McDonald v. State

• Decision Date: 01 July 1999
• Docket Number: No. 87,059.,87,059.
• Citation: 743 So.2d 501
• Parties: Merle S. McDONALD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

743 So.2d 501

Merle S. McDONALD, Appellant, v. STATE of Florida, Appellee.

No. 87,059.

Supreme Court of Florida.

July 1, 1999.

Rehearing Denied September 17, 1999.

Richard N. Watts, St. Petersburg, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Candance M. Sabella, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Merle S. McDonald. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For reasons which follow, we affirm McDonald's conviction and sentence of death.

PROCEDURAL POSTURE

Appellant Merle McDonald and his codefendant, Robert Gordon, were tried together before a single jury during which they were convicted of first-degree murder for the killing of Dr. Louis A. Davidson on January 25, 1994. Following the penalty phase of the trial, the jury recommended death by a vote of nine to three as to each defendant. The trial court followed the jury's recommendation and sentenced both McDonald and Gordon to death.¹ As for McDonald, the trial court found four aggravating factors: (1) the murder was committed during the commission of a burglary/robbery;² (2) the murder was committed for pecuniary gain (based on a contract killing);³ (3) the murder was heinous, atrocious, or cruel (HAC);⁴ and (4) the murder was cold, calculated and premeditated (CCP).⁵ The trial court found no statutory mitigating factors and three nonstatutory mitigators: (1) McDonald's good prison behavior; (2) McDonald's advanced age at the time he will be eligible for release; and (3) codefendant Denise Davidson's receipt of a life sentence.⁶

APPEAL

This appeal follows, in which appellant raises eight issues.⁷ Initially we note that several of McDonald's claims are identical to those claims raised by Gordon in his appeal, which were adversely decided by this Court. See Gordon. We have again considered those claims. However, because the evidence against McDonald and Gordon is the same and McDonald has not demonstrated any error in our analysis and conclusion as to those issues as raised by Gordon, we reject McDonald's claims for the same reasons asserted in Gordon.⁸ McDonald's remaining claims warrant discussion.

HAC Jury Instruction

First, McDonald argues that the jury instruction given for the heinous, atrocious, or cruel (HAC) aggravator is overly broad and unconstitutionally vague. During the charge conference, counsel for McDonald objected to the standard HAC instruction. In response, the trial court asked counsel for alternative instructions. None were provided. However, both defense counsel asked the court to delete the definitions of the terms heinous, atrocious and cruel and to add a sentence stating: "In determining whether the murder of Dr. Louis Davidson was especially heinous, atrocious or cruel you may not consider injuries inflicted after the victim lost consciousness or died." Thus, the entire instruction as given to the jury read as follows:

Number three, the crime for which the defendant is to be sentenced was especially heinous, atrocious, or cruel. The kind of crime intended to be included as heinous, atrocious or cruel is one accompanied by additional acts that show that the crime was conscienceless or pitiless and was unnecessarily torturous to the victim. In determining whether the murder of Dr. Louis Davidson was especially heinous, atrocious or cruel you may not consider injuries inflicted after the victim lost consciousness or died.

The trial court complied with McDonald's request to delete the definition of the terms "heinous," "atrocious," and "cruel." Because McDonald agreed to the instruction actually given without providing any alternative instructions, we find he has waived any claims he may have concerning the HAC instruction. "A party may not invite error and then be heard to complain of that error on appeal." Pope v. State, 441 So.2d 1073, 1076 (Fla.1983).

Prejudicial Statements by Prosecutor

As his seventh claim, McDonald argues that the prosecutor made several improper comments during closing argument in the penalty phase of the trial. First, McDonald contends the prosecutor's remarks implied that the defendants circumvented the American way of life by killing for what they wanted rather than working for it:

You know people in our society want to buy cars and clubs, the American way. The normal way is you get up in the morning and you go to work. And you punch a clock. You don't kill people for it. And that is what these men did. That is the value that they placed on human life.

Because McDonald and Gordon were Jamaican, McDonald asserts, the prosecutor improperly appealed to the emotions and fears of the jury to send a message to foreign citizens "not versed in the `American' way of life." Appellant's Initial Brief at 29.

McDonald also challenges the prosecutor's following remarks concerning the pain and suffering felt by the victim:

They subdued him and tied him. Why, ladies and gentlemen, did they have to do this to him? Why did they have to blindfold him, gag him, they had to gag him because he was crying out and they had to keep him quiet.

. . . .

There was more violence than that. They broke three of his ribs. Gagging on the mouth, look at the mouth injury? How tightly he was gagged. And why? Because he was crying out for mercy. He was crying out.

. . . .

He is lying there. He is tied up and he is down and what it happening, the water is filling up.... We all filled up our bath tub before, and what was Dr. Davidson having to do during that period of time? Listen to the water as it filled that bath tub, with him either in it or out of it, it doesn't matter. Listen to water as it filled up. And as he knew his life was going to be taken away. And under their scenario I sure hope they held him down, because if you think about it, if they didn't hold him down when he was trying to get up then what he did is he would have had to necessarily be hog tied like he was, hearing the water falling.

Think about the time frame when you go back in the jury room. Think about the time frame if [sic] would take. How long it would take to fill the tub up. Twenty minutes? How long they were in the house. It is a lot longer than it sounds. And if he is lying like this, ladies and gentlemen, and that water is filling up and they're not holding his head down. Is he drowning with the possibility of ever getting any air at all as that bath tub is filling up with water as he is drowning face down, not able to get up, not able to do anything but rock and roll. That is the method of this killing and the ordeal that this doctor went through. That is the aggravating circumstance of heinous, atrocious and cruel.

(Emphasis added.) McDonald contends that the comments on what the victim must have felt during the attack violated the "golden rule" because they forced the jury to place themselves in the shoes of the victim.

Unfortunately, defense counsel did not object to any of these comments during the State's closing remarks or move for a mistrial. Instead, counsel for McDonald filed a motion for new trial following the conclusion of the penalty phase proceeding which alleged improper comments by the prosecutor during closing arguments. At a hearing held on August 4, 1995, the trial court denied the motion because no objection had been made at trial.

Because counsel failed to object to the alleged improper statements by the state attorney during closing argument, McDonald has not preserved this issue for review, and, therefore, his arguments are not cognizable on appeal. See Chandler v. State, 702 So.2d 186, 191 (Fla.1997),

cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998); Kilgore v. State, 688 So.2d 895, 898 (Fla.1996). The only exception to this procedural bar is where the prosecutor's comments constitute fundamental error. See Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998); Bonifay v. State, 680 So.2d 413, 418 n. 9 (Fla.1996). Fundamental error is defined as the type of error which "reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Urbin, 714 So.2d at 418 n. 8 (quoting Kilgore, 688 So.2d at 898). Upon consideration of the comments made during closing remarks in this case, taken both individually and collectively, we find that allegedly improper comments do not rise to the level of fundamental error.⁹

See Sochor v. State, 619 So.2d 285, 290 (Fla.1993).

While we find the prosecutor's remarks to be ill-advised, they do not rise to the level of fundamental error. See Chandler, 702 So.2d at 191 n. 5

(noting that prosecutor's thoughtless and petty comments toward defense counsel and defendant were not so prejudicial as to vitiate entire trial); Davis v. State, 604 So.2d 794, 797 (Fla. 1992) (holding that while comment by prosecutor during penalty phase closing argument that "it might not be a bad idea to look at [the knife] and think about what it would feel like if it went two inches into your neck" was improper, it was not so egregious as to undermine jury's recommendation). The jury was well aware of the facts of this case. They had heard testimony from the victim's fiancé, who discovered the body, and had viewed pictures of the victim and the condition of the bathroom in which he was found. Accordingly, we do not believe that the prosecutor's comments so tainted the jury's verdict so as to warrant a new penalty phase proceeding.¹⁰

DNA Test Results and Statistical Comparisons

In claim eight, McDonald argues the trial court failed to determine the admissibility of the DNA test results and the basis of the statistical comparisons according to the standards enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), and Brim v. State, 695 So.2d 268 (Fla. 1997), for novel scientific evidence.¹¹ However, defense counsel did not object to...