Supreme Court of Florida

____________

No. SC96732

____________

Appellant,

vs.

Appellee.

[October 11, 2001]

PER CURIAM.

We have on appeal an order of the trial court imposing a death sentence

upon Gary Ray Bowles on resentencing. We have jurisdiction. See art. V, §

3(b)(1), Fla. Const. For the reasons expressed below, we affirm the death

sentence.

Our prior opinion sets forth the facts of this crime:

Appellant [Bowles] met Walter Hinton, the victim in this case, at

Jacksonville Beach in late October or early November 1994. Appellant

agreed to help Hinton move some personal items from Georgia to

Hinton's mobile home in Jacksonville. In return, Hinton allowed

appellant to live with him at his mobile home.

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On November 22, 1994, police arrested appellant for the murder

of Walter Hinton. During subsequent interrogation, appellant gave

both oral and written confessions regarding Hinton's murder.

Appellant stated that upon returning home from going with Hinton to

take a friend [Richard Smith] to the train station, Hinton went to sleep

and appellant kept drinking. Appellant, Hinton, and the friend had

drunk beer and smoked marijuana earlier. At some point in the

evening, appellant stated that something inside "snapped." He went

outside and picked up a concrete block, brought it inside the mobile

home, and set it on a table. After thinking for a few minutes, appellant

picked up the block, went into Hinton's room, and dropped the brick

on Hinton's head. The force of the blow caused a facial fracture that

extended from Hinton's right cheek to his jaw. Hinton, now

conscious, fell from the bed and appellant began to manually strangle

him. Appellant then stuffed toilet paper into Hinton's throat and

placed a rag into his mouth. The medical examiner testified that the

cause of death was asphyxia.

Bowles v. State, 716 So. 2d 769, 770 (Fla. 1998).

The grand jury indicted Bowles in December of 1994 on charges of

first-degree murder and robbery. Bowles pled guilty to premeditated first-degree

murder. The penalty phase proceeded, and following the jury’s ten-to-two

recommendation for death, the trial court sentenced Bowles to death. On appeal,

this Court affirmed the conviction but vacated the death sentence and remanded for

resentencing. See Bowles, 716 So. 2d at 769. We found that the trial court erred in

allowing the State to introduce in the penalty phase evidence of Bowles’ alleged

hatred of homosexual men. See id. at 773. We concluded that the presentation of

such evidence was not harmless because it became a prevalent feature of the

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penalty phase, thereby placing in doubt the reliability of the sentencing proceeding.

See id.

On remand, the resentencing jury unanimously recommended death. In

imposing the death penalty the trial court found the following five aggravating

circumstances: (1) Bowles was convicted of two other capital felonies and two

other violent felonies; (2) Bowles was on felony probation in 1994 when he

committed the murder as a result of a July 18, 1991, conviction and sentence to

four years in prison followed by six years probation for a robbery he committed in

Volusia County; (3) the murder was committed during a robbery or an attempted

robbery, and the murder was committed for pecuniary gain (merged into one

factor); (4) the murder was heinous, atrocious, or cruel (HAC); and (5) the murder

was cold, calculated, and premeditated (CCP).

The trial court assigned tremendous weight to the prior violent capital felony

convictions. On September 27, 1982, in Hillsborough County, Bowles was

convicted of sexual battery and aggravated sexual battery. These offenses involved

an extremely high degree of violence. The victim, Bowles’ girlfriend at the time,

was brutally attacked, suffering contusions to her head, face, neck, and chest, as

well as bites to her breasts. The victim also suffered internal injuries including

lacerations to her vagina and rectum. On July 18, 1991, Bowles was convicted in

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Volusia County of unarmed robbery. In this offense, Bowles pushed a woman

down and stole her purse. On August 6, 1997, in Volusia County, Bowles was

convicted of first-degree murder and armed burglary of a dwelling with a battery.

In this crime, a few days after moving into the victim’s home, Bowles approached

the victim from behind and hit him with a lamp. A struggle ensued during which

Bowles strangled the victim and stuffed a rag into his mouth. Bowles then emptied

the victim’s pockets, took his credit cards, money, keys, and wallet. On October

10, 1996, in Nassau County, Bowles was convicted of first-degree murder. The

victim befriended Bowles and allowed Bowles to stay at his home. Bowles and the

victim got into an argument and a fight outside of a bar. Bowles hit the victim over

the head with a candy dish, and a struggle ensued, resulting in the victim being

beaten and shot. Bowles also strangled the victim and tied a towel over his mouth.

The trial court assigned great weight to the HAC and CCP aggravators,

significant weight to the robbery-pecuniary gain aggravator, and some weight to the

fact that Bowles was on probation for robbery at the time of this murder.

The trial court rejected the two statutory mitigators advanced by Bowles: (1)

extreme emotional disturbance at the time of the murder and (2) substantially

diminished capacity to appreciate the criminality of his acts at the time of the

murder. The trial court found and assigned weight to the following nonstatutory

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mitigating factors: significant weight to evidence that Bowles had an abusive

childhood; some weight to Bowles’ history of alcoholism and absence of a father

figure; little weight to Bowles’ lack of education; little weight to Bowles’ guilty plea

and cooperation with police in this and other cases; little weight to Bowles’ use of

intoxicants at the time of the murder; and no weight to the circumstances which

caused Bowles to leave home or his circumstances after he left home. The trial

court concluded that the aggravating circumstances overwhelmingly outweighed the

mitigating circumstances.

On appeal to this Court, Bowles raises twelve issues. Bowles claims that:

(1) the trial court erred in allowing the use of peremptory challenges to remove

prospective jurors who were in favor of the death penalty but would only impose it

under appropriate circumstances; (2) the trial court erred in allowing the State to

introduce in aggravation for the first time at this resentencing hearing evidence of

two prior similar murders for which the defendant was convicted after the first

sentencing hearing; (3) the trial court erred in finding HAC; (4) the trial court erred

in rejecting the proposed HAC jury instruction; (5) the trial court’s CCP instruction

to the jury was unconstitutionally vague; (6) the trial court erred in finding the

robbery-pecuniary gain aggravator; (7) the trial court erred by giving little weight or

no weight to the nonstatutory mitigators; (8) the trial court erred in rejecting the

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proposed victim impact evidence jury instruction; (9) the trial court erred by

rejecting the two statutory mental mitigators of extreme emotional disturbance at the

time of the murder and substantially diminished capacity to appreciate the

criminality of acts at the time of the murder; (10) the trial court erred in giving the

standard jury instruction on mitigation instead of the requested specific

nonstatutory mitigation instructions; (11) the trial court erred in rejecting the

requested jury instructions defining mitigation; and (12) the trial court committed

reversible error in allowing impermissible hearsay.

We summarily reject Bowles’ claims that have been previously considered

and rejected. Bowles’ first claim, that the use of peremptory challenges was

improper, is without merit. We have previously stated that the Florida Constitution

does not bar the State and the defense from peremptorily striking persons thought

to be inclined against their respective interests. See San Martin v. State, 705 So. 2d

1337, 1343 (Fla. 1997). Bowles’ second claim, that the trial court erred in allowing

the introduction of two prior murder convictions, is without merit, as we have

previously held that a resentencing court may find aggravators not found in the

original sentencing proceeding. See Preston v. State, 607 So. 2d 404, 407-09 (Fla.

1992). Bowles’ fourth claim, alleging that the proposed special HAC jury

instruction which included an intent element was erroneously rejected, is without

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merit. See Guzman v. State, 721 So. 2d 1155, 1160 (Fla. 1998) (there is no intent

element to HAC aggravating circumstance). Bowles’ fifth claim, concerning the

standard CCP jury instruction, is without merit as we have found that the standard

CCP jury instruction is not unconstitutionally vague. See Donaldson v. State, 722

So. 2d 177, 187 n.12 (Fla. 1998). Bowles’ eighth claim, concerning the victim

impact evidence jury instruction, is without merit because the trial court properly

instructed that, while the jury was allowed to hear victim impact evidence, it could

not be considered as an aggravating circumstance in sentencing Bowles. This

instruction comports with the requirements of Alston v. State, 723 So. 2d 148, 160

(Fla. 1998), and Windom v. State 656 So. 2d 432, 438 (Fla. 1995). Bowles’ tenth

and eleventh claims are without merit, as we have repeatedly rejected the argument

that a trial court errs in giving the standard jury instruction on mitigation. See Davis

v. State, 698 So. 2d 1182, 1192 (Fla. 1997). We turn to issues three, six, seven,

and twelve, which we now discuss in further detail.

I. ISSUES THREE AND SIX

In his third and sixth claims, Bowles contends that the trial court erred in

finding certain aggravating circumstances. In reviewing the trial court’s finding of

an aggravating circumstance, it is not this Court’s function to reweigh the evidence

to determine whether the State proved each aggravating circumstance beyond a

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reasonable doubt. This is the trial court’s job. See Willacy v. State, 696 So. 2d

693, 695-96 (Fla. 1997). Rather, this Court reviews the record to determine

whether the trial court applied the correct rule of law for each applicable aggravator

and, if so, whether such finding is supported by competent, substantial evidence.

See id.

A. Issue Three

In his third claim, Bowles argues that the trial court erred in finding the HAC

aggravator because the victim could not have had foreknowledge of his impending

death. The trial court stated in its sentencing order:

While Mr. Hinton [the victim] was sleeping, the Defendant

[Bowles] went outside the mobile home and lifted from the ground a

40-pound cement stepping stone and brought it inside. He placed the

stepping stone on a table in the living room area, sat down and thought

for a few moments. He then entered Mr. Hinton’s bedroom and

dropped the cement stepping stone on Mr. Hinton’s face. Mr. Hinton

sustained a skull fracture across his cheek to the roots of his teeth.

Despite the force of this blow, Mr. Hinton did not die nor lose

complete consciousness. In an effort to save his life, Mr. Hinton

struggled with the Defendant. The Medical Examiner observed on Mr.

Hinton’s body five (5) broken ribs, abrasions to the front and back of

his right forearm, and more abrasions on the outside of his left knee.

These findings corroborate the Defendant’s statement that Mr. Hinton

continued to struggle for his life after the Defendant dropped the 40-

pound stone on his face.

The findings of the Medical Examiner also corroborate the

Defendant’s statement that he then choked Mr. Hinton with his hands.

Mr. Hinton had hemorrhaging on the right side of his neck. The helix

bone, a "U" shaped bone found at the top of the neck, and the hyoid

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bone located underneath his Adam’s Apple were fractured. Toilet

paper was stuffed down his throat and a rag was placed over the

paper which protruded from his mouth. The Medical Examiner

"logically assumed" that Mr. Hinton was strangled to death or to

unconsciousness and these items were then stuffed down his throat

blocking his airway and resulting in his death.

The Defendant argues in his Memorandum that although the

intensity of the struggle was great and resulted in suffering by Mr.

Hinton, there is no evidence that the Defendant intended to do

anything but to kill by whatever means were at hand. He further argues

that he did not set out to strangle, choke, or beat Mr. Hinton to death.

Lastly, he argues that he was intoxicated, which he suggests negates

the finding that he intended to cause pain.

The Court finds that Mr. Bowles was, as he argues, prepared to

take the life of Walter Hinton by any means available. Although this

Court cannot determine if Mr. Bowles enjoyed the suffering of Walter

Hinton, he was certainly indifferent and determined to take his life.

Since the Defendant could not have known with certainty whether

crushing Walter Hinton’s face with a 40-pound stepping stone would

take his life, he was prepared to inflict further suffering. This is just

what he had been prepared to do only months earlier when he took the

life of Mr. Roberts in Volusia County.

Finally, the fact that Mr. Hinton was likely unconscious when

the toilet paper and rag were stuffed down his throat, does not bar a

finding that the Defendant’s conduct was [conscienceless], pitiless

heinous, atrocious and cruel. Without a struggle, the Defendant’s

efforts to strangle Mr. Hinton would have, according to the medical

examiner, taken at least 30 to 45 seconds before a loss of

consciousness. With a struggle, Mr. Hinton would have endured the

fright, pain and fear of being strangled for an even longer period.

State v. Bowles, No. 94-12188-CF, sentencing order at 5-7 (Fla. 4th Cir. Ct. order

filed Sept. 7, 1999) (emphasis added).

In Rogers v. State, 783 So. 2d 980, 994 (Fla. 2001), we recently stated that:

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In order for the HAC aggravating circumstance to apply, the murder

must be conscienceless or pitiless and unnecessarily tortuous [sic] to

the victim. A finding of HAC is appropriate only when a murder

evinces 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.

(Citation omitted.) Strangulation of a conscious murder victim evinces that the

victim suffered through the extreme anxiety of impending death as well as the

perpetrator’s utter indifference to such torture. Accordingly, this Court has

consistently upheld the HAC aggravator in cases where a conscious victim was

strangled. See Mansfield v. State, 758 So. 2d 636, 645 (Fla. 2000), cert. denied,

121 S. Ct. 1663 (2001); Hildwin v. State, 727 So. 2d 193, 196 (Fla. 1998); Orme v.

State, 677 So. 2d 258, 263 (Fla. 1996).

In light of the evidence of a great struggle and the medical examiner’s

testimony, we find that competent, substantial evidence in the record supports the

trial court’s finding that the victim was strangled while conscious for a time

sufficient to suffer a physically and mentally cruel and torturous death. See

Mansfield, 758 So. 2d at 645. Accordingly, we affirm the trial court’s finding of

HAC.

B. Issue Six

Bowles’ sixth claim is that the trial court erred in finding the robbery-

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pecuniary gain aggravator. In its sentencing order, the trial court further stated:

Mr. Hinton was found inside his locked home on November 22,

1994. His sister and her then fiancé became concerned when he failed

to respond to telephone calls and knocks on his door. After several

days went by without word form Mr. Hinton, the fiancé broke into his

locked mobile home and found his dead body wrapped in sheets and

bedspreads.

Mr. Hinton’s watch, car keys, automobile and stereo equipment

were missing form the home. Stereo wires had been cut. A knife was

on the floor next to where the stereo equipment had formerly been.

His wallet was found on the floor next to the bed. The Defendant was

seen after the murder driving Mr. Hinton’s car and wearing his watch.

Although the Defendant admits that property of Mr. Hinton was

taken, he submits that it was an afterthought and not the motivation for

the murder. He suggests that his subsequent abandonment of the

automobile and watch proves that he was not motivated by pecuniary

gain. However, his prior statements prove otherwise. In his

statements to Agent Dennis Reegan of the FBI, the Defendant state he

expected to find money on the victim or in the trailer. When he didn’t

find any, he felt stuck and unable to flee because he had no money and

no other place to go. This evidence establishes beyond a reasonable

doubt that the murder was committed in the course of an attempted

robbery or robbery. The fact that money was not there to be taken

does not preclude the finding of this aggravating circumstance.

. . . .

[The] aggravating factor [that Bowles committed the murder for

financial gain] was proved beyond a reasonable doubt, but merges

with the above aggravating factor and has been treated as one by the

Court.

State v. Bowles, sentencing order at 4-5.

Bowles argues that the taking of Hinton’s property was an afterthought and

that such a taking shortly after the murder, without any other evidence showing that

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pecuniary gain was the motive for the killing, provides insufficient evidence that the

robbery-pecuniary gain aggravator applies. In support of his afterthought argument

Bowles cites to Elam v. State, 636 So. 2d 1312 (Fla. 1994), and Hill v. State, 549

So. 2d 179, 182-83 (Fla. 1989).

In Beasley v. State, 774 So. 2d 649, 662 (Fla. 2000), we recently opined:

Where an "afterthought" argument is raised, the defendant’s

theory is carefully analyzed in light of the entire circumstances of the

incident. If there is competent, substantial evidence to uphold the

robbery conviction, and no other motive for the murder appears from

the record, the robbery conviction will be upheld. Conversely, in

those cases where the record discloses that, in committing the murder,

the defendant was apparently motivated by some reason other than a

desire to obtain the stolen valuable, a conviction for robbery (or the

robbery aggravator) will not be upheld.

(Citations omitted.) As in Beasley, the present case is distinguishable "from cases

in which there is another apparent motivation for the killing, and no indication that

the defendant wants or needs the valuables which are taken after the murder." Id. at

666. In Elam, we held there was insufficient evidence to support the pecuniary gain

aggravator where the defendant, who managed the victim’s motorcycle parts store,

killed the victim in a fight that erupted after the defendant was accused of

misappropriating store funds. See Elam, 636 So. 2d at 1314. The facts of Elam

indicated that although the fight began over the missing funds, "the theft had long

been completed and the murder was not committed to facilitate it." Id. In Hill, we

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struck the pecuniary gain aggravator where the evidence indicated that the murder

could have been motivated by defendant’s desire to rape and beat the victim. See

Hill, 549 So. 2d at 181, 183.

In contrast, in the present case, there is no other apparent motivation for this

murder other than as part of a taking of the victim’s property for Bowles’

pecuniary gain. When Hinton was discovered, his watch and stereo equipment

were missing, and his wallet was found on the floor next to the bed. Two days

after the murder, Bowles was seen driving Hinton’s car and wearing Hinton’s

watch. Furthermore, Bowles confessed to taking Hinton’s car. We find this case

very similar on this issue to Finney v. State, 660 So. 2d 674, 680 (Fla. 1995), in

which we upheld the robbery-pecuniary gain aggravator. See also Jones v State,

652 So. 2d 346, 350 (Fla. 1995) (rejecting "afterthought" argument as applied to

valuables taken from victims where no other motivation for murders appeared from

record). The trial court’s finding of the robbery-pecuniary gain aggravator is

supported by competent, substantial evidence.

ISSUES SEVEN AND NINE

In his seventh claim, Bowles argues that the trial court failed to appropriately

weigh all nonstatutory mitigating evidence. Bowles’ ninth claim is that the trial court

erroneously rejected the two statutory mental mitigating factors: (1) the murder was

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committed while Bowles was under the influence of extreme mental or emotional

disturbance; and (2) Bowles’ capacity to appreciate the criminality of his acts at the

time of the homicide was substantially diminished by his alcohol and drug abuse.

We disagree.

The trial court made the following findings with regards to mitigating factors.

The Defendant asserts the following as statutory or other

mitigating factors reasonably established by the greater weight of the

evidence:

The Defendant asserts that evidence of his drinking and

abusive childhood requires the finding that at the time of Mr. Hinton’s

murder, he was suffering from an extreme emotional disturbance. His

theory, unsupported by expert testimony, is that the rage within him

was unleashed by the use of alcohol and drugs. He argues that the

1982 prior violent felony in which he raped and battered his girlfriend,

and Mr. Hinton’s murder, can only be explained in the context of an

underlying emotional disturbance.

The Court finds that the Defendant is an alcoholic and has been

using drugs and alcohol since his youth, and that many members of

his family and extended family are alcoholics. However, this evidence

does not support a finding of this mitigator unless being an alcoholic,

standing alone, meets the definition of an extreme emotional

disturbance. If so, then the Court would find this statutory mitigator

to have been met by the evidence, but entitled to little weight.

The Defendant contends that his level of intoxication at

the time of the murder substantially reduced his ability to appreciate

the criminality of his conduct. On the day of the murder he had been

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drinking heavily. He drank six beers on his way to the train station

with Mr. Hinton and Mr. Smith. He continued to drink. Although the

Court finds that the Defendant was under the influence of drugs and

alcohol at the time of the murder, the greater weight of the evidence

does not sustain finding that his ability to appreciate the criminality of

his acts was substantially diminished.

To commit this crime, the Defendant waited for Mr. Hinton to

fall asleep. He needed a hard object to overpower Mr. Hinton. He

thought of a stepping stone outside, which was embedded in the

ground. He had to lift this heavy object and bring it inside. He then

had to enter quietly into Mr. Hinton’s room. He had to aim the stone

so it fells squarely on Mr. Hinton’s head. He had to fend-off Mr.

Hinton’s efforts to save his life. He was able to think, act, and react in

order to commit this murder, despite being under the influence of

drugs and alcohol. When he was arrested approximately six days

later, he was able to relate with clarity and detail how he killed Mr.

Hinton. His only omission was how he stuffed toilet paper down Mr.

Hinton’s throat. He was also able to tell of events leading up to, and

following, the murder. These facts prove to the Court that although he

had ingested a substantial amount of alcohol and smoked marijuana,

his ability to appreciate the criminality of his conduct was not

substantially diminished.

The defendant also argues that there was nothing in his "postmurder

actions" to indicate that he was acting in a normal sober

manner. After the killing, he was able to drive a car, purchase

additional liquor, pick-up a woman on the beach and bring her back to

the mobile home where he committed the murder. He was also

sufficiently alert to keep her from the room in which Mr. Hinton’s

dead body lay covered in sheets. These events do not describe an

individual whose ability to function and appreciate the criminality of

his acts were substantially diminished. On the contrary, this evidence

strongly suggests that Mr. Bowles was minimally affected by alcohol

and drugs, despite his extensive use. The Court has given no weight

to this factor.

The Defendant enjoyed a good childhood until age six or seven.

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However, by age ten he was sniffing glue and huffing paint. The

discipline utilized by both his stepfathers was abusive. Beatings were

administered on occasion with belts and fists. His mother testified that

on occasion when she returned from work, she observed him bruised

from the whippings. His mother was the victim of severe abuse which

was witnessed by the defendant and his siblings.

The Defendant further asserts as mitigation the fact that he never

had a positive male role model in his life. He was abandoned by his

mother, who chose an abusive stepfather over him. He did not receive

parental encouragement to perform in school. He did not complete

junior high school and did not receive the necessary educational tools

to function well as a productive member of society. He also asserts

his intoxication at the time of the offense, and extensive alcoholic

background, to support this element of mitigation.

The Defendant further submits that he provided testimony on

behalf of the State of Florida in a case where a man was raped in a jail

in Tampa, Florida. He further asserts that he cooperated by

confessing to the instant crime and other crimes, and by voluntarily

pleading guilty in the instant case and in two other homicide cases.

The Court has carefully considered the evidence regarding the

Defendant’s abusive childhood and the severe abuse endured by his

mother which he witnessed as a child. Those factors are given

significant weight. The Court has also given some weight to the

Defendant’s history of alcoholism and the absence of a true father

figure in his home during his childhood. The Court has given little

weight to the Defendant’s failure to complete junior high school and

lack of an education; or his cooperation in this and other cases; or his

voluntary pleas of guilty to this and other murders.

The Court has also given little weight to the defendant’s use of

intoxicants and drugs at the time of the murder. The frequency with

which the Defendant has used this as an explanation to law

enforcement officers, when confronted about his violent actions,

causes the court to give this factor less weight as mitigation and more

weight as a convenient, but poor excuse. The Court has not given any

weight to the circumstances after he left home. As to the latter, no

evidence was presented.

After carefully considering and weighing the aggravating and

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mitigating circumstances found to exist in this case, and mindful that

human life is at stake in the balance, the Court finds that the

aggravating circumstances proved beyond a reasonable doubt

overwhelmingly outweigh the mitigating circumstances reasonably

established by the evidence.

Sentencing Order at 11-15.

As to Bowles’ seventh claim, contrary to Bowles’ contention, the sentencing

order demonstrates that the trial court made specific findings with regard to each

mitigating circumstance presented by the defense. Indeed, the trial court gave

significant mitigating weight to Bowles’ abusive childhood and the abuse endured

by his mother, which Bowles witnessed as a child, and some weight to Bowles’

history of alcoholism and the absence of a true father figure in his home during his

childhood. Under the total circumstances of this murder and on the basis set forth

by the trial judge in the sentencing order, we find no error in the trial court’s

assignment of little weight to Bowles’ use of intoxicants and drugs at the time of the

murder. The trial court was well within its discretion in making and weighing such

findings. Therefore, we find no error. See Trease v. State, 768 So. 2d 1050, 1055

(Fla. 2000); Bonifay v. State, 680 So. 2d 413 (Fla. 1996).

We find the trial court’s findings similar to what we approved in Brown v.

State, 721 So. 2d 274, 281 (Fla. 1998) (footnote omitted):

Brown argues that the trial court erred in rejecting as a statutory

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mitigating factor that his capacity to appreciate the criminality of his

conduct or to conform his conduct to the requirements of the law was

substantially impaired due to excessive alcohol and drug use both on

the day of and during the two weeks prior to the murder. We have

held that evidence of impaired capacity due to intoxication must be

considered as a mitigating factor where the existence of such facts is

established by evidence anywhere in the record. [Hardwick v. State,

521 So. 2d 1071, 1076 (Fla. 1988).] However, evidence of alcohol and

marijuana consumption on the day of the murder, without more, does

not compel a finding of this mitigating factor. Cooper v. State, 492

So.2d 1059, 1062 (Fla.1986).

Here, despite Brown's claim that he smoked crack cocaine on

the night of the murder and the existence of some evidence of alcohol

consumption, there was no evidence that Brown was actually

intoxicated at the time of the murder or that his capacity to conform

his conduct to the requirements of the law was substantially impaired.

To the contrary, the evidence indicates that Brown was coherent at the

time of the murder and knew what he was doing. As the trial court

found, "the defendant discussed murdering the victim with the codefendant,"

he deliberately chose a knife rather than a firearm, "the

defendant was able to stab the victim many times," and he searched

the apartment for money and car keys before absconding with the

victim's truck. We note, however, that despite the lack of sufficient

evidence to establish this statutory mitigator, the trial court considered

Brown's consumption of drugs and alcohol and found that it

supported a nonstatutory mitigating factor. In light of the above

evidence, we cannot say the trial court abused its discretion in

rejecting this statutory mitigating factor. Accordingly, we find no

error.

See also Banks v. State, 700 So. 2d 363, 368 (Fla. 1997). In this case, there was

similar competent, substantial evidence supporting the trial court’s determination of

the proposed mitigation in the evidence which demonstrated how the murder was

committed and in the appellant’s actions after the murder was committed. The

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decision as to whether a mitigating circumstance has been established is within the

trial court’s discretion. See Blackwood v. State, 777 So. 2d 399, 409 (Fla. 2000);

see also San Martin v. State, 705 So. 2d 1337, 1347-48 (Fla. 1997) (affirming trial

court’s rejection of extreme emotional disturbance and substantially diminished

capacity mitigator, despite expert testimony in support of such mitigation, where

evidence in the record showed purposeful conduct which contradicted such

mitigation); Johnson v. State, 608 So. 2d 4, 13 (Fla. 1992) (affirming rejection of

extreme emotional disturbance and substantially diminished capacity mitigators

where Court found there was "too much purposeful conduct for the court to have

given any significant weight to Johnson’s alleged drug intoxication, self-imposed

disability that the facts show not to have been a mitigator in this case"); Preston,

607 So. 2d at 411 (affirming rejection of extreme emotional disturbance and

substantially diminished capacity mitigators in spite of defendant’s presentation of

expert evidence in support of mitigators where trial court based its decision on

competent, substantial evidence of purposeful conduct in committing murder).

Even if we did find that the trial court erred in the weighing and evaluation of

the mitigation which was proposed, we would find any such error in respect to the

mitigation presented to be harmless beyond a reasonable doubt. The aggravators in

this case patently overwhelm the mitigation in this record.

1. Corporal Jan Edenfield testified: "According to the doctors they said that

there was tearing and lacerations inside both the rectum and the vagina."

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II. ISSUE TWELVE

In his twelfth claim, Bowles argues that the trial court erred in allowing

Corporal Jan Edenfield to testify about the internal injuries Bowles was convicted

During penalty proceedings, it is appropriate to introduce details of a prior

violent felony conviction in the form of hearsay testimony so long as the defendant

has a fair opportunity to rebut. See § 921.141(1), Fla. Stat. (1994); Hudson v.

State, 708 So. 2d 256, 261 (Fla. 1998) ("[W]e find no error by the trial court in

connection with the testimony of Officer Bush, who described the circumstances

of the sexual assault for which Hudson had previously been convicted."); see also

Rodriguez v. State, 753 So. 2d 29, 44-45 (Fla. 2000) (reaffirming our precedent

allowing neutral witness to give hearsay testimony as to details of prior violent

felony). In the present case, Bowles had the opportunity to rebut hearsay

presented by the State. That Bowles did not or could not rebut this testimony does

not make it inadmissible.

Even if we were to find error, any error in Edenfield’s testimony about this

prior violent felony is harmless because (1) the certified copy of the conviction

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itself conclusively establishes the aggravator; and (2) the strong aggravators in this

case overwhelmingly outweigh the mitigation. See Rodriguez, 753 So. 2d at 45.

III. PROPORTIONALITY

As death is a unique punishment, it is necessary to engage in a

proportionality review to consider the totality of the circumstances in a case and to

compare it with other capital cases. It is not a comparison between the number of

aggravating and mitigating circumstances. See Porter v. State, 564 So. 2d 1060,

1064 (Fla. 1990). Upon review, we find the death sentence to be proportional when

compared to others where the death sentence has been imposed. See Brown v.

State, 721 So. 2d 274 (Fla. 1998) (affirming death penalty where evidence

established four aggravators including prior violent felony, murder committed

during robbery and for pecuniary gain (merged), HAC, and CCP, balanced against

two nonstatutory mitigators of an abusive family background and drug and alcohol

abuse); Guzman, 721 So. 2d at 1155 (death sentence proportionate where four

aggravators were found, including HAC, prior violent felony, murder committed in

the course of a robbery, and for the purpose of avoiding arrest, and little

nonstatutory mitigation was found); Hauser v. State, 701 So. 2d 329 (Fla. 1997)

(death sentence proportionate where victim was strangled and trial court found

three aggravators of HAC, CCP, and pecuniary gain, balanced against one statutory

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mitigator and four nonstatutory mitigators); Whitton v. State, 649 So. 2d 861 (Fla.

1994) (finding death sentence proportionate where victim was beaten to death and

trial court found five aggravators, including HAC, pecuniary gain, prior violent

felony, committing the crime while on parole, and committing the crime to avoid

arrest, balanced against nine nonstatutory mitigators).

IV. CONCLUSION

We therefore affirm the sentence of death.

It is so ordered.

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

ANSTEAD and PARIENTE, JJ., concur in result only.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.

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

Jack M. Schemer, Judge - Case No. 94-12188 CFA

Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender,

Second Judicial Circuit, Tallahassee, Florida,

for Appellant

Robert A. Butterworth, Attorney General, and Curtis M. French, Assistant Attorney

General, Tallahassee, Florida,

for Appellee