Everett v. State

• Decision Date: 24 November 2004
• Docket Number: No. SC03-73.,SC03-73.
• Parties: Paul G. EVERETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

893 So.2d 1278

Paul G. EVERETT, Appellant, v. STATE of Florida, Appellee.

No. SC03-73.

Supreme Court of Florida.

November 24, 2004.

Rehearing Denied January 24, 2005.

Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, and Cassandra K. Dolgin, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

We review a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As explained below, we affirm both.

I. THE FACTS AND PROCEDURAL HISTORY

The evidence at trial showed that during the late afternoon or early evening of November 2, 2001, appellant approached Kelly M. Bailey's home, looking for money and carrying a wooden fish bat or billy club. A stranger to the victim, appellant entered her home uninvited. When Ms. Bailey confronted him, appellant beat her, and as she tried to escape, knocked her down and raped her. He also forcefully twisted her neck, breaking a vertebra, which paralyzed her and caused her to suffocate to death. Before leaving, appellant removed his t-shirt, but he took with him some money from the victim's purse, his fish bat, her credit card, and her sweater. Outside the house, he discarded all but the cash. The victim suffered multiple injuries: a knocked-out tooth; a fractured nose; swollen eyelids; lacerations and bruising of her lips; a lacerated lip through which her teeth protruded; abrasions and carpet burns; a broken neck; and vaginal abrasion evidencing the use of force and consistent with nonconsensual sexual intercourse.

Appellant was indicted on charges of first-degree murder, burglary of a dwelling with a battery, and sexual battery involving serious physical force. Among other evidence at trial, the fish bat was traced to the appellant and his DNA matched the vaginal swabs from the victim on all thirteen genetic markers tested.¹ The jury found appellant guilty as charged.

Following the penalty phase, the jury unanimously recommended that appellant be sentenced to death. The trial court followed the jury's recommendation. It found three aggravating factors: (1) appellant was a convicted felon under a sentence of imprisonment at the time of the murder; (2) he committed the murder while engaged in the commission of a sexual battery or a burglary; and (3) the murder was especially heinous, atrocious, or cruel. The court found the following statutory mitigating factors and accorded them the weight indicated: (1) appellant's age (very little weight); (2) the crime "was committed while under the influence of some type of substance" (little weight);² (3) lack of significant history of prior criminal activity (little weight); (4) family background (very little weight); and (5) drug use (little weight). The court also found nonstatutory mitigating factors, with each given very little weight: (1) appellant's remorse; (2) good conduct in custody; (3) the alternative punishment of life imprisonment without parole; and (4) appellant's confession. After weighing the mitigating and aggravating factors, the court found that each of the aggravators individually outweighed the mitigation and imposed a sentence of death.

II. THE ISSUES PRESENTED

Everett raises five issues on appeal: (1) that the trial court's admission at trial of physical evidence obtained from him and his confession violated his Fifth Amendment right to silence; (2) that the trial court erred in admitting the testimony of the State's DNA expert regarding population frequency; (3) that appellant's death sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); (4) that the standard penalty phase jury instructions violate Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); and (5) that use of the "under sentence of imprisonment" aggravator is unconstitutional because there is no evidentiary nexus between the factor and the homicide.

We affirm the judgment and sentence. Because appellant's first issue raises a question of first impression in this Court, we fully discuss our reasoning on that issue. First, however, we address appellant's four other claims.

A.

In his second claim, appellant argues that the trial court erred in admitting the testimony of the State's DNA expert regarding population frequency. In Butler v. State, 842 So.2d 817 (Fla.2003), this Court stated that DNA analysis is a two-step process. First a biochemical analysis determines that two samples are alike, and then statistics are employed to determine the frequency in the population of that profile. Id. at 827. Both require use of scientific methods that meet the Frye test for validity. See Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). As to the first step, the expert testified, without objection, that appellant's DNA matched the DNA from the rape kit on each of the thirteen markers tested and that all other individuals tested were completely excluded as matches. Regarding the statistical analysis, a qualified expert must demonstrate a "sufficient knowledge of the database grounded in the study of authoritative sources." 842 So.2d at 828 (quoting Murray v. State, 692 So.2d 157, 164 (Fla.1997)). Here, the expert testified to seven years' experience in analytical chemistry, attendance at several courses and conferences on population genetics and statistics, and previous experience testifying as an expert in this area. Further, she employed the product rule in her analysis, and she testified that the National Research Council developed the standards and procedures for the analysis, which was accepted internationally as the methodology for such analysis. In addition, she used the FBI database used by the Florida Department of Law Enforcement (FDLE) for all such analysis. See Butler, 842 So.2d at 828

(stating that Butler's claim of invalidity of product rule "is inaccurate in light of the case law that continues to uphold the validity of the product rule"). Finally, her testimony was specific to segments of the population (e.g., 1 in 15.1 quadrillion of the Caucasian population), and she testified that her results were reviewed twice under FDLE's procedures. Accordingly, the court did not err in finding the expert qualified to testify on population frequency because her testimony was based on established scientific principles in which she was trained and had experience.

B.

In his third claim, Everett challenges his sentence as unconstitutional under Ring v. Arizona, 536 U.S. at 584, 122 S.Ct. 2428, which requires that, other than the fact of a prior conviction, the jury must find the facts supporting the aggravating factors used to impose the death penalty. In this case, the jury unanimously recommended death, and one of the aggravating factors found was that the murder was committed during the course of a sexual battery or burglary, two crimes of which the jury also found Everett guilty. Accordingly, we reject his claim as we have rejected similar ones. See, e.g., Caballero v. State, 851 So.2d 655, 663-64 (Fla.2003)

(denying relief under Ring where one aggravating factor was that the murder was committed during the commission of a burglary and kidnapping, charges on which defendant also was convicted, and the court determined that any one aggravator outweighed all the mitigation).³ We also have rejected the claim that the jury must unanimously specify each aggravator found. See Owen v. Crosby, 854 So.2d 182, 193 (Fla.2003); Duest v. State, 855 So.2d 33, 48-49 (Fla.2003),

cert. denied, 541 U.S. 993, 124 S.Ct. 2023, 158 L.Ed.2d 500 (2004).

C.

Appellant's fourth claim is that the jury instructions violated Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), which held that it is "constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death sentence rests elsewhere." This claim also fails. We have repeatedly upheld the jury instructions against such claims. Floyd v. State, 808 So.2d 175 (Fla.2002); Sochor v. State, 619 So.2d 285, 291 (Fla.1993) ("Florida's standard jury instructions fully advise the jury of the importance of its role and do not violate Caldwell.").

D.

Finally, Everett's fifth claim is that use of the "under sentence of imprisonment" aggravator is unconstitutional because there is no evidentiary nexus between the factor and the homicide. This issue is not preserved for review and does not constitute fundamental error.

III. THE FIFTH AMENDMENT AND MIRANDA⁴

We now address Everett's first claim, which is one of first impression in this Court. Everett contends that his motion to suppress his confession and the biological samples he provided should have been granted because they were obtained in violation of his rights under the Fifth Amendment. In reviewing a motion to suppress evidence, the trial court's findings of fact are accorded a presumption of correctness. This Court, however, must "review independently mixed questions of law and fact that ultimately determine constitutional rights." Connor v. State, 803 So.2d 598, 607 (Fla.2001),cert. denied, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002). The pertinent facts are undisputed; thus, we review de novo the constitutional issue raised.⁵

A. The Facts

Within hours of the murder, an Alabama bail bondsman, unaware of the murder but searching for Everett because he was a fugitive, found him in Panama City, Florida, and transferred him to Alabama authorities. On November 14, 2001, roughly two weeks after the murder, two Panama City Beach police officers investigating the case, having traced the wooden fish bat found near the crime scene to Everett, traveled to Alabama. They read Everett his rights under...