Miami. (R.17 1868-69). Only after

this long discussion regarding extradition/flight evidence did

the defense “clarify” its objection.

The defense equated Brock’s statement that his

investigation was not rushed and that he was “Just trying to

find the truth” as a comment on the truthfulness of the evidence

as decried in Acosta v. State, 708 So.2d 809 (Fla. 4th DCA 2001).

(R.17 1869). The trial court responded:

THE COURT: Okay. Well, I think in that particular case it was truthful nature of the evidence as “I’m trying to find the truth”; as opposed to commenting on what he did find, he’s saying he’s trying to find the truth. I don’t think there’s anything wrong with that. I’ll deny the mistrial. I would hope all detectives would testify that they’re looking for the truth. That doesn’t mean that they can say “What I found is the truth.” MR. SEYMOUR [Prosecutor]: And it also explains why the investigation keeps going. That was the context in which it was made. THE COURT: I think given the contest that it was done it was – and the way it was said, it’s fine.

(T.17 1869-70). As the court found, the comment was appropriate

within the context it was delivered. There was no comment on

the truthfulness of the evidence, only a search for the truth.

The cases offered by Salazar do not further his position as

each contains a comment on the truthfulness of the evidence

developed or a self-serving statement which leads to the clear

33

inference the highly impeached witness was being truthful. As

such Salazar’s cases are distinguishable from the instant

matter. See Acosta, 798 So.2d at 810 (finding testimony

inadmissible as direct comment on truthfulness of evidence-

credibility of witness when officer stated he took certain

action because a state witness’s prior statements had “appeared

to be truthful” to him); Olivera v. State, 813 So.2d 996, 998

(Fla. 4th DCA 2002) (finding the highly prejudicial comment that

a lie detector test was given and the presumed inference that

the witness had passed such a test could not be deemed harmless,

even with a curative instruction when “there was only one

witness who testified to inculpatory statements made by the

defendant. Defense counsel artfully established facts that would

appear to have discredited him. Thus, unless the jury believed

that he had passed the lie detector test, it is hard to fathom

that his testimony would have led to the defendant's conviction

as there were no other witnesses or physical evidence linking

the defendant to the crime. The state's entire case was based on

circumstantial evidence and the testimony of Enrique Machado”);

Witted v. State, 362 So.2d 668, 673 (Fla. 1978) (vacating

conviction as it was improper to allow stat to preemptively

bolster credibility of witnesses before they were impeached and

to use character evidence for truthfulness to establish

witnesses’ veracity); Paul v. State, 790 So.2d 508 (Fla. 5th DCA

34

2001) (finding counsel ineffective for not having objected to

four instances where investigating official was allowed to

comment that a witness was honest and had no motive to lie);

Harris v. State, 438 So.2d 787, 797 (Fla. 1983)(noting reversal

of sentence not required where comment merely recognized obvious

fact that defendant could be paroled after 25 years); Tindal v.

State, 803 So.2d 806, 809-10 (Fla. 4th DCA 2001)(finding it

impermissible for the prosecutor to argue in closing facts not

in evidence or to suggest defense pressured witness to change

testimony without proof).

Here however, there was no direct comment on the

truthfulness of any evidence or witness account nor any comment

on facts not in evidence. Instead, Brock merely explained that

the purpose of his investigation, one continuing until the

commencement of the trial, was to find out the truth, i.e., to

determine what happened in this case. He did not give his

opinion of the witnesses’ accounts or his opinion of the

evidence he discovered. Contrary to Salazar’s position, the

evidence spoke for itself, and established that the victim,

Cummings, and the shooter, Hatcher, corroborated each other and

established that Salazar was not only directing, but forcing the

perpetration of the crimes in this case. Additionally, the

blood evidence on the wall above Nutter’s head and on the

curtains, corroborate Cummings account of what he did after the

35

attack. The discovery of Nutter’s car in South Florida is

further proof of the accounts of Cummings and Hatcher. The mere

fact that Brock characterized his long and wide ranging

investigation as “just trying to find the truth,” does not

undermine confidence in the verdict. Such does not bolster the

credibility of any witness, nor does it comment on the

truthfulness of the evidence. Instead, it is by definition the

purpose of an investigation, to find the truth of what happened.

Even if this comment is found to be improper and the

standard announced in State v. DiGuilio, 491 So.2d 1129 (Fla.

1986) applies, the record establishes that it had no effect on

the proceedings. As noted above, there was no direct comment on

the evidence, only on Brock’s motivation to investigate. Also,

the witnesses’ accounts and reported forensic evidence

corroborated each other. It cannot be said that merely because

an officer notes he is seeking the truth of what happened

without giving his opinion of what he found or what was

presented in court, so undermines confidence in the verdict.

The single comment would not cause the jury to convict.

ISSUES III AND V

THE CCP AGGRAVATOR WAS FOUND AND APPLIED PROPERLY IN THIS CASE, THE STATE’S ARGUMENT WAS IN COMPLIANCE WITH THE LAW, AND THE INSTRUCTION WAS PROPER (restated)

Here, Salazar asserts that it was error to find the CCP

aggravator because there was no finding that before commencing

36

the underlying felony, there was a fully formed intent to kill.

(IB 55 – Issue III). He further asserts that this Court has

been inconsistent in its application of the CCP aggravator, thus

rendering it unconstitutional (IB 63-85 – Issue III). Salazar

also takes issue with the State’s closing argument in support of

CCP and the denial of his objection to the CCP instruction (IB

85-87 – Issue III and IB 92-93 – Issue V). Contrary to

Salazar’s assertion that this Court has been inconsistent with

its application of CCP, thus rendering the aggravator

unconstitutional, the facts in this case fit squarely within the

definition of CCP. The aggravator has been upheld against

constitutional challenges, and any alleged inconsistencies based

upon the facts and circumstances of each case do not invalidate

that determination. Moreover, the court found that there was a

premeditated design formed from the time the assailants left

Miami to travel to a rural area of Fort Drum at night to

perpetrate their crimes. In light of the entire episode, from

planning to execution, Salazar acted in a cold, calculated, and

premeditated manner. The aggravator was applied properly and is

supported by substantial, competent evidence. Irrespective of

what Salazar may believe were erroneously or inconsistently

decided cases, his actions here, support the aggravator. The

State’s argument conformed to the law and facts developed during

37

the trial. The court correctly overruled Salazar’s objection to

the CCP instruction. This Court should affirm.

Review of the finding of aggravation is to determine if the

right rule of law was applied and whether competent, substantial

evidence supports the court’s finding. See Boyd v. State, 910

So.2d 167, 191 (Fla. 2005); Conde v. State, 860 So.2d at 953.

“This Court has concluded that ‘competent substantial evidence’

is tantamount to ‘legally sufficient evidence’ and “[i]n

criminal law, a finding that the evidence is legally

insufficient means that the prosecution has failed to prove the

defendant's guilt beyond a reasonable doubt.” Almeida v. State,

748 So.2d 922, 932 & n. 20 (Fla.1999) (quoting Tibbs v. State,

397 So.2d 1120, 1123 (Fla. 1981)).” Williams v. State, 2007 WL

1774389, *24 (Fla. 2007).

In finding the CCP aggravator, the court reasoned:

In order to find this aggravator, the State must show a heightened level of premeditation to commit the killing. An unnecessary, execution type, killing is the type of killing for which this aggravator was intended.9 The facts of the case, as recounted throughout this sentencing order, as well as the jury verdict interrogatory, clearly show that it has been proven that the Defendant had a premeditated design to kill the victim. The heightened level of premeditation and cold, calculated, nature of the killing has also been proven by the facts showing that the Defendant had a well planned murder. The time, place, manner of killing, and preparation was all thought out with cold calculated plan. The victim was not threatening the Defendant. The victim gave no resistance. The victim’s infant child was present.

38

The Defendant directed each event that occurred without any justification. The plan included:

•Driving from Miami-Dade County to a rural section of Okeechobee County where the victim lived, during the nighttime hours. •Bringing another person who the Defendant had control over to commit the violence. •Unscrewing the porch light bulb before entering the home. •Disconnecting the phone in the victim’s home upon entry into the home. •Bringing two firearms, one for the Defendant and one for the co-Defendant, which the Defendant did not give him [Co-Defendant] until it was time for the killing. •Bringing duct tape for tying the victim up and to cover her eyes and mouth. •Planning to use plastic bags to increase the terror of the victim. •Planning to cause a slow death by asphyxiation with the duct tape and bags, only to then state that it was “taking too long,” at which time the Defendant directed the co-Defendant to “cut their throats,” to then, after the co-Defendant refused, directing the co-Defendant to separate the victims, put a pillow over their heads and shoot them. When the other victim (Ronze Cummings) didn’t die after the first shot, the Defendant told the co-Defendant to “shoot him again,” and he did. •Having the other person do acts which may leave his fingerprints, DNA, or other items of evidence at the scene, while the Defendant kept evidence of his presence to a minimum. •Apparently not committing any type of theft from the victim, except the automobile.

39

•Having the other person drive the victim’s car from the scene, while the Defendant quickly drove off, leaving the co-Defendant to catch up or get lost in Okeechobee County, while being in possession of the deceased[‘s] car.

The Court finds this aggravator has been proven and assigns great weight to it. ________________________________ 9Chamberlain v. State, 881 So.2d 1087 (Fla. 2004)

(R.4 658-59).

The court’s findings are supported by the record as

revealed by Cummings and Hatcher. Not only did Salazar “prime”

Hatcher to commit these crimes by attacking him in Miami, and

keeping him tied up with duct tape for hours while threatening

him with death and telling him he had to do something for him,

but Salazar brought the duct tape to the scene, and had the

female victim, Nutter, whom he accused of talking with the FBI,

duct taped in such a way that had she not been shot, she would

have died of asphyxiation. From the outset of the crimes,

Salazar was intent upon silencing the person whom he believed

talked to the FBI. If he did not get his answers about Rico/FBI

“somebody is going to die tonight.” The cold planned nature of

the murder is evident from Salazar’s long trip from Miami to

Fort Drum under the cover of darkness, having his driver stop

the car a distance from the house, unscrewing the back porch

lights at the isolated orange grove trailer home, and

disconnecting the phone upon entry. Salazar came armed to the

40

scene and only gave Hatcher a gun when Hatcher refused to kill

the victims by slitting their throats. Throughout the attack,

Salazar prodded Hatcher with threats to leave him dead at the

scene to get him to follow orders and checked Nutter even after

Hatcher said she was dead. Finding otherwise, Salazar gave

orders which eventually led to Nutter’s death. Salazar’s

methodical, unrelenting plan to kill Nutter by asphyxiation,

stabbing, and/or gunshot was the epitome of CCP.

In discussing CCP, this Court has stated:

In order to establish the CCP aggravator, the evidence must show that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold), and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated), and that the defendant exhibited heightened premeditation (premeditated), and that the defendant had no pretense of moral or legal justification. ... While “heightened premeditation” may be inferred from the circumstances of the killing, it also requires proof beyond a reasonable doubt of “premeditation over and above what is required for unaggravated first-degree murder.” ... The “plan to kill cannot be inferred solely from a plan to commit, or the commission of, another felony.” ... However, CCP can be indicated by the circumstances if they point to such facts as advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course.

Philmore v. State, 820 So.2d 919, 933 (Fla. 2002) (quoting

Farina v. State, 801 So.2d 44, 53-54 (Fla. 2001). “[T]he facts

supporting CCP must focus on the manner in which the crime was

41

executed, e.g., advance procurement of weapon, lack of

provocation, killing carried out as a matter of course.” Lynch

v. State, 841 So.2d 362, 372 (Fla. 2003) (quoting Looney v.

State, 803 So.2d 656, 678 (Fla.2001)). In Guardado v. State,

2007 WL 1836988, *7 (Fla. Jun. 28, 2007): this Court reasoned:

... that to support the CCP aggravator, a jury must find (1) that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic or a fit of rage (cold); (2) that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); (3) that the defendant exhibited heightened premeditation; and (4) that the defendant had no pretense of moral or legal justification. See Buzia v. State, 926 So.2d 1203, 1214 (Fla.) (citing Jackson v. State, 648 So.2d 85, 89 (Fla. 1994)), cert. denied, --- U.S. ----, 127 S.Ct. 184, 166 L.Ed.2d 129 (2006).

Guardado, 2007 WL 1836988, at 7.

This Court has held that execution-style killing is by its very nature a “cold” crime. See Lynch v. State, 841 So.2d 362, 372 (Fla.), cert. denied, 540 U.S. 867, 124 S.Ct. 189, 157 L.Ed.2d 123 (2003); Walls v. State, 641 So.2d 381, 388 (Fla. 1994). As to the “calculated” element of CCP, this Court has held that where a defendant arms himself in advance, kills execution-style, and has time to coldly and calmly decide to kill, the element of calculated is supported. See Hertz v. State, 803 So.2d 629, 650 (Fla. 2001); Knight v. State, 746 So.2d 423, 436 (Fla. 1998) (holding “[e]ven if Knight did not make the final decision to execute the two victims until sometime during his lengthy journey to his final destination, that journey provided an abundance of time for Knight to coldly and calmly decide to kill”). This Court has “previously found the heightened premeditation required to sustain this aggravator where a defendant has the opportunity to leave the crime scene and not commit the murder but, instead, commits the murder.” Alston v. State, 723 So.2d at 162; see also Lynch, 841 So.2d at 372 (noting that defendant had five-to seven-minute

42

opportunity to withdraw from the scene or seek help for victim, but instead calculated to shoot her again, execution-style).

Pearce v. State, 880 So.2d 561, 576 (Fla. 2004).

Premeditation may be shown through the defendant’s prior

procurement of a weapon or his voiced intent to kill. See Bell

v. State, 699 So.2d 674, 677 (Fla. 1997) (purchasing gun after

voicing intent to kill victim); Thompson v. State, 648 So.2d

692, 696 (Fla. 1994) (noting defendant’s precaution of carrying

weapons when meeting with victims). Picking an isolated

location to commit the murder is also evidence supporting CCP.

See Wuornos v. State, 644 So.2d 1000, 1008 (Fla. 1994).

Evidence of the victim’s lack of resistance or provocation has

been held to support both the “cold” and element of CCP and the

requirement a lack of any “pretense of justification” for the

killing. See Williamson v. State, 511 So.2d 289 (Fla. 1987)

(finding no pretense of justification for stabbing fellow inmate

where victim had made no threatening acts toward defendant). A

single gunshot wound to the head had been recognized as evidence

supporting the CCP aggravator. See Philmore, 820 So.2d at 933;

Eutzy v. State, 458 So.2d 755, 757 (Fla. 1984). The killing in

this case meets this Court’s definition of CCP.

Here, Salazar primed Hatcher to do his bidding by keeping

him bound and in fear for several hours before the trip to

Nutter’s home. Salazar had time, several hours during the trip

43

with Hatcher and Baker from Miami to Fort Drum, to reflect on

his decision to confront Nutter about talking to the FBI, and

kill her after receiving the information he wanted. See Knight,

746 So.2d at 436; He came prepared with guns, a sub-machine gun

and .38 caliber revolver, and duct tape to subdue his victims,

and having lived in the home in the isolated orange grove home,

Wuornos, 644 So.2d at 1008, knew where plastic bags were kept

which could be used to silently asphyxiate the victims.

Upon entering the home, Salazar addresses Nutter regarding

his failing drug business stating that things were falling apart

and he wanted answered. In fact, he told Nutter, “Before I

leave tonight, somebody dies tonight.” (R.14 1469-73) This was

repeated during the 15-20 minute “interrogation.” Clearly,

Salazar entered the home with intent to kill as is evident from

his early statements. However, even if the burglary commenced

first and it was not until Salazar did not get the answers he

wanted, the methodical killing established the CCP aggravator as

is evident from the fact that several different methods were

used to accomplish the killing.

When the asphyxiation plan did not work because it was

taking too long for Nutter to die, and after Hatcher refused to

slit the victims’ throats, thereby disobeying Salazar’s commands

for the first time, Salazar was unrelenting. He gave Hatcher

the second gun, the revolver, and directed Hatcher to shoot

44

Nutter through a pillow thereby limiting any forensic evidence

and possible noise. The priming of Hatcher and the several hour

trip shows cold reflection. The preparation and knowledge

necessary to prove calculation comes from Salazar’s bringing

duct tape with him, knowledge of where plastic bags and knives

were kept in the kitchen, and arming himself with two guns.

Salazar’s heightened premeditation is shown by his arming

himself with tape and guns, priming the triggerman to obey his

commands, and the deliberate, single-minded intent to eliminate

the person who he believed was talking to the FBI. Upon finding

asphyxiation was taking too long, and verifying that Nutter was

not dead even though Hatcher had reported that she had died,

Nutter was killed with a single gunshot to the head with a gun

Salazar supplied and directed how it was to be used. Philmore,

820 So.2d at 933. Cf. Nelson v. State, 850 So.2d 514, 528 (Fla.

2003) (affirming CCP based in part on fact it took several

attempts to kill victim before defendant succeeded).

There was no moral or legal justification for the murder of

Nutter. She had been completely subdued by duct tape and was

suffering from a lack of oxygen due to the plastic bag taped

over her head and the duct tape being very close to her nose and

over her mouth. Nutter offered Salazar no resistance. See Ibar

v. State, 938 So.2d 451 (Fla. 2006) (finding CCP in part because

Ibar did not kill victims immediately upon entering scene, but

45

completed the robbery/burglary and could have left scene without

killing victims, but instead methodically shot each victim in

the head); McCoy v. State, 853 So.2d 396, 408 (Fla.2003)

(affirming CCP where record showed there were no signs of

physical struggle at scene, the defendant had opportunity to

leave after completing the robbery, but chose to execute subdued

victim execution style); Williamson, 511 So.2d at 289.

In support of the allegation that CCP was not established,

Salazar points to Rogers v. State, 511 So.2d 526 (Fla. 1987)

(finding initial plan was to rob grocery store); Power v. State,

605 So.2d 856 (Fla. 1992) (concluding initial intent was to rape

victim and judge improperly relied upon prior murders and post-

killing events to establish heightened premeditation); Wyatt v.

State, 641 So.2d 1336 (Fla. 1994) (Wyatt I) (; Wyatt v. State,

641 So.2d 355 (Fla. 1994) (Wyatt II) (finding single gunshot

wound to head, without more, is insufficient to prove CCP);

Thompson v. State, 619 So.2d 261 (Fla. 1993) (noting facts

establish intent to extort money before fist blows which led to

victim’s death were landed); Green v. State, 583 So.2d 647 (Fla.

1991) (finding initial encounter was to retrieve rent check to

buy more cocaine and only after landlord refused did attack

commence); Hamblen v. State, 527 So.2d 800 (Fla. 1988) (finding

killing not CCP where initial encounter was a robbery and only

after victim pushed alarm and defendant became enraged did he

46

kill). He also points to Chamberlain, 881 So.2d at 1092-93 as

proof that CCP should be struck because the robbery was over

before the killing occurred. These cases are distinguishable as

those killings were not the main intent of the attack or the

courts relied on other crimes to establish heightened

premeditation.

In Rogers v. State, 511 So.2d 526 (Fla. 1987), the purpose

of entering the store was to commit a robbery and it was only

after the victim was perceived as acting like a hero did the

defendant shot an kill him. There was no pre-crime heightened

plan or intent to kill. Likewise, in Power, 605 So.2d at 864,

this Court found that the defendant’s intent was to rape, that

the intent to kill as established in prior murders was not

sufficient to establish heightened premeditation, and that

actions taken after the murder, calmly eating a sandwich, could

not show premeditation before the murder.

Again, in Wyatt I and Wyatt II, this Court concluded that

the thrust of the crime spree was rape and robbery of the

victims; there was a lack of proof of prior planning to kill.

Similarly, in Thompson and Green, the record lacked evidence of

a prior plan to kill. Instead it showed the main thrust was to

obtain money from the victim and only after being disappointed

with the funds received or refused to be released were the first

blows struck which eventually led to the victim’s death.

47

Hamblen is distinguishable as the initial encounter was for a

robbery and only after the victim pushed the alarm did the

defendant become enraged and decide to kill. In Chamberlain,

881 So.2d at 1092-93, the CCP aggravator was struck for the

first victim as that killing was prompted when the victim

attacked the co-defendant, Thebault as he held him at gunpoint

in the bathroom. However, CCP was proper for the other victims

as Chamberlain and Thebault discussed the need to kill these

witnesses given the first killing. The instant record reflects

that for hours before the killing, Salazar was contemplating the

killing by priming Hatcher, even threatening to kill him for the

same reason Nutter was killed, i.e., talking to the FBI.

Salazar took time to drive to the victim’s isolated home at

night, and methodically, without deterring from his decision,

oversee the killing of Nutter via attempted asphyxiation then a

fatal gunshot to the head. From this substantial, competent

record evidence, the application of the CCP aggravator should be

affirmed.

Moreover, Salazar’s overall challenge to CCP because, in

his estimation, this Court has been inconsistent with the

application of the aggravator, is without merit. As this Court

has repeated, it is the overall facts of the crime when viewed

in their entirely which renders support for the finding of CCP

aggravation. Where Salazar points to alleged inconsistencies

48

(IB 63-85), he fails to recognize that other case facts support

the cold, calculate, and premeditated nature of the murder. His

challenges to those case, do not undermine the finding of CCP

here given the facts as adduced above and as found by the court.

Additionally, the State’s closing argument seeking

application for CCP was appropriate. It was in conformance with

the law. However, Salazar did not object to these comments,

thus, the matter is unpreserved for appeal. Steinhorst v.

State, 412 So. 2d 332, 338 (Fla. 1982) (holding for issue to be

cognizable on appeal, it must be specific contention asserted

below). Even had an objection been made, there was no error as

the argument was within the prosecutor’s forensic talents and

followed the facts and law as set forth in the CCP instruction.

A court has discretion in deciding the scope of a

prosecutor’s argument and its ruling will not be disturbed

absent an abuse of discretion. See Esty v. State, 642 So.2d

1074, 1079 (Fla. 1994), cert. denied, 514 U.S. 1027 (1995).

Prosecutors have wide latitude in their arguments to a jury.

Counsel is allowed to draw logical inferences and to advance all

legitimate arguments. Breedlove v. State, 413 So.2d 1, 8

(Fla.1982). In arguing to a jury “[p]ublic prosecutors are

allowed to advance to the jury all legitimate arguments within

the limits of their forensic talents in order to effectuate

their enforcement of the criminal laws.” Spencer v. State, 133

49

So.2d 729, 731 (Fla. 1961), cert. denied, 372 U.S. 904 (1963).

“Any error in prosecutorial comments is harmless, however, if

there is no reasonable possibility that those comments affected

the verdict.” King v. State, 623 So.2d 486, 488 (Fla.1993);

Watts v. State, 593 So.2d 198 (Fla.), cert. denied, 505 U.S.

1210 (1992). Comments which do not vitiate the whole trial or

"inflame the minds and passions of the jurors so that their

verdict reflects an emotional response to the crime or the

defendant" do not require reversal. Bertolotti v. State, 476

So.2d 130, 134 (Fla. 1985).

Here, the State followed the instruction and definitions

given by the court. (R.19 2187-89). He argued that at the

decision to kill required proof of heightened premeditation and

that at the minimum such was shown by the fact the victims were

“secured” with duct tape, and bags are placed over their heads

and held in place with tape in order to asphyxiate the victims

who had been placed in separate rooms. When this process was

taking too long, Salazar wanted the victims’ throats to be

slashed. However, when his dominated henchman, was unable to do

this, Salazar ordered Hatcher to shoot them with the .38 caliber

gun he provided. Hatcher was given incentive to follow

Salazar’s command when he was threatened with death if he

disobeyed. The entire process shows the cold, calculated, and

premeditated manner in which Nutter was killed. From entry into

50

the house and questioning of Nutter with the threat “somebody is

going to die tonight” through the time lapse to let the victims

asphyxiate, to the final shooting when asphyxiation was taking

too long and Hatcher could not cut the victims’ throats, the

intent was to kill. The State’s argument on this point was

proper. See Ibar v. State, 938 So.2d 451 (finding CCP from the

deliberate acts of defendant in execution style killing of

subdued victims after house had been burglarized, and property

stolen; Chamberlain, 881 So.2d at 1092-93 (same).

Related to his challenge to CCP, Salazar argues the court

should have found the CCP aggravator unconstitutional and erred

in not amending the instruction to include the requirement that

the State prove premeditation to kill before the crime began.3

Contrary to his position, the aggravator is constitutional as

outlined above and reincorporated here. Moreover, this Court

has affirmed the constitutionality of the CCP aggravator and

instruction repeatedly, and Salazar has not offered a valid

basis for revisiting this matter. See Donaldson v. State, 722

So.2d 177, 187 n. 12 (Fla. 1998)(finding CCP is a constitutional

3 Since Florida law presumes the standard jury instructions correct and prefers them over special instructions, the proponent has the burden of proving the court abused its discretion in giving the standard instruction. Stephens v. State, 787 So.2d 747, 755-56 (Fla. 2001). See Parker, 873 So.2d at 294; James v. State, 695 So.2d 1229, 1236 (Fla. 1997); Elledge v. State, 706 So.2d 1340 (Fla. 1997). A ruling is an abuse of discretion where no reasonable man would take the view adopted by the trial court. Trease, 768 So.2d at 1053, n. 2.

51

aggravator on its face); Walker v. State, 707 So.2d 300, 316

(Fla. 1997). The sentence should be affirmed.

ISSUE IV

THE COURT PROPERLY ADMITTED TESTIMONY ABOUT VICTIMS BEING TERRORZED DURING THE CRIMINAL EVENTS (restated)

Salazar asserts that the State’s closing argument for

felony murder suggested that one of the purposes of burglarizing

the home was to terrorize the occupants and that this amounted

to non-statutory aggravation. (IB 88). In overruling the

objection, the court concluded that such could go to the

heinous, atrocious, or cruel aggravator (“HAC”), and instruction

on which would be given. (R.18 2180). When the State’s argument

is read in context, it was a reasonable inference from the

evidence as well as the conviction and merely showed the

aggressive heinous manner in which the burglary and murder were

accomplished.

A court has discretion in deciding the scope of a

prosecutor’s argument and its ruling will not be disturbed

absent an abuse of discretion. See Esty, 642 So.2d at 1079.

Prosecutors have wide latitude in their arguments to a jury.

Counsel is allowed to draw logical inferences and to advance all

legitimate arguments. Breedlove, 413 So.2d at 8. In arguing to

a jury “[p]ublic prosecutors are allowed to advance to the jury

all legitimate arguments within the limits of their forensic

52

talents in order to effectuate their enforcement of the criminal

laws.” Spencer, 133 So.2d at 731. “Any error in prosecutorial

comments is harmless, however, if there is no reasonable

possibility that those comments affected the verdict.” King, 623

So.2d at 488. Comments which do not vitiate the whole trial or

"inflame the minds and passions of the jurors so that their

verdict reflects an emotional response to the crime or the

defendant" do not require reversal. Bertolotti, 476 So.2d at134.

The State asserted:

And the fact that it is a felony murder can, by itself, constitute an aggravator, another factor you can consider in deciding what’s an appropriate sentence. In this case, we have a burglary by two men who come two and a half –- roughly two and a half, three hours from Miami, Julius Hatcher said “We left Miami and we went back to Miami,” and they come, park the car, go down the road, come up on the house in the middle of the night, well after dark, break the door in, not necessarily, you know, sledge hammer, knock the door down, but force the door. You heard Julius Hatcher’s testimony that Ronze [Cummings] was getting up, looked like he was headed for the door when they went in. Pushed their way basically into the house and held everybody at gunpoint and terrorized the two occupants until the decision or until the actions were taken to kill them. Burglary and a lot of other things we talked about earlier are bases for felony murder and basically the thinking behind all that is you put somebody else’s life on the line, you create a dangerous situation where somebody else could be killed, and even if it’s an accident, it’s felony murder; even if you didn’t intend to kill anybody, it’s felony murder.

53

Here we have much, much more than just a burglary that went bad. We have a buglary for the purpose of terrorizing the occupants and maybe a burglary for killing the occupants. You’ll make the determination, and probably have. “When was the decision to kill made? Was it made before they came up? Was it made before, you know, Neil Salazar went in that house? Was –- or was it made at some point –“ I mean, the statement was made “If I don’t get some answers, people are going to die.” Clearly at some point the decision to kill replaced that of simply terrorizing them. They came with duct tape and Neil Salazar came armed with the knowledge that those Wal-Mart bags were there in the house because he had lived there. They clearly or he clearly had knowledge—

(R.18 2177-78). Such was interrupted by the defense objection

to the State’s characterization/use of the word terrorize in

conjunction with the felony murder/burglary argument as it

amounted to non-statutory aggravation. (R.19 2179). The

prosecutor countered that the facts show that the assailants

were intent upon terrorizing the occupants and that the

circumstances under which the burglary was committed went to the

weight of the aggravation. (R.19 2179-80). The court concluded

that such appropriately went to HAC. (R.19 2180)

This decision was within the court’s discretion as the fear

under which the victim was placed prior to her death is a factor

to be considered in determining if HAC has been proven, and thus

the court’s ruling should be upheld. Moreover, the empirical

facts show that the victim was terrorized, under any definition

of the word, and as such is a proper argument for the State to

54

present even if technically not an element the felony murder

aggravator. Also, Salazar had been convicted of burglary during

which an assault was committed, thus merely discussing the facts

of the case do not amount to a non-statutory aggravator, and

supports the court’s ruling even though not announced. Cf.

Muhammad v. State, 782 So.2d 343, 359 (Fla. 2001) (opining

"court's ruling on an evidentiary matter will be affirmed even

if the trial court ruled for the wrong reasons, as long as the

evidence or an alternative theory supports the ruling").

The evidence shows that Salazar terrorized Hatcher in the

early afternoon, tying him up with duct tape, accusing him of

talking to the police, and threatening him with death. This put

such fear in Hatcher, that he followed all but one of Salazar’s

orders for the rest of the evening, including duct taping

Cummings and Nutter, putting plastic bags over their heads and

taping them shut, and shooting both in the head as demanded by

Salazar. Hatcher testified he was under duress and did this so

has not to die at Salazar’s hand. The record reflects that

Nutter experienced the same acts as Hatcher. Her house was

invaded late at night by two men; Salazar held a sub-machine gun

on her as she was being interrogated regarding her alleged

involvement with Rico, an FBI agent, and why she was talking to

the FBI about Salazar’s drug dealings. She was told that before

Salazar left that night, “somebody dies.” She had duct tape

55

placed over her eyes and mouth. The tape over her mouth was so

close to her nose it interfered with her ability to breath and

the bag was taped so tightly, it was causing asphyxiation. All

this was done as Salazar threatened her with death and even in

her presence told Hatcher to see if she were dead. Salazar went

so far as to check Nutter himself to see if she was dead and

finding her alive ordered Hatcher to slit her throat. When

Hatcher refused, Salazar ordered Nutter shot. This transpired

within Nutter’s hearing as Salazar was in the doorway to

Nutter’s room Throughout the ordeal, from entry into the house

until her death, Nutter was put in fear of her life, i.e., she

was terrorized. The facts support the argument and were proper

under Bertolloti; Spencer. To suggest Nutter was not terrorized

is to be blind to the facts of the case.

HAC focuses on the experiences of the victim before death.

This Court has repeatedly stated that fear, emotional strain,

mental anguish or terror suffered by a victim before death is an

important factor in determining whether HAC applies. See James

v. State, 695 So.2d 1229, 1235(Fla.1997); Pooler v. State, 704

So.2d 1375, 1378(Fla. 1997). Further, the victim’s knowledge of

his/her impending death supports a finding of HAC. See Douglas

v. State, 575 So.2d 165(Fla.1991); Rivera v. State, 561 So.2d

536, 540(Fla.1990). In evaluating the victim's mental state,

common-sense inferences from the circumstances are allowed. See

56

Swafford v. State, 533 So.2d 270, 277 (Fla.1988)).

“[S]trangulation when perpetrated upon a conscious victim

involves foreknowledge of death, extreme anxiety and fear, and

that this method of killing is one to which the factor of

heinousness is applicable.” Sochor v. State, 580 So.2d 595, 603

(Fla. 1991), rev’d other grounds, 112 S.Ct 2114 (1992). This

Court has held that death by strangulation is nearly per se

heinous, Bowles v. State 804 So.2d 1173, 1178-79(Fla.2001);

Mansfield v. State, 758 So.2d 636, 645(Fla.2000). In Barnhill v.

State, 834 So.2d 836, 844 (Fla. 2002) this Court found “HAC

aggravating factor applies in physically and mentally torturous

murders which can be exemplified by the desire to inflict a high

degree of pain or utter indifference to or enjoyment of the

suffering of another.” “HAC focuses on the means and manner in

which the death is inflicted and the immediate circumstances

surrounding the death, rather than the intent and motivation of

a defendant, where a victim experiences the torturous anxiety

and fear of impending death.” Id. at 849-50.

Further, the burglary, as found by the jury, involved an

assault. Both Nutter and Cummings experienced the same

treatment, the only differences being that Cummings had a hole

in the plastic bag over his head, and he survived his gunshot

wounds. Without question, the assault called for proof the

person was put in fear of bodily harm. Hence, this was shown

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through the terror the victims experienced. Given this, the

court’s ruling should also be deemed correct. Muhammad, 782

So.2d at 359.

Moreover, the argument of counsel is not evidence and the

jury is presumed to follow the instructions given by the court.

As such, the jury was instructed that to find the felony murder

aggravator, they needed to find Salazar had committed a felony

attendant to the murder. The jury had done this with their

finding of guilt. As such, both the HAC and burglary

aggravators were found properly and even if the State’s argument

was misplaced, it had no affect upon the recommendation.

Even without the felony murder aggravator, three weighty

aggravators remain, namely, the prior violent felony, HAC, and

CCP aggravators. The State’s argument should be found harmless

beyond a reasonable doubt if any error is found. State v.

DiGillio, 491 So.2d 1129 (Fla. 1086).

Salazar points to Colina v. State, 570 So.2d 929 (Fla.

1990) and Elledge v Staet, 346 So.2d 998 (Fla. 1977) and Blair

v. State, 406 So.2d 1103 (Fla. 1981) which decried the use of

non-statutory aggravation such as lack of remorse, disusing

criminal conduct where there had been no conviction, and acts

perpetrated on the victim’s dead body. That is not the

situations here. The facts support the inference of

terrorization, it was not argued as an aggravator, only to give

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more weight to the factor, and there was a conviction for the

burglary committed with an assault. As such, Salazar’s cases

are distinguishable and do not support his prayer for relief.

The assertion that the State could not argue that a

kidnapping occurred (IB 89) does not impact the result here.

The jury was not told to consider that Nutter was kidnapped. As

such, any argument made a side bar would have no influence on

the jury and would not have contributed to the unanimous

sentencing recommendation made here. Similarly, Salazar’s

reliance on Clark v. State, 443 So.2d 973 (Fla. 1983) and Riley

v. State, 366 So.2d 19 (Fla. 1979) is misplaced. In those

cases, the sentencing court found HAC based upon the emotional

impact the killing of the victims had on the surviving victim.

That is not the case here.

The instant trial court related all of its findings of HAC

to the impact the attack and killing had on Nutter. The court

concluded:

The finding of a heinous, atrocious, or cruel aggravator is appropriate in torturous murders, where there is “extreme and outrageous depravity as exemplified either by the desire to inflict a high degree of pain or utter indifference to or enjoyment of the suffering of another. The facts of this case show that this Defendant desired to inflict a high degree of pain or an utter indifference to the suffering of the victim. The victim had the fear of an impending death after gunmen forced their way into her home, was tied up, had duct tape placed on her eyes and mouth, had a bag taped over here head, was told “someone will die tonight” while her infant son

59

was present, had suffered the onset of asphyxiation with fluid or foam gurgling out of her mouth due to a lack of sufficient oxygen, heard the Defendant say “cut their throats”, had guns pointed at her, was dragged to a room separate from her boyfriend and son, and only then was a pillow placed against her head and she was shot. The acts were not independent of the killing, but were a series of events all leading to the killing, which was the intent of the Defendant. The victim had an ongoing anticipation of death and the gunshot was the second attempt at killing the victim, as the duct tape and bag over the victim’s head was in the process of killing the victim by asphyxiation, but the Defendant said that process was “taking too long.” The suffering of the victim was extreme and the Defendant either desired that suffering or was indifferent to it. The Court assigns great weight to this aggravator.

(R.4 657-58) (footnotes omitted). The trial court did not rely

on any non-statutory aggravation as rejected in Riley. Instead,

the State properly argued the facts in evidence. Non-statutory

aggravation was not offered or found. The sentence should be

affirmed.

ISSUE VI

FLORIDA’S CAPITAL SENTENCING STATUTE IS CONSITUTIONAL (restated)

In spite of the fact that Salazar’s jury made a unanimous

recommendation for death which, by itself, comports with Ring v.

Arizona, 536 So.2d 584 (2002), he challenges Florida’s capital

sentencing under Ring. While he acknowledges that this Court

had rejected repeatedly the challenges to Florida’s capital

sentencing statute (IB 94; R.2 371-91), he raises not only a

Sixth Amendment challenge, but an Eighth Amendment challenge.

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Given that Ring was addressed only the Sixth Amendment, it is of

no assistance with his Eighth Amendment challenge. Nonetheless,

Florida death penalty statute is constitutional.

This Court had denied challenges to the constitutionality

of the capital sentence based upon Ring where the defendant had

a unanimous jury recommendation for death. See Taylor v. State,

937 So.2d 590, 601 (Fla. 2006); Crain v. State, 894 So.2d 59, 78

(Fla. 2004), cert. denied, 126 S.Ct. 47 (2005). Salazar has not

given a valid basis for this Court to recede from those

decisions.

Moreover, repeatedly this Court has rejected Salazar’s

arguments (IB 94-98; R.2 371-87). While questions of law, are

reviewed de novo, Elder v. Holloway, 510 U.S. 510, 516 (1994),

Salazar has offered nothing new to call into question the well

settled principles that death is the statutory maximum sentence,

death eligibility occurs at time of conviction, Mills v. Moore,

786 So.2d 532, 537 (Fla. 2001), and that the constitutionally

required narrowing occurs during the penalty phase where the

sentencing selection factors are applied to determine the

appropriate sentence. Porter v. Crosby, 840 So.2d 981 (Fla.

2003) (noting repeated finding that death is maximum penalty and

repeated rejection of arguments aggravators had to be charged in

indictment, submitted to jury and individually found by

unanimous jury). See Perez v. State, 919 So.2d 347, 377 (Fla.

61

2005) (rejecting challenges to capital sentencing under Ring and

Furman); King v. Moore, 831 So.2d 143 (Fla. 2002). Florida’s

capital sentencing is constitutional. See Proffitt v. Florida,

428 U.S. 242, 245-46, 251 (1976) (finding Florida's capital

sentencing constitutional under Furman); Hildwin v. Florida, 490

U.S. 638 (1989)(noting Sixth Amendment does not require case

“jury to specify the aggravating factors that permit the

imposition of capital punishment in Florida”); Spaziano v.

Florida, 468 U.S. 447 (1984); Parker v. State, 904 So.2d 370,

383 (Fla. 2005); Jones v. State, 845 So.2d 55, 74 (Fla. 2003).

Moreover, Salazar has the contemporaneous felony conviction,

thus prior violent felony aggravator, of attempted first-degree

murder of Cummings. This Court has rejected challenges under

Ring where the defendant has a prior violent felony conviction.

See Robinson v. State, 865 So.2d 1259, 1265 (Fla. 2004)

(announcing “prior violent felony involve[s] facts that were

already submitted to a jury during trial and, hence, [is] in

compliance with Ring”); Banks v. State, 842 So.2d 788, 793 (Fla.

2003) (denying Ring claim and noting “prior violent felony”

aggravator justified denying Ring claim). Relief must be denied

and Salazar’s convictions and sentences affirmed.

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ISSUE VII

THE DEATH SENTENCE IS PROPORTIONAL (added issue)

Although Salazar did not challenge his sentence on

proportionality grounds, this Court independently reviews death

sentences for proportionality. See Floyd v. State, 913 So.2d

564, 578 (Fla. 2005); Porter v. State, 564 So.2d 1060, 1064

(Fla. 1990). For this Court’s convenience, the following is

provided.

Proportionality review is to consider the totality of the

circumstances in a case compared with other capital cases. Urbin

v. State, 714 So.2d 411 (Fla. 1998). It is not a comparison

between the number of aggravators and mitigators, but is a

"thoughtful, deliberate proportionality review to consider the

totality of the circumstances in a case, and to compare it with

other capital cases." Porter v. State, 564 So.2d 1060, 1064

(Fla. 1990). The function is not to reweigh the factors, but to

accept the jury's recommendation and the judge's weighing. Bates

v. State, 750 So.2d 6, 14 (Fla. 1999).

However, in cases where more than one defendant was involved in the commission of the crime, this Court performs an additional analysis of relative culpability. Underlying our relative culpability analysis is the principle that equally culpable co-defendants should be treated alike in capital sentencing and receive equal punishment. See Ray v. State, 755 So.2d 604, 611 (Fla.2000). See also Jennings v. State, 718 So.2d 144, 153 (Fla. 1998) (“While the death penalty is disproportionate where a less culpable defendant receives death and a more

63

culpable defendant receives life, disparate treatment of codefendants is permissible in situations where a particular defendant is more culpable.”) (citation omitted).

Shere v. Moore, 830 So.2d 56, 61-62 (Fla. 2002).4 See also

Mordenti v. State, 630 So.2d 1080 (Fla. 1994) (noting

codefendant received immunity for her testimony and finding no

disparate treatment); Downs v. State, 572 So.2d 895 (Fla. 1990)

(finding no disparate treatment where codefendant testified

against the defendant under a grant of immunity).

Here, the jury unanimously recommended death. Following

that recommendation the trial judge found Salazar to be the more

culpable of the two co-defendants and imposed the death sentence

upon its independent findings of four aggravators: (1) prior

violent felony (contemporaneous felony) (some weight); felony

murder (burglary) (little/some weight); heinous atrocious or

cruel (“HAC”) (great weight); and cold calculated and

premeditated (“CCP”) (great weight); no statutory mitigation;

and six non-statutory mitigation of: (1) not actual shooter

(little/some weight); (2) broken home/divorced parents (little

weight); (3) raised in an impoverished country (minimal weight);

(4) good relationship with family (minimal weight); (5) good

4 “In Garcia v. State, 492 So.2d 360 (Fla. 1986), this Court upheld a prosecutor's discretion in plea bargaining with a less culpable codefendant and indicated such action does not violate proportionality principles. See also Diaz v. State, 513 So.2d 1045 (Fla. 1987); Brown v. State, 473 So.2d 1260 (Fla. 1985).” Shere v. Moore, 830 So.2d 56, 63, n.9 (Fla. 2002)

64

student/received vocational degree (little weight); and (6) good

courtroom behavior (minimal weight). (R.4 656-63).

In Walton v. State, 847 So.2d 438, 449 (Fla. 2003), this

Court opined:

This Court has consistently held that “the sentence of an accomplice may indeed affect the imposition of a death sentence upon a defendant.” Foster v. State, 778 So.2d 906, 922 (Fla. 2000); see also Keen v. State, 775 So.2d 263, 285-86 (Fla. 2000). Just as steadfastly in this situation, this Court has also held that “[d]isparate treatment of a codefendant, however, is justified when the defendant is the more culpable participant in the crime.” Larzelere v. State, 676 So.2d 394, 407 (Fla. 1996); see also Foster, 778 So.2d at 922; Ray v. State, 755 So.2d 604, 611-12 (Fla. 2000).

Here, the trial court gave little to some weight to the

mitigator that Salazar was not the actual shooter, but in so

doing found:

It is undisputed, except by argument of counsel, that the Defendant was directing the co-Defendant’s actions by threat of death to him if he did not comply. It was the Defendant’s plan, the Defendant’s weapons, the Defendant’s duct tape, the Defendant’s directions, the Defendant’s threats of death; the Defendant’s knowledge of the victim and her location; and, the Defendant’s concern for his organization which led to the killing of the victim. The Defense argues that since the co-Defendant entered into an agreement with the State where the State agreed not to seek the death penalty in exchange for his testimony, that the imposition of death for this defendant would be unconstitutional as being disproportionate. The overwhelming evidence in this case is that this defendant was a more culpable participant in the crime than the co-Defendant. That fact justifies the disparate treatment....

65

(R.4 660) (emphasis supplied). The court’s recognition of

Hatcher as the actual shooter is not dispositive on the question

of assessing relative culpability. Here the court found Salazar

more culpable and this Court has upheld repeatedly death

sentences for those defendants that did not actually kill, even

when the actual killer received a plea or a lesser conviction

and was not sentenced to death. Ferrell v. State, 653 So.2d 367

(Fla. 1995); Heath v. State, 648 So. 2d 660 (Fla. 1994), cert.

denied, ___ U.S. ___, 115 S. Ct. 2618, 132 L. Ed. 2d 860 (1995);

Craig v. State, 510 So. 2d 857 (Fla. 1987), cert. denied, 484

U.S. 1020 (1988).

This Court has found proportionality based upon similar

case facts and sentencing factors. Johnston v. State, 863 So.2d

271, 286 (Fla. 2003) (upholding first-degree murder conviction

and affirming death sentence as proportional based upon two

aggravating factors, one statutory, and 26 non-statutory

mitigators); Butler v. State, 842 So.2d 817, 833 (Fla. 2003)

(finding sentence proportional based on asphyxiation and

stabbing death where HAC and several mitigators, including

statutory mental health mitigator, found); Cave v. State, 727

So.2d 227, 231 (Fla. 1998) (affirming death sentence for non-

shooter based in part on ringleader status). This Court should

affirm.

66

CONCLUSION

Based upon the foregoing, the State requests respectfully

this Court affirm Salazar’s convictions and death sentence.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by U.S. mail to: Gary Lee Caldwell,

Esq, Office of the Public Defender, 421 Third Street, West Palm

Beach, FL 33401 this 29th day of October, 2007.

CERTIFICATE OF FONT COMPLIANCE

I HEREBY CERTIFY that the size and style of type used in

this brief is 12-point Courier New, in compliance with Fla. R.

App. P. 9.210(a)(2).

Respectfully submitted, BILL McCOLLUM ATTORNEY GENERAL _/S/Leslie Campbell______ LESLIE T. CAMPBELL Assistant Attorney General Florida Bar No. 0066631 1515 N. Flagler Dr.; Ste. 900 Telephone: (561) 837-5000 Facsimile: (561) 837-5108 COUNSEL FOR APPELLEE