09/27/90 RUDOLPH HOLTON, v. STATE OF FLORIDA,
[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF FLORIDA
[2] RUDOLPH HOLTON, Appellant,
v.
[3] STATE OF FLORIDA, Appellee
[4] No. 69,861
[5] 573 So. 2d 284, 15 Fla. Law W. S 500
[6] September 27, 1990, As Corrected
[7] An Appeal from the Circuit Court in and for Hillsborough County, Harry
Lee Coe, III, Judge - Case Nos. 86-8931 Div. A & 86-15176.
BLUE BOOK CITATION FORM: 1990.FL.2314 (http://www.versuslaw.com)
[8] Date Reported: Rehearing Granted In Part January 15, 1991 at 1991 Fla.
[9] APPELLATE PANEL:
[10] Shaw, C.J., and Overton, McDonald, Ehrlich, Barkett, Grimes and Kogan,
JJ., concur.
[11] PER CURIAM DECISION
[12] Rudolph Holton appeals his conviction for first-degree murder and
sentence of death. He also challenges his convictions and sentences for
first-degree arson and sexual battery. We have jurisdiction. Art. V,
3(b)(1), Fla. Const. We affirm Holton's convictions and the imposition of
the death penalty but remand to the trial court as to the sentences imposed
for arson and sexual battery.
[13] On June 23, 1986, the unclothed, partially charred body of Katrina
Graddy was found in a burning vacant house. Pieces of a nylon cloth were
tied around her neck and around one wrist. The neck of a glass bottle was
partially inserted in her anus. Tests for sperm in the victim's bodily
orifices were all negative. It was determined that the fire was started
intentionally, but the cause of death was strangulation.
[14] Following the discovery of the victim's body, police questioned Carl
Schenck, who had been asleep in his truck parked directly across from the
burning house. Schenck told investigators he had parked there at about 10:00
or 11:00 p.m. the night before. He had been waiting for the return of a
hitchhiker he had picked up earlier in the day while the hitchhiker went to
purchase some marijuana. Schenck fell asleep and eventually was awakened by
the fire engines. A black shaving bag left by the hitchhiker in Schenck's
vehicle was taken as evidence. Schenck was unable to make a positive
identification of Holton from photographs or at trial, but said Holton
closely resembled the hitchhiker.
[15] Johnny Lee Newsome testified that on the night of the murder, he saw
Holton and the victim at about 11:00 p.m. talking outside the vacant house
where the victim's body was found. Newsome said Holton was holding a black
shaving bag. Another witness, Flemnie Birkins, who had known Holton for a
number of years and was serving time in the county jail when Holton was
arrested, testified that Holton told him "he had killed a girl, that he had
strangled her" and then set fire to the house. Birkins also stated that
Holton claimed he did not mean to kill the girl. A third witness claimed
that, around 11:00 p.m. on the night of the murder, she saw Holton enter the
vacant house where the homicide occurred.
[16] When questioned by investigators, Holton claimed he was at home at the
time of the murder.*fn1 He said he had not been to the vacant house for ten
days. When told that his fingerprint had been found on the wrapper of an
empty pack of cigarettes removed from a room in the house, Holton admitted
he had been shooting drugs in the house several days before the homicide
occurred but denied being near the house on the night of the murder.
Photographs were taken of Holton depicting scratches on his chest and a cut
on his finger.
[17] The jury returned verdicts of guilty for premeditated murder, sexual
battery with great force, and first-degree arson. By a vote of seven to
five, the jury recommended a sentence of death. The judge found four
aggravating factors*fn2 and no statutory mitigating factors. As nonstatutory
mitigating circumstances, the trial court considered that Holton has two
children and is a drug addict. Holton was sentenced to death for the murder
of Katrina Graddy and given consecutive sentences of life imprisonment for
the sexual battery conviction and thirty years' imprisonment for the arson
conviction.
[18] As his first issue, Holton argues that the state exercised three
peremptory challenges to systematically exclude prospective black jurors
from the jury panel. In State v. Neil, 457 So.2d 481 (Fla. 1984), we
established a test for determining whether an opposing party's peremptory
challenges have been exercised improperly to excuse prospective jurors. The
complaining party must make a timely objection, demonstrate on the record
that the challenged persons are members of a distinct racial group, and show
that there is a strong likelihood these persons have been challenged because
of impermissible bias. Neil, 457 So.2d at 486. In State v. Slappy, 522 So.2d
18 (Fla.), cert. denied, 487 U.S. 1219, 108 S. Ct. 2873, 101 L. Ed. 2d 909
(1988), we extended the principles set forth in Neil and held that any doubt
as to whether the complaining party has met the initial burden required
under Neil should be resolved in that party's favor. Once this burden has
been met, the burden shifts to the state to demonstrate that the proffered
reasons are, first neutral and reasonable and, second, not a pretext.
Slappy, 522 So.2d at 22.
[19] During jury selection, defense counsel timely objected on two separate
occasions to the exclusion of prospective black jurors. The record shows
that following the questioning of the first group of prospective jurors, the
state exercised two peremptory challenges. After objecting, defense counsel
explained that each peremptory had been used to exclude the only two blacks
on the panel. Counsel then stated her belief that the state was
systematically excluding blacks from the jury. The trial court overruled the
objection without an inquiry because the two prospective jurors had
expressed opposition to the death penalty, which the trial court deemed a
sufficient reason for the challenges.
[20] The record clearly supports the trial court's ruling. When asked
whether he could recommend the death penalty in an appropriate case, the
first black individual expressed his reservations about the death penalty
because of his belief that death sentences are imposed disproportionately on
the basis of race. When asked the same question, the second prospective
black juror stated that she was opposed to capital punishment under any
circumstances. While defense counsel met the first two prongs of the Neil
test, counsel was unable to demonstrate a strong likelihood that the two
prospective jurors were challenged solely because of their race. Ambivalence
toward recommending a sentence of death and opposition to the death penalty
are race-neutral and acceptable grounds for excusing a prospective juror. We
find the record supports the trial court's ruling.
[21] When defense counsel objected to the state's exercise of a peremptory
challenge to exclude a third prospective black juror, the trial court asked
the state for reasons to support the challenge. The state explained it was
concerned that the prospective juror, based upon her answers during voir
dire, would not be sympathetic toward the victim because she was a
prostitute. The state believed the prospective juror might believe the
victim was in some way responsible for what had occurred because the victim
had been a prostitute. The trial court accepted the state's explanation and
noted defense counsel's objection.
[22] The record reflects that defense counsel satisfied its initial burden
by demonstrating that the prospective juror was a member of a distinct
racial group and that there was a likelihood the challenge resulted from an
impermissible bias. When questioned by the trial court, the reason proffered
by the state to support the challenge was race-neutral, and one could
reasonably conclude that the prospective juror could not be sympathetic
toward a prostitute. Therefore, we find that the state did not exercise
peremptory challenges to exclude blacks improperly from the jury.
[23] As his second issue, Holton contends that the state's cross-examination
of Detective Childers, who participated in the investigation of the murder,
was prejudicial because it misled the jury. Detective Childers was
questioned following the testimony of Flemnie Birkins, a witness for the
state to whom Holton made a jail-house confession. Holton claims it was
error for the state to ask Detective Childers whether Birkins was able to
tell investigators facts concerning the murder that only the murderer would
know. Holton argues that by asking this question the state led the jury to
believe that Detective Childers had access to evidence not produced at trial
that confirmed Birkins' testimony and proved Holton's guilt.
[24] The record reflects that when the state first posed this question,
defense counsel lodged an objection which was sustained by the trial court.
Detective Childers was asked this question a second time in response to
defense counsel's redirect questioning of him concerning whether there had
been television coverage of the murder after it occurred. Although defense
counsel did not object, the trial court interjected and the question was
never answered. Accordingly, we find no error and note defense counsel's
redirect questioning of Detective Childers "opened the door" to the question
posed by the state on cross-examination.
[25] Holton also objects to the state's questioning of Detective Durkin.
Specifically, Holton contends that it was improper for the state to ask
Detective Durkin whether any homicides had occurred since Holton's arrest
involving a victim who had been raped, strangled and burned. Holton argues
that this question was prejudicial because it suggested that other similar
homicides had been committed prior to Holton's arrest but that none had
occurred after his arrest.
[26] Our review of the record reveals that defense counsel opened the door
to this line of questioning. During cross-examination of state's witness
Johnny Lee Newsome, defense counsel questioned Newsome regarding another
homicide in which he was a witness. Newsome was asked whether that
particular murder involved a victim who was found in a burning vacant house.
Defense counsel's questions also inferred that Newsome may have committed
that murder and therefore could have committed the murder in this case. It
was not error for the state to question Detective Durkin about similar
homicides to rebut the inferences raised by the defense.
[27] As his fourth issue, Holton claims that he was denied a fair trial
because of improper prejudicial comments during the state's closing
argument. Holton cites several comments by the prosecutor that he believes
require reversal of his conviction. However, most of the comments were not
preserved for appeal by timely objection in the trial court. We agree that
Holton has waived any right to appeal these remarks. See Wilson v. State,
294 So.2d 327 (Fla. 1974). Two other comments were the subject of timely
defense objections, but Holton later failed to move for mistrial.
[28] The state notes that, in Clark v. State, 363 So.2d 331, 335 (Fla.
1978), receded from on other grounds, State v. DiGuilio, 491 So.2d 1129
(Fla. 1986), this Court held that for an objection to a prosecutor's comment
to be preserved for appeal, the objection must be followed by a motion for
mistrial. However, we believe this rule to be purposeless where, as here,
the objection is overruled. The objection itself calls the court's attention
to the error alleged to have prejudiced the party making the objection and
to the possibility that a mistrial may be in order.*fn3 Simpson v. State,
418 So.2d 984, 986 (Fla. 1982), cert. denied, 459 U.S. 1156, 103 S. Ct. 801,
74 L. Ed. 2d 1004 (1983). We thus proceed to the merits of the issue.
[29] The first objection was to negative comments by the prosecutor on
Holton's courtroom demeanor and remarks that a drawing penned by Holton
during a police interview was the product of a "twisted mind." An objection
was made to a second comment by the prosecutor regarding the testimony that
no similar crime had been committed since Holton's arrest. We agree that the
prosecutor's arguments slightly exceeded the bounds of fair comment. While a
prosecutor certainly must argue the state's case zealously, the zeal must be
curbed when it pushes the argument into speculation and innuendo. See
Stewart v. State, 51 So.2d 494, 495 (Fla. 1951). However, we agree that the
error committed here was minor compared to that in Stewart, where the
prosecutor indulged in gross speculation about future crimes the defendant
might commit against children. Id. at 494. Here, we believe the state's
comments at most warranted a mild rebuke from the trial court. In light of
the entire record, we find the error harmless beyond a reasonable doubt.
DiGuilio.
[30] Next, we turn to Holton's argument that the trial court erred in not
granting a continuance until a key defense witness could be located to
testify. He claims that the witness' testimony was essential for a fair
trial. Our review of the record discloses that defense counsel was aware
that the witness had failed to appear on the first day of the trial. Yet it
was not until the morning defense counsel was to present her case, three
days after the trial had begun, that counsel informed the trial court that
she had been unable to secure the presence of the witness. Moreover, on the
suggestion of the trial court, the parties eventually agreed to summarize
the witness' deposition for presentation to the jury.*fn4 Both the defendant
and the state were involved extensively in the preparation of the statement.
For these reasons, we find no error in the trial court's denial of the
motion for continuance.
[31] We now address Holton's claim that the evidence at trial was
insufficient to support a conviction for premeditated first-degree murder.
Holton argues that because Flemnie Birkins testified that Holton said he did
not mean to kill the victim, the murder was accidental and not premeditated.

[32] Premeditation can be shown by circumstantial evidence. Sireci v. State,
399 So.2d 964 (Fla. 1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2257, 72
L. Ed. 2d 862 (1982), overruled on other grounds, Pope v. State, 441 So.2d
1073 (Fla. 1983). However, to prove a fact by circumstantial evidence, the
evidence must be inconsistent with any reasonable hypothesis of innocence.
Cochran v. State, 547 So.2d 928, 930 (Fla. 1989); McArthur v. State, 351
So.2d 972, 976 n.12 (Fla. 1977). Thus, when attempting to establish
premeditation by circumstantial evidence, the evidence relied upon by the
state must be inconsistent with every other reasonable inference that could
be drawn. Cochran, 547 So.2d at 930; Wilson v. State, 493 So.2d 1019, 1022
(Fla. 1986). Whether the state's evidence fails to exclude all reasonable
hypotheses of innocence is a question of fact for the jury. Cochran, 547
So.2d at 930. If there is substantial competent evidence to support the jury
verdict, the verdict will not be reversed. Id. As this Court stated in Larry
v. State, 104 So.2d 352, 354 (Fla. 1958):
[33] Evidence from which premeditation may be inferred includes such matters
as the nature of the weapon used, the presence or absence of adequate
provocation, previous difficulties between the parties, the manner in which
the homicide was committed, and the nature and manner of the wounds
inflicted. It must exist for such time before the homicide as will enable
the accused to be conscious of the nature of the deed he is about to commit
and the probable result to flow from it in so far as the life of his victim
is concerned.
[34] Applying these principles to the circumstances of this case, we find
there was sufficient evidence from which the jury could have inferred
premeditation to the exclusion of all other possible inferences, including
accidental death. The victim was found with a ligature secured tightly
around her neck. Death was caused by strangulation. The victim had long
fingernails, and photographs of Holton taken the day after the murder showed
fresh scratch marks on Holton's chest, suggesting a struggle. Setting the
vacant house on fire to dispose of the body was an attempt to cover up the
incident. Holton also made exculpatory statements when questioned by police
detectives. Because the circumstantial evidence standard does not require
the jury to believe the defense version of facts on which the state has
produced conflicting evidence, Cochran, 547 So.2d at 930, the jury properly
could have concluded that Holton's version of the facts was untrue. We find
there was substantial competent. evidence to support the jury verdict that
the murder was premeditated.
[35] As his next issue, Holton claims the evidence at trial was insufficient
to support a conviction for first-degree arson. He correctly points out that
an element of first-degree arson requires that the structure be occupied by
a human being. However, even though the medical examiner testified that the
victim's death occurred before the fire was set, the jury reasonably could
have inferred from all of the evidence that Holton believed the victim was
alive at the time the fire was set.
[36] Holton also challenges his conviction for sexual battery with great
force. This challenge is based on two grounds. The first centers on Holton's
belief that the use of the word "person" in section 794.011(3), Florida
Statutes (1985),5 contemplates that the victim of sexual battery must be
alive. Holton argues, therefore, that because the evidence could not
conclusively establish the bottle was inserted in the victim's anus before
death but could only prove that insertion occurred prior to the fire, the
evidence was insufficient to support his conviction under section 794.011.
Second, Holton charges that because the victim was a prostitute, it is
reasonable to conclude that she consented to the penetration.
[37] Again, we are persuaded that the jury could have believed that Holton
thought the victim was alive at the time he initiated the sexual battery.
Under the facts of this case, we find there was substantial, competent
evidence to support Holton's conviction for sexual battery with great force.
"Once competent, substantial evidence has been submitted on each element of
the crime, it is for the jury to evaluate the evidence and the credibility
of the witnesses." Hufham v. State, 400 So.2d 133, 135-36 (Fla. 5th DCA
1981) (citing State v. Smith, 249 So.2d 16 (Fla. 1971)). Factual conflicts
are to be resolved by the jury. State v. Smith, 249 So.2d at 17. The concern
on appeal is whether, after all conflicts in the evidence and all reasonable
inferences therefrom have been resolved in favor of the verdict, there is
substantial competent evidence to support the verdict and judgment. Tibbs v.
State, 397 So.2d 1120 (Fla. 1981). The evidence was sufficient to support
Holton's sexual battery conviction.
[38] We disagree with Holton's assertion that the trial court erroneously
denied his request to instruct the jury on unnatural and lascivious act,
section 800.02, Florida Statutes (1985), as a lesser included offense of
sexual battery with great force, section 794.011(3), Florida Statutes
(1985). There was no error because section 800.02 is not a necessarily
lesser included offense of section 794.011(3).
[39] Next, Holton argues that his sentences for sexual battery and arson
must be vacated because a guideline scoresheet was not prepared. Rule
3.701(d)(1), Florida Rules of Criminal Procedure, provides:
[40] One guideline scoresheet shall be utilized for each defendant covering
all offenses pending before the court for sentencing. The state attorney's
office will prepare the scoresheets and present them to defense counsel for
review as to accuracy in all cases unless the judge directs otherwise. The
sentencing judge shall approve all scoresheets.
[41] Thus, rule 3.701(d)(1) mandates that a sentence be imposed based on a
sentencing guideline scoresheet that has been reviewed by the trial judge.
See e.g., Brooks v. State, 505 So.2d 639 (Fla. 1st DCA 1987); Sanchez v.
State, 480 So.2d 704 (Fla. 3d DCA 1985); Barr v. State, 474 So.2d 417 (Fla.
2d DCA 1985). Therefore, we vacate Holton's sentences for sexual battery and
arson and remand for resentencing after a guideline scoresheet has been
prepared and considered by the trial judge.
[42] Holton also claims that the state rather than the trial judge was
responsible for preparing the written findings of fact in support of the
death penalty. The record, however, does not support this contention.
[43] Holton further argues that his death sentence should be overturned
because the sentence was imposed on December 5, 1986, but the trial judge's
written findings are dated February 12, 1987, some two months following
sentencing and after certification of the record on February 6, 1987. In Van
Royal v. State, 497 So.2d 625 (Fla. 1986), this Court emphasized the
necessity of entering written sentencing orders on a timely basis. In doing
so, we stated that entering the written sentencing order after oral
pronouncement of sentence was acceptable provided the order was filed before
the trial court loses jurisdiction. Later, in Grossman v. State, 525 So.2d
833, 841 (Fla. 1988), cert. denied, 489 U.S. 1071, 109 S. Ct. 1354, 103 L.
Ed. 2d 822 (1989), we found it necessary to establish a procedural rule
requiring that prior to or contemporaneous with an oral pronouncement
imposing the death penalty, the trial court must prepare its written
sentencing order to be filed concurrent with the pronouncement. The rule was
established even though we recognized that many trial courts in other cases
had not had the benefit of Van Royal and its progeny. Id. Therefore, under
certain circumstances we allowed some leeway regarding the filing
requirement in cases in which the sentencing proceeding occurred before our
decision in Grossman. Stewart v. State, 549 So.2d 171, 176 (Fla. 1989)
(remand for written findings when sentencing proceeding occurred before
Grossman and trial court followed jury recommendation of death and dictated
findings into the record).
[44] Since the sentencing proceeding in Holton's case took place prior to
our decision in Grossman, the actions off the trial court should be viewed
in light of the standards established in the Van Royal line of cases. In
Muehleman v. State, 503 So.2d 310, 317 (Fla. 1987), we permitted Muehleman's
death sentence to stand even though the written findings were filed two and
one-half months after sentencing but prior to certification of the record to
this Court. Holton claims, however, that in his case the written findings
were filed six days after the clerk of the court certified the record on
February 6, 1987. Our review of the record reveals two separate
certifications of the record, one dated February 6, 1987 and one dated
February 17, 1987. It appears the February 17 certification was done to
include the trial judge's written findings. The record was then filed in
this Court on February 23, 1987. Because the written findings followed the
jury's recommendation of death and were certified by the clerk of the court
and included as part of the record before the record was filed in this
Court, we find there was no error.
[45] We now turn to Holton's argument that the trial court erroneously
determined that four aggravating factors applied in this case. We agree that
the trial court improperly considered his contemporaneous convictions for
sexual battery of the murder victim and arson to support the aggravating
factor of prior felony conviction involving the use or threat of violence to
the person. § 921.141(5)(b), Fla. Stat. (1985) In Wasko v. State, 505 So.2d
1314, 1318 (Fla. 1987), we held that a trial court could not rely upon a
contemporaneous conviction for an offense committed against the murder
victim to find this aggravating factor. In this case, however, the trial
court properly relied upon Holton's prior conviction for attempted robbery
in addition to relying on the contemporaneous convictions. Because there was
a valid ground to support this aggravating factor, the error on this point
is harmless.
[46] Furthermore, we find no error in the trial court's determination that
the murder was committed while Holton was engaged in the commission of a
sexual battery. We have already determined that the evidence was sufficient
to support a conviction for sexual battery. The record also supports the
trial court's finding that the murder was especially heinous, atrocious, or
cruel. The victim's death by strangulation accomplished by a ligature tied
around her neck was sufficient to support the finding of this factor. This
Court previously has stated that it can be inferred "that strangulation,
when perpetrated on 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." Tompkins v. State, 502 So.2d 415,
421 (Fla. 1986) (citations omitted). See also Hildwin v. State, 531 So.2d
124 (Fla. 1988).
[47] We disagree with the trial court's finding that the murder was
committed in a cold, calculated, and premeditated manner. To support this
factor, the trial court relied on the jury's determination that Holton was
guilty of first-degree premeditated murder rather than felony murder. Simple
premeditation of the type necessary to support a conviction for first-degree
murder is not sufficient to sustain a finding that a killing was committed
in a cold, calculated, and premeditated manner. Hamblen v. State, 527 So.2d
800, 805 (Fla. 1988). A heightened form of premeditation is required which
can be demonstrated by the manner of the killing. Id. To achieve this
heightened level of premeditation, the evidence must indicate that a
defendant's actions were accomplished in a calculated manner, i.e., by a
careful plan or a prearranged design to kill. Rogers v. State, 511 So.2d
526, 533 (Fla. 1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 733, 98 L. Ed.
2d 681 (1988). The evidence in this case does not establish that Holton's
actions resulted from a prior calculation or prearranged plan. Indeed, the
facts suggest conclusions other than the finding that the murder was
committed in a cold, calculated, and premeditated manner. The strangulation
murder occurred during the commission of another crime, sexual battery, and
could have been a spontaneous act in response to the victim's refusal to
participate in consensual sex. Additionally, inmate Flemnie Birkins
testified that Holton stated that he did not mean to kill the victim. We do
not believe this factor was established beyond a reasonable doubt. See
Harmon v. State, 527 So.2d 182 (Fla. 1988).
[48] Next, Holton claims that the trial judge failed to consider the
statutory mitigating circumstance of impaired capacity. § 921.141(6)(f),
Fla. Stat. (1985). He argues that this circumstance should apply because of
his longstanding drug addiction. However, in the sentencing order the trial
judge stated:
[49] 2. The capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the law was
substantially impaired; to wit: The defendant testified he was addicted to
drugs but still maintained his innocence of these offenses. This factor
would not apply in view of that sworn testimony.
[50] A defendant has the right to maintain his or her innocence and have a
trial by jury. Art. I, § 22, Fla. Const. The protection provided by the
fifth amendment to the United States Constitution guarantees an accused the
right against self-incrimination. The fact that a defendant has pled not
guilty cannot be used against him or her during any stage of the proceedings
because due process guarantees an individual the right to maintain innocence
even when faced with evidence of overwhelming guilt. A trial court violates
due process by using a protestation of innocence against a defendant. This
applies to the penalty phase as well as to the guilt phase under article I,
section 9 of the Florida Constitution. Therefore, entering a plea of not
guilty does not preclude consideration by the sentencer of matters relevant
to mitigation.
[51] While the trial court did not make the finding that Holton's capacity
to appreciate the criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired because of his drug
abuse, we are not persuaded that Holton's drug abuse was not considered.
Indeed, the record reflects that this matter was considered when the trial
court reviewed the non-statutory evidence presented concerning Holton's
character. Therefore, any error that may have occurred in light of this fact
is harmless.
[52] Of the four aggravating circumstances found by the trial court, we have
found three to be valid. The two mitigating circumstances found were that
Holton is a drug addict and that he has two children.6 While there was error
in the weighing of the aggravating and mitigating factors, we conclude that
reversal of one invalid aggravating factor could not reasonably have
resulted in a lesser sentence. See Rogers, 511 So.2d at 535. Under the
circumstances of this case, we cannot say there is any reasonable likelihood
the trial court would have concluded that the three valid aggravating
circumstances were outweighed by the mitigating factors. Id.; State v.
DiGuilio, 491 So.2d 1129, 1138 (Fla. 1986). We find the error was harmless
beyond a reasonable doubt.
[53] The remaining claims raised by Holton are without merit.7 Therefore,
for the reasons expressed we affirm the first-degree murder conviction and
sentence of death. We also affirm the convictions for first-degree arson and
sexual battery but remand to the trial court for resentencing as to these
offenses.
[54] It is so ordered.
***** BEGIN FOOTNOTE(S) HERE *****
[55] *fn1 The elderly man with whom Holton lived testified that Holton came
home at approximately 10:00 p.m.
[56] *fn2 The four aggravating circumstances found by the trial court are:
(1) the defendant was previously convicted of another capital felony or of a
felony involving the use or threat of violence to the person; (2) the
capital felony was committed while the defendant was engaged in the
commission of sexual battery and arson; (3) the capital felony was
especially heinous, atrocious, or cruel; and (4) the capital felony was a
homicide and was committed in a cold, calculated, and premeditated manner
without any pretense of moral and legal justification. 921.141(5)(b), (d),
(h), (i) Fla. Stat. (1985).
[57] *fn3 Of course, if the court sustains an objection, the other party
still must bear the responsibility of moving for a mistrial, if appropriate.
Simpson v. State, 418 So.2d 984, 986 (Fla. 1982), cert. denied, 459 U.S.
1156, 103 S. Ct. 801, 74 L. Ed. 2d 1004 (1983).
[58] *fn4 When the trial court first suggested summarizing the deposition,
both the state and the defendant objected. The defendant urged the trial
court to grant a continuance. The state's objection centered on the
inability to cross-examine the witness.
[59] *fn5 Section 794.011(3), Florida Statutes (1985), states in pertinent
part:
[60] (3) A person who commits sexual battery upon a person 12 years of age
or older, without that person's consent, and in the process thereof
[61] . . . uses actual physical force likely to cause serious personal
injury is guilty of a life felony . . . .
[62] *fn6 We have previously recognized that the quality of being a caring
parent may be considered in mitigation. Jacobs v. State, 396 So.2d 713, 718
(Fla. 1981).
[63] *fn7 These claims include: (1) Holton was denied the right to present a
defense because a defense witness was not allowed to testify; (2) the trial
court erred by allowing into evidence enlarged photographs of the victim's
body; (3) the prosecutor improperly cross-examined defense witnesses during
the penalty phase of the trial; and (4) the prosecutor's remarks during
closing argument were improper.
***** END FOOTNOTE(S) HERE *****
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1990.FL.2314