SC93697 Seburt Nelson Connor v. State of Florida

SUPREME COURT CASES

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State: Florida

Court: Supreme Court

Docket No: sc93697

Case Date: 09/06/2001

Plaintiff: SC93697 Seburt Nelson Connor

Defendant: State of Florida

Preview:Supreme Court of Florida
No. SC93697
SEBURT NELSON CONNOR,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[September 6, 2001]
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the
death penalty upon Seburt Nelson Connor.   We have jurisdiction pursuant to article
V, section 3(b)(1) of the Florida Constitution.   For the reasons expressed below,
we affirm the convictions and sentences, including the sentence of death.
Connor was arrested in Miami on Saturday, November 21, 1992, for the
double murder of Lawrence Goodine and Jessica Goodine.   The record establishes
the following facts surrounding the crimes.

In the 1970s, Connor began an extra-marital affair with Margaret Bennett.
When Bennett found out that Connor was married, she ended the relationship.   In
1979, Margaret married Lawrence Goodine and the couple had two children, Karen
and Jessica.   Margaret later separated from Lawrence and in 1988 she renewed her
relationship with Connor.   Connor became a father figure to Margaret’s two
children.   However, in early 1992, Margaret told Connor that she did not want to
see him anymore.
Over the next several months, Connor allegedly harassed Margaret.   Her
house was burglarized a number of times, with the burglar taking bed sheets, towels
and linens.   One witness stated that she observed Connor shoot a gun at
Margaret’s house as he drove by.   One of Margaret’s neighbors testified that she
received a threatening phone call from a person who she believed was Connor.
The caller stated that he was going to kill Margaret and her daughter Karen.
On July 28, 1992, Margaret obtained an ex parte domestic violence injunction
against Connor.   A permanent injunction was issued on August 19, 1992.   Connor
told one of Margaret’s neighbors that he would stop bothering Margaret if she
would go back to her husband Lawrence Goodine.   In September of 1992,
Margaret complied with Connor’s request and asked Lawrence to move back into
her house.   In October of 1992, Connor purchased a black 1986 Cadillac, a car that
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was identical to the car that Margaret already owned.   A neighbor testified that she
would often see a black Cadillac driving slowly through the neighborhood.
On Thursday, November 19, 1992, Margaret left for work in the morning and
her daughters Karen and Jessica (age 10) went to school.   Lawrence Goodine
remained in the house.   He was last seen at the house at 2:30 p.m.   Jessica returned
home after school and went across the street to play with one of her friends.   While
the girls were playing, they noticed a black Cadillac at Jessica’s house, so Jessica
went home.   Jessica came back shortly thereafter and told her friend that she was
leaving.   Jessica left in the Cadillac and Jessica’s friend testified that she thought
Jessica left with her father.
Jessica’s sister Karen came home at approximately 6 p.m.   Karen called her
mother and told her that neither Lawrence nor Jessica was home and that it
appeared that someone had been in the house.   Margaret told Jessica to call the
police.   When Margaret arrived home, she told the police that she thought Connor
had something to do with the disappearances.   The police called the Connor
residence Thursday night and spoke to Mr. and Mrs. Connor.   Detective Murias
later went to the Connor house at about 3 a.m. on Friday, November 20.   A black
Cadillac was parked outside the house.   The property where the Connors lived
contained a house and a separate “cottage” behind the house.   When Detective
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Murias arrived, Mr. Connor was in the cottage and Mrs. Connor went around to get
him.   When asked about the disappearances, Mr. Connor told Detective Murias that
he did not have any contact with Jessica or Lawrence that day.
Late in the afternoon on Friday, November 20, 1992 (one day after Lawrence
and Jessica disappeared), Lawrence’s body was found in a wooded area near the
Fort Lauderdale airport.   The cause of death was multiple blunt trauma to the head.
He was hit on the head five times and each of the blows would have rendered him
unconscious and each was fatal.   When his body was removed at 4:30 p.m., he had
been dead about 24 hours.
When the detectives went to the Goodine house to report the discovery of
Lawrence’s body, they noticed blood on the living room carpet and on the wall.
Subsequent tests revealed that the blood was probably Lawrence’s.   The police
also noticed a broken chair.   Apparently the killer hit Lawrence over the head with a
leg from the chair.
The search for Jessica intensified with the discovery of Lawrence’s body.
Several police officers returned to Connor’s house at 2 a.m. on Saturday,
November 21 (approximately four hours after the police discovered the blood at
the Goodine residence).   The police did not go to the house to arrest Connor; they
only went to the house to question him.   When Mrs. Connor answered the door,
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Detective Murias and Detective Tymes told her that they wanted to speak to Mr.
Connor.   Mr. Connor came out of the bedroom wearing pajamas, and Detective
Tymes told Mr. Connor that she “needed to further talk to him” at her office.   Mr.
Connor asked if he could get dressed and he was given permission to do so.
Detective Tymes stated that Mr. Connor voluntarily agreed to go to the station.   As
they left the house, Detective Tymes asked Mr. Connor if she could search the
Cadillac.   He agreed and she filled out a consent form and Mr. Connor signed it.
Detective Tymes searched the car and noticed blood stains on the rear seat and in
the trunk.   Mr. Connor rode with Detective Tymes to the police station.   Mr.
Connor sat in the front seat and was not handcuffed.   While Mr. Connor was on
his way to the station, Detective Murias and another detective searched the cottage
pursuant to Mrs. Connor’s consent.   The detectives did not see anything
suspicious.
Once Mr. Connor and Detective Tymes arrived at the station, Detective
Tymes advised Mr. Connor of his Miranda1 rights, and Mr. Connor signed a
standard waiver form.   Detective Tymes testified that Mr. Connor was not told that
he was under arrest but that in her mind, Mr. Connor was not free to leave.   During
the questioning, Detective Tymes noticed blood on Mr. Connor’s socks and
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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shoes.   When asked about the blood, Mr. Connor stated that he had a cut on his
leg.   Detective Tymes asked Mr. Connor if she could take his socks and shoes, and
Mr. Connor consented and signed a consent form.   Subsequent DNA tests
revealed that the blood on the socks and shoes was that of Lawrence Goodine.
Detective Tymes then asked Mr. Connor for permission to search the house and
cottage.   Mr. Connor agreed and signed another consent form.
Two other detectives went to the Connor residence about 5 a.m. on Saturday
morning, November 21.   The detectives obtained written consent to search the
house from Mrs. Connor and her daughter.   After being asked by the detectives,
Mrs. Connor handed over the clothes that Mr. Connor was wearing on Thursday,
November 19.   The clothes appeared to have blood stains on them, and subsequent
tests revealed that the blood belonged to Lawrence Goodine.
The police obtained a search warrant in order to remove the Cadillac for
further processing.   The Cadillac was towed about 11 a.m. on Saturday, November
21.   Blood stains were found on the pouch behind the driver’s seat and on the rear
seat.   Subsequent DNA tests revealed that the blood was Lawrence Goodine’s.
Around 11 a.m. on Saturday, November 21, the police conducted another
search of the cottage.   The police discovered the body of Jessica wedged between
the bed and the wall, wrapped in a comforter.   The medical examiner testified that
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Jessica probably died sometime late on Friday.   The cause of death was asphyxia
by manual strangulation.   Her eyes were puffy, indicating that she had been crying
and there was residue of duct tape on her face.   A hand had been pressed down
over her mouth with sufficient force to cause hemorrhaging along the gum margin.
Mr. Connor was arrested at 12:30 p.m. on Saturday, November 21.
Prior to trial, defense counsel filed a motion to declare that Connor was
incompetent.   After a competency hearing, the trial court found that Connor was
competent to stand trial.   Months later, during jury selection, the trial court held
another competency hearing and again found that Connor was competent.   The
case proceeded to trial, and Connor testified during the guilt phase, claiming that
the State planted the evidence and Jessica’s body in his house.   He stated that the
police were trying to get revenge against him for filing a previous civil suit against
them.   At the conclusion of the guilt phase, Connor was convicted of two counts
of first-degree murder, kidnapping, and burglary.
After the penalty phase, the jury recommended death by an eight-to-four vote
for the murder of Jessica Goodine and life for the murder of Lawrence Goodine.
The trial court found the following five aggravators for the murder of Jessica
Goodine:   (1)   previous capital felony (murder of Lawrence), (2) murder committed
while engaged in the commission of a kidnapping, (3) murder committed to avoid
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arrest, (4) the murder was heinous, atrocious, or cruel (HAC), and (5) the murder
was cold, calculated, and premeditated (CCP).   The trial court concluded that
Connor failed to establish the statutory mental mitigators but did find the
nonstatutory mental mitigator that Connor suffered from a mental illness at the time
of the offense.   The court gave this mitigator substantial weight.   The court also
found the following nonstatutory mental mitigators:                                         (1) Connor is a good father;
(2) Connor will die in prison if given life sentences; and (3) Connor has had no
disciplinary problems in prison.   The court assigned these mitigators small or little
weight.   The trial court ultimately sentenced Connor to death for the murder of
Jessica Goodine.   The trial court also imposed a life sentence for the murder of
Lawrence Goodine and consecutive sentences of twenty years for the kidnapping
and burglary.
Connor presents six claims in this appeal:                                                  (1) the trial court erred in denying
Connor’s motion to suppress evidence; (2) the trial court erred in finding the avoid
arrest aggravator; (3) the trial court erred in finding CCP; (4) the trial court erred in
rejecting the statutory mitigators of extreme emotional disturbance and impaired
capacity to appreciate the criminality of conduct; (5) the trial court erred in rejecting
the statutory mitigator of no significant criminal history; and (6) the sentence of
death is disproportionate.   We address the issues in turn, beginning with the alleged
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claim of error during the guilt phase of the trial.
In his first claim, Connor asserts that the trial court erred in denying his
motion to suppress his socks and shoes, the clothing seized from his house, the
body of Jessica Goodine, and the evidence seized from his car.   Connor claims in
this appeal that he was illegally arrested when the police came to his house on
November 21, 1992, at 2 a.m.   Connor further claims that this illegal arrest tainted
the subsequent consents that he gave for the searches of his house, his car, and his
clothes.
The State responds by claiming that the detectives had probable cause to
arrest Connor when they initially approached the house on November 21.   We
disagree.   Detective Tymes, the detective who approached Connor on the night in
question, stated in the record that she did not have probable cause to arrest Connor
when she approached the Connor house, and therefore she was not going to arrest
Connor but rather was going to attempt to get him to voluntarily come to the station
to answer some questions.   Further, despite the State’s assertions in this appeal,
whatever evidence the police had in their possession when they approached the
house on November 21, this evidence did not amount to probable cause.
The State argues in the alternative that even if the detectives did not have
probable cause to arrest Connor, the encounter was still permissible because
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Connor voluntarily agreed to go to the station.   We agree.
In order for a court to conclude that a suspect was in custody, it must be
evident that, under the totality of the circumstances, a reasonable person in the
suspect's position would feel a restraint of his or her freedom of movement, fairly
characterized, so that the suspect would not feel free to leave or to terminate the
encounter with police.   See Voorhees v. State, 699 So. 2d 602, 608 (Fla. 1997)
(citing Florida v. Bostick, 501 U.S. 429, 439 (1991)).   This Court previously has
accorded great deference to a trial court's ruling on a motion to suppress:   "A trial
court's ruling on a motion to suppress comes to us clothed with a presumption of
correctness and, as the reviewing court, we must interpret the evidence and
reasonable inferences and deductions derived therefrom in a manner most favorable
to sustaining the trial court's ruling."   Murray v. State, 692 So. 2d 157, 159 (Fla.
1997); see also Walker v. State, 707 So. 2d 300, 311 (Fla. 1997) ("[A] trial court's
ruling on a motion to suppress is accorded great deference."); Escobar v. State,
699 So. 2d 988, 993-94 (Fla. 1997).   Significantly, however, the question of
whether a suspect is in custody is a mixed question of law and fact.   See Ramirez
v. State, 739 So. 2d 568, 574 (Fla. 1999) (citing Thompson v. Keohane, 516 U.S.
99, 106-07 (1995)); Jacobs v. Singletary, 952 F.2d 1282, 1291 (11th Cir. 1992).   As
stated by the United States Supreme Court, mixed questions of law and fact that
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ultimately determine constitutional rights should be reviewed by appellate courts
using a two-step approach, deferring to the trial court on questions of historical fact
but conducting a de novo review of the constitutional issue.   See United States v.
Bajakajian, 524 U.S. 321, 337 n.10 (1998); Ornelas v. United States, 517 U.S. 690,
699 (1996); United States v. Adams, 1 F.3d 1566, 1575 (11th Cir. 1993) (citing
Jacobs, 952 F.2d at 1291).
In Ornelas, the Supreme Court utilized this two-step approach in its appellate
review of determinations of probable cause and reasonable suspicion, also mixed
issues of law and fact:
[A]s a general matter determinations of reasonable suspicion and
probable cause should be reviewed de novo on appeal.   Having said
this, we hasten to point out that a reviewing court should take care
both to review findings of historical fact only for clear error and to
give due weight to inferences from these facts by resident judges and
local law enforcement officers.
517 U.S. at 669 (emphasis supplied).   The Court provided the following policy
reasons for its decision:
A policy of sweeping deference would permit, "[i]n the absence of any
significant difference in the facts," "the Fourth Amendment's incidence
[to] tur[n] on whether different trial judges draw general conclusions
that the facts are sufficient or insufficient to constitute probable
cause."   Such varied results would be inconsistent with the idea of a
unitary system of law. This, if a matter-of-course, would be
unacceptable.
In addition, the legal rules for probable cause and reasonable
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suspicion acquire content only through application. Independent
review is therefore necessary if appellate courts are to maintain control
of, and to clarify, the legal principles.
Finally, de novo review tends to unify precedent and will come
closer to providing law enforcement officers with a defined " 'set of
rules which, in most instances, makes it possible to reach a correct
determination beforehand as to whether an invasion of privacy is
justified in the interest of law enforcement.'"
Id. at 697-98 (citations omitted).   Thus, the Court concluded that an appellate court
has an independent obligation to review the ultimate question of probable cause and
reasonable suspicion using a de novo standard to ensure that the actions of the
police were within constitutionally acceptable parameters, and to further ensure the
uniformity of results among decisions based on similar facts.
Even before its decision in Ornelas, the Supreme Court held in a Fifth
Amendment context that a state court's determination that a defendant was "in
custody" for Miranda purposes was not a matter entitled to a presumption of
correctness, but rather a mixed question of fact and law warranting independent
review in petitions for federal habeas relief:
Two discrete inquiries are essential to the determination
[of whether a defendant was "in custody" for Miranda
purposes]: first, what were the circumstances surrounding
the interrogation; and second, given those circumstances,
would a reasonable person have felt he or she was not at
liberty to terminate the interrogation and leave. . .                                    . The
first inquiry, all agree, is distinctly factual.   State-court
findings on these scene- and action-setting questions
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attract a presumption of correctness [under federal
statutory law].   The second inquiry, however, calls for
application of the controlling legal standard to the
historical facts.   This ultimate determination, we hold,
presents a "mixed question of law and fact" qualifying for
independent review.
Classifying "in custody" as a determination
qualifying for independent review should serve legitimate
law enforcement interests as effectively as it serves to
ensure protection of the right against self-incrimination.
As our decisions bear out, the law declaration aspect of
independent review potentially may guide police, unify
precedent, and stabilize the law.
Thompson v. Keohane, 516 U.S. 99, 112-15 (1995) (citations and footnote
omitted).
Although this Court has not yet done so, other courts have considered and
extended the Ornelas rationale and de novo standard of review to mixed questions
of law and fact in the Fifth Amendment context:
The Ornelas Court established that appellate courts are to review de
novo the ultimate questions of reasonable suspicion and probable
cause.   Since Ornelas, we have followed that reasoning [in the Fifth
Amendment context] by requiring independent review of the [trial]
court’s determination of whether the interrogation was custodial,
whether the confession was voluntary, and whether the Miranda waiver
was voluntary.   However, our review of the [trial] court’s findings of
historical fact is deferential; absent clear error, we shall not reverse
those findings.
United States v. Westbrook, 125 F.3d 996, 1001 (7th Cir. 1997) (citations omitted);
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see also Adams, 1 F.3d at 1575; Jacobs, 952 F.2d at 1291; State v. Campbell, 691
A.2d 564, 569 (R.I. 1997) (applying Ornelas de novo standard to voluntariness of
Miranda waiver, holding "[t]his Court will review de novo legal questions and
mixed questions of law and fact insofar as those issues impact on constitutional
matters, pursuant to Ornelas."); State v. Searls, 693 N.W. 2d 1184 (Ohio Ct. App.
1997) (applying Ornelas de novo standard to waiver of Miranda rights).
Despite our previous statements that a trial court's ruling on a motion to
suppress will be upheld if supported by competent substantial evidence in the
record, see, e.g., Hawk v. State, 718 So. 2d 159, 161 (Fla. 1998); Escobar v. State,
699 So. 2d 988, 994 (Fla. 1997), a careful review of the analysis in many cases
involving suppression issues reveals that this Court has in fact independently
reviewed the application of the legal standard to the facts found by the trial court.2
2See,  e.g.,  Alston  v.  State,                                                                           723  So.  2d  148,                                                                                                                                              154  (Fla.   1998)   (reviewing
                                                                                                           circumstances of confession and concluding police statements were "insufficient" to
                                                                                                           render statement involuntary, so that trial court did not err in ruling the statements
admissible);  Walker  v.  State,                                                          707  So.         2d                                                                                       300,                                                             311   (Fla.        1997)   (reviewing
circumstances of confession, finding the record supported the trial court's ruling, and
affirming because "the police interrogation here simply cannot be characterized as so
coercive as to render [appellant’s] confession involuntary"); Maqueira v. State, 588
So.                                                                                       2d  221  (Fla.   1991)                                                                                    (finding  record  supported  the  trial  court's  ruling,  and
concluding "[w]e find that there were no promises made to [the defendant] that would
vitiate his confession”); Brown v. State, 565 So. 2d 304, 306 (Fla. 1990) (reviewing
circumstances of confession and legal standard of voluntariness and concluding that
"[i]n the absence of any coercion his claim that he had been without sleep and was
exhausted does not overcome the voluntariness of his statement"), abrogated on other
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Further, we have recognized our obligation to review independently   mixed
questions of law and fact that ultimately determine constitutional rights most
recently in Stephens v. State, 748 So. 2d 1028, 1032 (Fla. 1999).   As we explained
in Stephens:
The deference that appellate courts afford findings of fact based on
competent, substantial evidence is an important principle of appellate
review.   In many instances, the trial court is in a superior position "to
evaluate and weigh the testimony and evidence based upon its
observation of the bearing, demeanor, and credibility of the
witnesses."   When sitting as the trier of fact, the trial judge has the
"superior vantage point to see and hear the witnesses and judge their
credibility."   Appellate courts do not have this same opportunity.
Despite this deference to a trial court's findings of fact, the
appellate court's obligation to independently review mixed questions
of fact and law of constitutional magnitude is also an extremely
important appellate principle.   This obligation stems from the appellate
grounds, Jackson v. State, 648 So. 2d 85 (Fla. 1994); Owen v. State, 560 So. 2d 207,
210 (Fla. 1990) (finding that the video-taped confession "show[s] that the confession
was entirely voluntary"), receded from on other grounds, State v. Owen, 696 So. 2d
715 (Fla. 1997); Bush v. State, 461 So. 2d 936, 939 (Fla. 1984) ("Under the totality of
the circumstances, the statements made to [the defendant] did not overcome his will
and produce the confession."); Brewer v. State,  386 So.  2d  232,  237  (Fla.  1980)
("Upon examining the totality of the circumstances surrounding the confession, we
conclude” that the trial court erred in ruling the confession to be voluntary); Ashley v.
State,                                                                                      265  So.   2d  685,   689-90   (Fla.   1972)   ("We  have  carefully  reviewed  the
circumstances surrounding the giving of the statement . . . and find that the confession
was voluntarily and freely made.").   The above cases illustrate that this Court has
previously  exercised  its  independent  obligation  to  ensure  that  the  minimum
constitutional requirements of voluntariness have been complied with before holding
that a confession is admissible against a defendant.
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court's responsibilities to ensure that the law is applied uniformly in
decisions based on similar facts and that the defendant's
representation is within constitutionally acceptable parameters.
Id. at 1034.
Accordingly, for the same underlying policy reasons enunciated in Ornelas
and Thompson, appellate courts should continue to accord a presumption of
correctness to the trial court's rulings on motions to suppress with regard to the
trial court's determination of historical facts, but appellate courts must
independently review mixed questions of law and fact that ultimately determine
constitutional issues arising in the context of the Fourth and Fifth Amendment and,
by extension, article I, section 9 of the Florida Constitution.3   We note that the
majority of appellate courts have in fact been adhering to the reasoning of Ornelas
in their appellate review.   See Albritton v. State,769 So. 2d 438 (Fla. 2d DCA 2000)
(stating that although a "trial court's ruling on a motion to suppress is presumptively
correct . . . the ultimate issue of the voluntariness of a confession is a legal question
requiring independent review"); State v. Gandy, 766 So. 2d 1234 (Fla. 1st DCA
2000) (same); Porter v. State, 765 So. 2d 76 (Fla. 4th DCA 2000) (same); Sims v.
State, 743 So. 2d 97 (Fla. 1st DCA 1999) (same); State v. Wisko, 738 So. 2d 390
3Our holding regarding the proper standard of review of a trial court’s ruling on
a motion to suppress will have no retroactive application to cases final as of the date
this opinion is released.
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(Fla. 4th DCA 1999) (same); Warren v. State, 701 So. 2d 404 (Fla. 1st DCA 1997)
(same).   These opinions state that the determination of whether the application of
the law to the historical facts establishes an adequate basis for the trial court's ruling
is subject to de novo review.   See id.4
Consistent with our prior precedent, applying the analysis used in Ornelas
and Thompson to this case would still give a strong presumption of correctness to
the trial court's determinations of historical fact, reversing those only if not
supported by competent substantial evidence in the record.   However,   in
determining whether the defendant was "in custody" at the time he consented to
allowing the police to search, we have the responsibility of making an independent
determination and review the application of law to those facts de novo.   See
Adams, 1 F.3d at   1575 (citing Jacobs, 952 F.2d at 1291); Albritton, 769 So. 2d at
441; Gandy, 766 So. 2d at 1235; Porter, 765 So. 2d at 77.
In its order denying Connor’s motion to suppress, the trial court determined
that Connor was not in custody when he left with the police to go to the station.
The trial court applied the correct test for making this determination:   whether a
reasonable person would have believed that he or she was free to leave.   See
4But see Shannon v. State, 753 So. 2d 148 (Fla. 3d DCA 2000); Morris v. State,
749 So. 2d 590 (Fla. 5th DCA 2000); A.J.M. v. State, 746 So. 2d 1222 (Fla. 3d DCA
1999); State v. Jackson, 744 So. 2d 545 (Fla. 5th DCA 1999).
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Voorhees, 699 So. 2d at 608.   Based on the two-step approach enunciated in
Ornelas, we find that competent substantial evidence supports the trial court's
findings of historical fact.   Moreover, based on these findings, we hold that the trial
court reached the correct legal conclusion that Connor was not in police custody
when he left to go to the station and that the items seized by the police from
Connor's house and car were the result of a consensual search.
Even if the trial court erred in concluding that Connor was not in custody
when he left with the police to go to the station, this error was harmless, as any
error in this regard did not affect the verdict in this case.   See State v. DiGuilio, 491
So. 2d 1129 (Fla. 1986).   In Norman v. State, 379 So. 2d 643, 646-47 (Fla. 1980),
this Court stated:
The voluntariness vel non of the defendant's
consent to search is to be determined from the totality of
circumstances.   But when consent is obtained after illegal
police activity such as an illegal search or arrest, the
unlawful police action presumptively taints and renders
involuntary any consent to search.   Bailey v. State;
Earman v. State, 265 So. 2d 695 (Fla. 1972); Taylor v.
State.   See Brown v. Illinois, 422 U.S. 590 (1975); Wong
Sun v. United States, 371 U.S. 471 (1963).   The consent
will be held voluntary only if there is clear and convincing
proof of an unequivocal break in the chain of illegality
sufficient to dissipate the taint of prior official illegal
action.   Bailey v. State, 319 So. 2d at 28; Sheff v. State,
329 So. 2d 270 (Fla. 1976).
Hence our inquiry in this case is twofold.   We first
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must ascertain whether the sheriff's initial intrusion into
the farm and tobacco shed violated petitioner's fourth
amendment rights; second, if in fact the intrusion was
unlawful, it must be determined whether the state, by clear
and convincing evidence, has carried its burden of
showing an unequivocal break between the prior illegal
entry and petitioner's subsequent consent to search.
We conclude that there is clear and convincing proof in this case of an unequivocal
break in the alleged chain of illegality sufficient to dissipate any taint of prior official
illegal action.   If the police illegally arrested Connor, they did not use this to their
advantage when obtaining the subsequent consents to search the car, the clothes, or
the house.
The United States Supreme Court addressed an analogous situation in
Brown v. Illinois, 422 U.S. 590 (1975).   In Brown, the defendant was illegally
arrested and subsequently confessed.   The question in the case was whether the
giving of Miranda warnings prior to the confession broke the taint from the prior
arrest.   The Supreme Court provided the following list of factors to consider when
determining whether the taint from previous police misconduct has been broken:
whether Miranda warnings have been given, the temporal proximity of the
misconduct and the confession, the presence of intervening circumstances, and the
purpose and flagrancy of the misconduct.   See id. at 603-04.
In the present case, the police obtained oral and written consents from
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Connor prior to searching the car, taking the shoes and socks, and searching the
house.   Connor was informed of his right to refuse the searches.   Before being
questioned, Connor was given Miranda warnings and he waived his rights in
writing.   Under these circumstances, even if the initial encounter was illegal, any
taint from that encounter did not extend to the subsequent consents.   Hence, there
is no merit to Connor’s first claim of error.
After reviewing all of the evidence in the record, we find that there is
competent, substantial evidence to support Connor’s convictions for two counts
of first-degree murder, kidnapping, and burglary.   The remainder of the alleged
claims of error concern the penalty phase.
Connor’s second claim concerns whether the trial court erred in finding the
avoid arrest aggravator.   To establish the avoid arrest aggravating factor where the
victim is not a law enforcement officer, the State must show beyond a reasonable
doubt that the sole or dominant motive for the murder was the elimination of a
witness.   See Alston v. State, 723 So. 2d 148, 160 (Fla. 1998).   Mere speculation
on the part of the State that witness elimination was the dominant motive behind a
murder cannot support the avoid arrest aggravator.   See Jennings v. State, 718 So.
2d 144 (Fla. 1998).   A trial court’s conclusion regarding an aggravator should be
upheld if the trial court applied the correct rule of law and the trial court’s findings
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are supported by competent, substantial evidence.   See Willacy v. State, 696 So.
2d 693, 696 (Fla. 1997).
The State argues that the evidence in the record establishes that the sole or
dominant motive for the murder of Jessica case was to avoid arrest.   The State
asserts that Jessica returned home when Connor was in the process of cleaning up
the murder scene of Lawrence Goodine.   The State contends that whether or not
Jessica witnessed the murder or saw her father’s dead body, she could at the very
least place Connor at the murder scene.
Our review of the record reveals that there is insufficient evidence to support
the trial court’s conclusion that the State proved the avoid arrest aggravator beyond
a reasonable doubt.   Although the State’s theory regarding Jessica’s murder is
possible, it is certainly also plausible that Connor’s motive for killing Jessica had
nothing to do with witness elimination but rather was related to his obsession with
Margaret and was part of a plan to hurt Margaret by killing one of her daughters.   In
fact, there is evidence in the record that a neighbor of the Goodine’s received a call
from Connor, who threatened to kill Margaret and her daughter Karen.
Yet, despite our finding of error on this issue, we conclude beyond a
reasonable doubt that this error did not affect the ultimate sentence.   See DiGuilio.
As explained below, even after striking this aggravator, four other aggravators
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remain, and under the circumstances of this case, the sentence is still proportionate.
In claim three, Connor asserts that the trial court erred in finding CCP.   In
order to establish CCP, the State must establish that the killing was the product of
cool and calm reflection and was not an act prompted by emotional frenzy, panic,
or a fit of rage (cold); that the defendant had a careful plan or prearranged design to
commit murder before the fatal incident (calculated); that the defendant exhibited
heightened premeditation (premeditated); and that the defendant had no pretense of
moral or legal justification.   See Jackson v. State, 648 So. 2d 85, 89 (Fla. 1994).
In the sentencing order, the trial court stated the following regarding this
aggravator:
The defendant took Jessica Goodine from her home.   He
hid her for a full day while contemplating his decision to
murder her.   The manner he chose to murder the child for
whom he professed affection was especially cold.   The
type of murder he chose was one which was noiseless
but not instantaneous.   Dr. Rao testified that she
struggled in her last moments, indicated by the
hemorrhage in the gum margins.   The defendant coldly
and calculatingly hid the child.   When questioned by
Detective Sarah Tymes, he did not show any anger or
emotion.   He was calm, cool and collected.   His
responses were thoughtful and enigmatic.                                                  “Do I look like
a killer?”, he asked Detective Tymes.
Mr. Connor witnessed all of the child’s tears and
struggles, first as he bound her and gagged her, and
hours later as he placed his hands around her throat
pressing harder and harder until her life was ended.   He
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chose a specific manner and means of death.   He had a
significant period of time to contemplate and consider his
alternatives.
The Court finds that the elapsed time of a full day
between the kidnapping and the murder indicates a
heightened premeditation.   There is no evidence that his
actions were preformed in a rage or panic.   The Court
does not believe that the defendant’s mental illness, that
is, some organicity and some paranoid ideation, reached
such a severity that it interfered with Mr. Connor’s ability
to perceive events, or to coldly plan and carry out his
murder of Jessica.   Rather, the manner and means of
death were done in a highly premeditated fashion, without
any moral or legal justification.   The Court finds that the
State has proved this aggravating factor beyond a
reasonable doubt and gives it great weight.
(Footnote omitted.)   The trial court applied the correct rule of law and the trial
court’s conclusion regarding this aggravator is supported by competent, substantial
evidence.   Therefore, we find no merit to this issue.
In Connor’s fourth claim, he alleges that the trial court erred in rejecting the
statutory mitigators of extreme mental or emotional disturbance and impaired
capacity to appreciate or conform his conduct to the requirements of law.   The trial
court’s analysis concerning these mitigators is thorough and is no less than eight or
nine pages.   The trial court considered expert testimony from seven mental health
experts.   Some of these experts testified at one of the two competency hearings.
With Connor’s consent, the trial court considered all of the evidence in the record
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that related to Connor’s mental condition, even the testimony from the competency
hearings.5   The trial court found the existence of nonstatutory mental mitigation, but
concluded that the evidence did not rise to the level of statutory mental mitigation.
The trial court did give this nonstatutory mitigator substantial weight.
Connor claims that the record establishes that these mitigators were proven
and therefore it was error for the trial court to reject these two statutory mental
mitigators.   It is true that Dr. Eisenstein and Dr. Mosman both testified that Connor
suffered from an extreme mental or emotional disturbance and that Connor’s
capacity to appreciate the criminality of his conduct was impaired.   In contrast to
this testimony, Dr. Garcia testified that neither of the statutory mental mitigators
applied to Connor.   Dr. Levy stated that Connor’s responses to certain tests were
aligned with people who do not suffer from any major emotional disorder.   Dr.
Herrera did not find any psychiatric disorder.   Dr. Ansley stated that she did not
find any gross organic brain dysfunction.   Dr. Jacobson stated that there was
evidence of organicity and some cognitive dysfunction but that Connor is not
nonfunctional.
A trial court may reject a claim that a mitigating circumstance has been
5 Dr. Levy, Dr. Herrera, Dr. Jacobson, and Dr. Ansley only testified at one or
both of the competency hearings and did not testify during the penalty phase.
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proven provided that the record contains competent, substantial evidence to
support the rejection.   See Nibert v. State, 574 So.2d 1059, 1062 (Fla. 1990).
Further, a trial court has the discretion to reject a statutory mental mitigator if the
mental health experts are in disagreement regarding whether the mitigator exists.
See Walker v. State, 707 So. 2d 300, 318 (Fla. 1997).
In the present case, the trial court had the discretion to resolve the conflict in
the testimony in favor of the State, and there is competent, substantial evidence in
the record to support the trial court’s conclusions on this issue.   Therefore, there is
no merit to Connor’s claim of error.
In his next claim, Connor alleges that the trial court erred in rejecting the
statutory mitigator of no significant criminal history.   In rejecting this mitigator, the
trial court cited to Connor’s previous burglaries of the Goodine home, Connor’s
threatening phone call(s) to the Goodine family, and Connor’s conduct in throwing
paint on a car parked in front of the Goodine home.   Connor claims that all of this
conduct amounted to one lengthy criminal incident and was substantially related to
the murders.   See Craig v. State, 685 So. 2d 1224 (Fla. 1996).
We find that the facts of Craig are distinguishable from the present case.   In
that case, the defendant, a cattle ranch manager, was stealing cattle from the owner.
When the owner became aware of the thefts, the defendant murdered him.   The trial
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court found that the “no prior criminal history” mitigator was established,
concluding that the cattle thefts were an integral part of the case.   On appeal, this
Court affirmed, stating that there was evidence in the record to support the trial
court's conclusion that the cattle thefts were substantially related to the murders.
In the instant case, each of the previous crimes appears to be a singular,
discrete act, and thus they were not a part of one lengthy criminal incident.   See
Pardo v. State, 563 So. 2d 77, 81 (Fla. 1990).   Hence, we find no merit to this
claim.
Finally, Connor claims that the death sentence in this case is
disproportionate.   Proportionality review is not simply a comparison between the
number of aggravating and mitigating circumstances.   See Terry v. State, 668 So.2d
954, 965 (Fla. 1996).   This Court’s function in a proportionality review is not to
reweigh the mitigating factors against the aggravating factors; that is the function of
the trial judge.   See Bates v. State, 750 So. 2d 6, 12 (Fla. 1999).   This Court’s
proportionality review requires it to "consider the totality of circumstances in a
case, and to compare it with other capital cases.”   Porter v. State, 564 So.2d 1060,
1064 (Fla.1990).   The death penalty is reserved only for those cases where the most
aggravating and least mitigating circumstances exist.   See Kramer v. State, 619
So.2d 274, 278 (Fla.1993).
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In the present case, the trial court found five aggravators:   murder committed
to avoid arrest, CCP, HAC, murder committed while engaged in a kidnapping, and
previous capital felony (the murder of Lawrence Goodine).   The trial court did not
find any statutory mitigators.   The trial court found four nonstatutory mitigators:
Connor suffered from a mental illness at the time of the crime, Connor was a good
father, Connor would die in prison if given a life sentence, and Connor had no
disciplinary problems in prison.   Even after striking the avoid-arrest aggravator, the
four remaining aggravators still support a death sentence in this case.
The circumstances of this case are similar to other cases where the death
penalty has been upheld by this Court.   For instance, in Zakrzewski v. State, 717
So. 2d 488 (Fla. 1998), the defendant murdered his wife and two young children.
The trial court found three aggravators:   previous capital felony (contemporaneous
murders), CCP, and HAC.   The trial court also found two statutory mitigators
(extreme disturbance and no prior criminal history) and a number of nonstatutory
mitigators.   Additionally, in Arbelaez v. State, 626 So. 2d 169 (Fla. 1993), the
defendant killed his ex-girlfriend’s young boy in order to get revenge.   The
defendant shook the child and squeezed his neck before throwing him over a bridge
into water seventy feet below.   The trial court found three aggravators:   HAC, CCP,
and death during the kidnapping of a child.   In mitigation, the trial court found that
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Arbelaez had no significant history of prior criminal activity and the nonstatutory
mitigating circumstance of remorse.   Based on these cases, we find that the death
sentence is proportionate in this case.
Accordingly, for the reasons stated in this opinion, we affirm the convictions
and sentences, including the sentence of death.
It is so ordered.
SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS, and QUINCE, JJ., concur.
WELLS, C.J., concurs with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
WELLS, C.J., concurring.
I concur in the result in this case, both as to the conviction and sentence.   I
do not join in the opinion in respect to the extended discussion of the standard of
review in respect to the motion to suppress.   I find this Court’s precedent is not in
line with that discussion.   I would continue to follow Murray v. State, 692 So. 2d
157 (Fla 1997); Escobar v. State, 699 So. 2d 988 (Fla. 1997); and Walker v. State,
707 So. 2d 300 (Fla. 1997).
An Appeal from the Circuit Court in and for Dade County,
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Maxine Cohen, Judge - Case No. 92-39548
Bennett  H.  Brummer,  Public  Defender,  and  Louis  Campbell,  Assistant  Public
Defender, Eleventh Judicial Circuit, Miami, Florida,
for Appellant
Robert A. Butterworth, Attorney General, and Fariba N. Komeily, Miami, Florida,   and
Charmaine Millsaps, Tallahassee, Florida, Assistant Attorneys General,
for Appellee
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