SC06-252 – Charles C. Peterson v. State of Florida - Corrected Opinion Released 03/19/2009

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State: Florida

Court: Supreme Court

Docket No: sc06-252

Case Date: 01/29/2009

Plaintiff: SC06-252 – Charles C. Peterson

Defendant: State of Florida – Corrected Opinion

Preview:Supreme Court of Florida
No. SC06-252
CHARLES C. PETERSON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 29, 2009]
CORRECTED OPINION
PER CURIAM.
This case is before the Court on appeal from a judgment of conviction of
first-degree murder and a sentence of death arising from the fatal shooting of John
Cardoso during a robbery on December 24, 1997.  We have jurisdiction.   See art.
V, § 3(b)(1), Fla. Const.  For the reasons that follow, we affirm the conviction and
sentence.
I.  FACTS AND PROCEDURAL HISTORY
The evidence presented at the trial of appellant Charles C. Peterson
established the following.  Karen Smith testified that she worked as an assistant
manager at a Big Lots in St. Petersburg, Florida, on the evening of December 24,

1997.   She testified that while she and two other employees were in the store’s
office after the store closed at 6 p.m., she heard a “ruckus.”  She explained that
when she opened the locked office door, she was immediately confronted by a man
pointing a gun at her.  Maria Soto, who also worked as an assistant manager at the
Big Lots on December 24, 1997, testified that while she was in the office after
closing, she heard a noise from the break room that sounded like furniture banging
or firecrackers.  Soto confirmed that when Smith opened the door to investigate the
noise, “[w]e walked right into a man with a nylon stocking [covering his face] and
a gun in his hand.”  Smith described the man as black, about five feet four inches
or five feet six inches tall, weighing 130 to 140 pounds, with “pudgy cheeks.”  He
wore a “nylon scarf” over his face and off-white latex gloves.  Soto described the
man as black, between five feet six inches and five feet eight inches tall, and noted
that he wore latex gloves.
Both witnesses testified that the man escorted the three employees from the
office through the employee break room into the stockroom.  The man held the gun
to Smith’s head as they walked.  Smith testified that John Cardoso, another
employee, was lying on the floor of the break room when they entered.  Soto
testified that the man forced her and the other employees to step over Cardoso.
Once in the stockroom, the three women and Josh McBride, another employee who
had entered the stockroom, were made to get down on their hands and knees.
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Smith testified that the man repeatedly told them to “stay on your hands and knees
you bitches and don’t look at me.”  Soto testified that the man put the gun to her
temple and told her not to look at him.   After asking who was in charge, the man
pulled Smith to her feet and told the others that “if [they] moved, he will kill her
and anyone else.”  Smith explained that the robber used her to lure the remaining
store employee, Wanda Church, to the back of the store, after which he took
Church to the stockroom.   The man then forced Smith to go into the office with
him.  The man took a backpack from the merchandise area of the store and had
Smith fill it with money.  He stated that he wanted “all of the large money.”  He
told Smith to “hurry up you bitch” and demanded that she not look at him.  Smith
testified that after collecting money from the office, the man moved everyone into
the break room and made them lie on the floor near Cardoso’s body.  The man then
exited through the store’s back emergency exit, which he previously had Smith
unlock.  After the man left, Soto and Church got up to seek help.
Officer Richard L. McKee, of the City of St. Petersburg Police Department,
testified that when he arrived at Big Lots at approximately 6:30 p.m. on December
24, 1997, he found a shooting victim lying face down in a break room and three
other individuals who appeared to be in shock also lying face down in the room
with their hands behind their heads.
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Dr. Noel Palma, Associate Medical Examiner for Pinellas and Pasco
Counties, testified as an expert in forensic pathology on behalf of the State.  He
testified that the cause of Cardoso’s death was a gunshot wound to the trunk.  He
testified that there were abrasions and contusions on the victim’s right back, arm,
and hand that appeared to have been inflicted shortly before or certainly within the
same day as death.  Dr. Palma explained that a bullet entered Cardoso’s left back
and was recovered from the right lobe of his liver, indicating that the bullet had
traveled left to right, back to front, and downward across the body.  Dr. Palma
opined that given the soot pattern on the victim’s shirt, the gun muzzle was less
than a foot from the victim when fired.
Smith testified that during the investigation of this crime, she identified the
robber in a photopack shown to her by law enforcement officers.  Although she
could not previously identify the assailant, at trial Soto identified Peterson as the
man she suspected of stealing from the Big Lots during operating hours on
December 24, 1997, who she believed was the same man who later robbed the
store because both men appeared to be wearing the same clothing that day.  James
Ronald Davis, who was a customer in Big Lots between 5:30 p.m. and 6 p.m. on
December 24, 1997, testified that while shopping he encountered a black male
pacing in the back aisle of the store.  Davis testified that he observed the man for
about five minutes and described him as five feet nine inches or five feet ten inches
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tall with a medium build and thin mustache.   Davis stated that when he went to the
front of the store to pay for his items two or three minutes after the last checkout
announcement, the man remained in the back of the store.  Davis testified that
although he did not think he could identify that man from the store at the time of
trial, in 1998 he identified Peterson from a photopack as the man he saw lingering
in the back of Big Lots at closing on December 24, 1997.
Several law enforcement personnel associated with the City of St. Petersburg
Police Department testified about the search of two residences pursuant to search
warrants.  One residence was the home of Peterson’s father, and the other was the
home of Peterson’s sister.  Two pieces of grayish-black nylon stockings were
seized from a dresser in a bedroom of his father’s house.  Three latex gloves were
seized from a kitchen drawer in his sister’s house.  A gray nylon cap and a piece of
nylon stocking were found in vehicles owned and operated by Peterson.
Janet Staples Hillman Gosha, Peterson’s former girlfriend, testified that
sometime between 1996 and September 1998, when looking for cleaning supplies,
she found cash in bank wrappers in a box underneath the sink in their home.  She
testified that she saw money inside a safe at their residence that was not hers and
that she once found a small, silver gun in a bedroom drawer with some of
Peterson’s belongings.  She stated that the gun did not belong to her or her adult
son.  She explained that while she drove one of Peterson’s vehicles when she lived
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with Peterson, she did not leave pantyhose in the car and that she did not recall
Peterson wearing a wave cap or processing his hair in a manner that would require
use of a wave cap.
In addition, pursuant to Williams v. State, 110 So. 2d 654, 663 (Fla. 1959),
the State presented evidence that Peterson had robbed a Family Dollar, a Phar-
Mor, and a McCrory’s in the greater Tampa/St. Petersburg area between February
of 1997 and August 1998.
Mary Palmisano, an employee who worked at a Family Dollar in Tampa,
Florida, on February 14, 1997, testified that after she locked the doors that evening,
she went into the store’s office and encountered a man with a gun.  She stated that
the man was black, about five feet eight inches or five feet ten inches tall and was
wearing a mask that appeared to be made of thick stockings.  Palmisano testified
that the man asked for “big money,” referred to her and her female coworker as
“bitches,” and repeatedly told them to not look at him.  The man made her and her
coworker lie face down on the floor and tied them up with cords from the office.
In order to avoid admitting unfairly prejudicial evidence of a sexual battery,
the trial court read a stipulation that DNA was recovered in the Family Dollar
crime.  Testing revealed that this DNA matched Peterson’s known DNA sample.
Two employees of a St. Petersburg Phar-Mor testified about events in that
store on May 12, 1998.  Glendene Day testified that shortly after closing, she was
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confronted by a person in the storeroom who was not an employee.  She described
the person as a black male, about five feet six inches or five feet seven inches tall,
medium build, wearing a mask, and carrying a gun.  Day further described the
mask as being made of black nylon that was “thin enough to see out of but thick
enough that I couldn’t see in.”  She stated that the man wore latex gloves, a black
shirt, and tennis shoes.  She explained that the man put the gun to her head, ordered
her not to look at him, asked how many other employees were in the store, and told
her she better not be lying.  The man forced Day to call the other employees to the
back room, where he ordered them to lie on the ground and used electrical tape,
plastic strapping from boxes, and telephone cord to tie up two of the employees.
Rather than bind Day, the man told her to walk him to where the money was kept.
The man forced Day to unlock the office.  He took manila envelopes from the
office and directed Day to fill them with money.  After gathering the money, she
and the robber returned to the back room.   The man made Day demonstrate that no
alarm would sound when he opened the back exit and then bound Day with plastic
strapping and telephone cord.   The other employee to testify, Sirisone Vorasane,
confirmed that after closing she was called to the warehouse, where she was
confronted by an armed man who told her and her coworker to lie on the floor with
their faces down and tied her hands and legs with plastic box ties.  She described
the man as “not that tall” with a petite build.
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A hair was found on a piece of electrical tape used to bind a Phar-Mor
employee.  Testing of the hair established that mitochondrial DNA extracted from
the hair was consistent with Peterson’s known mitochondrial DNA profile.  Shoe
prints matching tennis shoes seized from a storage unit rented by Peterson were
found in the Phar-Mor office.  Gosha testified that in May 1998 she was asked by
law enforcement officers to watch a surveillance video from the Phar-Mor robbery.
At that time, she identified the person entering the store as Peterson.  The
surveillance tape was played for the jury, and Gosha again identified the person
she saw in the tape as Peterson.  Similarly, Ron T. Hillman, Gosha’s brother,
testified that he was previously asked by law enforcement officers to watch part of
the Phar-Mor surveillance tape and that he identified the person he saw as
Peterson.  While on the stand, Hillman was shown the tape and again identified
Peterson.
Ann Weber, an employee who worked at a St. Petersburg McCrory’s on
August 29, 1998, testified that just before 6 p.m., she went to the back of the store
to have a cigarette and throw out the trash.  When she walked through the dark
stockroom, a man wearing a stocking over his face came out of the employee
bathroom.   Weber described the man as having “high, pudgy cheek bones.”  She
testified that the man held a small gun to her head and said, “Don’t fucking look at
me or I’ll kill you.”  Weber explained that the man asked her to deactivate the
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buzzer on the office door and then made her enter the office, crawl up the steps to
where the money was kept so that no one in the store would see her, and open the
safe.  When Weber began to take the money out of the bags in which it was kept,
the man said, “No, you stupid bitch.”  Weber testified that the man asked her, “You
close at six, right?”  Upon being told that McCrory’s was open until 8 p.m., the
man became “aggravated.”  Weber testified that after collecting the money, the
man took her to the employee bathroom, made her lie face down, and asked if there
was any rope.  He exited the store through the back door.  Weber testified that she
identified her assailant from a photopack during the investigation of the robbery
and identified Peterson in the courtroom as the man who had robbed her.  She
explained that she was able to see his face through the stocking when she first
encountered him because she was using a lighter to light her cigarette.
A law enforcement officer testified that when searching the home of
Peterson’s father, he found a green bank bag behind a refrigerator in the garage.
Inside the bag, he found a white plastic McCrory’s bag; about thirty documents
including checks, a bank deposit slip, charge card receipts with McCrory’s store
number; an air freshener with a fifty-cent price tag; a McCrory’s receipt for fifty
cents; a $20 bill; and what appeared to be a firearm but was actually a pellet gun.
Weber identified the green bank bag as the one kept in the McCrory’s safe and all
the recovered documents as things that would have been kept in the bag—except
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the McCrory’s receipt for fifty cents.  A latent print examiner testified that a
fingerprint and a palm print matching Peterson’s were found on a check and the
receipt.
On July 27, 2005, the jury found Peterson guilty of first-degree murder by
general verdict.  The trial court conducted a one-day penalty phase during which
the State and the defense presented evidence.
During the State’s presentation, the parties stipulated that Peterson had been
convicted previously of thirteen felonies involving the use or threat of violence,
including multiple convictions for robbery with a firearm, sexual battery, and false
imprisonment, resulting in nine life sentences.  The parties also stipulated that
Peterson was on life parole from March 3, 1992, through October 20, 1998, which
included December 24, 1997, the date of the homicide.  The State then presented
the testimony of one witness.  Dale Smithson testified that he was on duty at a
Jimmy Spur gas station in St. Petersburg, Florida, on April 30, 1981.  Smithson
explained that after locking the door at closing, he was confronted by a man with a
gun who demanded money.  The robber was later proven to be Peterson.
The defense called two mental health professionals and three lay witnesses
to testify.  On direct examination, Michael Scott Maher, M.D., a physician and
psychiatrist, testified that Peterson functioned at the level of a mid-teenager,
fourteen to sixteen years of age.  He opined that “Mr. Peterson does have some
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capacity to conform his behavior to the requirements of the law, but that capacity is
less than an average adult, substantially less than an average adult.”  Based on
Peterson’s age and history of only minor infractions while in prison, Dr. Maher
opined that Peterson is likely to be well-behaved in prison.  On cross-examination,
Dr. Maher testified that Peterson meets the criteria for antisocial personality
disorder.  He testified at length about the general characteristics of individuals with
that disorder and whether Peterson displayed those characteristics.  Dr. Valerie R.
McClain, a forensic psychologist, testified that she performed IQ testing on
Peterson and that his full-scale score on the Wechsler Adult Intelligent Scale was
77, placing him in the borderline range.   On cross-examination, Dr. McClain
testified that Peterson graduated from high school with a 2.0 grade point average.
Linda Dyer, a classifications supervisor and custodian of records for the
Pinellas County Sheriff’s Office, testified that Peterson had received only one
disciplinary report since he came into the custody of the Pinellas County Sheriff on
January 19, 2001.  She opined that one disciplinary report in that amount of time
was a good record.  Annie Peterson, Peterson’s mother, testified that she never
heard of Peterson getting in trouble in school and that after graduation he joined
the Army.  She testified that while paroled, Peterson worked in food and beverage
service at the Marriott Hotel for seven years, part of that time as a manager.
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Laquanda Monique Peterson, Peterson’s niece, testified that Peterson was like a
father to her.
On July 29, 2005, the jury recommended the death sentence by an eight-to-
four vote.  After conducting a hearing pursuant to Spencer v. State, 615 So. 2d 688
(Fla. 1993), and considering post-trial motions, the trial court followed the jury’s
recommendation and sentenced Peterson to death.  State v. Peterson, No. CRC00-
05107-CFANO-I (Fla. 6th Cir. order filed Jan. 6, 2006) (Sentencing Order).  The
trial court found and assigned weight to three aggravating factors,1 one statutory
mitigating factor,2 and five nonstatutory factors.3   Id. at 4-15.
1.   The aggravating factors were: (1) Peterson was under a sentence of
imprisonment at the time of the murder—life parole for three 1981 robberies
(assigned great weight); (2) Peterson was previously convicted of a violent felony,
based on thirteen convictions, resulting in a total of nine life sentences (assigned
great weight); and (3) Peterson committed the murder during the commission of a
robbery (assigned significant weight).
2.   The trial court found the age statutory mitigating factor, despite
Peterson’s age of thirty-eight at the time of the offense, based on expert testimony
that he functioned at the emotional level of a fourteen- to sixteen-year-old.  This
factor was given little weight.
3.   The nonstatutory mitigating factors were: (1) Peterson had a low to
normal IQ (assigned little weight); (2) Peterson had some limited mental
impairment (assigned little weight); (3) Peterson had a good relationship with at
least two family members (assigned some weight); (4) Peterson had a consistent
work history (assigned some weight); and (5) Peterson had an exemplary
disciplinary record in jail and likely will behave properly when placed in prison
(assigned little weight).
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In this appeal, Peterson argues that (A) the trial court erred by admitting
evidence of three collateral robberies; (B) death by lethal injection constitutes cruel
and unusual punishment; (C) his death sentence is disproportionate; (D) the trial
court erred in denying defense counsel’s motion for a new penalty phase due to the
presentation of evidence and argument that Peterson lacked remorse; (E) Florida’s
capital sentencing process is unconstitutional pursuant to Ring v. Arizona, 536
U.S. 584 (2002); and (F) the penalty-phase jury instructions unconstitutionally
shifted the burden of proof to the defendant.  In addition to considering Peterson’s
arguments on appeal, this Court reviews the record to confirm that sufficient
evidence supports the jury’s verdict.   See Fla. R. App. P. 9.142(a)(6).
II.  ANALYSIS
A.  Admission of Collateral Crime Evidence
In Williams, this Court held that “evidence of any facts relevant to a material
fact in issue except where the sole relevancy is character or propensity of the
accused is admissible unless precluded by some specific exception or rule of
exclusion.”   110 So. 2d at 663.  The rule has since been codified in section
90.404(2)                                                                                 (a), Florida Statutes (2005), which provides:
Similar fact evidence . . . is admissible when relevant to prove a
material fact in issue, including, but not limited to, proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident, but it is inadmissible when the evidence is
relevant solely to prove bad character or propensity.
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This Court has held that before admitting collateral crime evidence, the trial court
must make four determinations: whether there is sufficient evidence that defendant
committed the collateral crime; whether the collateral crime meets the similarity
requirements necessary to be relevant; whether the collateral crime is too remote,
so as to diminish its relevance; and whether the prejudicial effect of the collateral
crime substantially outweighs its probative value.   Robertson v. State, 829 So. 2d
901, 907-08 (Fla. 2002).  In McLean v. State, 934 So. 2d 1248, 1255 (Fla. 2006),
this Court explained the substantial similarity requirement, stating:
[I]n cases where the purported relevancy of the collateral crime
evidence is the identity of the defendant, we have required
“identifiable points of similarity” between the collateral act and
charged crime that “have some special character or [are] so unusual as
to point to the defendant.”  Drake v. State, 400 So. 2d 1217, 1219
(Fla. 1981).  This is because “[t]he mode of operating theory of
proving identity is based on both the similarity of and the unusual
nature of the factual situations being compared.”  Id.  Thus, “[a] mere
general similarity will not render the similar facts legally relevant to
show identity.”  Id.
The Court considers both similarities and dissimilarities between the collateral
crimes and the charged offense when reviewing whether “a sufficiently unique
pattern of criminal activity [justifies] admission.”  Peek v. State, 488 So. 2d 52, 55
(Fla. 1986) (quoting Chandler v. State, 442 So. 2d 171, 173 (Fla. 1983)).  A trial
court’s determination that evidence is relevant and admissible “will not be
disturbed absent an abuse of discretion.”   Taylor v. State, 855 So. 2d 1, 21 (Fla.
2003) (quoting Sexton v. State, 697 So. 2d 833, 837 (Fla. 1997)).
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Peterson does not dispute that he committed the collateral robberies.  His
appellate counsel informed this Court that Peterson was either convicted or pled
guilty to each collateral robbery.  Instead, Peterson argues that the Family Dollar,
Phar-Mor, and McCrory’s robberies were not sufficiently factually similar to the
charged offense to be relevant and that the collateral crime evidence improperly
became a feature of the trial.  After reviewing the record, we find that the trial
court did not abuse its discretion in allowing the collateral crime evidence.
In Rogers v. State, 511 So. 2d 526 (Fla. 1987), the defendant was charged
with murdering a man as he exited a Winn-Dixie grocery store after attempting to
rob the store.  This Court found that evidence of two robberies committed
subsequent to the charged homicide was admissible.   The Court explained:
The trial court, listing the following similarities, correctly deemed the
collateral-crimes evidence a “close, well-connected chain of similar
facts” between all the robberies:
1) Target is a chain-type grocery store.
2) Robbery takes place just prior to closing.
3) Two white males involved, one slightly taller than the other.
Both in the mid twenties or early thirties.
4) Both wear nylon stocking masks.
5) Each carries an automatic type firearm (handgun).
6) One robber directs his attention to the cash registers, while
the other seeks out the office and office safe area containing
cash receipts.
7) Both robbers direct patrons and employees to “lay on the
floor.”
8) Unnecessary violence and physical contact with victims is
sought to be avoided.
9) Bags are used to secure money, plastic or pillow cases.
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10) Tom McDermid was one of two participants.
Id. at 531.  Similarly, in Black v. State, 630 So. 2d 609, 618 (Fla. 1st DCA 1993),
the First District Court of Appeal affirmed the admission of evidence of two
collateral robberies because while none of the similarities between the crimes were
sufficiently unique on their own, when considered “in conjunction” they did rise to
the level of uniqueness required for admission.  The First District found dispositive
that in each crime
large retail stores were robbed at the end of weekend business; store
employees were confined, given similar instructions, and telephones
were dismantled; the robber in each instance appeared to have some
prior knowledge of the business premises and, the robber in each
instance wore a ski mask, gloves, carried a large automatic pistol, and
had the same physical characteristics.
Id. at 618.
Rogers and Black refute Peterson’s claim that the cumulative pattern of
crimes in his case was insufficient to establish relevance.  The four crimes in
Peterson all involved characteristics similar to and as numerous as those found in
Rogers and Black: (1) all robberies took place in discount stores; (2) all robberies
took place just after closing (or when the perpetrator believed store was about to
close); (3) the perpetrator hid in a nonpublic area of the store and waited for an
employee to come to him; (4) the perpetrator was a black male of slight to medium
build; (5) the perpetrator wore a nylon stocking mask covering his whole face; (6)
the perpetrator carried a small firearm which he held to employees’ heads; (7) the
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perpetrator used an employee to obtain cash from the store’s office; (8) the
perpetrator used materials from the store to secure the stolen money; (9) the
perpetrator directed employees to lie on the floor; (10) the perpetrator directed
employees to not look at him; (11) the perpetrator referred to store employees as
“bitches”; and (12) the perpetrator exited through the store’s back exit.  When the
circumstances of the crimes are considered cumulatively, “identifiable points of
similarity . . . pervade the compared factual situations” and point to the defendant.
Drake, 400 So. 2d at 1219.
In addition, the Court in Rogers did not find the dissimilarity of a murder
occurring in one attempted robbery where violence had been avoided in the other
robberies to render the collateral crime evidence irrelevant.  Thus, Peterson’s
argument that the sexual batteries during the Family Dollar robbery and the
homicide during the Big Lots robbery render the collateral crime evidence
irrelevant is unpersuasive.  The sexual batteries and homicide are material
differences between the crimes that must be considered in evaluating the
admissibility of the collateral crime evidence.  However, the trial court did not
abuse its discretion because the substantial similarities among the crimes greatly
outweighed the dissimilarities.
We also conclude that the trial court did not abuse its discretion by allowing
the collateral crime evidence to become a feature of the trial.  In Conde v. State,
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860 So. 2d 930 (Fla. 2003), this Court explained that relevant evidence of
collateral crimes impermissibly becomes a feature of the trial when the evidence
“‘transcend[s] the bounds of relevancy to the charge being tried’ and the
prosecution ‘devolves from development of facts pertinent to the main issue of
guilt or innocence into an assault on the character of the defendant.’”   Id. at 945
(quoting Williams v. State, 117 So. 2d 473, 475 (Fla. 1960)).  The Court found that
it is “not solely the quantity but also the quality and nature of collateral crimes
evidence in relation to the issues to be proven” that determines whether it became a
feature of the trial.   Id. at 946.  The quality at issue is the relevancy of the
evidence, not whether it is physical evidence or testimony.  The Court noted that it
had previously affirmed the admission of extensive collateral crime evidence
where that evidence was wholly probative of material issues, see, e.g., Wuornos v.
State, 644 So. 2d 1000, 1006-07 (Fla. 1994) (affirming admission of evidence of
six collateral murders), and that where the Court had reversed the admission of
extensive collateral crime evidence, it did so because the evidence lacked
relevance.  See, e.g., Steverson v. State, 695 So. 2d 687, 690-91 (Fla. 1997)
(holding admission of evidence of resisting arrest was reversible error because
“blow-by-blow” account of law enforcement officer’s injuries and recovery was
irrelevant to charged offense); Billie v. State, 863 So. 2d 323, 329 (Fla. 3d DCA
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2003) (finding evidence of irrelevant prior “bad acts” impermissibly became
feature of trial).
More specifically in Conde, the Court found no error where the trial court
allowed evidence concerning five collateral murders presented over the course of
three days in the prosecution of a sixth murder.  The Court explained that “the
length of this testimony was unavoidable given the fact that five collateral crimes
were involved.”   860 So. 2d at 946-47.  The Court further explained:
Additionally, the record reflects that the State limited its evidence
regarding the five prior murders: a single medical examiner was called
to summarize from the records of numerous other examiners the
cause-of-death evidence for all five murders; only one serologist, one
DNA criminologist, and one trace-evidence specialist gave summary
testimony regarding the DNA and fiber evidence linking the collateral
crimes; and the State rapidly introduced collateral crime-scene
testimony from eight detectives, including cross-examination, over the
course of only six hours.  As for photographs, the State introduced
approximately five for each collateral murder, each of which had a
specific purpose of establishing the similarity between the crimes.
Given the trial court’s vigilance in its duty to ensure that the collateral
crimes evidence did not become a feature of the trial, we find that no
abuse of discretion occurred in the admission of this evidence.  In so
concluding, we place special emphasis on the fact that the trial court
repeatedly instructed the jury as to the proper purpose of this Williams
rule evidence each time it was introduced.
Id. at 947 (footnote omitted).   Similarly, in Wuornos, 644 So. 2d at 1006 (quoting
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978)), the Court found that
evidence about six collateral murders was not needless “overkill” where the
evidence was relevant to refuting Wuornos’s claim of self-defense.
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In this case, the trial court did not err in allowing evidence of the three
collateral robberies to be presented because, as discussed above, all of the
collateral robberies were sufficiently similar to the charged crime to be probative
of identity, which rendered the evidence relevant and admissible.  Moreover, as in
Conde, the State limited its presentation of collateral crime evidence.  Many of the
collateral crime witnesses testified briefly, and much of the testimony was
unavoidable due to the number of robberies involved.  The State limited the
emotional impact of its presentation by having only four victims testify and
cooperated with the trial court and the defense to ensure that unduly prejudicial
evidence was not admitted.  Importantly, none of the evidence in Peterson was
offered merely to demonstrate Peterson’s criminal propensity—all of the evidence
was directed at proving he committed the collateral crimes and that the crimes
were similar to the charged offense.  The collateral crime evidence in this case was
not like the testimony about child abuse that was found to be more unfairly
prejudicial than probative in Sexton v. State, 697 So. 2d 833, 837 (Fla. 1997),
where the testimony “had no bearing upon Sexton’s treatment of” the child he
forced to commit the murder and “Sexton was not on trial for the maltreatment of
his children.”
Also as in Conde, the trial court was “vigilan[t] in its duty to ensure that the
collateral crimes evidence did not become a feature of the trial.”   860 So. 2d at
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947.   The trial court scrupulously instructed the jury on the proper use of Williams
rule evidence before each collateral crime witness and as an additional precaution
gave a “hybrid” Williams rule instruction before each witness that would be
testifying about both the charged offense and the collateral crimes.
In conclusion, we agree with the finding of the Fourth District Court of
Appeal in Townsend v. State, 420 So. 2d 615 (Fla. 4th DCA 1982), that collateral
crime evidence does not become the impermissible feature of the trial simply
because it is voluminous.  The trial court did not abuse its discretion by allowing
the collateral crime evidence because it was probative of material issues and its
probative value was not substantially outweighed by the danger of unfair prejudice.
B.  Lethal Injection
Peterson argues that Florida’s lethal injection process is unconstitutional
because it employs a three-drug protocol that may cause undue pain and because it
does not require trained medical personnel to participate in the execution.  These
arguments have been rejected previously by this Court.   See Lightbourne v.
McCollum, 969 So. 2d 326, 350 n.22 (Fla. 2007) (rejecting arguments about
whether execution team members are “adequately experienced” and “medically
qualified” and whether pancuronium bromide should be part of protocol because it
is used for “purely cosmetic reasons”); see also Schwab v. State, 969 So. 2d 318,
324-25 (Fla. 2007) (affirming summary denial of claim challenging three-drug
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protocol because Schwab did not allege existence of any new evidence about the
chemicals not considered in Lightbourne or Sims v. State, 754 So. 2d 657, 668
(Fla. 2000)).  Peterson does not point to any new evidence supporting these
arguments.  Furthermore, this Court has held that the Supreme Court’s decision in
Baze v. Rees, 128 S. Ct. 1520 (2008), does not require reconsideration of
Lightbourne and Schwab.  See Henyard v. State, 992 So. 2d 120, 129 (Fla.), cert.
denied, 129 S. Ct. 28 (2008).  Thus, Peterson’s claim is without merit.  See
Tompkins v. State, 33 Fla. L. Weekly S897 (Fla. Nov. 7, 2008) (listing cases where
Court has rejected lethal injection claims that do not raise new issues).
C.   Proportionality
To ensure uniformity of sentencing in death penalty proceedings, this Court
considers the totality of circumstances and compares each case with other capital
cases.  The Court does not simply compare the number of aggravating and
mitigating circumstances.  Taylor v. State, 937 So. 2d 590, 601 (Fla. 2006).
Peterson argues that this Court’s decision to reverse the death sentence in Terry v.
State, 668 So. 2d 954 (Fla. 1996), demonstrates that his death sentence is likewise
disproportionate.  This argument is without merit.
In Terry, the defendant was convicted of shooting a customer during a
convenience store robbery.  Despite the trial court finding no mitigation, the Court
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found the death sentence disproportionate because there was comparatively weak
aggravation:
The first aggravator (a capital felony committed during the
course of an armed robbery/pecuniary gain) is based on the armed
robbery being committed by appellant when the killing occurred.  The
second aggravator, prior violent felony, does not represent an actual
violent felony previously committed by Terry, but, rather, a
contemporaneous conviction as principal to the aggravated assault
simultaneously committed by the codefendant Floyd who pointed an
inoperable gun at Mr. Franco.   While this contemporaneous
conviction qualifies as a prior violent felony and a separate
aggravator, we cannot ignore the fact that it occurred at the same time,
was committed by a codefendant, and involved the threat of violence
with an inoperable gun.  This contrasts with the facts of many other
cases where the defendant himself actually committed a prior violent
felony such as homicide.
Id. at 965-66.  The aggravating circumstances in the instant case are weightier than
those found in Terry.  The robbery aggravator was based on similar facts, but
unlike Terry, Peterson has been convicted of thirteen other violent felonies and was
on life parole at the time of the murder.   Peterson is a case “where the defendant
himself actually committed a prior violent felony.”   Terry, 668 So. 2d at 966.
Moreover, the facts of this case are comparable to other murders during
robberies where this Court has found the death sentence to be proportionate.  For
example, in Blake v. State, 972 So. 2d 839, 842 (Fla. 2007), this Court found the
death sentence to be proportionate where the defendant confessed to law
enforcement officers that he shot the owner and operator of a convenience store
after entering the store to rob it.  The trial court found three aggravating factors:
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previous conviction of another capital felony; that the defendant was under
sentence of imprisonment; and that the defendant was engaged in an attempt to
commit the crime of armed robbery.  The Court distinguished Blake from Terry
because the prior violent felony aggravating factor was based on a murder during a
separate robbery, not a contemporaneous conviction.  Blake, 972 So. 2d at 848-49.
Similarly, in Mendoza v. State, 700 So. 2d 670, 679 (Fla. 1997), this Court
held that the death penalty was proportionate for a murder during a robbery where
the prior violent felony aggravating circumstance was based on an entirely separate
armed robbery conviction, not a contemporaneous conviction.  Notably, the only
aggravating circumstances in Mendoza were previous conviction of a violent
felony and that the murder was committed during the commission of a robbery,
merged with the fact that it was committed for pecuniary gain.  Unlike Peterson,
Mendoza was not found to be under sentence of imprisonment at the time of the
murder.
Peterson argues that he should receive a life sentence due to the mitigation
found in his case, but, again, we find Blake analogous.  In that case, the trial court
found one statutory mitigating factor—age at the time of the offense—and seven
nonstatutory mitigating factors: appropriate courtroom behavior; loving,
nonviolent relationship with his family; remorse; cooperation with law
enforcement officers; coparticipant sentenced to life imprisonment; only one prior
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violent felony conviction; and good adjustment to confinement.  This Court
affirmed the imposition of the death sentence in Blake.   Peterson’s limited mental
impairment, consisting of a low to normal IQ and some difficulty in school, is the
only type of mitigation present in Peterson that was not present in Blake.  This
mitigation is not sufficiently weighty to compel a life sentence in Peterson.
Overall, given the factual similarities to Blake and Mendoza, we find the death
sentence is proportionate in this case.
D.  Evidence and Argument about Lack of Remorse
Peterson argues that the trial court erred by allowing the State to introduce
evidence indicating that Peterson lacked remorse and by allowing the State to
argue lack of remorse during closing arguments.   “The admissibility of evidence is
within the sound discretion of the trial court, and the trial court’s determination
will not be disturbed on appellate review absent a clear abuse of that discretion.”
Brooks v. State, 918 So. 2d 181, 188 (Fla. 2005).  Likewise, appellate courts apply
an abuse-of-discretion standard when considering whether a trial court erred in
overruling objections to comments made during closing arguments.  McArthur v.
State, 801 So. 2d 1037, 1040 (Fla. 5th DCA 2001) (citing Moore v. State, 701 So.
2d 545 (Fla. 1997)).
This Court’s precedent prohibits presenting evidence about lack of remorse
in support of an aggravating factor.   “[T]his Court held that ‘lack of remorse is not
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an aggravating factor’ and that ‘lack of remorse should have no place in the
consideration of aggravating factors.’”  Tanzi v. State, 964 So. 2d 106, 114-15
(Fla. 2007) (quoting Pope v. State, 441 So. 2d 1073, 1078 (Fla. 1983)), cert.
denied, 128 S. Ct. 1243 (2008).  This Court has further held that the State
ordinarily may not present evidence or argument about a defendant’s lack of
remorse in the context of discussing a diagnosis of antisocial personality disorder.
For example, in Atwater v. State, 626 So. 2d 1325, 1328 (Fla. 1993), the Court
held that the trial court erred in permitting the State to ask on cross-examination
whether persons with antisocial personality disorder showed remorse.   See also
Robinson v. State, 520 So. 2d 1, 5-6 (Fla. 1988).  This Court has further held that
the State may not circumvent the prohibition against lack-of-remorse evidence by
using synonymous words and phrases.  See, e.g., Sireci v. State, 587 So. 2d 450,
454 (Fla. 1991) (holding that trial court erred in allowing State witness to testify
that “after Sireci read about the murder in the newspaper, ‘he seemed rather proud
of it.’”).4
4.   The Court has recognized an exception to the prohibition against
presenting evidence of lack of remorse.  The Court held that evidence about lack of
remorse may be used to rebut the proposed mitigating factors of remorse for the
crime or rehabilitation.  See Singleton v. State, 783 So. 2d 970, 978 (Fla. 2001).
This exception is not applicable in this case.  While Dr. Maher testified that due to
Peterson’s age, he expected that in prison Peterson would “tend to be less
impulsive, less aggressive, less violent,” the defense did not propose rehabilitation
as a mitigating factor.
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Peterson argues that the State’s cross-examination of expert witness Dr.
Maher about lack of empathy and contemptuousness as symptoms of antisocial
personality disorder was tantamount to questioning and argument about lack of
remorse.   The State contends that the questioning about Peterson’s lack of empathy
and contempt for his victims was not improper because empathy refers to the
defendant’s mental and emotional state at the time of the crime whereas remorse
refers to the defendant’s mental and emotional state after the crime.  We agree that
this is a relevant distinction.  Florida’s statutory aggravating and mitigating factors
recognize the defendant’s mental and emotional state at the time of the crime as
factors relevant to sentencing.  See § 921.141(5)-(6), Fla. Stat. (2008).  The
majority of the State’s questioning of Dr. Maher properly focused on Peterson’s
state of mind at the time of the offense as it related to the proposed statutory
mitigating factor of substantially impaired capacity to appreciate the criminality of
his conduct.5
A few of the State’s questions did solicit testimony about Peterson’s after-
the-fact feelings towards the victims of his crimes.  While these questions arguably
5.   Peterson also challenges the State’s closing argument based on Dr.
Maher’s testimony.  After reviewing the record, we find that the prosecutor’s
closing argument did not discuss Peterson’s state of mind after the crime.  The
prosecutor properly focused his argument on the proposed mitigating factors and
did not discuss whether Peterson felt remorse or the equivalent thereof after the
murder.   Because we find that the State’s closing argument was proper, there is no
need to address whether this issue was preserved for review.
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solicited testimony about remorse without using the term “remorse,” any error was
harmless beyond a reasonable doubt.   See Franklin v. State, 965 So. 2d 79, 95 (Fla.
2007) (applying harmless error analysis to erroneously admitted evidence).  We
find that the brief references to Peterson’s refusal to acknowledge his wrongdoing
did not influence the jury’s recommendation or the trial court’s sentencing
decision.  The State’s closing argument was proper, and there was significant,
undisputed aggravation and relatively weak mitigation—specifically Peterson had
been convicted of thirteen prior felonies and was on probation at the time of the
murder compared to no evidence of major mental illness or other compelling
mitigating circumstances.6   Moreover, while the trial court considered the proper
portions of Dr. Maher’s testimony as it related to Peterson’s state of mind at the
time of the crime, it did not rely on the arguably improper evidence or argument in
reaching its decision to impose the death penalty.  Based on the foregoing,
6.   Peterson argues that a St. Petersburg Times article demonstrates that the
jury considered lack of remorse in reaching its recommendation.  The article states
that the jury forewoman stated that she wondered if there would have been another
result had Peterson taken the stand and said he was sorry.  This Court has held that
a juror’s consideration of a defendant’s decision not to testify is a matter that
inheres in the verdict.   Sims v. State, 444 So. 2d 922, 925 (Fla. 1983).  In Devoney
v. State, 717 So. 2d 501, 504-05 (Fla. 1998), the Court found that a juror’s
allegation that one or more jurors deliberated about a matter they were told to
disregard was a matter inhering in the verdict.  As a result, the majority of the
Court held that the trial court erred in granting a new trial based on the jury’s
improper deliberation.  Under Devoney, this Court may not consider the alleged
comments by the jury forewoman in deciding whether Peterson was entitled to a
new penalty phase.
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Peterson is not entitled to a new penalty phase.  See Randolph v. State, 562 So. 2d
331, 338 (Fla. 1990) (holding one improper question about lack of remorse
harmless beyond reasonable doubt in light of totality of evidence); Atwater, 626
So. 2d at 1328 (holding cross-examination of expert witness about whether persons
with antisocial personality disorder show remorse was harmless error).
E.  Ring Claims
Peterson argues that Florida’s capital sentencing scheme is unconstitutional
under Ring v. Arizona, 536 U.S. 584 (2002).  This Court has repeatedly held that
where a death sentence is supported by the prior violent felony aggravating factor,
as is the case here, Florida’s capital sentencing scheme does not violate Ring.  See,
e.g., Frances v. State, 970 So. 2d 806, 822 (Fla. 2007), cert. denied, 128 S. Ct.
2441 (2008); Lebron v. State, 982 So. 2d 649 (Fla. 2008).   This Court has found
that “Ring did not alter the express exemption in Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that prior convictions are exempt
from the Sixth Amendment requirements announced in the cases.”  Frances, 970
So. 2d at 822; see also Johnston v. State, 863 So. 2d 271, 286 (Fla. 2003) (“[The]
prior violent felony conviction alone satisfies constitutional mandates because the
conviction was heard by a jury and determined beyond a reasonable doubt.”).
Peterson’s argument that this Court has erred in unanimously finding Ring
inapplicable where the prior violent felony aggravating factor is present is
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procedurally barred because Peterson did not raise that argument to the trial court.
The argument is also without merit.  Peterson argues that since, as held in Cox v.
State, 819 So. 2d 705 (Fla. 2002), evidence may be admitted during the penalty
phase to show more than the mere fact of a prior conviction, not requiring a
unanimous jury finding that the aggravator was proven violates Ring.  We
disagree.  Because the operative jury where the prior violent felony aggravating
factor is present is the jury that convicted the defendant of the prior felony, not the
sentencing jury, it is irrelevant for constitutional purposes that the sentencing jury
may hear evidence beyond that required to prove the fact of conviction.
F.  Penalty-Phase Jury Instructions
Peterson claims that the standard penalty-phase jury instructions given in his
case unconstitutionally shifted the burden of proof to him to establish mitigating
circumstances and to show that those factors outweighed the aggravating
circumstances.   His arguments are without merit.  Similar arguments have been
rejected previously by this Court.  See, e.g., Johnson v. State, 969 So. 2d 938, 961-
62 (Fla. 2007) (rejecting arguments that standard instructions unconstitutionally
place burden of proof on defendant to prove death sentence is inappropriate and
that instructions improperly restrict evidence that jury may consider in mitigation).
G.  Sufficiency of Evidence
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Peterson does not contest the sufficiency of the evidence, but in death
penalty appeals, this Court independently reviews the record to confirm that the
jury’s verdict is supported by competent, substantial evidence.  See Fla. R. App. P.
9.142(a)(6).  In this case, the State argued that both felony murder and
premeditated murder theories were applicable to the crime, and the jury delivered a
general verdict.                                                                        “A general guilty verdict rendered by a jury instructed on both
first-degree murder alternatives may be upheld on appeal where the evidence is
sufficient to establish either felony murder or premeditation.”   Crain v. State, 894
So. 2d 59, 73 (Fla. 2004).
While we find insufficient evidence of premeditation in this case, the first-
degree murder conviction is supported by competent, substantial evidence of
felony murder.  The State proved beyond a reasonable doubt that a robbery
occurred at the Big Lots store on December 24, 1997, and that John Cardoso was
killed during that robbery.  Karen Smith testified that a masked, gloved man forced
her at gunpoint to collect money from the store and to give the money to him.
Maria Soto testified that an armed man threatened “to kill us, to do to us what he
had done to . . . John.”  The State and defense stipulated that the body found in the
Big Lots store after the robbery was John Cardoso and that Cardoso was dead.  No
witness testified that more than one person committed the robbery.  The State also
proved that Peterson was the man who robbed the store.  In addition to the
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collateral crime evidence circumstantially connecting Peterson to the Big Lots
robbery, as summarized above, the State presented several witnesses who
identified Peterson as the robber.  This evidence is sufficient to support the
conviction under a felony murder theory.   See, e.g., Blake, 972 So. 2d at 850
(holding evidence supported first-degree felony murder conviction where Blake
admitted entering store with handgun to commit robbery and to shooting victim).
III.  CONCLUSION
Based on the foregoing, we affirm Peterson’s conviction for first-degree
murder and his sentence of death.
It is so ordered.
QUINCE, C.J., WELLS, PARIENTE, LEWIS, CANADY, and POLSTON, JJ.,
and ANSTEAD, Senior Justice, concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Pinellas County,
Linda R. Allan, Judge - Case No. CRC 00-05107 CFANO
J. Marion Moorman, Public Defender, and Andrea M. Norgard, Special Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,
for Appellant
Bill McCollum, Attorney General, Tallahassee, Florida, and Katherine V. Blanco,
Assistant Attorney General, Tampa, Florida,
for Appellee
- 32 -

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