SC90349 David Charles Carpenter v. State of Florida

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State: Florida

Court: Supreme Court

Docket No: sc90349

Case Date: 03/01/2001

Plaintiff: SC90349 David Charles Carpenter

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC90349
DAVID CHARLES CARPENTER,
Appellant,
vs.
STATE OF FLORIDA
Appellee.
[March 1, 2001]
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing a
death sentence on David C. Carpenter.  We have jurisdiction.  See art. V, § 3(b)(1),
Fla. Const.  As more fully explained below, we reverse Carpenter’s conviction and
remand for a new trial because the trial court prohibited Carpenter from presenting
certain evidence to the jury during the guilt phase of the trial.

I. BACKGROUND
Shortly before midnight on Thanksgiving Day, November 24, 1994, two law
enforcement officers in Clearwater, Florida, investigated a blue 1989 Ford Taurus
sedan parked in a field near the Pinellas County Trail.  The officers discovered that
the interior of the vehicle had been burned; two Molotov cocktails, each comprised
of a 16-ounce juice bottle with a rag for a wick, rested in the back seat of the
vehicle.  A check of the vehicle’s license plate revealed the registered owner to be
Ann Powell, a sixty-two year old female resident of  nearby Dunedin.
Upon discovering that the vehicle had been burned, additional law
enforcement officers responded to the scene to conduct a further investigation.  In
the trunk of the vehicle, officers discovered a “white bedspread type blanket,”
upon which there was some light sooting.  When the blanket was lifted, officers
found a small “white person’s body.”  At that point, law enforcement personnel
transported the vehicle to a secured police facility and attempted to locate Ann
Powell.
At Ann Powell’s residence, officers identified a red notebook in which
Powell recorded miscellaneous notes.  Many of the entries in the notebook were
dated, and one of the entries read “5:33” next to “Dave.”  This notebook entry was
later matched with a telephone message  from Powell’s answering machine, which
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was left at 5:33 p.m. on November 23, 1994.  The content of the recorded message
was as follows:   “Hi Ann, this is Dave.  Are you there?  I just want to know if we’re
still on for tonight.  I’ll check back at about a quarter ‘til.  Thank you.”  There also
was one earlier message from “Dave” left at 1:17 p.m. on November 22, 1994: “Hi.
Ann, this [is] Dave.  How about dinner tonight, dinner and dance?  If you want to,
you can meet me here at -- or by the -- it’s the same place where I met you, at 6:00
o’clock, and I’ll call you back later."
At the secured police facility, the medical examiner and various law
enforcement officers investigated the vehicle and Powell’s body.  After unwrapping
Powell’s body from the white blanket, it was clear that her head had been wrapped
in a white towel, which was bloody on the top.  Powell had been “hog-tied” with
her arms and legs behind her back.  Specifically, ropes had been wrapped around
her neck and hands several times and then connected with twine that bound
Powell’s feet.  Further, a bra had been wrapped around Powell’s neck and across
her mouth as a gag.  The bra gag had been tightened to the extent that it caused
Powell’s tongue to protrude from her mouth and produced blood-filled blisters on
her neck.  Additionally, there were five cord wrappings below the level of the bra
gag and two cord wrappings above the level of the gag.  Powell was naked except
for the bra gag and knee-high hosiery still on her feet.
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The cause of Powell’s death, as ascertained by the medical examiner, was
“homicidal violence, including neck compression and blunt trauma to the head and
neck.”  As to the “neck compression,” the hyoid bone in Powell’s neck was not
fractured, and the cause of Powell’s death was not consistent with either a hanging
or garroting type of strangulation.  Instead, the “neck compression” was consistent
with the occlusion of blood vessels in Powell’s neck.  If a force of at least eight
pounds were applied continually to the blood vessels on either side of Powell’s
neck to cause the vessels to become totally occluded, she could have become
unconscious in ten to fifteen seconds.  However, to cause the death of a person by
this method of neck compression, the medical examiner opined that “the pressure
must be kept up for a period of several minutes.”  According to the medical
examiner, the bindings around Powell’s neck could have caused the neck
compression, and the bra gag could have partially occluded Powell’s blood flow
by pushing Powell’s jaw downward.
Powell’s injuries, as noted at the autopsy, included (1) a bruise to the left
eye, consistent with having been struck with a blunt object; (2) a laceration to the
gum inside the lip; (3) a bruise on the tongue consistent with a biting down on the
tongue; (4) left cheek discoloration; (5) a cyst or canker sore under the tongue,
possibly caused by the bindings; (6) a bruise behind the left ear; (7) indentations
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and scrapes on the neck cause by the bindings; (8) several bruises to the side of the
head; (9) a small forearm scrape; (10) a bruise and scrape on the elbow; (11) a
bruise on the right leg; (12) small contusions and a laceration1 to the anal and
vaginal areas; (13) four subgaleal bruises located between skull and scalp; and (14)
another bruise under her right ear cartilage.  Most of these injuries were consistent
with having occurred prior to death, although the bindings on Powell’s body were
consistent with having been placed after death.  No defensive wounds were noted.
According to the medical examiner, it was “within the realm of possibility” that
Powell’s vaginal injuries were the result of consensual sex, as those injuries were
“merely an indication of the degree of force of penetration.”  The medical examiner
testified, however, that the vaginal injuries could have been consistent with a
forcible rape, depending upon Powell’s sexual history.  Further, Powell had blood
on her fingers, but there was no injury to that area of her body.  At the time of the
autopsy, Powell’s stomach contained “about a half a cup of tan, opaque fluid and
you could see identifiable fragments of potato and a green vegetable,” and a sample
taken from Powell’s vagina failed to show any trace of semen.
1The medical examiner did not identify the laceration at the time she performed Powell’s
autopsy, but she later identified the laceration in an autopsy photograph approximately two weeks
before she testified at Carpenter’s trial.
5

On Monday after the Thanksgiving weekend, Robert Joseph Penn III--who
lived in Dunedin at the opposite end of a triplex where Carpenter resided--had a
conversation with Carpenter.  At the time, Carpenter was thirty-two years old,
approximately six feet four inches tall, and weighed approximately 210 pounds.
Penn was coming home from work, and Carpenter, who was on his own porch,
called Penn over.  During the conversation, Carpenter asked Penn if he had seen the
news, and Penn indicated that he had not.  Carpenter then told Penn that he
(Carpenter) might be in trouble because someone for whom he had arranged a date
might have been involved in some problems.  Specifically, Carpenter had seen on
the news that the person’s car had been burned.  Although Carpenter did not
mention the name of the person to whom he had introduced the woman, Penn said
he knew it was an individual named Neilan Pailing because “there was only one
child molester on the block and he left for Alaska that week.”  Penn noted that
when Carpenter was talking to him, Carpenter talked normally and appeared to be a
little nervous and agitated, but that was normal for Carpenter.  Carpenter stated that
he thought he should leave town because “he thought something bad had happened
to her [Powell],” and when Carpenter asked for Penn’s opinion, Penn advised
Carpenter that if he had not been involved, he should inform the police immediately;
if he was involved, he should consult an attorney.  Penn testified that he
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remembered seeing the car in question in Carpenter’s driveway on the evening
before Thanksgiving.  Specifically, the car was in Carpenter’s driveway when Penn
came home from work between 5 and 6 p.m., and it was still there when Penn left at
approximately 8:30 p.m.  Further, Penn did not hear any unusual noises while he
was home during that time period.
At 6:44 p.m. on Tuesday, November 29, 1994--the day after the conversation
between Penn and Carpenter--the Clearwater Police Department Communications
Division received a telephone call from a person identifying himself as Carpenter.
Carpenter indicated that he “did some work on that car they pulled today.  They
found that person in it, in the trunk of the car.”  The communications officer asked
whether Carpenter was referring to the woman from Dunedin, and Carpenter
responded affirmatively and indicated that he lived in Dunedin as well.  Upon being
asked when he had worked on the car Carpenter indicated that he had worked on
the vehicle the preceding week.  Carpenter then left a telephone number at which he
could be contacted.
After Carpenter’s initial communication with the police, Detective James
Steffens (Detective Steffens) called the number left by Carpenter.  Detective
Steffens spoke with Carpenter, who indicated that he had been with the victim on
November 23 and had worked on her car, which he had seen on television.
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Carpenter described the victim as having frosty strawberry colored hair, five feet
six inches to five feet eight inches tall, and in her forties to fifties.  Carpenter
characterized himself as a handyman and a mechanic, and he stated that he replaced
the fuse for a light in the trunk of the victim’s car.  Also during the phone
conversation, Carpenter explained that he and his friend, Neil Pailing, had engaged
in a “threesome” sexual encounter with the victim.  Carpenter said that Pailing was a
violent person and he feared that the woman may have come to harm with Pailing,
but Pailing and Powell left Carpenter’s house after dinner, and Carpenter did not
know where they had gone.  At the conclusion of the phone conversation,
Carpenter agreed to meet personally with the police.
Detective Steffens called several other officers to assist him, including
Sergeant Mark Teunis (Sergeant Teunis) and Detective Howard.  Sergeant Teunis
first met Carpenter at Carpenter’s sister’s house.  Sergeant Teunis identified
himself as a police officer, met Carpenter and Carpenter’s sister, and then spoke
briefly with Carpenter in the residence.  During this conversation, Carpenter
indicated that “[h]e had just returned back in town on that Tuesday and he had
ridden his bike up to his sister’s house in Palm Harbor.  And from there he had
seen the news and on the news he saw a news blurb of the homicide scene and the
vehicle.  And that’s why he decided to call.”  Carpenter agreed to speak further
8

with the police at the police station, and Sergeant Teunis and Carpenter exited the
residence.
As Sergeant Teunis and Carpenter exited the residence, Detective Steffens
and another detective arrived in an additional vehicle.  Carpenter then traveled to the
police station with Sergeant Teunis and Detective Steffens.  During the drive,
Carpenter again stated that he was a handyman and had worked on Powell’s car.
He recounted that he had met Powell at a laundromat in Dunedin and that he and his
friend Neil Pailing--who at that time was seventeen years old, approximately five
feet ten inches to six feet tall, and weighed approximately 120 pounds--were going
to have a party on the night of Wednesday, November 23, 1994.  Carpenter
indicated that he had invited Powell to the party and that he and Powell had
engaged in sexual foreplay.  Carpenter indicated that after talking with Pailing’s
stepfather, he understood that Pailing had left town on Thanksgiving Day.  Both
Sergeant Teunis and Detective Steffens noted that Carpenter stared straight ahead
throughout the drive to the police station, except when they drove near the field
where Powell’s vehicle had been found, at which time he looked in the opposite
direction.  Finally, Detective Steffens found it interesting that Carpenter had
volunteered that he had no weapons on him, “in case they [Sergeant Teunis and
Detective Steffens] were wondering.”
9

At the police station, Detective Steffens and Detective Howard began more
formal discussions with Carpenter.  Carpenter again told the detectives that he and
his friend Pailing were having a party to which he had invited Ann Powell.  The
party was originally scheduled for Tuesday, November 22, but Powell had canceled
because she was going to a church service.  Carpenter stated that he rescheduled
the party for November 23, and he made arrangements with Powell by telephone to
meet her at the laundromat where they first met.  Carpenter stated that he walked to
the laundromat, where Powell met him, and Carpenter rode with Powell in her car
back to his residence.  Carpenter stated that he prepared pasta and beans for
dinner, which Powell ate, and Powell drank tea after indicating that she did not
drink alcoholic beverages.  Carpenter advised the officers that he and Powell began
fondling one another, whereupon Pailing entered Carpenter’s residence and became
embarrassed by such behavior.  Carpenter explained that he and Pailing had been
with another woman together and they each had a type of sexual dysfunction;
Pailing was a “premature ejector [ejaculator]”, while Carpenter took a long time to
get erect and was occasionally impotent.
Carpenter told the detectives that Powell, wanting to “spend some time”
alone with Pailing, asked Carpenter to go out and fix the trunk light fuse in her car.
Carpenter indicated that he did so, and he needed to shift some boxes in Powell’s
10

trunk, all of which appeared to contain her personal belongings, to reach the
defective light.  Carpenter indicated that the potential for finding his fingerprints in
the trunk of Powell’s car prompted him to contact the police.  Carpenter also
stated that while he was outside, he heard the station on the radio inside his
residence being changed from the original station to a rock station, and the volume
was increased.  He told the detectives that a little while later, Pailing and Powell
walked out of his residence and left in Powell’s car, with Pailing driving.  Varying
from his statements made en route to the police station, Carpenter told the
detectives that Pailing left the State on Saturday, which would have been November
26, 1994, instead of Thursday, Thanksgiving Day.  After hearing Carpenter’s story,
the detectives inquired if he would take them to his house  for an inspection, and he
agreed, signing a form giving permission to allow the walkthrough.
Detective Steffens and Detective Howard drove Carpenter to his residence,
but because Carpenter had left his keys at his sister’s residence, Sergeant Teunis
was dispatched to that location to obtain the keys.  All of these parties finally met at
Carpenter’s residence, which was a small, one-bedroom efficiency-style apartment.
The front door of the apartment opened into an area with a couch, a bed, a
bookshelf, a desk, and other furniture, and there was a kitchen and bathroom
separated from the living area/bedroom by a partition.  Carpenter afforded the
11

officers a tour of his residence, pointing out that he was a collector of Star Trek
memorabilia, and showing them a couple of toy guns, which he referred to as
“nonguns.”  One of the toy guns was a rifle type BB gun that was above one of the
exit doors, and another was a replica of a semiautomatic pistol that had a scope
duct-taped on it, which Carpenter produced from a desk drawer.  Carpenter also
showed the officers a package of cigarettes that he said Ann Powell had left behind.
There was a discolored area of carpet near Carpenter’s bed.  Sergeant
Teunis asked Carpenter if he had spilled something, and Carpenter replied in the
affirmative.  Carpenter also showed the officers a shed at the back of his residence.
Sergeant Teunis then asked Carpenter to permit a forensic science unit to
thoroughly search Carpenter’s residence for any evidence, and Carpenter agreed.
At this time, Carpenter agreed to return to the station for more questioning.
During the second round of discussions at the police station, Carpenter
indicated that he met Ann Powell at a laundromat on November 20, 1994.  He
stated that the party involving Neil Pailing was not planned, but instead was a
spontaneous surprise for Pailing.  Carpenter indicated that he picked Powell up on
November 23, 1994, and they ate dinner consisting of pasta and beans, but when
asked to clarify this, Carpenter said that Powell did not eat or did not want to, and
she only drank tea.  Carpenter stated that he engaged in consensual foreplay with
12

Powell, whereupon Pailing came over, and Powell asked if she could spend some
time with Pailing.  Carpenter proceeded outside to work in the trunk of Powell’s
car.  Carpenter again stated that Pailing and Powell left sometime thereafter--he
believed they were going to a motel--after which Carpenter lost control of his
bowels in his apartment and went to seek medical attention.
After a break in questioning, Detective Steffens and Detective Howard again
spoke with Carpenter, at which time Carpenter relayed a different version of events
to the officers.  In this version, Carpenter said that Neil Pailing had a problem with
little children and was into Dungeons and Dragons, a science fiction-type game
where people assume characters and play out scenarios and fantasies.  Carpenter
said he wanted to help Pailing “get into manhood” by having a lady come over for a
“threesome.”  Carpenter described how he fondled Powell’s vagina through her
pants “to get her warmed up for Neil.”  When Pailing came in, Powell wanted to
spend some time with him, and Carpenter went outside and positioned himself
where he could see them through a window.  He observed Pailing and Powell
engage in “doggy style intercourse,” but it appeared to him that Pailing had a
“premature ejection [ejaculation]” which caused Powell to become angry.
Carpenter indicated that Powell began belittling Pailing.  Carpenter stated that he
turned away, but upon hearing a loud thump, he turned his attention back inside.
13

He saw Powell on the floor and heard that his music had been turned from the
blues music station to a hard rock station, and the music was extremely loud.
At this point, Pailing allegedly was on top of Powell “choking her out” and
laughing.  Specifically, Pailing was “kind of sitting on her back and had his right
arm up under her neck and the cleft of his palm was at the base of her neck and he
was choking her up.”  Carpenter said that he started “freaking out” and thought that
Pailing might have killed Powell, and when he walked into the apartment, Pailing
started making fun of him and calling him a coward.  Powell lay motionless on the
floor, with rope and twine lying next to her.  Pailing suggested to Carpenter that the
police could not do anything to him because he was 17.  Carpenter said he wanted
to call the police, but he told Pailing that he was going to go to the laundromat and
walk around and that Pailing and Powell had better not be in Carpenter’s residence
when he returned.  When Carpenter came back, Pailing was attempting to drive
Powell’s car away but was having trouble with the headlights.  Pailing ultimately
drove away with the headlights off.  Inside his apartment, Carpenter observed a
bloody area on the carpet where Powell had been which he tried to clean.
Carpenter stated that he was “sick at the sight of it.”  Carpenter again indicated that
he learned that Pailing had left on Saturday, and in this discussion he did not
indicate that he had performed any work on Powell’s car.
14

After the detectives expressed that they were having some problems with
Carpenter’s version of the events, another discussion commenced.  During this
discussion, Carpenter again mentioned Dungeons and Dragons, and stated that
Pailing assumed a character that was very evil and roamed the world.  Carpenter
then said that he, Powell, and Pailing were naked on the living room floor, and
Carpenter was having consensual sexual intercourse with Powell in a regular
fashion, while wearing a condom.  Carpenter completed the act, but did not
ejaculate, and went to the bathroom to clean up, while Pailing “started in the doggy
style fashion intercourse with her.”  It appeared that Pailing, who was not wearing a
condom, “had a premature ejector,” and there was loud thump, and Powell began
belittling Pailing, asking why could he not be like Carpenter.  Carpenter ran out of
the bathroom so quick that he “urinated on himself,” and he found Pailing choking
Powell in the manner Carpenter had described before.  He believed Pailing struck
her with a “nongun” that was lying on the floor.  Carpenter was yelling at Pailing,
“What have you done?”  Carpenter then advised Pailing, “You bagged it, you tag
it,” and he told Pailing to use some rope and twine that was in the apartment.
Carpenter provided Pailing instruction as to how to hog-tie Powell, advising “like
you would do in a rodeo.”  Pailing then obtained a blanket in which they wrapped
Powell, and Carpenter backed Powell’s car up to a boardwalk that extended along
15

the length of the efficiency to the driveway.  Pailing attempted to drag Powell
across the boardwalk, but Carpenter did not approve of the manner in which he
was dragging her, so Carpenter picked up Powell’s body and “gently put her in the
trunk.”  Pailing then prepared two Molotov cocktails, and Carpenter then
understood that Pailing intended to burn Powell’s body.  Carpenter gathered
Powell’s blouse, pants, and panties so that Pailing could dispose of the items with
the body.  Carpenter stated that he did not know the location Pailing intended to
use to dispose of the vehicle.
After these events, Carpenter described that he attempted to scrub the
bloodied area from the carpet, and he then sprayed over the area with black enamel
spray paint.  He placed a pack of Powell’s Capri cigarettes in a box and returned
the “nongun” back to the desk drawer.  He transported some of the boxes of
Powell’s belongings from the trunk of her car to the shed behind the apartment,
along with some of Pailing’s other belongings.  When asked whether Powell was
wearing any clothing when she was placed in the trunk, Carpenter indicated that she
was wearing her bra on her chest, “but it actually had one breast exposed.”
Carpenter admitted that he washed his clothes at the laundromat and, on
Thanksgiving morning, he went to his sister’s house and then to the home of his
parents.  Carpenter also explained that he contacted the police after seeing Powell’s
16

car profiled on television, as he wanted law enforcement officials to know that he
had worked on the car, and therefore his fingerprints might be found on the vehicle.
After providing Carpenter his Miranda warnings, the officers proceeded to
obtain a taped statement from him.  The recorded statement was played for the
jury.  During this statement, Carpenter reiterated that he had invited Powell to a
party and had engaged in a sexual “threesome” with her and Pailing.  He observed
that Pailing had been nervous at first, but Powell had talked Pailing into removing
his clothing. After Carpenter had terminated his involvement, he had walked into the
bathroom and after hearing a commotion, he returned to see Pailing striking Powell
on the head or face with Carpenter’s gun.2   Pailing was strangling her and she was
turning purple, and Carpenter was “not doing anything except for freaking out.”
Powell’s head was bleeding, so Carpenter gave Pailing a towel to prevent Powell’s
blood from falling on the carpet.  Pailing requested instruction as to know how
Powell should be secured and Carpenter instructed him “to tie her up like you
would do a critter, an animal, and he proceeded to do so.”  Pailing procured
blanket-type material, and Carpenter placed her in the blanket and wrapped the
material around her.  Pailing proceeded to drag Powell outside and down the
2Later in his statement, Carpenter said that he did not actually see Pailing hitting Powell, but
instead heard blows being struck when he was in the bathroom.
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boardwalk, but Carpenter intervened and picked her body up and placed it in the
trunk.  Carpenter then began to clean the carpet.  Pailing “had gasoline and an
apparatus . . . to dispose of Ann in the car,” and he had her clothes in a bag to
dispose of them as well.  At that point, Carpenter observed Pailing driving away.
Carpenter voiced that the event had not been a “planned thing” and “was not
supposed to happen.”  Carpenter volunteered that had he known that Powell was
going to be hurt, he would not have invited her there.
The physical evidence demonstrated that Carpenter left a fingerprint from his
left little finger on a can of black spray paint retrieved from his garbage, and a print
lifted from the right front passenger side fender of Powell’s car matched
Carpenter’s left thumb.  A print from the right rear passenger doorframe of the
vehicle was linked to Pailing’s right ring finger.  A sample from Carpenter’s toy
gun, and fingernail scrapings from Ann Powell, were positive for the presence of
blood, but the amount was insufficient to provide a conclusive determination as to
identity from the blood.  A carpet sample taken from Carpenter’s residence also
tested positive for the presence of blood, and a DNA test on that sample showed
that the blood was consistent with Powell’s blood, but not consistent with that of
Carpenter or Pailing.  Semen was detected on the white blanket removed from
Powell’s vehicle, but the semen was not consistent with either Carpenter or Pailing.
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DNA testing on blood removed from Carpenter’s jeans was consistent with
Carpenter, but was also consistent with Pailing, or could have been a combination
of blood from Carpenter, Pailing, and Powell.  Twisted twine removed from
Powell’s wrists was consistent in appearance, construction, composition, and
microscopic characteristics with a spool of twisted twine found under the shed at
Carpenter’s residence.  Braided rope removed from Powell’s wrist and neck areas
was consistent in construction, appearance, generic fiber types, and microscopic
characteristics with rope found in Carpenter’s residence.  Hair samples taken from
Carpenter’s apartment and from Powell’s body were generally inconclusive, while
the replica pistol from Carpenter’s residence produced four Caucasian body hairs
and four Caucasian peripheral head hairs from which no identifying conclusions
could be drawn.  However, the sample from the replica pistol did produce one
Caucasian head hair fragment that was microscopically different from Powell,
Carpenter, and Pailing, and one Caucasian pubic hair that was microscopically
different from those three individuals.                                                Finally, the State presented the
testimony of Steven Dakowitz, who was incarcerated in the same jail pod with
Carpenter for approximately one and one-half months.  Dakowitz testified that
Carpenter initially told him that Carpenter’s role in the incident was very limited,
that he had just helped load the body into a car, and the other individual was
19

responsible for the rest.  Dakowitz testified that he and Carpenter discussed how
Carpenter would be exonerated when the authorities found “this kid,” but after
hearing a news report stating that Pailing had been located, Carpenter became “a
little agitated” and “bummed out.”  Dakowitz testified that he overheard Carpenter
crying on the phone, saying, “It’s all over now.  He knows exactly what happened
and I'm going to fry.”  Later, Dakowitz inquired of Carpenter as to why he was
upset, saying, “I thought you said your role in it was pretty limited.” Dakowitz
testified that Carpenter responded with something like “Let’s just say it was just the
opposite,” and that matters were only going to get worse.
After considering the above evidence, as well as testimony from Carpenter’s
mother concerning Carpenter’s background and functional abilities,3 the jury
returned a general verdict finding Carpenter guilty of first-degree murder.  The trial
court then conducted a penalty phase hearing, at the conclusion of which the jury
recommended application of the death sentence by a vote of seven to five.  The
trial court conducted a second penalty phase hearing, however, because an
3The jury did not hear the testimony of William Robert Shay and Carlos Mendoza--offered by
the defense--concerning self-inculpatory, out-of-court statements made by Pailing while Shay,
Mendoza, Pailing, and Carpenter were jailed together.  The admissibility of Shay’s and Mendoza’s
testimony is addressed below.
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erroneous jury instruction had been given during the first penalty phase hearing.4   At
the conclusion of the second penalty phase hearing, the jury recommended the
death penalty by a vote of ten to two.  After receiving sentencing memoranda from
the parties and conducting a hearing pursuant to Spencer v. State, 615 So. 2d 688,
690 (Fla. 1993), the trial court followed the jury’s recommendation and sentenced
Carpenter to death.  In doing so, the court determined that the three aggravating
circumstances established by the State5 outweighed the one statutory mitigating
circumstance6 and two nonstatutory mitigating circumstances established by the
defense.7   Carpenter now appeals from his conviction and sentence, asserting three
guilt phase issues and two penalty phase issues for our consideration.
4The trial court erroneously instructed the jury that the permissible sentencing options in
Carpenter’s case consisted of either death or life without possibility of parole for 25 years, whereas the
law for first-degree murders committed on or after May 25, 1994, established the sentencing options of
either death or life without possibility of parole.  See ch. 94-228, § 1 at 1577, Laws of Fla.; §
775.082 (1)                                                                                                  (a), Fla. Stat. (Supp. 1994).
5The trial court found that the State had established three aggravating circumstances: (1) the
capital felony was committed while Carpenter was engaged in or an accomplice in the commission of a
sexual battery; (2) Carpenter had been convicted previously of a felony involving the use of violence to
another person; and (3) the capital felony was especially heinous, atrocious, or cruel.
6The trial court afforded “little weight” to the statutory mitigating circumstance that Carpenter’s
capacity to appreciate the criminality of conduct or to conform his conduct to the requirements of law
was substantially impaired.
7The trial court found that the State had established three aggravating circumstances: (1) the
capital felony was committed while Carpenter was engaged in or an accomplice in the commission of a
sexual battery; (2) Carpenter had been convicted previously of a felony involving the use of violence to
another person; and (3) the capital felony was especially heinous, atrocious, or cruel.
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II. ISSUES AND ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
In his first issue regarding the guilt phase of the trial, Carpenter argues that
the State failed to present sufficient evidence to support a conviction for first-
degree murder based upon a premeditation or felony murder theory.  As more fully
explained below, while we determine that the State failed to present sufficient
evidence to support a conviction on a premeditation theory, however, we further
determine that the State did present sufficient evidence to support a conviction for
first-degree felony murder with sexual battery as the underlying predicate felony
offense.
Carpenter argues the evidence presented at trial fails to show that (1) he
actually killed Powell or was a principal in a murder committed by Pailing; (2)
Powell was killed with premeditation; or (3) Powell was killed during the
commission of a sexual battery.  Relying on these arguments, Carpenter claims that
the trial court should have granted his motions for judgment of acquittal (JOA
motions) offered at the close of the State’s case and at the close of all the evidence.
Assuming arguendo that the State’s case against Carpenter was entirely
22

circumstantial, 8 we apply the following standards in evaluating Carpenter’s
contention that the trial court should have granted his JOA motions:
A motion for judgment of acquittal should be granted in a
circumstantial evidence case if the state fails to present
evidence from which the jury can exclude every
reasonable hypothesis except that of guilt. . .
It is the trial judge’s proper task to review the
evidence to determine the presence or absence of
competent evidence from which the jury could infer guilt
to the exclusion of all other inferences.  That view of the
evidence must be taken in the light most favorable to the
state.  The state is not required to “rebut conclusively
every possible variation” of events which could be
inferred from the evidence, but only to introduce
competent evidence which is inconsistent with the
defendant’s theory of events.  Once that threshold
burden is met, it becomes the jury’s duty to determine
whether the evidence is sufficient to exclude every
reasonable hypothesis of innocence beyond a reasonable
doubt.
State v. Law, 559 So. 2d 187, 188-89 (Fla. 1989) (citations omitted) (footnote
omitted).  Stated another way, “[T]he sole function of the trial court . . . is to
determine whether there is a prima facie inconsistency between (a) the evidence,
8Carpenter’s statements to the police constitute direct evidence that he was at the scene when
Powell was killed.  See Orme v. State, 677 So. 2d 258, 261 (Fla. 1996) (“The direct evidence
presented by the State placed Orme at the scene of the crime around the time of [the victim’s] death.
This was established . . . by. . . Orme’s own statement to police.”).  However, there is no direct
evidence regarding premeditation or the commission of a sexual battery.  Therefore, as in Orme, we
analyze this case as a circumstantial evidence case.  See id. at 262.   (“Evidence such as this cannot be
deemed entirely circumstantial.  Nevertheless, we will assume arguendo that it was and proceed to the
next question . . .                                                                                         .”).
23

viewed in the light most favorable to the State and (b) the defense theory or
theories.  If there is such inconsistency, then the question is for the finder of fact to
resolve.”  Orme v. State, 677 So. 2d 258, 262 (Fla. 1996).  Carpenter’s hypothesis
of innocence in this case is based on his recorded statement that was played for the
jury at trial.  Specifically, Carpenter asserts that after he had completed consensual
sexual intercourse with Powell and had retreated to the bathroom of his efficiency-
style residence, Neil Pailing killed Powell by bludgeoning and strangling her after
she belittled Pailing for prematurely ejaculating.  Carpenter asserts that he heard the
commotion, came out of the bathroom, and “freaked out” when he saw what
Pailing was doing.  He contends his involvement was limited to thereafter
instructing Pailing as to how to tie Powell and place her body in the trunk of her
car.  Carpenter argues that such view of the evidence is reasonable and could
support only a conviction for accessory after the fact, not first-degree murder on a
premeditation or felony murder theory.
When the evidence is viewed in a light most favorable to the State, it is clear
that the trial court did not err in allowing the jury to consider the degree of
Carpenter’s involvement in Powell’s murder.  Specifically, the State introduced
evidence showing that Carpenter met Powell at a laundromat on Sunday, November
20, 1994, and within two days had invited her to a “party” at his residence with the
24

intent of arranging a sexual encounter between Powell and Neil Pailing.  Carpenter
was thirty-two years old at the time, while Powell was sixty-two and Pailing was
seventeen.  The State presented evidence demonstrating that Carpenter lived in a
small, efficiency-style residence, where his kitchen and bathroom were separated
from his living area/bedroom by only a partition.  The State also presented evidence
establishing the relative sizes of Carpenter, Powell, and Pailing.  Carpenter was
approximately six feet four inches tall and weighed approximately 210 pounds,
Powell was only five feet eight inches tall and weighed approximately 130 pounds,
and Pailing was between five feet ten inches and six feet tall and weighed
approximately 120 pounds.  The medical examiner testified that Powell’s death was
caused by blunt trauma and neck compression, with the neck compression
requiring total occlusion of the blood vessels in Powell’s neck for a period of  two
to three minutes to cause her death.  Moreover, Stephen Dakowitz, one of
Carpenter’s jailmates, testified that Carpenter had originally indicated that Pailing
had murdered Powell, but when Pailing was apprehended by the authorities,
Carpenter became depressed and admitted to Dakowitz that it was “just the
opposite” of what he had told him before.  Finally, according to Carpenter’s own
recorded statement, he simply stood by and watched while Pailing beat and
25

strangled Powell.  He then instructed Pailing on how to hog-tie Powell and aided
Pailing in disposing of Powell’s body by placing her body in the trunk of her car.
Based on the evidence listed above, the trial court had a sufficient basis to
conclude that the State had presented a prima facie inconsistency with the defense
theory of events.  Specifically, given the relationship of the parties, their ages, their
relative sizes, and the manner in which Powell was killed, the jury could have
rejected Carpenter’s contention that it was Pailing alone who had killed Powell
while Carpenter stood by and watched because he just “freaked out.”  Dakowitz’s
testimony also implicates Carpenter in Powell’s murder.  In addition to the above
evidence presented by the State, it is clear that Carpenter’s numerous statements to
the police were inconsistent with one another.  In similar situations, we have
routinely held that the jury was free to reject the defendant’s version of the events.
See, e.g., Finney v. State, 660 So. 2d 674, 680 (Fla. 1995) (“In light of Finney’s
inconsistent statements concerning his interactions with the victim and his activities
on the day of the murder, the jury was free to reject Finney’s version of events as
unreasonable.”); Bedford v. State, 589 So.2d 245, 250-51 (Fla. 1991) (“Because
each of Bedford’s several versions of events was inconsistent with the others, the
26

jury reasonably could have concluded that each of these accounts was untrue.”).
Section 777.011, Florida Statutes (2000),9 provides:
Whoever commits any criminal offense against the
state, whether felony or misdemeanor, or aids, abets,
counsels, hires, or otherwise procures such offense to be
committed, and such offense is committed or is
attempted to be committed, is a principal in the first
degree and may be charged, convicted, and punished as
such, whether he or she is or is not actually or
constructively present at the commission of such offense.
It is clear that the State presented competent, substantial evidence to support a
conclusion that Carpenter was at least a principal in a murder committed by Pailing,
and, therefore, the trial court properly submitted the issue of Carpenter’s
involvement in Powell’s murder to the jury.
It is also clear that the State presented sufficient evidence for the trial court to
submit Carpenter’s case to the jury on a felony murder theory with sexual battery
as the underlying predicate felony offense.  Carpenter’s hypothesis of innocence in
connection with this theory is that he, Powell, and Pailing had consensual sexual
intercourse as a threesome, and then Pailing killed Powell when she belittled Pailing
for prematurely ejaculating.  The State presented evidence showing that Powell was
9The 1993 version of the statute applies in this case since Powell’s murder occurred in
November 1994, but the present version of the statute is the same as the 1993 version, except that the
Legislature amended the statute in 1997 to replace gender-specific language with gender-neutral
language.  See ch. 97-102, § 1194 at 1423, Laws of Fla.
27

a religious, church-going, sixty-two year old woman who had not had sexual
relations with her close friend John Post even though she and Post had slept in the
same bed on several occasions.  Further, the State presented evidence
demonstrating that Powell suffered several injuries to her vagina which were
consistent with forceful penetration.10   Moreover, the evidence showed that
Powell’s own bra was placed across her mouth as a gag while she was still alive,
which was inconsistent with consensual behavior and with one of Carpenter’s
statements to the police that Powell’s bra was still on her chest “with one breast
exposed.”  Finally, the State presented evidence that there was no semen found in
Powell’s vagina, which was inconsistent with Carpenter’s statement to the police
that Powell belittled Pailing for prematurely ejaculating and that Pailing was not
wearing a condom.  Based upon all of the evidence presented by the State, as well
as the inconsistencies in Carpenter’s various versions of events, it is clear that the
trial court properly submitted Carpenter’s case to the jury for consideration on a
felony murder theory with sexual battery as the underlying offense.  See Hitchcock
v. State, 413 So. 2d 741, 745 (Fla. 1982) (finding that the totality of the
circumstances, including the age of the victim and her previous chaste character,
10The medical examiner could not determine with certainty, however, whether the penetration
was consensual or nonconsensual.
28

refuted defendant’s claim that his sexual contact with the victim was consensual,
and the jury thus “could easily have considered Hitchcock’s contention that the girl
consented to be unreasonable”).
As for premeditation, however, we determine that the State failed to present
sufficient evidence to warrant the trial court’s submission of Carpenter’s case to
the jury on that theory.  Premeditation is defined as
more than a mere intent to kill; it is a fully formed conscious purpose
to kill.  This purpose may be formed a moment before the act but
must exist for a sufficient length of time to permit reflection as the
nature of the act to be committed and the probable result of that act.
Norton v. State, 709 So. 2d 87, 92 (Fla. 1997) (quoting Coolen v. State, 696 So.
2d 738, 741 (Fla. 1997)).   “Evidence from which premeditation may be inferred
includes such matters as the nature of the weapon used, the presence or absence of
adequate provocation, previous difficulties between the parties, the manner in which
the homicide was committed, and the nature and manner of the wounds inflicted.”
Holton v. State, 573 So. 2d 284, 289 (Fla. 1990) (quoting Larry v. State, 104 So.
2d 352, 354 (Fla. 1958)).  During the guilt phase, the State presented evidence that
Carpenter had arranged for the “party” at which Powell was killed, and the State
also presented evidence that Powell died as a result of blunt trauma and neck
compression, with the neck compression requiring total occlusion of the blood
29

vessels in Powell’s neck for two to three minutes to cause her death.  As discussed
above, the State also presented the testimony of Stephen Dakowitz, who testified
that Carpenter had implicated himself in the murder of Ann Powell.  The State
argues that this evidence supports a finding of premeditation, while Carpenter
argues that such evidence does not exclude every reasonable hypothesis that
Powell’s death was effected without a premeditated design.  After reviewing the
evidence and relevant case law, we find that Carpenter’s position on this issue must
prevail.
Most instructive on this issue is our prior decision in Kirkland v. State, 684
So. 2d 732 (Fla. 1996).  In that case, the victim’s death was caused by a “very
deep, complex, irregular wound of the neck,” which cut off the victim's ability to
breathe and caused extensive bleeding.    Id. at 733.  The jury found the defendant
guilty of first-degree murder, and he challenged that finding on appeal, arguing that
the evidence was insufficient to support a premeditation theory.  See id. at 734-35.
The State argued that a premeditation theory was supported by the nature of the
victim’s neck wound, which required multiple slashes, combined with other
wounds caused by blunt trauma, as well as the existence of friction between the
defendant and the victim.  See id.  In rejecting a finding of premeditation, we
reasoned:
30

[T]he State’s evidence was insufficient in light of the
strong evidence militating against a finding of
premeditation.  First and foremost, there was no
suggestion that Kirkland exhibited, mentioned, or even
possessed an intent to kill the victim at any time prior to
the actual homicide.  Second, there were no witnesses to
the events immediately preceding the homicide.  Third,
there was no evidence suggesting that Kirkland made
special arrangements to obtain a murder weapon in
advance of the homicide.  Indeed, the victim’s mother
testified that Kirkland owned a knife the entire time she
was associated with him.  Fourth, the State presented
scant, if any, evidence to indicate that Kirkland
committed the homicide according to a preconceived
plan.  Finally, while not controlling, we note that it is
unrefuted that Kirkland had an IQ that measured in the
sixties.
In Hoefert[v. State, 617 So. 2d 1046, 1048
(Fla.1993)], we were unable to find evidence sufficient to
support premeditation in a situation in which Hoefert had
established a pattern of strangling women while raping or
assaulting them.  Evidence was presented in that case
indicating that the homicide victim, found dead in
Hoefert’s dwelling, was likewise asphyxiated.  Despite the
pattern of strangulation, the discovery of the victim in
Hoefert’s dwelling, and efforts by Hoefert to conceal the
crime, this Court found that premeditation was not
established.  Hoefert, 617 So. 2d at 1049.  In this case,
there is no evidence that Kirkland had established a
pattern of extreme violence as had Hoefert.  A
comparison of the facts in Hoefert and the instant case
requires us to find, if the law of circumstantial evidence is
to be consistently and equally applied, that the record in
this case is insufficient to support a finding of
premeditation.
31

Id. at 735; see also Green v. State, 715 So. 2d 940, 944 (Fla. 1998) (rejecting
State’s argument that the nature of victim’s wounds, which included strangulation,
supported a finding of premeditation, relying on this Court’s decisions in Kirkland
and Hoefert).  The State’s reliance on our decisions in Holton and Hitchcock is
misplaced here because even though both of those cases involved a strangulation
death, there were other factors present in those cases that supported a finding of
premeditation. See Hitchcock, 573 So. 2d at 289-90 (involving defendant who had
fresh scratch marks on his chest the day after the murder and victim with long
fingernails, suggesting that a struggle occurred which belied the defendant’s
assertion that the killing was accidental); Holton, 413 So. 2d at 745 (finding that
defendant’s statement to jailmate that he choked the victim, took her outside, then
choked her again--all to quiet her--supported a finding of premeditation).  While
Carpenter’s version of the events may not be true, the evidence does not exclude
the reasonable hypothesis that Powell was killed, without premeditation, after she
rebuffed sexual advances made by Carpenter and Pailing.  Accordingly, we
determine that the trial court should have granted Carpenter’s JOA motion with
regard to only the premeditation theory of first-degree murder.
32

B.  FIRST-DEGREE FELONY MURDER JURY INSTRUCTION
As a second guilt phase issue, Carpenter argues that the trial court erred in
instructing the jury with a modified instruction for first-degree felony murder.  After
reviewing the record in this case and relevant case law, we determine that Carpenter
is not entitled to relief on this issue.
At the jury charge conference, the State requested that the trial court modify
the standard jury instruction for first-degree felony murder to incorporate a
“principals” theory of liability.  Specifically, the State requested that the trial court
include the phrase “or his principal” immediately following Carpenter’s name in
paragraphs 2.a. and 2.b. of the first-degree felony murder standard jury instruction,
presumably to reflect Neil Pailing’s involvement in the sexual battery predicate
felony offense.  Thus, instead of stating: “The death occurred as a consequence of
and while David C. Carpenter was engaged in the commission of sexual battery[,]
or the death occurred as a consequence of and while David C. Carpenter was
attempting to commit sexual battery,” the proposed instruction provided: “The
death occurred as a consequence of and while David C. Carpenter or his principal
was engaged in the commission of sexual battery[,] or the death occurred as a
consequence of and while David C. Carpenter or his principal was attempting to
commit sexual battery.”   (Emphasis added.)  The State also proposed the same
33

modification to paragraphs 2.a. and 2.b. of the third-degree felony murder
instruction, with aggravated battery as the asserted underlying predicate felony
offense.  Finally, the State requested that the trial court give the standard instruction
on principals, which provided:
If two or more persons help each other [commit] [attempt
to commit] a crime and the defendant is one of them, the
defendant is a principal and must be treated as if [he][she]
had done all the things the other person or persons did if
the defendant: (1) knew what was going to happen (2)
intended to participate actively or by sharing in an
expected benefit and, (3) actually did something by which
[he][she] intended to help [commit] [attempt to commit]
the crime.11
11This was the standard jury instruction on principals in effect at the time of Powell’s murder.
See Standard Jury Instructions in Criminal Cases (95-2), 665 So. 2d 212, 214 (Fla.1995).  By March
1, 1996, the time of the jury charge conference in this case, the instruction had been modified to
provide:
If the defendant helped another person or persons [commit]
[attempt to commit] a crime, the defendant is a principal and must be
treated as if [he][she] had done all the things the other person or
persons did if:   (1) the defendant had a conscious intent that the criminal
act be done, and (2) the defendant did some act or said some word
which was intended to and which did incite, cause, encourage, assist or
advise the other person or persons to actually [commit] [attempt to
commit] the crime.
Id. at 214.  Carpenter has not argued on appeal which standard instruction should have been given in
his case, and because the standard instruction given by the trial court was the one in effect at the time
Powell was murdered, there are no ex post facto issues implicated in this case.  Compare Hooper v.
State, 703 So. 2d 1143, 1144-45 (Fla. 4th DCA 1997) (finding that giving the jury the amended
principals instruction where the defendant committed his offense before the amended instruction took
effect was an ex post facto violation, although such violation was harmless), review denied, 717 So. 2d
538 (Fla. 1998), with  Larman v. State, 724 So. 2d 1230, 1230-32 (Fla. 5th DCA) (finding that giving
34

Relevant to Carpenter’s claim on appeal, defense counsel objected to the
proposed first-degree felony murder instruction, specifically arguing that there was
no case law supporting a deviation from the standard instruction.12   Defense
counsel asserted that if the felony murder instruction was to be given, only the
standard paragraph 2.a. instruction would be appropriate.  Additionally, before the
trial court proceeded after agreeing to instruct the jury on proposed paragraphs 2.a.
and 2.b. of the first-degree felony murder charge as modified by the State, defense
counsel again raised a “strenuous objection” to the instruction.  Further, defense
counsel objected to the reading of the standard principals instruction “as not being
based on the evidence in the case,” and the trial court noted the objection and
permitted a continuing objection on the principals instruction.  Finally, defense
counsel argued in Carpenter’s motion for new trial that the court erred in
improperly instructing the jury during the guilty phase of the trial.
the amended principals instruction where the defendant committed his offense before the amended
instruction took effect would not constitute an ex post facto violation because the amended instruction
“is merely a refinement of the original instruction which more accurately defines the elements of principal
liability,” agreeing with Judge Farmer’s concurring in result only opinion in Hooper), review dismissed,
729 So. 2d 392 (Fla. 1999).
12Defense counsel objected to the first-degree felony murder instruction on several other
grounds that are not the subject of this appeal.
35

The State asserts that even though defense counsel objected to the modified
first-degree felony murder instruction during the jury charge conference, the issue
has not been preserved for our review because (1) defense counsel did not renew
the objection to the modified first-degree felony murder charge at the close of the
charge conference or when the jury was instructed; and (2) the trial court granted
defense counsel’s request to give the jury a special instruction on accessory after
the fact and independent acts.  See Answer Brief at 17-18.  Contrary to the State’s
position, however, the fact that defense counsel did not renew its objection to the
jury instructions clearly does not bar review here.  See, e.g., State v. Heathcoat, 442
So. 2d 955, 955-56 (Fla. 1983) (finding that defense counsel sufficiently preserved
jury instruction issue for review despite counsel’s failure to object where the record
clearly showed that defense counsel requested a specific instruction and the trial
court “clearly understood the request and just as clearly denied the request”); Flint
v. State, 463 So. 2d 554, 555-56 (Fla. 2d DCA 1985) (relying on Heathcoat in
finding that defense counsel could appeal jury instruction issue where charge
conference colloquy indicated that defense counsel preserved objection to the trial
court’s failure to give requested instructions); see also Hubbard v. State, 411 So.
2d 1312, 1314-15 (Fla. 1st DCA 1981) (en banc); Saulsberry v. State, 398 So. 2d
1017, 1017-18 (Fla. 5th DCA 1981).  It is clear that defense counsel satisfied the
36

requirements of Florida Rule of Criminal Procedure 3.390(d)13 by objecting during
the charge conference and specifically advising the trial court of the basis for the
objection.  Further, the fact that the trial court granted defense counsel’s request to
give an independent acts instruction does not affect the preservation issue, although
it does impact the merits of the jury instruction issue.
In analyzing the merits of Carpenter’s jury instruction issue, we note the
following:
This Court has explained that a trial court has wide
discretion in instructing the jury, and the court's decision
regarding the charge to the jury is reviewed with a
presumption of correctness on appeal.  Kearse v. State,
662 So. 2d 677, 682 (Fla. 1995).  In that regard, a trial
judge in a criminal case is not constrained to give only
those instructions that are contained in the Florida
Standard Jury Instructions.  Cruse v. State, 588 So. 2d
983 (Fla. 1991), cert. denied, 504 U.S. 976, 112 S. Ct.
2949, 119 L.Ed.2d 572 (1992).
James v. State, 695 So. 2d 1229, 1236 (Fla. 1997); see also Fla. R. Crim. P. 3.985;
Steele v. State, 561 So. 2d 638 (Fla. 1st DCA 1990); see generally 15A Fla. Jur. 2d
13Florida Rule of Criminal Procedure Rule 3.390(d) provides:
No party may raise on appeal the giving or failure to give an
instruction unless the party objects thereto before the jury retires to
consider its verdict, stating distinctly the matter to which the party
objects and the grounds for the objection.  Opportunity shall be given
to make the objection out of the presence of the jury.
37

Criminal Law § 3507 (1993).  We also note, however, that it is preferable that a
standard jury instruction be given if it adequately explains the law, see, e.g.,
McGuire v. State, 639 So. 2d 1043, 1047 (Fla. 5th DCA 1994), and giving a non-
standard instruction that misleads the jury is reversible error.  See, e.g., Doyle v.
State, 483 So. 2d 89, 90 (Fla. 4th DCA 1986).  In analyzing the modified
instructions given in this case, we determine that the trial court did not abuse its
discretion in giving those instructions.
As the State points out, Carpenter does not challenge on appeal the fact that
the trial court gave the jury the standard instruction on principals.  Instead,
Carpenter argues that adding the phrase “or his principal” to the standard first-
degree felony murder instruction “made it easier for the State to obtain a
conviction.”  Initial Brief at 33.  Although placement and utilization of the phrase
“or his principal” may have been inartful, it was consistent with another portion of
the standard first-degree felony murder instruction.  As a whole, the instruction
given by the trial court read as follows:
Before you can find the defendant guilty of first degree
felony murder, the state must prove the following three
elements beyond a reasonable doubt: One, Ann Powell is
dead.  Two, the death occurred as a consequence of and
while David C. Carpenter or his principal was engaged in
the commission of sexual battery, or the death occurred
as a consequence of and while David C. Carpenter or his
38

principal was attempting to commit sexual battery.
Three, David C. Carpenter was the person who actually
killed Ann Powell, or Ann Powell was killed by a person
other than David C. Carpenter, but both David C.
Carpenter and the person who killed Ann Powell were
principals in the commission of sexual battery.
(Emphasis added.)  The trial court followed this instruction with a proper standard
instruction on the law of principals, and then gave a specially requested instruction
on independent acts after it read the modified first-degree murder instruction:
If you find that the murder of Ann Powell was committed
by a person or persons other than David C. Carpenter,
and that the felony murder first degree was a totally
independent act of someone other than David C.
Carpenter, and if you further find that David C. Carpenter
did not participate in the felony murder first degree in that
it was completed prior to any participation he might have
had, then you should find David C. Carpenter not guilty
of felony murder first degree.
Based on the above, it is clear that the modified instruction for first-degree
felony murder given by the trial court was consistent with the law of principals.
Moreover, by giving the special independent acts instruction, the trial court made it
clear to the jury that Carpenter could not be found guilty for acts committed solely
and independently by another.  Therefore, we determine that Carpenter is not
entitled to relief on this issue.
C. DECLARATIONS AGAINST PENAL INTEREST
39

As his third and final issue relating to the guilt phase of the trial, Carpenter
argues that the trial court erred in excluding the testimony of William Shay and
Carlos Mendoza, who were prepared to testify concerning self-inculpatory, out-of-
court statements made by Pailing while Shay, Mendoza, Pailing, and Carpenter
were jailed together.  As more fully explained below, we determine that the trial
court committed harmful error in prohibiting Shay and Mendoza from testifying
concerning Pailing’s statements.
The issue before us primarily involves section 90.804(2)(c), Florida Statutes
(2000),14 which provides that the following are not excluded as hearsay if the
declarant is unavailable as a witness:
A statement which, at the time of its making, was so far
contrary to the declarant’s pecuniary or proprietary
interest or tended to subject the declarant to liability or to
render invalid a claim by the declarant against another, so
that a person in the declarant's position would not have
made the statement unless he or she believed it to be true.
A statement tending to expose the declarant to criminal
liability and offered to exculpate the accused is
inadmissible, unless corroborating circumstances show
the trustworthiness of the statement.
14The current version of section 90.804(2)(c) is substantively identical to the version in effect at
the time that Powell was murdered.  Specifically, the Legislature amended the statute in 1995 solely to
replace gender-specific language with gender-neutral language.  See ch. 95-147, § 499 at 387, Laws
of Fla.
40

In analyzing this issue, we note that a trial judge's ruling on the admissibility of
evidence will not be disturbed absent an abuse of discretion.  See, e.g., Blanco v.
State, 452 So. 2d 520, 523 (Fla. 1984).
According to Shay’s proffered testimony, he and Pailing were in a program
together at the Pinellas County Jail entitled “Changing Criminal Thoughts” in  early
1995, and it was there that he and Pailing discussed this case.  On one occasion,
when Shay caused  Pailing to become “upset” about something concerning the
case,15 Pailing “said that he did it.”  According to Shay, Pailing explained that
"David [Carpenter] set him up with this woman, and they were at Dave’s house. . .
.  And Neil and this woman were in the bedroom and Dave heard a bunch of noise.
Dave went into the bedroom, and I guess the woman was dead there because Neil
said then David just -- they didn’t know what to do, so Dave helped him get the
body out of the house.  That’s when they took -- he said he took and tried to torch
the car or something with the body in it.”  Shay testified that Pailing admitted that
he did “the actual murder with a gun or something, and it was in the third drawer of
the dresser”; he hit the woman in the head with the gun.  According to Shay, Pailing
also confessed, “I killed her, I raped her, I burned her up.”  Shay admitted that he
was friends with Carpenter and was housed with him for over two months, and
15Shay testified on cross-examination that he might have called Pailing a “rapist.”
41

when asked if he did not like Pailing, he stated, “I still talk to him today if I seen
him.”
According to Mendoza’s proffered testimony, he was in the same pod with
Pailing for about a month in 1995.  Mendoza recalled an occasion when he and his
cellmate were talking together in their cell when Pailing entered and said that “he
raped her, he put her in the trunk of the car and burned her.”  Mendoza
acknowledged that he was friends with Carpenter but did not get along with Pailing,
describing an incident in which he almost became involved in a physical fight with
Pailing.
The State proffered the testimony of Detective Steffens, who had spoken
with Mendoza and Shay with regard to Pailing’s statements.  According to
Detective Steffens’ proffered testimony, Shay advised him that Pailing “said he was
with the victim Ann Powell and they were in the bedroom and something happened,
at which time Neil hit her over the head and called David Carpenter into the room
and she was killed.”  Detective Steffens also testified that Shay did not initially tell
him about the exact quote from Pailing--“I killed her, I raped her, I burned her up”--
but instead mentioned the quote three days after the initial interview even though
Detective Steffens had pressed Shay during such interview for all relevant
information.
42

After listening to the proffered testimony, hearing oral argument from the
parties, and reviewing relevant law, the trial court excluded the testimony of Shay
and Mendoza despite the fact that the court found that Pailing was unavailable to
testify due to his Fifth Amendment right not to incriminate himself.  In so ruling, the
trial court stated:
I think the inherent difficulty with the proffered testimony
is that, first of all, there's no corroborating evidence of
the essential fact.  In other words, the essential issue here
is who did the murder, and I do

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