SC04-19 – Eric Simmons v. State Of Florida

SUPREME COURT CASES

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State: Florida

Court: Supreme Court

Docket No: sc04-19

Case Date: 05/11/2006

Plaintiff: SC04-19 – Eric Simmons

Defendant: State Of Florida

Preview:Supreme Court of Florida
No. SC04-19
ERIC SIMMONS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[May 11, 2006]
PER CURIAM.
We have on appeal a judgment of conviction of kidnapping, sexual battery
using force likely to cause serious injury, and first-degree murder of Deborah
Tressler, and a sentence of death for the murder conviction.  We have jurisdiction.
See art. V, § 3(b)(1), Fla. Const.  For the reasons stated herein, we affirm the
convictions and sentence.
FACTS AND PROCEDURAL HISTORY
The charges against appellant, Eric Simmons, resulted from the kidnapping,
sexual battery, and stabbing and beating of Deborah Tressler, who was found dead
in a wooded area in Sorrento, Florida.   Simmons was tried and found guilty of

kidnapping, sexual battery using force likely to cause serious injury, and first-
degree murder.  The jury unanimously recommended death as the penalty for the
murder.  The trial court sentenced Simmons to death on the charge of first-degree
murder and life in prison for each of the kidnapping and sexual battery charges
respectively.1
Prosecution Evidence
The evidence presented at trial indicated that on December 3, 2001, at
approximately 11:30 a.m., John Conley, a Lake County Sheriff’s Office (LCSO)
deputy, discovered the body of Tressler in a large wooded area commonly used for
illegal dumping.  The body was located some 270 feet from the main road.  Crime
scene technician Theodore Cushing took pictures of the body, performed a sketch
of the area, and found five tire tracks near the body.  The crime scene technicians
took plaster cast impressions of the three tracks with the most detail for
comparison purposes.  Mr. Cushing noticed that the tire tracks indicated that a car
made a three-point turn close to the body.   All-terrain vehicle tracks were present
closer to the body, but they appeared older and deteriorated.
The medical examiner, Dr. Sam Gulino, observed the victim and the
surroundings at the scene on December 3, 2001, with the victim lying on her left
1.   The sentence for sexual battery was to run consecutive to the sentence for
kidnapping, and the sentence for kidnapping was to run consecutive to the sentence
of death for first-degree murder.
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side with her right arm over her face.  Dr. Gulino estimated the time of death was
twenty-four to forty-eight hours before the body was discovered.
Dr. Gulino performed an autopsy, which revealed numerous injuries.
Tressler suffered some ten lacerations on her head, as well as numerous other
lacerations and scrapes on her scalp and face. 2  There was a very large fracture on
the right side of her head, and her skull was broken into multiple small pieces that
fell apart when the scalp was opened.  Dr. Gulino opined that this injury and the
injuries to her brain resulted in shock and ultimately Tressler’s death.  There was
another fracture that extended along the base of the skull, resulting from a high-
energy impact; bleeding around the brain; and bruises in the brain tissue where the
fractured pieces of skull had cut the brain.  There were numerous stab wounds on
the neck, a long cut across the front and right portions of the neck, and other
bruises and cuts.  There was little bleeding from these injuries, indicating that the
victim was already dead or in shock at the time of the injuries.  The victim also
suffered a stab wound in the right lower part of her abdomen that extended into her
abdominal cavity and probably occurred after she received the head injury.  There
were also injuries to her anus with bruising on the right buttock extending into the
anus, and the wall of the rectum was lacerated.  These injuries were inflicted
before death.  Dr. Gulino opined that these injuries would be painful and not the
2.   Lacerations occur due to an impact with a blunt force, as opposed to a cut
from a sharp object, such as a knife.
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result of consensual anal intercourse.   The victim suffered numerous defensive
wounds on her forearms and hands.  There was also a t-shaped laceration on the
scalp and an injury at the base of her right index finger that was patterned, as if a
specific type of object, like threads on a pipe, had caused it.  Dr. Gulino opined
that the attack did not occur at the exact spot where Tressler was found because of
the lack of blood and disruption to the area, but stated that the position of
Tressler’s body was consistent with an attack occurring in that area.
On December 4, 2001, Robert Bedgood, a crime scene technician, collected
evidence from Tressler’s body during the autopsy.3  Dr. Jerry Hogsette testified
that, based on the temperature in the area of Tressler’s body and the development
of the insect larvae taken from Tressler’s body, Tressler had been killed between
midnight on December 1, 2001, and early Sunday morning, December 2, 2001.4
After identifying the body as Tressler’s, crime scene technicians went to the
trailer where Tressler lived and the laundromat where she worked to conduct
Luminol testing.  They found Tressler’s purse at the laundromat and located a
birthday list containing the names of Simmons’ relatives.  There was no evidence
of violence in either place.
3.   This evidence included a vial of Tressler’s blood, hairs from her hand,
her clothing, insect larvae, and a sexual assault kit.
4.   Dr. Hogsette explained that there are three larval instar stages, and the
larvae taken from Tressler’s body were in the first and second instar stage.
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Andrew Montz testified that late on the night of December 1, 2001, he was
at the Circle K convenience store at the intersection of State Road 44 and County
Road 437 in Lake County.  Mr. Montz saw a white four-door car heading
northbound on 437, stopping at the traffic light very slowly, when a woman opened
the passenger door and screamed, “Somebody help me.  Somebody please help
me.”  The driver pulled the woman back into the car and ran the red light quickly.
Mr. Montz stated that the woman was wearing a white T-shirt or pajama-type top.
He was not able to see the driver and described the car as a Chevy Corsica/Ford
Taurus-type car with a dent on the passenger side, black and silver trim on the door
panel, and a flag hanging from the window.  After viewing a videotape of a white
1991 Ford Taurus owned by Simmons a year later, Mr. Montz identified it as being
the car he saw on December 1.  Mr. Montz initially told lead Detective Stewart
Perdue that the car had spoked rims, but after viewing spoked rims at an auto parts
store, he concluded that the rims on the car he saw were not spoked.
Sherri Renfro testified that she was at the same Circle K as Montz between
11:30 and 11:40 p.m. with her sister-in-law’s boyfriend, Shane Lolito.  She also
saw a white car slowly approach the red light, the passenger door open, and a
woman yell for help while looking directly at Ms. Renfro.  Ms. Renfro yelled at the
driver to stop, but he did not, and Ms. Renfro got into her van and chased after the
car.  She traveled in excess of the speed limit, but was unable to get close to the car
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and eventually lost track of it.  Ms. Renfro thought that the car was a Chevy
Corsica, but admitted that she “[did not] really know [her] cars too well.”  She
recalled that the car had a patriotic bumper sticker in the rear window and a flag
hanging from the back passenger window.  She testified that there was a large
spotlight on the side of the Circle K building that illuminated the surrounding area
well.  Ms. Renfro subsequently identified Simmons’ white Ford Taurus as the car
she saw at the intersection, and she recognized the interior, the bumper sticker, and
the flag on the car.  Ms. Renfro identified Tressler as the woman in the car when
shown a photograph of her.
Jose Rodriguez testified that he knew Tressler from the laundromat, he often
saw Simmons and Tressler together drinking, and he was familiar with Simmons’
car.  Mr. Rodriguez saw Simmons with Tressler at the laundromat on the night of
December 1, 2001.  When he arrived at the laundromat, he knocked on the glass
window to get Simmons’ attention and asked him to come outside.  While
Simmons was exiting, Mr. Rodriguez got Tressler’s attention and asked if she was
okay; she replied that she was.  Mr. Rodriguez spoke with Simmons for a few
minutes and then talked to his own girlfriend on the pay phone outside.  When he
finished, Simmons and Tressler were still inside the closed laundromat.
Mr. Rodriguez was arrested the next day on unrelated charges, and on
December 5, 2001, police officers showed Mr. Rodriguez a photopack with about
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thirty-five pictures in it, but he was unable to identify any as Tressler’s boyfriend.
However, Mr. Rodriguez picked the picture that looked most like Simmons and he
drew additional characteristics similar to those of Simmons.  On December 7, Mr.
Rodriguez positively identified a photograph of Simmons as Tressler’s boyfriend.
Detective Perdue testified that he and other police officers went to Simmons’
parents’ home after confirming that Simmons owned a white 1991 Ford Taurus.
Detective Perdue and Detective Kenneth Adams approached Simmons and asked
him to walk to a group of trees so they could talk.  There were some fifteen other
police officers at the scene as well as a helicopter flying overhead.  Simmons
acknowledged that he knew Tressler was dead, and the detectives asked if
Simmons would come to the sheriff’s office to talk.  Simmons consented, and the
detectives transported him to the sheriff’s office in the back of a police cruiser.
The detectives handcuffed Simmons for their protection pursuant to their standard
practice, and Simmons did not object.  Detectives Perdue and Adams removed the
handcuffs upon arrival at the office, and interviewed Simmons in a room equipped
with audio and video capabilities, although the videotape was allowed to run out
after two hours.
Simmons waived his Miranda5 rights and stated that he was friends with
Tressler and had tried to help her improve her living conditions.6  Simmons
5.   Miranda v. Arizona, 384 U.S. 436 (1966).
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explained to Detective Perdue that on December 1, 2001, he and Tressler had been
watching the Florida-Tennessee football game at his apartment in Mount Dora.
The reception was bad, so Tressler asked him to take her to the laundromat or her
trailer so she could watch the game.   He took her to the laundromat and then drove
home because Tressler and he were supposed to go to work together early the next
morning for his father’s landscaping business.  He stated that he had engaged in
sexual intercourse with Tressler on one occasion approximately two weeks before
the interview, even though Simmons’ semen was found in Tressler’s vaginal
washings during her autopsy.  During a break in the interview, the detectives
learned that blood had been found in Simmons’ car.7  After the detectives informed
Simmons of this, he stated, “Well, I guess if you found blood in my car, I must
have did it.”
Terrell Kingery, a crime lab analyst with the Florida Department of Law
Enforcement (FDLE), examined the plaster tire casts from the scene of the crime
and compared them to the tires on Simmons’ car.  The rear tires, which were
6.   Tressler lived in a trailer without plumbing behind the Oasis bar; she had
to wash herself with a garden hose outside.
7.   The detectives took turns leaving the room during the interview to check
on the status of Simmons’ car, which had been towed to the LCSO while detectives
were interviewing Simmons.  After the police obtained a search warrant, Detective
Perdue watched the technicians perform a presumptive test on a suspected blood
stain in the car, which indicated that it was blood.
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different brands, were consistent with the three plaster casts.  The dimension and
general condition of the rear tires were consistent with two of the three casts.
Crime scene technician Ronald Shirley testified that when he performed a
presumptive test for blood on a stain on the passenger door of Simmons’ car, he
obtained a positive result.  Luminol testing was positive for blood on the area
around the passenger seat cushion, the carpet below the passenger seat in the front
and back, and especially the area of the passenger seat where one sits.  Mr. Shirley
noted that there were containers of partially consumed cleaning materials in the
car.  Technicians also cut the fabric off the seat cover and noted a large stain on the
cushion itself.
Brian Sloan, a forensic DNA analyst, performed a mitochondrial DNA
(mtDNA) sequence on the cushion stain and testified that, in his professional
opinion, the stain on the cushion was blood.   He testified that mtDNA is inherited
maternally, and the mitochondrial genome is 16,500 pairs long.  Most of these
pairs are very similar between individuals, but approximately 610 bases are highly
variable between individuals, and these variable bases can be used to differentiate
between people.  mtDNA testing differs from the Short Tandem Repeat (STR)
technique for DNA profiling because the STR technique is specific to the DNA in
the nucleus, or chromosomal DNA.  Mr. Sloan testified that mtDNA is the better
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technique to use on degraded samples because the plasmid circular DNA in
mitochondria have thousands of copies in a single cell.
Mr. Sloan compared the mtDNA extracted from the seat cushion to that of
Lee Daubanschmide, Tressler’s mother; determined that each had an anomaly in
the same place; and concluded that the two DNA sequences were consistent.  After
noting the consistency, Mr. Sloan entered the sequence into the FBI database of
4,839 contributors to check for matches, and concluded that the sequence had
never been seen in that group.  Mr. Sloan also stated that mtDNA is present in
several types of human biological fluid or material, such as bones, hair, saliva,
semen, diarrhea, sweat, and menstruation.  He noted that he did not run statistical
calculations to determine the ninety-five percent confidence interval as had Dr.
Rick Staub, the director of the lab.   Dr. Staub had obtained an upper confidence
limit of one in 1600 individuals, but was unable to testify at trial.
Shawn Johnson, a crime laboratory analyst with the FDLE, testified that he
performed a presumptive chemical test on the cushion stain, which was positive for
blood.  He then took three different cuttings from three different areas, combined
them into one sample, but did not get any DNA results.  Mr. Johnson testified that
the lack of DNA results indicated that there was degradation of the DNA.  Mr.
Johnson swabbed the front passenger door jamb of Simmons’ car and obtained a
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DNA profile that matched Tressler’s.  Mr. Johnson also matched Tressler’s DNA
to other stains on the car trim.
Defense Evidence
The defense called a number of witnesses during its case.  Stuart James, a
defense witness who is an expert in blood stain pattern analysis, examined blood
spatter in photographs of the doorjamb of Simmons’ car and concluded that it was
a limited amount of staining but that it was consistent with the size range found in
beatings, stabbings, and sometimes gunshots.
Dr. Neal Haskell, a forensic entomologist, testified that he could not
determine the time of Tressler’s death from the insect specimens collected by the
LCSO.  He also could not determine whether Dr. Hogsette’s opinion regarding the
time of death was correct, but he opined that some of Dr. Hogsette’s conclusions
were faulty and that Dr. Hogsette was not qualified as a forensic entomologist.
Dr. Terry Melton, an expert in mtDNA analysis, testified that the State’s lab
results regarding the match with the mtDNA were correct, but its statistical
analysis that the mtDNA sequence had never been seen in the FBI database was
incorrect.  Dr. Melton stated that the State’s lab did a search of the DNA bases
only on a portion of the DNA they obtained.   In Dr. Melton’s lab, they compare all
783 of the DNA bases to the known DNA bases.  When Dr. Melton ran the data in
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the database according to her lab’s methods, she found a common type sequence in
105 of the 4839 people in the database.
Dr. Wilber Frank, a veterinarian and local resident, testified that he
encountered a white four-door car driving very slowly at the intersection of State
Road 44 and Seminole Springs Road at about 11 a.m. on December 2, 2001, near
the area where the victim’s body was found.  The driver appeared to be an older
white male.
At the conclusion of the trial’s guilt phase, the jury found Simmons guilty of
kidnapping, sexual battery using force likely to cause serious injury, and murder in
the first degree, all as charged in the indictment.8
Penalty Phase
During the penalty phase, the State presented victim impact evidence from a
customer of the laundromat where Tressler worked and Tressler’s father.  The
defense produced the probable cause affidavit involving Simmons’ prior
conviction in 1996 for aggravated assault with a deadly weapon against a law
enforcement officer.  Defense counsel also called a corrections officer to testify
8.   The grand jury indictment charged Simmons with murder in the first-
degree due to the murder being from a premeditated design or while engaged in the
felony of sexual battery.  The jury simply found Simmons guilty of first-degree
murder without differentiating between the two.
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regarding Simmons’ behavior while he was incarcerated during the trial, and
Simmons’ sister to provide character evidence for Simmons.9
The jury unanimously returned an advisory verdict recommending a death
sentence for the murder.   The special interrogatory verdict form specifically
indicated that the jury found unanimously that the State had proven three
aggravating factors beyond a reasonable doubt: (1) Simmons was previously
convicted of a felony involving the threat of violence to a person; (2) the crime for
which Simmons was to be sentenced was committed during the commission of or
attempt to commit sexual battery, kidnapping, or both; and (3) the crime for which
Simmons was to be sentenced was heinous, atrocious, or cruel (HAC).
The trial court held a Spencer10 hearing and heard testimony from Dr.
Elizabeth McMahon, the defense’s mental health expert.  She testified that
Simmons had a moderate-to-severe learning disability but no significant history of
violence.  Because the jury was not privy to these opinions, the trial court
considered the jury’s recommended sentence, but also independently weighed the
9.   These witnesses were Sergeant Craig Leslie and Ashley Simmons.
Sergeant Leslie testified that Simmons had one incident of disciplinary
confinement because he engaged in a fight with another inmate, which was not
surprising to Sergeant Leslie considering Simmons’ stay in jail of a year and nine
months at that time.  Ashley Simmons testified that Simmons came from a loving,
close-knit family, and he was always helping other people, which “got him in the
position he’s in today.”
10.   Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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evidence of aggravating and mitigating circumstances in determining Simmons’
sentence.  The trial court agreed with the jury’s findings of the three aggravators,
giving moderate weight to the prior felony conviction aggravator and great weight
to the other two.  The court rejected the defense’s proposed statutory mitigating
circumstance of Simmons’ age of twenty-seven because there was no evidence that
he functioned at a level below his age in anything but reading.  The court also
rejected all other statutory mitigating factors, but found a number of nonstatutory
mitigating factors: (1) Simmons manifested appropriate courtroom behavior (some
weight); (2) Simmons was kind to the victim (some weight); (3) Simmons loves
and cares for animals (minimal weight); (4) Simmons was active in his church and
a mentor to boys who belonged to the church’s Royal Rangers (some weight); (5)
Simmons had a good family background and came from a closely knit, caring
family (some weight); (6) Simmons was employed (some weight); (7) Simmons
has a learning disability (some weight); and (8) Simmons is immature (some
weight).  The trial court rejected three other proposed mitigating circumstances as
either not proven or not mitigating in nature, and imposed the death penalty for the
murder.11
11.   The mitigating circumstances rejected by the trial court were: (1)
Simmons’ manifestation of appropriate behavior while at the jail (not proven); (2)
residual or lingering doubt that Simmons is guilty and that Simmons’ behavior is
inconsistent with the psychological profile of a murderer (not proven and not
admissible to prove innocence because it is inadmissible to prove guilt); and (3) the
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ISSUES ON APPEAL
On appeal, Simmons raises eleven issues: (1) the guilty verdicts on the
charges of kidnapping, sexual battery, and murder are not supported by the
evidence; (2) the trial court did not have jurisdiction and venue was not proper in
Lake County; (3) the trial court erred in denying Simmons’ motion to suppress his
statement to law enforcement officers and evidence obtained from the search of his
vehicle; (4) the trial court erred in allowing the State’s expert on mtDNA to testify
before the jury; (5) the prosecuting attorney made improper remarks regarding the
mtDNA evidence; (6) the trial court erred in excluding the testimony of a defense
expert in eyewitness identification; (7) the trial court erred in allowing the State’s
entomology expert to testify as an expert in the life cycle of flies; (8) the trial court
erred in denying Simmons’ motion to exclude an in-court identification of
Simmons’ vehicle; (9) the prosecutor engaged in misconduct that rose to the level
of preventing a fair trial; (10) Florida’s death penalty statute is unconstitutional;
and (11) the trial court erred in imposing aggravators to arrive at the death
sentence.   We address each of these issues.12  In addition, although not raised by
prosecution of Simmons was partially predicated upon circumstantial evidence (not
mitigating).
12.   We find that Simmons’ claim that the State’s witness on mtDNA testing
was not qualified to testify is waived because defense counsel failed to object to
his qualifications at trial.  See Bertolotti v. Dugger, 514 So. 2d 1095, 1096 (Fla.
1987) (“In order to preserve an issue for appellate review, the specific legal
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Simmons, we have reviewed the record and conclude that, in light of the totality of
the circumstances, Simmons’ death sentence is proportionate when compared to
the facts of other death penalty cases.
I.                                                                                     Sufficiency of the Evidence
In Simmons’ first issue on appeal, he contends that the evidence against him
is not sufficient to support the trial court’s guilty verdicts on the charges of
kidnapping, sexual battery, and first-degree murder.   “In determining the
sufficiency of the evidence, the question is whether, after viewing the evidence in
the light most favorable to the State, a rational trier of fact could have found the
existence of the elements of the crime beyond a reasonable doubt.”  Bradley v.
State, 787 So. 2d 732, 738 (Fla. 2001) (citing Banks v. State, 732 So. 2d 1065,
1067 n.5 (Fla. 1999)).
argument or ground upon which it is based must be presented to the trial court.”).
We also find that Simmons’ claim that the prosecutor made improper remarks
concerning the mtDNA evidence on Simmons’ car seat is waived because
Simmons’ counsel did not properly brief this issue for appeal.  See Coolen v. State,
696 So. 2d 738, 742 n.2 (Fla. 1997) (stating that a failure to fully brief and argue
points on appeal “constitutes a waiver of these claims”); see also Duest v. Dugger,
555 So. 2d 849, 852 (Fla. 1990) (“The purpose of an appellate brief is to present
arguments in support of the points on appeal.  Merely making reference to
arguments below without further elucidation does not suffice to preserve issues,
and these claims are deemed to have been waived.”).   Likewise, we conclude that
Simmons’ argument that the prosecutor engaged in misconduct that rose to the
level of preventing a fair trial is waived because of its vagueness.
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In this case, there was physical evidence and eyewitness testimony, as well
as Simmons’ statements, linking Simmons to Tressler at the time of the murder.
We agree with the State that the jury, as the trier of fact, was entitled to draw an
inference that Simmons was acknowledging guilt from his statement that he “must
have did it.”  Therefore, this case is not entirely circumstantial.  See Pagan v. State,
830 So. 2d 792, 803 (Fla. 2002) (stating that when the evidence in a case is “both
direct and circumstantial, it is unnecessary to apply the special standard of review
applicable to circumstantial evidence cases”).   A confession constitutes direct
evidence of guilt.  Floyd v. State, 850 So. 2d 383, 406 (Fla. 2002) (citing Walls v.
State, 641 So. 2d 381, 390 (Fla. 1994)).
Further, Mr. Rodriguez testified that Simmons was the last person seen with
Tressler in the laundromat on the evening of December 1, 2001.  Eyewitnesses
then saw Tressler trying to escape Simmons’ car and screaming for help at the
intersection of State Road 44 and County Road 437.  Three eyewitnesses identified
the car they saw on the night of December 1, 2001, as resembling a Chevrolet
Corsica or Ford Taurus and possessing characteristics matching Simmons’ car.
There was blood spatter in Simmons’ car and a large, degraded blood stain on the
passenger seat.  Tire track impressions taken from the area near where Tressler’s
body was discovered matched the two rear tires of Simmons’ car, which were two
different tire models.  Simmons’ semen was found in Tressler’s vaginal washings.
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Dr. Gulino testified that Tressler’s autopsy revealed extensive injuries to her anus
not consistent with consensual anal sex.   In light of these facts and circumstances,
we conclude that there is sufficient evidence to find Simmons guilty of kidnapping,
sexual battery, and first-degree murder.  See Thomas v. State, 894 So. 2d 126, 131-
32, 134-35 (Fla. 2004) (holding that a combination of direct eyewitness testimony,
the defendant’s confession, and circumstantial evidence that defendant continued
to confine victim while intending to inflict harm because she was eventually
sexually assaulted and murdered supported a conviction of kidnapping and first-
degree murder), cert. denied, 125 S. Ct. 1939 (2005).
II.                                                                                     Jurisdiction and Venue
In his next issue on appeal, Simmons argues that the trial court erred in
determining that it had jurisdiction to try Simmons because the State admitted it
had no knowledge of exactly where the crimes occurred.  In contrast, the State
points out that jurisdiction is distinct from venue, and a circuit court has
jurisdiction to adjudicate a first-degree murder case.  Further, the State notes that
venue is sufficiently proven if the jury can reasonably infer from the evidence that
the crime occurred in the county where the trial occurs.13
13.   The State correctly points out in its brief that Simmons’ counsel adopts
arguments made in the court below in her initial brief to this Court.  This practice
does not preserve an issue for review by an appellate court.  See Duest, 555 So. 2d
at 852 (stating that claims are deemed waived if a party merely makes reference to
arguments made in a lower court).
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The circuit courts have exclusive original jurisdiction over all felonies.  Art.
V, § 5(b), Fla. Const.; § 26.012(2)(d), Fla. Stat. (2003).  A person can be
prosecuted in this state for a crime if the offense is committed either wholly or
partly within this state.                                                                 § 910.005(1)(a), Fla. Stat. (2003).  Because a circuit court
has original jurisdiction over felonies, including murder, we find that the trial court
properly denied Simmons’ motion to dismiss for lack of jurisdiction.
As to venue:
Venue need not be established beyond a reasonable doubt.  If the
evidence raises a violent presumption that the offense was committed within
the county, or if the evidence refers to localities and landmarks at or near the
scene of the alleged offense, known or probably familiar to the jury, from
which they may reasonably infer that the offense was committed in the
county, it will be sufficient.
Lowman v. State, 85 So. 166, 167 (Fla. 1920).  In this case, it could reasonably be
inferred that the felonies were committed in Lake County.  The evidence in the
trial court tended to show that eyewitnesses observed Tressler in Simmons’ car
screaming for help in Lake County on the night of December 1, 2001.  Tressler’s
body was discovered in Lake County on the morning of December 3, 2001.  While
it is possible that the murder and sexual battery could have occurred in a different
county, it is reasonable for a jury to infer that the crimes occurred in Lake County.
III.                                                                                      Simmons’ Motion to Suppress Statements and Vehicle Evidence
Simmons argues that the trial court erred in refusing to suppress the
statements he made to police because he did not voluntarily accompany authorities
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to the police station.  Simmons also argues that the trial court improperly denied
his motion to suppress the evidence law enforcement officers obtained from his
vehicle.  This Court has stated that “a suppression ruling comes to the reviewing
court clad in a presumption of correctness as to all fact-based issues.”  State v.
Glatzmayer, 789 So. 2d 297, 301 (Fla. 2001).  Given the evidence before the trial
court, we find no error.
A.    Simmons’ Statements
The trial judge denied Simmons’ motion to suppress, determining that
Simmons voluntarily submitted to the interrogation and, in the alternative, that the
detectives had probable cause to detain Simmons for a custodial interrogation.
1.                                                                                     Voluntariness of the Interrogation
Simmons contends that, given the number of officers that surrounded his
parents’ Pine Lakes residence on December 7, 2001, a reasonable person in his
position would not feel that he or she could decline the detectives’ invitation to
come to the sheriff’s office.  Further, Simmons contends that the fact that he was
handcuffed and transported in the back of a caged, marked police cruiser belies the
contention that he went voluntarily.
In support of his argument, Simmons cites to Hayes v. Florida, 470 U.S. 811
(1985).   In Hayes, police approached a burglary-rape suspect on his front porch
and asked him to come to the police station for fingerprinting.  Id. at 812.  An
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investigator threatened to arrest the suspect if he did not comply.  Id.   The United
States Supreme Court determined that Hayes’ detention was not consensual, and it
reversed the conviction and remanded the case because the police did not have
probable cause to detain the suspect.  Id. at 814, 817-18.
Unlike the defendant in Hayes, the uncontroverted testimony by the officers
in this case indicates that Simmons never expressed any reluctance to accompany
the detectives to the sheriff’s office.   The officers did not threaten Simmons with
an arrest or try to coerce him in any way.   These crucial factual differences
distinguish Hayes from the present case.
Although Simmons contends that a “thundering herd” of police officers
would render any reasonable person unable to refuse the detectives’ invitation, the
record shows that most of these officers were not directly involved in any
confrontation with Simmons or the conversation between Simmons, Detective
Adams, and Detective Purdue.  These two detectives were not in uniform and were
not armed when they conducted the initial interview at Simmons’ parents’ home.
Moreover, although Simmons was handcuffed and transported in the back of a
caged police cruiser, the State presented evidence that these measures were taken
for the safety of the police officers involved and that police removed the handcuffs
as soon as Simmons reached the sheriff’s office.  Nothing in the record indicates
that Simmons objected to being handcuffed or at any time expressed a desire to
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terminate the encounter.  Our recognition of the propriety of using handcuffs in
noncustodial encounters with police is in line with this Court’s prior case law.  See,
e.g., Taylor v. State, 855 So. 2d 1, 18 (Fla. 2003) (holding that the use of handcuffs
during a trip from a police cruiser to an interrogation room did not render a
detention custodial when the suspect was told that he was not under arrest).  Under
the totality of the circumstances, we find no error in the trial court’s determination
that a reasonable person in Simmons’ position would have felt free to terminate the
encounter with police.
Simmons does not deny that he signed a Miranda waiver before the
detectives began to interview him at the sheriff’s office, and he never asked to
terminate the interview.  The two detectives allowed Simmons to use the bathroom
when he needed to, and the three even ate dinner together.  Moreover, the
detectives told Simmons that they would provide a ride home if his family could
not come to get him, and they reassured Simmons that he was not under arrest.
Given the significant deference that we give to trial courts’ fact-finding on
motions to suppress, we conclude that the trial court did not abuse its discretion
when it accepted the evidence presented by the State and determined that
Simmons’ December 7 interview with detectives was voluntary under the totality
of the circumstances.
2.                                                                                       Probable Cause
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Even if Simmons was able to successfully argue that his detention was
custodial and not voluntary, he would still have to show that the police detained
him without probable cause in order to prevail.  See Blanco v. State, 452 So. 2d
520, 523 (Fla. 1984) (holding that the trial court properly denied defendant’s
motion to suppress evidence when there was probable cause to support his de facto
arrest).  In addition to finding that Simmons’ encounter with detectives was
voluntary, the trial court determined that the police had probable cause to detain
Simmons.
We have stated that “[p]robable cause for arrest exists where an officer ‘has
reasonable grounds to believe that the suspect has committed a felony.   The
standard of conclusiveness and probability is less than that required to support a
conviction.’ ”  Chavez v. State, 832 So. 2d 730, 747 (Fla. 2002) (quoting Walker v.
State, 707 So. 2d 300, 312 (Fla. 1997)).  At the time of the interview, detectives
had statements from Simmons’ friends and acquaintances that indicated that he
was Tressler’s boyfriend and that he was the last person seen with Tressler while
she was alive.  They also had a statement from Mr. Rodriguez that he saw
Simmons with Tressler between 10:30 p.m. and 10:45 p.m. on December 1, 2001.
Moreover, Simmons’ car matched the description of the car that two witnesses saw
at about midnight on December 1, from which a woman matching the description
of Tressler was attempting to flee.  Detectives also had statements from witnesses
- 23 -

that Simmons may have beaten Tressler earlier in the week, and they knew that he
had previously been arrested for abusing a prior spouse or girlfriend.
This Court has stated that “[t]he existence of probable cause is not
susceptible to formulaic determination.  Rather, it is the ‘probability, and not a
prima facie showing, of criminal activity [that] is the standard of probable cause.’ ”
Doorbal v. State, 837 So. 2d 940, 952-53 (Fla. 2003) (citations omitted) (quoting
Illinois v. Gates, 462 U.S. 213, 235 (1983)).  Considering the totality of the
circumstances and the evidence presented in this case, we cannot say that the trial
court abused its discretion when it found that any custodial detention of Simmons
was supported by probable cause.
B.                                                                                       Evidence from Simmons’ Vehicle
Simmons also challenges the trial court’s denial of his motion to suppress
evidence seized from his vehicle on December 7, 2001, under a search warrant.
Simmons alleges that factual inaccuracies plague the affidavit that supported the
magistrate’s decision to grant the search warrant.  Simmons alleges that, after
excising those portions of the affidavit that are inaccurate, the State is left with
nothing upon which the magistrate could have found probable cause to authorize a
search.
Deliberate falsity or reckless disregard for the truth in an affidavit that gives
rise to a search warrant can, in some instances, lead to suppression of evidence
- 24 -

obtained under that warrant.  See Franks v. Delaware, 438 U.S. 154, 171-72
(1978).   However, we have held that an erroneous statement will only invalidate a
search warrant if, after excising the erroneous statement, the remaining true
statements are insufficient to establish probable cause.  See Terry v. State, 668 So.
2d 954, 958 (Fla. 1996).  In the instant case, the trial court ruled that there were, in
fact, no intentionally or recklessly false statements.
First, Simmons alleges that the affidavit provides an inaccurate description
of Detective Brewer’s qualifications by stating that Detective Brewer had been a
law enforcement officer since 1979 because Detective Brewer’s certification
lapsed for twenty years while he pursued a career as an attorney.  The record,
however, indicates that Detective Brewer was a sworn officer at the time that he
signed the affidavit and that his experience as an officer dated back to 1979.
Further, although Detective Brewer’s Florida certification did lapse during the
1980s, his certification as a military police officer continued during this period and
never lapsed.  Given this evidence, we conclude the trial court did not err in
concluding that the portion of the affidavit regarding Detective Brewer’s
qualifications was not false.
Next, Simmons alleges that the affidavit misstates the information that
detectives obtained from Ms. Renfro.  Detective Brewer’s affidavit indicates that a
witness observed a woman who matched the description of the victim and was
- 25 -

screaming and attempting to flee a white Chevrolet Corsica-type car.  Simmons
cites to Ms. Renfro’s statement to the police, which indicated that the woman that
Ms. Renfro saw was in her mid-fifties, had short brown hair, and was wearing a
white T-shirt.  Because Tressler was actually forty-eight, had long black hair, and
was wearing a grey shirt, Simmons argues that Ms. Renfro’s description did not
match the description of Tressler and that the affidavit is materially false.
However, as the trial court properly noted, Detective Purdue testified that
Ms. Renfro positively identified Tressler’s picture as the same woman she saw in
the car.  Therefore, despite the slight variations Simmons notes between Ms.
Renfro’s description and Tressler’s actual appearance, the trial court properly
concluded that the portion of the affidavit regarding Ms. Renfro’s description of
Tressler was not misstated.
Next, Simmons alleges an inaccuracy in the portion of the affidavit that
indicates that Detective Brewer personally observed several visible stains
consistent with dried blood in the back of Simmons’ vehicle.  This is because the
trial judge personally examined the sheet and found no blood.  While there does
appear to be an inconsistency between Detective Brewer’s and the trial judge’s
observations of the sheet, the record does not refute Detective Brewer’s testimony
that he personally observed blood stains prior to preparing the warrant.  The trial
- 26 -

court found that the officer’s observations and conclusions were not unreasonable
considering the circumstances of the observations.
The trial court also noted that “[t]he observation of the blood-stained sheet
may be superfluous under Chambers v. Maroney, 399 U.S. 42” (1970), because
“the initial Fourth Amendment intrusion was the seizure of the vehicle, and a
proper analysis would be to review of [sic] the facts as they existed at that time.”
In Chambers, the United States Supreme Court stated:
For constitutional purposes, we see no difference between on the one
hand seizing and holding a car before presenting the probable cause
issue to a magistrate and on the other hand carrying out an immediate
search without a warrant.  Given probable cause to search, either
course is reasonable under the Fourth Amendment.
399 U.S. at 52.  We find no error in the rulings of the trial court.
Simmons further alleges that the testimony as to when Detective Brewer
signed the affidavit and when the magistrate issued the search warrant indicates
that Detective Brewer never saw the vehicle before signing the affidavit.  The trial
court acknowledged that although there was “some question as to when the
affidavit and warrant were presented to the magistrate,” the trial court did “not find
the discrepancy in time [to be] any indication of untoward action on behalf of the
Lake County[] Sheriff’s Department.”   Considering the totality of the
circumstances and the deference we give to the trial court regarding factual
determinations, we find no error.  Based on the analysis concerning Simmons’
- 27 -

statements and the search of his vehicle, we also find no merit to Simmons’
contention that the arrest of Simmons was the result of police misconduct.
IV.    Testimony of Defense Expert in Eyewitness Identification
In his next issue on appeal, Simmons argues that the trial court erred in
refusing to admit Dr. John Brigham’s expert testimony concerning the
psychological factors that contribute to erroneous witness identifications when law
enforcement officers use suggestive techniques.
In Johnson v. State, 438 So. 2d 774 (Fla. 1983), this Court found no error in
a trial court’s refusal to allow such expert testimony:
A trial court has wide discretion concerning the admissibility of
evidence and the range of subjects about which an expert can testify.
Jent v. State, 408 So. 2d 1024 (Fla. 1981), cert. denied, 457 U.S.
1111, 102 S. Ct. 2916, 73 L. Ed. 2d 1322 (1982); Johnson v. State,
393 So. 2d 1069 (Fla. 1980), cert. denied, 454 U.S. 882, 102 S. Ct.
364, 70 L. Ed. 2d 191 (1981).  Expert testimony should be excluded
when the facts testified to are of such nature as not to require any
special knowledge or experience in order for the jury to form its
conclusions.  We hold that a jury is fully capable of assessing a
witness’ ability to perceive and remember, given the assistance of
cross-examination and cautionary instructions, without the aid of
expert testimony.
Id. at 777 (citation omitted).  Subsequently, in McMullen v. State, 714 So. 2d 368
(Fla. 1998), this Court considered whether the same expert witness, Dr. Brigham,
was improperly excluded as a witness when offering similar testimony.  This Court
concluded “that the admission of such testimony is within the discretion of the trial
judge and that . . . the trial judge did not abuse that discretionary authority by
- 28 -

refusing to allow the introduction of the expert testimony.”  Id. at 369.  This Court
stated in McMullen that Florida follows the “discretionary” view articulated in
Johnson regarding the admissibility of expert witness testimony concerning the
reliability of eyewitness testimony.  Id. at 370-71.  Dr. Brigham stated in his
proffered testimony in the present case that he would testify at trial to issues
similar to those in McMullen.   Under our case law we conclude the trial judge did
not abuse his discretion in disallowing Dr. Brigham’s testimony.
V.    State’s Entomology Expert
Simmons next argues that because Dr. Hogsette, the State’s expert in the life
cycle of flies, was not qualified as a forensic entomologist, the trial court erred in
allowing him to testify regarding the approximate time of Tressler’s death.
A trial judge has the discretion to determine if a witness’s qualifications
render him or her an expert, and this determination will not be overturned absent
clear error.  Johnson, 438 So. 2d at 777 (noting a trial court’s wide discretion
regarding evidence admissibility and expert testimony).  We conclude that the trial
court did not commit error in allowing Dr. Hogsette to utilize his knowledge of the
life cycle of flies and relate this knowledge to the estimated time of Tressler’s
death.  During trial, Dr. Hogsette testified concerning his experience in
entomology and his involvement in other murder cases, stating that other courts
had recognized him as an expert in the field of entomology and the life cycle of
- 29 -

flies.  He had worked on forensic cases since the 1970s, utilizing his expert
knowledge in determining the age of corpses, and he explained that the work he
has performed on flies involved the same principles that a forensic entomologist
would use.  Of course, there was also other evidence presented during trial, such as
the eyewitness testimony of the events preceding the murder, that placed Tressler’s
death during the time period opined by Dr. Hogsette.  We find that the trial court
did not err in allowing Dr. Hogsette to testify.
VI.    Identification of Tressler and Simmons’ Vehicle
Next, Simmons claims the trial court erred in denying Simmons’ motion to
exclude or preclude the identification of Simmons’ vehicle.14  He argues that the
procedures used to identify Simmons’ vehicle and Tressler were unnecessarily
suggestive because Ms. Renfro was shown only one photograph and one vehicle to
identify Tressler and Simmons’ vehicle, and Mr. Montz was shown only one
vehicle over a year after he first viewed it to identify Simmons’ vehicle.15
14.   Simmons’ brief states that arguments made at the trial court level
regarding Simmons’ motion to suppress are incorporated by reference into his brief
on this appeal.   “Merely making reference to arguments below without further
elucidation does not suffice to preserve issues, and these claims are deemed to
have been waived.”   Duest, 555 So. 2d at 852.  Therefore, any arguments not
expressly included in Simmons’ brief to this Court are not considered in this
appeal.
15.   Initially, we reject Simmons’ arguments that Ms. Renfro’s and Mr.
Montz’s identifications violated Simmons’ Sixth Amendment right to counsel.
Under Powell v. Alabama, 287 U.S. 45, 57 (1932), defendants have a right to
- 30 -

“The primary evil to be avoided in the introduction of an out-of-court
identification is a very substantial likelihood of misidentification.”  Grant v. State,
390 So. 2d 341, 343 (Fla. 1980) (citing Neil v. Biggers, 409 U.S. 188 (1972)).  In
Grant, this Court held that “a suggestive confrontation procedure, by itself, is not
enough to require exclusion of the out-of-court identification; the confrontation
evidence will be admissible if, despite its suggestive aspects, the out-of-court
identification possesses certain features of reliability.”                                390 So.2d at 343   (citing
Manson v. Brathwaite, 432 U.S. 98, 110 (1977)).  Therefore, the test for whether a
suggestive identification procedure should be excluded has two prongs: “(1) did
the police employ an unnecessarily suggestive procedure in obtaining an out-of-
court identification; [and] (2) if so, considering all the circumstances, did the
suggestive procedure give rise to a substantial likelihood of irreparable
misidentification.”   Id.
In Neil, the United States Supreme Court held that the factors a court should
consider to determine the likelihood of misidentification include
counsel at critical stages of their cases, including the time between arraignment and
the beginning of trial.  As the trial court noted and the State argues to this Court,
the two cases Simmons cites for his proposition, United States v. Wade, 388 U.S.
218 (1967), and Gilbert v. California, 388 U.S. 263 (1967), both involved
defendants participating in post-indictment lineups.  In Simmons’ case, Simmons
did not participate in the identifications of Tressler or his vehicle.  In fact, Ms.
Renfro’s identification of Tressler’s photograph occurred before Simmons was
arrested.
- 31 -

the opportunity of the witness to view [the person or object] at the
time of the crime, the witness’ degree of attention, the accuracy of the
witness’ prior description of the [person or object], the level of
certainty demonstrated by the witness at the confrontation, and the
length of time between the crime and the confrontation.
Neil, 409 U.S. at 199-200.  These factors have often been applied to cases
involving the identification of defendants, see, e.g., Fitzpatrick v. State, 900 So. 2d
495, 518 (Fla. 2005), and this Court has held that these factors also apply to the
identification of physical evidence.  Dennis v. State, 817 So. 2d 741, 760 (Fla.
2002) (“The factors to be considered in the determination of whether the
identification of the vehicle was reliable are all comparable to factors considered in
a witness’s identification of a suspect.”); Pittman v. State, 646 So. 2d 167, 171
(Fla. 1994) (holding that the Neil factors applied to identification of the
defendant’s wrecker).
We agree with Simmons that the methods employed by law enforcement in
this case were highly suggestive because only one photograph and one vehicle
were shown to witnesses, resulting in an affirmative answer to the first prong of the
out-of-court identification analysis.  See Washington v. State, 653 So. 2d 362, 365
(Fla. 1994) (holding that “the showing of a single photo [is] unduly suggestive”);
Way v. State, 502 So. 2d 1321, 1323 (Fla. 1st DCA 1987) (stating that the “use of
a single photograph is one of the most suggestive methods of identification
possible and is impermissibly suggestive under most circumstances”).  However,
- 32 -

we find no error in the rulings of the trial court that, considering the totality of the
circumstances, the procedures did not “give rise to a substantial likelihood of
irreparable misidentification,” and we answer the second prong of the out-of-court
identification analysis in the negative concerning both Ms. Renfro’s and Mr.
Montz’s identifications.
A.   Ms. Renfro’s Identifications of Tressler and Simmons’ Vehicle
Ms. Renfro testified at trial that she saw a white car slow down at a red light
when a woman tried to climb out, screaming, “Help me, help me, please.”  She
stated that the woman looked directly at her with fear in her eyes.  As Ms. Renfro
approached the car, yelling at the driver to stop, the car sped off, and she got in her
van and chased after the car until she lost the car.  Ms. Renfro testified that she
thought the car was a Chevrolet Corsica, but she didn’t “really know [her] cars too
well, just the body style reminded [her] of a Corsica.”  On December 4, 2001, three
days later, Ms. Renfro wrote a statement describing the events and people she had
witnessed, stating that the woman she saw was an older woman with “shorter,
pinned up” brown hair and a white T-shirt.  That same day, Detective Perdue
showed her one picture of Tressler, which she was able to identify right away.  Six
days later, on December 10, Ms. Renfro met Detective Perdue at the sheriff’s
office to view a car parked in the sallie port, which she identified as the car she had
seen on the night of December 1.  She testified at the hearing that she was sure it
- 33 -

was the same car because of the flag on the side window, a patriotic sticker in the
rear window, and the car’s blue interior.
Based on these facts, we agree that showing Ms. Renfro one picture of
Tressler and one vehicle was “unduly suggestive.”   See Washington, 653 So. 2d at
365.
However, . . . a pretrial identification obtained from suggestive
procedures is not per se inadmissible, but may be introduced into
evidence if “found to be reliable and based solely upon the witness’
independent recollection . . . at the time of the crime, uninfluenced by
the intervening illegal confrontation.”
Id. (quoting Edwards v. State, 538 So. 2d 440, 442 (Fla. 1989)).  Ms. Renfro had
an abundance of time and good lighting conditions to view the victim and the car.
She also gave written descriptions of Tressler and the vehicle she saw the night of
December 1 before viewing the single photograph of Tressler or Simmons’ vehicle
in the sallie port.  Because of the timing of the descriptions, we find no error in the
trial court’s conclusion that they were the result of Ms. Renfro’s independent
recollection, “uninfluenced by the intervening illegal confrontation.”  Id.   We
further conclude, using the Neil factors, that Ms. Renfro had adequate opportunity
to view the woman and car she saw on the night of December 1; her descriptions
were sufficiently accurate; she was certain of what she saw on the night of
December 1; and the length of time between the crime and her identifications was
only a matter of days.  Therefore, any discrepancies between Ms. Renfro’s
- 34 -

descriptions and what Tressler and Simmons’ car actually looked like, such as
Simmons’ claim that Ms. Renfro’s description of Tressler’s hair was inaccurate,
“were the proper subject of cross-examination, but not sufficient to amount to a bar
to admissibility.”  Dennis, 817 So. 2d at 761.
B.                                                                                       Mr. Montz’s Identification of Simmons’ Vehicle
Mr. Montz’s identification of Simmons’ vehicle did not occur until a year
after he initially described to Detective Perdue the car he witnessed, when
Detective Perdue showed him a videotape of Simmons’ car.  Mr. Montz then
identified the car without any hesitancy or uncertainty, and stated that he was sure
it was the same car because of its color, the number of doors, the spoked rims, the
amount of dirt, and its two dents.  He also recalled the flag hanging from the car’s
window.16  The trial court found that when applying the Neil factors, the lapse in
time between when Mr. Montz initially saw the car and when he was able to
identify it would “weigh in favor of finding that there [was] a substantial likelihood
of misidentification.”  However, the trial court held that after examining the
totality of the circumstances, there existed no substantial likelihood for
misidentification.
16.   Simmons argues that Mr. Montz stated that the vehicle he identified was
the same vehicle as the one he witnessed a year earlier, except for the dents, dirt,
wheels, and trim.  However, the record states that Mr. Montz was sure it was the
same car because of its color, the number of doors, the spoked rims, the amount of
dirt, and its two dents.
- 35 -

First, as with Ms. Renfro, we conclude that Detective Perdue’s showing Mr.
Montz a videotape of only one vehicle constituted an unduly suggestive
identification procedure under the first prong of the out-of-court identification
analysis.  Further, we agree with the trial court that the length of time that passed
between Mr. Montz’s first viewing of the car and his identification of it a year later
could result in a substantial likelihood of misidentification.
However, considering the other Neil factors, we conclude that the trial court
did not err in finding that Simmons has not satisfied the second prong of the test
for whether a suggestive identification should be excluded.  First, Mr. Montz had
an adequate opportunity to view the car the night he witnessed it because the area
was well lighted and there was nothing blocking his view.  Second, Mr. Montz’s
degree of attention was high, judging from the accuracy of his description of the
car, and his level of certainty was high as well.
VII.   The Constitutionality of Florida’s Death Penalty Statute
In his next issue on appeal, Simmons argues that Florida’s death penalty
statute, section 921.141, Florida Statutes (2003), is unconstitutional under Ring v.
Arizona, 536 U.S. 584 (2002).  We have previously addressed this contention on
direct appeal and have concluded that there is no basis for declaring Florida’s
statutory scheme facially unconstitutional.  See, e.g., Lawrence v. State, 846 So. 2d
440, 451 (Fla. 2003), cert. denied, 540 U.S. 952 (2003); Butler v. State, 842 So. 2d
- 36 -

817, 834 (Fla. 2003).  Further, in this case, by use of a special interrogatory
verdict, the jury expressly and unanimously found all of the aggravating factors
later relied upon by the trial court to impose a death sentence.  See Ring, 536 U.S.
at 609 (finding that the Sixth Amendment right to a jury trial precludes a procedure
by which a sentencing judge alone and without a jury finds aggravating factors
sufficient to invoke the death penalty); see also Everett v. State, 893 So. 2d 1278,
1282 (Fla. 2004) (rejecting the defendant’s Ring claim because the jury
unanimously recommended death, and one of the aggravating factors was that the
murder was committed during the course of a sexual battery or burglary, crimes of
which the jury also found the defendant guilty), cert. denied, 125 S. Ct. 1865
(2005); Caballero v. State, 851 So. 2d 655, 663-64 (Fla. 2003) (rejecting a Ring
claim on direct appeal where one of the aggravating circumstances the judge
considered was that the defendant committed the murder during the commission of
a burglary and kidnapping).
VIII.  Aggravators
In his final argument on appeal, Simmons argues that the trial court erred in
finding the evidence sufficient to establish three aggravators of a prior violent
felony, the murder being committed during the course of kidnapping and sexual
battery, and HAC.
A.    Previous Felony Conviction Involving the Use or Threat of Violence
to the Person
- 37 -

Simmons had previously been convicted of aggravated assault on a law
enforcement officer.  Further, section 921.141(5)(b), Florida Statutes (2001), states
that an assault involving the threat of violence qualifies as an aggravating factor for
purposes of imposing the death penalty.  The probable cause affidavit from that
case was read to the jury during the penalty phase of this case, and it stated that
Simmons’ car appeared to deliberately veer into oncoming traffic, forcing a police
officer to drive completely off the road to avoid a head-on collision.  Simmons
argues that because his prior conviction involved a drunk driving incident in which
a police officer only thought that Simmons was swerving at him, there was no
intent involved and, therefore, this conviction cannot be considered an aggravating
factor.  However, according to the probable cause affidavit introduced into
evidence, Simmons’ actions caused the officer to feel threatened and to take
evasive measures to avoid a head-on collision.  Based on this evidence, the penalty
phase jury found that the State proved this aggravating circumstance.  Similarly,
we conclude that this previous felony conviction was found as an appropriate
aggravating factor.
B.                                                                                        Murder Was Committed During the Commission of or Attempted
Commission of Kidnapping and Sexual Battery
Simmons next argues that the evidence does not support the finding that the
murder occurred during the commission of kidnapping and sexual battery.
- 38 -

Simmons was found guilty during the guilt phase of kidnapping and sexual battery
using force likely to cause serious injury based on the evidence of sexual injury
found on the victim’s body.  These facts, coupled with the eyewitness testimony
placing Tressler in Simmons’ car screaming for help the night of December 1,
2001, constitute substantial competent evidence to support the trial court’s finding
that Simmons committed the murder while engaged in a kidnapping and sexual
battery under section 921.141(5)(d), Florida Statutes (2001).
C.                                                                                         HAC
The HAC aggravator applies “only in torturous murders―those that evince
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.”  Rose v. State, 787 So. 2d 786, 801 (Fla. 2001) (quoting Guzman v.
State, 721 So. 2d 1155, 1159 (Fla. 1998)).  Further, this Court has previously
“upheld HAC in beating deaths” presenting similar circumstances to those
involved herein.  Lawrence v. State, 698 So. 2d 1219, 1222 (Fla. 1997); see also
Dennis, 817 So. 2d at 766 (trial court’s finding of HAC was supported by evidence
that the victims suffered skull fractures as the result of a brutal beating and that the
victims were conscious for at least part of the attack); Bogle v. State, 655 So. 2d
1103, 1109 (Fla. 1995) (trial court’s finding of HAC was supported by evidence
that the victim was struck seven times in the head and the medical examiner
- 39 -

testified that the victim was alive at the time of the infliction of most of the
wounds); Wilson v. State, 493 So. 2d 1019, 1023 (Fla. 1986) (trial court’s finding
of HAC was supported by evidence that victim was brutally beaten while
attempting to fend off blows to the head before he was fatally shot).
In this case, Simmons argues that because it is possible that the first blow to
Tressler’s head rendered her unconscious, HAC should not apply.  However, Dr.
Gulino, the medical examiner, described numerous wounds that, in his opinion,
were inflicted prior to Tressler’s becoming unconscious.  Further, Tressler suffered
approximately twenty-five defensive wounds and other nonfatal stab wounds and
blunt trauma injuries.  Additionally, Dr. Gulino unequivocally stated that the injury
to Tressler’s anus occurred prior to her death because of the extensive bruising and
laceration.  Also, Ms. Renfro testified that Tressler appeared terrified when she
saw her in Simmons’ car the night she was last seen.  Based upon all of this
evidence, we uphold the trial court’s finding of HAC as an aggravating
circumstance.
IX.    Proportionality
The Court performs a proportionality review to prevent the imposition of
“unusual” punishments contrary to article I, section 17 of the Florida Constitution.
See Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991).   “The death penalty is
reserved for ‘the most aggravated and unmitigated of most serious crimes.’ ”
- 40 -

Clark v. State, 609 So. 2d 513, 516 (Fla. 1992) (quoting State v. Dixon, 283 So. 2d
1, 7 (Fla. 1973)).  In deciding whether death is a proportionate penalty, we
consider the totality of the circumstances of the case and compare the case with
other capital cases.  See Urbin v. State, 714 So. 2d 411, 417 (Fla. 1998).  However,
this proportionality review “is not a comparison between the number of
aggravating and mitigating circumstances.”  Sexton v. State, 775 So. 2d 923, 935
(Fla. 2000) (quoting Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990)).
In this case, the trial court found three aggravating circumstances: (1) A
previous conviction of a felony involving the use or threat of violence to a person;
(2) the murder was committed in the course of a kidnapping and sexual battery;
and (3) HAC.  The court found no statutory mitigators, but did find several
nonstatutory mitigators that were given either some or minimal weight.  This Court
has stated that HAC is one of the most serious aggravators in the statutory
sentencing scheme.  See Morton v. State, 789 So. 2d 324, 331 (Fla. 2001); Larkins
v. State, 739 So. 2d 90, 95 (Fla. 1999).  Recently, in Boyd v. State, 910 So. 2d 167
(Fla. 2005), cert. denied, 126 S. Ct. 1350 (2006), this Court concluded that the
death penalty was proportionate where the trial court considered and weighed two
aggravating factors (HAC and that the murder was committed while the defendant
was committing or attempting to commit kidnapping and sexual battery) against
one statutory mitigator (that the defendant had no significant prior criminal history,
- 41 -

which the trial court afforded medium weight) and five nonstatutory mitigators
(including that the defendant came from a good family and showed remorse for his
actions).   See also Dessaure v. State, 891 So. 2d 455, 472-73 (Fla. 2004) (death
sentence was proportionate where, although the rape kit was negative, the
defendant inflicted a total of fifty-three wounds, including multiple lethal stab
wounds to the torso and neck; the trial court found that the aggravators of a
previous conviction of a violent felony, prior felony conviction

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