Supreme Court of Florida
____________
No. SC06-748
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RUSSELL HUDSON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[July 3, 2008]
REVISED OPINION
PER CURIAM.
Russell Hudson appeals from a judgment of conviction and sentence of
death for the first-degree murder of Lance Peller. He also appeals his conviction
for armed kidnapping of Jennifer Fizzuoglio and the consecutive life sentence he
received for that conviction. We have jurisdiction. See art. V, § 3(b)(1), Fla.
Const. For the reasons explained below, we affirm the convictions and sentences.
FACTS AND PROCEDURAL HISTORY
The Guilt Phase
In October of 2001, Lance Peller, who was twenty-two years old, was a drug
dealer in Deerfield Beach, Florida, selling cocaine and ecstasy out of his apartment
in the Tivoli Lakes Club Apartments. Russell Hudson, who was thirty-two years
old at the time, was a friend of Lance Peller and was also involved in selling drugs
by virtue of working for another drug dealer named Felipe Mejia. Peller and
Hudson were members of a group of friends and acquaintances that partied
together regularly and consumed large quantities of cocaine and ecstasy.
Hudson, by his own characterization, was being “groomed” to be the number
two man to Mejia. As part of this grooming and newly accorded responsibility,
Hudson was instructed by Mejia approximately three weeks before the murder that
Peller was underselling Mejia and needed to be killed. 1 Mejia offered to supply
Hudson with a gun. Although Hudson denied taking the gun from Mejia,
Hudson’s roommate, Jeffrey Stromoski, saw Hudson with a handgun similar to the
murder weapon about a month before the murder.
Hudson went to Peller’s apartment on the evening of Saturday, October 20,
2001, with Peller’s own handgun that had been stolen in a burglary of Peller’s
apartment in August of 2001. Jennifer Fizzuoglio, a dancer, was Peller’s girlfriend
in October of 2001. She had not seen Peller all day Saturday and decided to drop
1. Shortly after the investigation began in this case, an inquiry by detectives
to the Immigration and Naturalization Service resulted in Mejia’s deportation. At
the time of Hudson’s trial, Mejia had not returned and had not been charged with a
crime in the case. Nor had Justin Dilger, whom Hudson also implicated, been
charged at the time of trial, although Detective Glen Bukata testified that he filed
probable cause affidavits pertaining to their suspected involvement in bringing
about the death of Lance Peller.
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by his apartment on the way to work. After talking with him by phone earlier that
evening, she drove her red Ford Mustang to his apartment, arriving somewhere
between 8 p.m. and 8:30 p.m. During her call to Peller, he did not say anything
about a problem with Hudson and did not sound upset or nervous. When she
arrived, Peller smiled, hugged her, and let her into the apartment.
When Fizzuoglio arrived, Hudson was already there, sitting in a chair in
front of the coffee table. She knew Hudson only slightly after having met him at a
party some weeks earlier. Fizzuoglio sat down on the floor next to the coffee table.
Sometime after Fizzuoglio arrived, Peller’s phone rang and while he talked on the
phone, she and Hudson made small talk. When Peller got off the phone, Hudson
rose and started moving toward the bathroom, which was visible from the living
room in the small apartment. Suddenly, Hudson turned around, crouched down in
front of the coffee table, and pulled out a gun.
Peller looked shocked and said something to the effect of, “how did you get
my gun?” Hudson kept saying, “Tell me what I want to hear, Lance.” Fizzuoglio
began crying and “freaking out” and offered Hudson money, which she assumed
was at the root of the problem between them. Hudson then made a cell phone call
to someone and said, “Do I have to do this now? Somebody showed up.” It
appeared to Fizzuoglio that Hudson did not want to commit the murder and was
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attempting to find a way to get out of it. Hudson kept the gun in his hand during
this call.
Hudson then decided to use some cocaine and tried to prepare it himself but
could not do so while holding the gun. He made Fizzuoglio prepare the lines of
cocaine and ordered Fizzuoglio and Peller to use some cocaine after him. Hudson
then started “freaking out,” saying there were people outside who would kill them
all if he did not kill Peller. He kept looking out the window and the door peephole,
but Fizzuoglio said she never saw anyone outside. He told Peller and Fizzuoglio to
hide and Peller went into the bathroom and sat on the floor. Fizzuoglio crouched
in the kitchen, where her fingerprint was later found on the floor.
Peller became very anxious and began hyperventilating. Fizzuoglio tried to
calm him down, but they were both scared, especially when Hudson kept saying
someone was outside. Peller asked Hudson to let Fizzuoglio go because she was
not involved in the dispute. Finally, Peller asked Hudson for a phone to call his
father to tell him goodbye and Hudson kicked a phone over to him. Peller called
his father at 9:13 p.m. and, after no one answered, left a message. 2
While Peller was on the telephone and Fizzuoglio was crouching in the
kitchen, Hudson came over to her and said, “Are you going to be alright with
2. Evidence that the call was made, and the time of the call, was presented
during the guilt phase but the actual words of the message were not presented until
the penalty phase of the trial.
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this?” Hudson then went and banged his hand and his head on the door in what
appeared to Fizzuoglio to be an effort to psyche himself up. She testified that,
“with one movement, one second, he stops and he walks over and grabs a blanket
and then he walks back - - to where Lance was . . . inside the bathroom” and “[h]e
shot him.” Hudson shot Peller once through the blanket into the top of Peller’s
head, killing him almost instantaneously.
Immediately after shooting Peller, Hudson put on latex gloves and searched
the apartment, handing things to Fizzuoglio to carry, including Peller’s wallet,
keys, a scale, and several cell phones. He then forced her out the door and into the
passenger side of her red Mustang after saying he could not find his keys to the
black Nissan, which he had driven to the complex and left parked in the lot.
Hudson put the gun under his left leg and drove while Fizzuoglio was in the
passenger seat. She testified that he made a phone call during the ride as they
proceeded west on 10th street. After he finished the call, he looked at her and said,
“I’m sorry. I have to do this.” At that moment, she jumped out of the car as it was
moving and ran across the street into a ditch. She then banged on a car asking for
help but the people in the car were afraid and drove off, calling 911. She stated
that she also jumped on the back of a tow truck but jumped off when Hudson drove
up. She saw a marked patrol car at a stop light and ran over, jumping onto the
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hood of the car. The car was driven by Deputy Kim Bauer, who was on her way to
work when she was flagged down by Fizzuoglio.
Fizzuoglio was hysterical, crying, and screaming that she had just seen her
friend killed and that someone was trying to kill her, but she did not identify who
was involved or where it occurred. The female officer called for backup deputies,
who arrived and heard the same story. Fizzuoglio also told them that she had
ingested some cocaine and the deputies, because they thought she was overdosing
on drugs, sent her to the hospital alone in an ambulance. Only later, upon
receiving an anonymous call about the murder, did Broward deputies realize she
was telling the truth and went to interview her at the hospital.
Sometime after Hudson had left the scene with Fizzuoglio, two teenage boys
who had previously bought drugs from Peller went to his apartment to see about
buying some cocaine. They had called around 9 p.m. or a bit earlier and were told
by Peller that he was busy and to call back in about thirty minutes. Peller did not
sound upset and did not tell them anything about Hudson or the gun. They called
back a few more times beginning about 9:15 p.m. but no one answered, so they
proceeded to the apartment and arrived around 9:30 p.m.
One of the boys stayed in the car while the other went in to see if Peller was
home. He was able to enter the apartment because the door was ajar. He came
back out and told his friend that he thought Peller was passed out in the bathroom.
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Both boys went back in and found Peller lying in the bathroom against the wall
with blood on the floor and a beer bottle in his hand. The boys did not call the
police but instead went through the apartment looking for drugs. The boys left and
went their separate ways. One of the boys decided to report the murder and made
an anonymous call to the police. The other boy returned alone to the apartment to
look around and was there when the police arrived.
Robert Moreau was a friend of both Hudson and Peller. Moreau’s
apartment was within walking distance from Peller’s apartment in the large
complex. Around 11 p.m., Hudson called Moreau’s apartment from a pay phone
and asked to be picked up at a Dairy Queen located in Pompano Beach, which was
a few miles away from his apartment. Moreau picked him up near the Dairy
Queen at 11:15 p.m. Hudson appeared normal, which for a Saturday night meant
“out of it.” Moreau did not take Hudson to pick up his car, but took him to
Moreau’s apartment where Hudson changed clothes.
Also that same evening, around 11 p.m., Denver Wilson was walking
through the parking lot of the First Presbyterian Church of Pompano Beach on the
way to his house, which was located near the church. The First Presbyterian
Church is located about 400 feet from the Dairy Queen where Hudson made his
telephone call to Moreau. While walking toward his house, Wilson saw a red
Mustang with the motor still running, backed into a parking space in the parking
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lot adjacent to the church. The car remained there all day Sunday. On October 22,
a deputy was dispatched to the church to check out the red Mustang and found it
parked there, with the keys in the ignition, still in the “on” position, and with a
dead battery. The Mustang was identified as being owned by Fizzuoglio and
Hudson’s DNA was found on the steering wheel.
Fizzuoglio met with deputies several more times after leaving the hospital in
the early morning hours of October 21. She finally told detectives that the person
who murdered Peller was named “Russell.” She was later shown a photo lineup of
twelve different individuals with the name “Russell” and picked Hudson’s photo
from that group. She also identified Hudson in court as the person who shot Peller.
In addition, John Coyne, an acquaintance of Hudson, also testified that Hudson
essentially confessed to him in a phone conversation they had while Hudson was in
jail.
It was not until July 20, 2002, that the murder weapon was found. A
gardener found the handgun pushed down into the dirt of a flower bed next to the
same First Presbyterian Church building where the Mustang had been found. The
serial number matched a gun stolen from Peller’s apartment in a burglary that
occurred about two months before his murder. No fingerprints were found on the
gun.
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Hudson was arrested at 11:40 p.m. on October 21, after he arrived to pick
up his black Nissan that was still in the parking lot in front of Peller’s apartment.
Hudson’s wallet contained Peller’s driver’s license and credit cards, as well as
Fizzuoglio’s driver’s license. Hudson had used one of Peller’s credit cards to buy
snacks at an Exxon gas station on the morning after the murder. A bullet
consistent with those used in the murder weapon was found in the pocket of the
driver’s side door in Hudson’s Nissan.
After being taken into custody and receiving Miranda 3 warnings, Hudson
gave two statements to deputies that were similar to his trial testimony. His
version of events was that about three weeks before the murder, he was told by
Mejia that Peller had to be killed for underselling Mejia. Hudson said he refused
to commit the murder and refused Mejia’s offer of a gun. Hudson said he went to
Peller’s apartment around 4:30 p.m. on October 20 to warn Peller of the serious
threat to him by Mejia and found Fizzuoglio there arguing with Peller. Hudson
said Peller asked him to deliver a package of marijuana to a buyer near the Dairy
Queen in Pompano Beach. Hudson said he asked Fizzuoglio to take him, in order
to allow her time to cool off from the argument, although he drove her red
Mustang because he said she was too upset to drive.
3. Miranda v. Arizona, 384 U.S. 436 (1966).
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Hudson said Fizzuoglio dropped him off and went to run an errand, but
never returned. He said the buyer did not show up until around 9 p.m., after which
they rode around in the buyer’s car checking the quality of the marijuana. Hudson
said that he was dropped off back near the Dairy Queen. He explained having
Peller’s credit cards and the two driver’s licenses by testifying that he had been at a
club with Peller and Fizzuoglio several days before the murder and drinks had been
spilled on the table where Peller’s wallet and Fizzuoglio’s driver’s license were
lying. In the confusion, Hudson said, he picked up those items, put them in his
pocket, and later forgot to return them. He said he paid for the snacks at Exxon
with Peller’s card accidentally.
At the conclusion of the guilt phase, the jury found Hudson guilty of the
first-degree murder of Peller and armed kidnapping of Fizzuoglio.
The Penalty Phase
During the penalty phase, the State presented the testimony of Jennifer
Fizzuoglio, Detective Glen Bukata, and Detective John Butchko. Fizzuoglio
testified again to the events on the night of the murder, especially how scared she
and Peller were and about the call he made to his father. Based on a stipulation
that Peller’s father would not be required to testify to the voice mail he received
from his son, Detective Bukata related the contents of the voice mail message
Peller left on his father’s telephone at 9:13 p.m. Peller said, “Hi, Dad, it’s your
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son. I love you. I just want to tell you and Mom that I love you both much. I’m
about to die. I love you both. Bye.”
Detective Butchko testified to the details of Hudson’s prior second-degree
murder conviction, which occurred when Hudson was a juvenile. In that case, the
victim was a fifty-five year old man named Rosenbrock who gave Hudson money
and drugs for sex. Hudson stabbed the man thirty-four times because, according to
Hudson’s report to police, the man was trying to get him to have sex with another
man for money.
In mitigation, Hudson presented the testimony of Dr. David Kramer, a
clinical psychiatrist. He had not examined Hudson, but testified in response to
hypothetical questions about the effect that parental abandonment and sexual abuse
during adolescence would have on a person. In his opinion, that sort of abuse can
cause a person to feel danger, stress, powerlessness, and aggression, although
murder is not a predicted result from childhood sexual abuse.
Rusty Rabakozy, a close childhood friend, testified that when he was a
young teenager, his own guardian sexually abused him and made him go out with
other men. Rabakozy said the guardian also “pimped out” Hudson regularly for
several years, paying him with drugs. Hudson’s father, James Hudson, testified
that Hudson’s mother abandoned him when he was two years old. Hudson was a
very smart and good child but got into trouble with drugs in his teens. Hudson was
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hospitalized at South Florida Hospital several times, although the details of his
hospitalization were not revealed. Hudson earned his GED while in prison and,
when he got out of prison for the Rosenbrock murder, Hudson began a career in
computers. James said Hudson was very close to his sister and is a “charmer”
whom people will believe. He testified that Hudson’s half-sister, Theresa, idolized
Hudson. Hudson has also been a source of support and encouragement for his
sister, Tracie Ann, who testified that they have maintained a close relationship.
After his parents’ divorce when Hudson was two years old, he lost contact
with his siblings during his childhood. His mother testified that she saw him only
a handful of times after the divorce, the last time being when he was about ten
years old, even though she lived across the street from him. After his father
remarried, Hudson’s relationship with his father suffered and, Hudson reported to a
friend, his stepmother had him committed to a mental hospital “to get rid of him.”
Hudson’s wife, Rosemary, testified that drugs caused them to drift apart,
although she still loved him. Hudson wrote his stepson a very inspiring letter from
prison advising him to work hard and stay out of trouble. Several other
acquaintances of Hudson testified that he used a lot of drugs.
Hudson was close friends with Kim Hurtado, who asked him to become
guardian to her teenaged son, Sean, for a couple of months right before the murder.
Hudson was a great guardian to Sean, making him do his homework, ensuring that
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he had lunch money, teaching him about computers, and assisting him in many
ways. Hurtado and Sean testified they still love Hudson and think he is a
wonderful person.
The jury recommended death by a vote of seven to five. After finding that
the aggravators outweighed the mitigators, the trial court sentenced Hudson to
death. 4
ANALYSIS
Hudson raises eleven issues on appeal. 5 We will discuss each of Hudson’s
claims in turn. In addition to the issues raised by Hudson, in every case in which a
4. The trial court found four aggravators and assigned great weight to each:
(1) prior violent felony based on the prior conviction for second-degree murder; (2)
prior violent felony based on the contemporaneous armed kidnapping of
Fizzuoglio; (3) the murder was heinous, atrocious, or cruel (HAC); and (4) the
murder was cold, calculated, and premeditated (CCP). The trial court found no
statutory mitigation, rejecting Hudson’s age of thirty-two and his claim that he
acted under extreme duress or substantial domination of Felipe Mejia as mitigating
circumstances. The trial court found twelve nonstatutory mitigators and assigned
little weight to each: (1) abandonment by his birth mother; (2) mental abuse by his
stepmother; (3) history of substance abuse; (4) limitations on contact with his
siblings; (5) inappropriate sexual contact as an adolescent; (6) he was a good
prisoner; (7) his ability to excel at work; (8) he cares for others; (9) his positive
relationships with others; (10) his good courtroom behavior; (11) his ability with
computers; and (12) his use of drugs during the crime. The trial court found that
Hudson had not proven a history of drug addiction, attention deficit disorder
(ADD), or an extensive history of sexual abuse.
5. The claims raised are: (1) error in admission of hearsay testimony of
phone call from Peller to Pritchard; (2) error in allowing Gonzalez’s out-of-court
statement that Hudson stole Peller’s gun; (3) error in allowing the State to
comment on Hudson’s failure to testify against others; (4) error in denying request
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sentence of death is imposed this Court must review the sufficiency of the evidence
and whether the death sentence imposed is proportionate.
I. Hearsay Testimony of Victim’s Telephone Call
Hudson first argues that the trial court erred in allowing Peller’s friend,
Robert Pritchard, to testify about the telephone call he received from Peller on the
night of the murder. Pritchard, a married man with children, testified that he had
known Peller for about four years and had worked with him at a Midas shop until
sometime in August 2001. Pritchard was an assistant manager there and Peller had
helped him manage the office. Although they no longer worked together, they had
remained in contact by telephone and Peller would visit him at the Midas shop a
few times a month.
Pritchard testified that he last spoke to Peller by telephone on the night
Peller was shot at about 7 p.m. or 7:30 p.m., when Peller called Pritchard on his
cell phone at home. Pritchard could see by caller ID that it was Peller and, because
he had known Peller for four years, recognized his voice. Although Peller sounded
calm, he told Pritchard that he needed a gun because someone was there to kill
for special instruction on the HAC aggravator; (5) fundamental error in State’s jury
argument on HAC; (6) error in allowing Fizzuoglio’s testimony that Peller knew
he was going to die; (7) error in finding HAC; (8) error in finding CCP; (9) error in
weighing of sentencing circumstances; (10) failure of judge to make findings
required for the death penalty; and (11) unconstitutionality of the death penalty
statute under Ring v. Arizona, 536 U.S. 584 (2002), or Furman v. Georgia, 408
U.S. 238 (1972).
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him. Peller “was trying to tell [him] who was in the room without saying any
names” and would only say that it was the same person Peller had called Pritchard
about some weeks earlier, asking how to bond someone out of jail. 6 Peller also
explained to Pritchard that the problem arose because he was underselling a drug
dealer. In the background, Pritchard could hear something that sounded like a
bathroom vent fan running during their conversation. When Peller said the man
was there to kill him, Pritchard told him to call the police but Peller responded,
“he’s not going to because it’s a friend” and that “everything would be okay.”
Pritchard did not call the police.
We review a trial court’s decision to admit evidence under an abuse of
discretion standard. Williams v. State, 967 So. 2d 735, 747-48 (Fla. 2007), cert.
denied, 128 S. Ct. 1709 (2008); Johnston v. State, 863 So. 2d 271, 278 (Fla. 2003).
That discretion, however, is limited by the rules of evidence. Johnston, 863 So. 2d
at 278. The State contends on appeal, as it did below, that Peller’s statements
made during the telephone call to Pritchard qualified as either spontaneous
statements or excited utterances under section 90.803, Florida Statutes (2004). The
trial court admitted the testimony without indicating on which evidentiary basis.
6. Detective Brad Libman testified that in the interview with detectives on
October 31, 2001, Hudson discussed the fact that Peller was involved in bonding
Hudson out of jail in the past.
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Section 90.803(1) and (2), Florida Statutes (2004), sets forth the two
pertinent exceptions to the rule prohibiting hearsay evidence:
(1) SPONTANEOUS STATEMENT. —A spontaneous
statement describing or explaining an event or condition made while
the declarant was perceiving the event or condition, or immediately
thereafter, except when such statement is made under circumstances
that indicate its lack of trustworthiness.
(2) EXCITED UTTERANCE. —A statement or excited
utterance relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or
condition.
The excited utterance exception contained in section 90.803(2) requires that
the “statement or excited utterance” relate to “a startling event or condition” and be
made while the declarant was under the stress of excitement caused by the event or
condition. We have explained that to qualify as an excited utterance, the statement
must be made: (1) “regarding an event startling enough to cause nervous
excitement”; (2) “before there was time to contrive or misrepresent”; and (3)
“while the person was under the stress or excitement caused by the event.”
Henyard v. State, 689 So. 2d 239, 251 (Fla. 1996). This Court has observed that
“[i]f the statement occurs while the exciting event is still in progress, courts have
little difficulty finding that the excitement prompted the statement.” State v. Jano,
524 So. 2d 660, 662 (Fla. 1988) (quoting Edward W. Cleary, McCormick on
Evidence § 297 at 856 (3d ed. 1984)). “While an excited utterance need not be
contemporaneous to the event, it must be made while the declarant is under the
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stress of the startling event and without time for reflection.” Hutchinson v. State,
882 So. 2d 943, 951 (Fla. 2004); see also Rogers v. State, 660 So. 2d 237, 240 (Fla.
1995).
Time for reflective thought is significant because it also provides time to
contrive or misrepresent. See Evans v. State, 838 So. 2d 1090, 1093 (Fla. 2002)
(citing Stoll v. State, 762 So. 2d 870, 873 (Fla. 2000)). This is well illustrated in
Hutchinson, in which we found that statements made by the victim in a telephone
conversation to a friend some undetermined period of time after she had a heated
argument with the defendant did not qualify as an excited utterance. 882 So. 2d at
951-52. We explained, “[W]e can only speculate as to whether [the victim]
engaged in reflective thought. However, this was a long enough time interval to
permit reflective thought.” Id. at 951.
Similarly, in Mariano v. State, 933 So. 2d 111 (Fla. 4th DCA 2006), the
declarant, sounding hysterical, called the witness some thirty to ninety minutes
after the declarant and the defendant argued in a car, and related the evening’s
events including the defendant’s attempt to stab the declarant and his threat to run
her down. Id. at 116-17. The court refused to admit the statement as an excited
utterance because the “statement took the form of a narrative of the events, which
in and of itself indicates that the victim is reflecting upon the events of the
evening.” Id. at 117. The “[f]actors that the trial judge can consider in
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determining whether the necessary state of stress or excitement is present are the
age of the declarant, the physical and mental condition of the declarant, the
characteristics of the event and the subject matter of the statements.” Williams,
967 So. 2d at 748 (alteration in original) (quoting Jano, 524 So. 2d at 661).
The circumstances in this case are distinguishable from those seen in
Hutchinson and Mariano, and more comparable to those found in Viglione v. State,
861 So. 2d 511 (Fla. 5th DCA 2003). In Viglione, the Fifth District held that
telephone calls the victim made to several witnesses while he was kidnapped and
was forced to try to get money to pay for his release were admissible as either a
spontaneous statement or an excited utterance. Id. at 513. A review of the
circumstances surrounding Peller’s call to Pritchard in this case demonstrates that
Peller’s statements meet the requirements for the excited utterance exception. The
fact that he called Pritchard and said he needed a gun was a direct reaction to the
presence of a gunman who announced he was there to murder Peller. The presence
of Hudson with a gun and an announced intent to kill Peller, as described by Peller
in his telephone call to Pritchard, was a sufficiently startling condition or event to
meet the requirements of section 90.803(2). The statements were made while the
event was ongoing, rather than being related after the event, negating the
likelihood that Peller had time to contrive or misrepresent; and the statements were
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made while Peller was under the continuing stress or excitement caused by the
event. See Henyard, 689 So. 2d at 251.
The fact that Peller expressed the belief that he probably would not be killed
by a friend does not lessen the obvious anxiety that death was a possibility because
he was “underselling another drug dealer.” Nor is the fact that Peller’s voice did
not sound excited determinative of whether his statements meet the requirements
of section 90.803(2) as an excited utterance. Section 90.803(2) allows admission
of either “a statement or excited utterance” so long as the statement is made
“relating to a startling event or condition” and is made while the declarant is
“under the stress of excitement caused by the event.” § 90.803(2), Fla. Stat. (2004)
(emphases supplied). As the court noted in Tucker v. State, 884 So. 2d 168 (Fla.
2d DCA 2004), “‘excitement’ for purposes of an utterance is not a matter that is
determined exclusively by tone of voice. Some people remain calm of voice when
under stress; others can be excited of voice when fully capable of
misrepresentation.” Id. at 175.
Pritchard testified that Peller did not name the person who was present, but
went to some lengths to give identifying information by telling Pritchard it was the
man Peller had contacted Pritchard about several weeks earlier, asking about how
to bond someone out of jail. Pritchard also heard a bathroom fan running, which
indicated that Peller might have been attempting to avoid being overheard. These
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facts indicate the possibility that Peller did not sound excited because he was
consciously attempting not to be overheard in his telephone call. We conclude that
Peller’s statements to Pritchard meet the requirements of section 90.803(2) for
statements relating to a startling event or condition while under the stress or
excitement of the event or condition. 7
Because the statements related in Pritchard’s testimony were admissible
under subsection (2) of section 90.803 as an excited utterance, the trial court did
not abuse its discretion in admitting Pritchard’s testimony.
II. Hearsay Statement about Theft of the Murder Weapon
In Hudson’s second issue on appeal, he asserts that the trial court erred in
allowing the prosecutor to elicit hearsay testimony from Hudson on crossexamination relating to the theft of the murder weapon, a handgun that had been
stolen from Peller’s apartment several months before the murder. The following
colloquy occurred:
Q
A
Q
A
Q
A
Q
[Prosecutor] Where did you see that gun before, Lance’s
house?
Yes, sir.
You know Lance’s gun got stolen; right?
Yes, sir.
No idea who stole that gun?
I have ideas.
Do you know?
7. We need not address the admissibility of the statements under the
spontaneous statement exception contained in section 90.803(1) because we
conclude they were admissible under section 90.803(2).
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A
Q
A
Q
A
Q
A
Q
A
Q
Um -Do you know?
Now I do.
Now you do? Who stole the gun?
Ernesto Gonzalez.
How do you know that?
Through reading discovery, his statement.
His statement? Ernesto Gonzalez admits to stealing that gun in
his statement?
He admits to burglarizing Lance’s apartment.
With who?
Defense counsel objected at that point, but the trial court overruled the objection.
The prosecutor then continued:
Q
A
Q
A
Q
A
Ernesto Gonzalez admits to burglarizing that house with who?
He claims it was with me.
With you?
He claims it was with me, it wasn’t.
Okay, but that’s in his statement, too; right?
Sure.
Defense counsel again objected that the question called for information that should
not come before the jury and had nothing to do with the case, and moved for
mistrial. The trial court stated that the question was a natural follow-up to
Hudson’s testimony and the motion for mistrial was denied.
As previously mentioned, the standard of review of a trial court’s ruling on
the admission of the evidence is abuse of discretion; however, that discretion is
abused if the ruling is contrary to the rules of evidence. We will, therefore,
determine if the out-of-court statement was properly admitted under the
circumstances of this case.
- 21 -
In this case, the State was engaging in a legitimate area of cross-examination
by asking Hudson if he knew who stole the victim’s gun, which was also the
murder weapon. It was Hudson who volunteered that he knew that Gonzalez stole
the gun because he read it in Gonzalez’s discovery statement, in which Gonzalez
admitted to burglarizing the victim’s apartment and stealing the gun. No objection
was made to that series of questions and it is indisputable that it was to Hudson’s
benefit to claim that Gonzalez, a confederate of Mejia, stole the gun. By Hudson’s
limited answer it is apparent that he wanted the jury to hear only that part of the
hearsay statement implicating Gonzalez and not the second part implicating
Hudson. It was only when the prosecutor was permitted to ask the question “with
who” that Hudson admitted that the statement also implicated him in the burglary
of Peller’s apartment.
We agree with the State that in this case Hudson opened the door by
volunteering Gonzalez’s hearsay statement as the basis for his answer. Once only
a portion of the statement was introduced and essentially presented an incomplete
picture, it was fair for the State to follow up in order to clarify Hudson’s response
and make it complete. “[T]he concept of ‘opening the door’ allows the admission
of otherwise inadmissible testimony to ‘qualify, explain, or limit’ testimony or
evidence previously admitted.” Lawrence v. State, 846 So. 2d 440, 452 (Fla. 2003)
(quoting Rodriguez v. State, 753 So. 2d 29, 42 (Fla. 2000)). “The concept of
- 22 -
‘opening the door’ is ‘based on considerations of fairness and the truth-seeking
function of a trial’” and without the fuller explication, the testimony that opened
the door “would have been incomplete and misleading.” Lawrence, 846 So. 2d at
452; see also Overton v. State, 801 So. 2d 877, 900-01 (Fla. 2001) (agreeing that
the State is permitted to fill in the gaps in the testimony to correct a false
impression left by the defendant).
Here, the prosecutor’s question that elicited the subject of Gonzalez’s sworn
statement did not clearly call for hearsay and was otherwise proper. Once Hudson
opened the door by his answer and implied by his responses that Gonzalez alone
stole the gun, thereby raising the inference that Gonzalez alone committed the
murder, the prosecutor was entitled to elicit a full and fair account of the Gonzalez
statement to clarify that impression. Therefore, we conclude that the trial court did
not abuse its discretion in allowing the prosecutor to further question Hudson about
Gonzalez’s sworn statement in order to qualify or explain his earlier reference to
the contents of the statement.
III. Comment on Hudson’s Failure to Testify Against Others
At the conclusion of the guilt phase, the prosecutor argued in closing
argument:
The Defendant also told detectives that he would accept the charges
and that he’s willing to spend the rest of his life in prison for what
happened. The detectives are saying at the same time, why, why
don’t you tell us, why should that other guy get out there and be able
- 23 -
to roam around free. Give us that guy you were on the phone with,
who’s calling the shots. Because the guy who pulled the trigger is the
guy with the gun, we’d also like the guy who’s on the phone, that’s
why our investigation continues, but we need someone to tell us
who’s on the phone and to testify.
(Emphasis supplied.) Defense counsel objected and moved for a mistrial, arguing
this argument was an improper comment on Hudson’s right to remain silent.
Hudson contends that the comment suggested there was an ongoing investigation
in which Hudson did not cooperate and that Hudson needed to testify about matters
relating to that ongoing investigation. The trial court found that the comment was
proper and denied the motion for mistrial.
We agree that the argument of counsel was not an improper comment on
Hudson’s right to remain silent and not testify because the comment indicating that
he refused to further implicate Mejia or be a witness against him was made after
Hudson expressly waived his right to remain silent and freely conversed with
police. See Hutchinson, 882 So. 2d at 955 (“The prohibition against commenting
on a defendant’s silence does not apply when the defendant does not invoke his
Fifth Amendment right.”); Downs v. Moore, 801 So. 2d 906, 911-12 (Fla. 2001)
(holding that the State is not precluded from admitting evidence of defendant’s
refusal to answer one question of many where defendant has not invoked his Fifth
Amendment rights); Ragland v. State, 358 So. 2d 100, 100 (Fla. 3d DCA 1978)
(holding that where defendant waived his Fifth Amendment rights and freely and
- 24 -
voluntarily conversed with police, comment on the failure to answer one question
of many is not a violation of the defendant’s right to remain silent).
In this case, Hudson did not maintain silence prior to trial, giving several
interviews to detectives after waiving his rights, nor did he maintain silence at trial,
instead taking the stand to testify. While claiming his own innocence in this case,
Hudson fully explained his version of how Mejia directed him to kill Peller and
offered him a gun, how Mejia refused to consider any other solution, and how
Hudson did not follow through with the murder. While the time of the call was
disputed, Hudson admitted calling Mejia to try to cancel the murder.
Because Hudson waived his right to remain silent, gave interviews to
police, and testified at trial, he has not invoked his right to remain silent, and
testimony concerning his reluctance to implicate Mejia further was not improper
comment on his right not to testify. Moreover, the testimony and argument of
counsel was fair comment on the evidence presented by both Detective Bukata and
Hudson, and was made in the context of explaining why there was still an ongoing
investigation in the case—an issue highlighted by defense counsel several times.
The prosecutor said: “Because the guy who pulled the trigger is the guy with the
gun, we’d also like the guy who’s on the phone, that’s why our investigation
continues, but we need someone to tell us who’s on the phone and to testify.” The
prosecutor further explained:
- 25 -
That’s why it’s an ongoing investigation. There’s more than
one person involved in this, no question about it, but we need one
[sic] someone to give us those other people. We know you, Russell
Hudson, pulled the trigger and took Lance Peller’s life, no doubt
about it, but who sent you there and how do we prove who sent you
there. That’s the ongoing investigation.
The ongoing investigation had been made an issue in the case numerous times by
the defense during cross-examination of the detectives and appeared aimed at
suggesting to the jury that the detectives were not entirely sure Hudson committed
the murder. Therefore, the trial court correctly concluded that the argument was
not an improper comment on Hudson’s failure to testify against Mejia, but was fair
comment on the evidence presented. We agree and accordingly deny relief on this
claim.
IV. Denial of Special Instruction on HAC
We now turn to the penalty phase issues. Before the penalty phase, Hudson
sought a modification to the standard jury instruction on the heinous, atrocious or
cruel (HAC) aggravator that would have advised the jury that “[i]n determining
whether the killing was especially heinous, atrocious, or cruel, you are considering
only the effect defendant’s actions had upon the victim, and not the effect the
actions had upon other people who were present but were not killed.” The State
contended that the special instruction was not necessary because the standard jury
instruction correctly covered the matter. The trial court denied Hudson’s request
for the special instruction.
- 26 -
“In order to be entitled to a special jury instruction, [the defendant] must
prove: (1) the special instruction was supported by the evidence; (2) the standard
instruction did not adequately cover the theory of the defense; and (3) the special
instruction was a correct statement of the law and not misleading or confusing.”
Stephens v. State, 787 So. 2d 747, 756 (Fla. 2001) (footnotes omitted). Hudson
argues that the standard instruction is insufficient because it does not tell the jury
not to consider the effect of the killing on others. We disagree. The standard jury
instructions inform the jury that “[t]he aggravating circumstances that you may
consider are limited to any of the following that are established by the evidence.”
Fla. Std. Jury Instr. (Crim.) 7.11 (emphasis supplied). This admonition precedes
the discussion of the aggravating circumstances and acts as a limitation on what the
jury may properly consider.
The standard instruction pertaining to HAC also advises the jury that “[t]he
kind of crime intended to be included as heinous, atrocious or cruel is one
accompanied by additional facts that show that the crime was conscienceless or
pitiless and was unnecessarily torturous to the victim.” Id. (emphasis supplied.)
Hudson also suggests that the jury instruction given by the trial court, which stated
that “[t]orturous murders are those that show extreme and outrageous depravity as
exemplified by desire to inflict a high degree of pain or utter indifference to or
enjoyment of the suffering of another,” allows the jury to consider the suffering of
- 27 -
someone other than the victim. However, this language was part of a special
instruction expressly requested by Hudson. Therefore, Hudson cannot now be
heard to complain that this particular instruction was confusing or incorrectly
directed the jury to consider the suffering of anyone other than the victim.
Accordingly, because the special instruction was adequately covered within
the standard jury instructions and the standard instructions adequately advised the
jury to focus only on the effect of the defendant’s actions on the murder victim, we
conclude that the trial court did not abuse its discretion in denying Hudson’s
requested special instruction.
V. Claim of Fundamental Error in State’s Argument on HAC
In a related argument regarding the HAC aggravator, Hudson claims
fundamental error occurred in the penalty phase closing argument by the
prosecutor. After reminding the jury that Hudson had begun to run around the
apartment talking about people being outside who might kill them all, the
prosecutor made the following arguments:
No one ever saw anybody outside. Why was he doing that to
the people inside the apartment?
Could it be to make Jennifer and Lance Peller more nervous
about what’s going through—could it be to make them suffer more
about what’s happening? Why would he go around saying that?
....
And I’ll submit to you the evidence shows that he tortured them
mentally through this event; so much so that Lance Peller could not
catch his breath, so much so he had to call his father and mother to say
good-bye.
- 28 -
No objection was lodged to this argument. A short time later the prosecutor again
discussed HAC, stating:
The minutes of anguish these folks are going through at that
time, that’s what we’re talking about. That’s what it’s about.
You want to call your dad to say good-bye? Why not. Here is
the phone.
That’s what it’s about. The kind of crime intended to include
which heinous atrocious and cruel is one accompanied by additional
facts to show the crime was conscienceless and pitiless and
unnecessarily torturous to the victim.
(Emphasis supplied.) Again, no defense objection was lodged to that portion of the
argument that referred to the anguish of “these folks” who were in the apartment.
These comments now complained of as fundamental error refer to the
circumstances in the apartment during the time leading up to the murder, including
the panic and fear experienced by both Peller and Fizzuoglio that were exacerbated
by Hudson’s statements that there were people outside who would kill them all.
The prosecutor also noted that Peller’s fear and distress were worsened by his
concern for Fizzuoglio’s safety. In the context in which they were given, the
prosecutor’s comments relate to Peller’s perception of and reaction to his
impending death, and do not appear to be improper.
The one questionable comment made by the prosecutor related to the effect
on Peller’s family. The prosecutor also argued:
Torturous murders are those that show extreme [and]
outrageous depravit[y] as exemplified by desire to inflict a high
- 29 -
degree of pain and or - - see, folks, right there or – or B the utter
indifference to the enjoyment of the suffering of another. That’s
heinous and atrocious and cruel, the mental anguish that he put these
folks through – Lance Peller and his family.
That’s the third aggravator of heinous, atrocious and cruel.
They can say quick all they want with this one bullet, and it probably
was and he said it was.
But I’m asking you to look beyond that, and look at the facts of
him being there from 7:00 to 9:15, 9:20 – whenever that trigger was
pulled.
(Emphasis supplied.) Hudson is correct that the prosecutor should not have asked
the jury to consider the mental anguish of Peller’s family. Because no objection
was lodged, however, the unobjected-to comment would constitute reversible error
only if it rises to the level of fundamental error. This Court explained in Walls v.
State, 926 So. 2d 1156 (Fla. 2006), that in order for improper comments made in
the closing arguments of a penalty phase to constitute fundamental error, they must
be so prejudicial as to taint the jury’s recommended sentence. Id. at 1176.
We do not consider this single isolated reference to the mental anguish of
Peller’s family “so prejudicial as to taint the jury’s recommended sentence” and
therefore rise to the level of fundamental error. Id. 8 In this case, the comments
were brief and isolated. Accordingly, we affirm on this point.
8. “In determining whether fundamental error has occurred where improper
comments are not objected to, this Court examines the totality of the alleged
errors” in the closing argument. Brown v. State, 846 So. 2d 1114, 1127 (Fla. 2003)
(citing Card v. State, 803 So. 2d 613, 622 (Fla. 2001)). However, Hudson has not
identified any preserved error in closing argument that would be included for
consideration in conjunction with the unpreserved claims.
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VI. Fizzuoglio’s Testimony that Peller Knew He Was Going to Die
Hudson next argues that the trial court reversibly erred when it allowed
Fizzuoglio to testify during the penalty phase that Peller knew he was going to die.
This same testimony had come in during the guilt phase, but the trial court
sustained defense counsel’s objection at that time. Fizzuoglio testified again
during the penalty phase and said that after Hudson pulled out the gun, Peller was
scared and began to have what appeared to be an anxiety attack. She tried to calm
him down but both of them remained anxious and frightened. She testified that
after Hudson began talking about people being outside who would kill them,
“Lance knew at that point he wasn’t going to make it out of there alive.” Counsel
objected to this last statement but the objection was overruled and Fizzuoglio
continued by testifying that Peller “knew that he wasn’t going to make it out . . .
alive and he said can she - - let her go, this has nothing to do with her.” She
testified that Peller was “freaking out” and hyperventilating, then asked for a phone
to “call my father to say goodbye.” Fizzuoglio testified that Hudson kicked the
telephone over to Peller and he called his father and left a recorded message
saying: “Hi Dad. It’s your son. I love you. I just wanted to tell you and mom that
I love you both much. I am about to die. I love you both. Bye.”
In Shiver v. State, 564 So. 2d 1158 (Fla. 1st DCA 1990), the court found
testimony that the witness said the appellant “looked like he was going to get
- 31 -
revenge on somebody” was admissible as describing “the witness’s factual
observation of appellant’s mental state at the time.” Id. at 1160. As a general rule,
however, a witness should not testify in the form of opinion or inference, if the jury
is just as capable of drawing those same inferences from the evidence. See Thorp
v. State, 777 So. 2d 385, 395-96 (Fla. 2000).
Because Fizzuoglio’s testimony went beyond simply describing her
observations of Peller to speculate on what Peller was thinking or what he knew at
that time, the trial court erred in allowing Fizzuoglio to testify that Peller knew he
was going to die. However, her reference to what Peller knew was brief, and was
based on testimony of her observations that the judge and jury also had before
them for consideration and from which they could reasonably make the same
inference. Fizzuoglio testified to Peller’s panic upon seeing the gun and hearing
that there were people outside who would kill them all. She heard him express
concern about her safety, asking Hudson to let her go because she was not
involved. She could see that Peller did not physically resist and, by his actions,
appeared resigned to his fate. She heard him ask for a telephone to call his father
to tell him goodbye. Fizzuoglio was subject to cross-examination on all her
observations and on the basis of her characterization of Peller’s reactions to the
threat of his impending death. Therefore, we conclude that the error in admitting
Fizzuoglio’s testimony that Peller knew he was going to die was harmless beyond
- 32 -
a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986)
(stating that application of the harmless error test includes an “examination of the
permissible evidence on which the jury could have legitimately relied”).
Accordingly, we deny relief on this claim.
VII. Trial Court’s Finding of HAC and CCP, Weighing of Sentencing
Circumstances, and Findings for Imposition of Death Penalty
Hudson challenges the trial court’s findings of HAC and CCP, as well as its
weighing of the sentencing circumstances. Hudson also argues that the trial court
failed to make specific written findings required under section 921.141(3), Florida
Statutes (2001), in order to impose a sentence of death. We conclude that there is
no merit to these claims and will discuss each in turn.
A. Finding of HAC
Hudson first challenges the trial court’s basis for finding that the murder was
heinous, atrocious or cruel (HAC). In reviewing a trial court’s finding of an
aggravating circumstance, “this Court’s task ‘is to review the record to determine
whether the trial court applied the right rule of law for each aggravating
circumstance and, if so, whether competent substantial evidence supports its
finding.’” Douglas v. State, 878 So. 2d 1246, 1261 (Fla. 2004) (quoting Willacy v.
State, 696 So. 2d 693, 695 (Fla. 1997)).
We conclude that the trial court had before it competent, substantial
evidence to support the finding of HAC. Hudson correctly argues that a fairly
- 33 -
instantaneous death by single gunshot is often found not to be heinous, atrocious or
cruel. We agree with Hudson that the death by gunshot here was essentially
instantaneous, but we cannot ignore the evidence of the circumstances to which
Peller was subjected leading up to his death, knowing in all likelihood that he was
going to die. As we have observed, “fear, emotional strain, and terror of the victim
during the events leading up to the murder may make an otherwise quick death
especially heinous, atrocious, or cruel,” James v. State, 695 So. 2d 1229, 1235 (Fla.
1997), including where the victim is acutely aware of his or her impending death.
See Gore v. State, 706 So. 2d 1328, 1335 (Fla. 1997) (“[T]he fear and emotional
strain of the victim from the events preceding the killing may contribute to its
heinous nature.”); see also Preston v. State, 607 So. 2d 404, 410 (Fla. 1992) (“Fear
and emotional strain may be considered as contributing to the heinous nature of the
murder, even where the victim’s death was almost instantaneous.”).
In the instant case, the evidence upon which the trial court relied establishes
that Peller knew of his impending death for a significant period of time preceding
his murder. Hudson was actually present with a gun, which he pulled at least
forty-five minutes before the murder. Once Hudson pulled the gun, the evidence
established that Peller was scared and hyperventilating. Certainly Peller’s call to
his father shows acute awareness of his impending death. Fizzuoglio’s
observations and testimony regarding Hudson’s actions and Peller’s reactions,
- 34 -
including his panic and fear, support the trial court’s finding of HAC. Therefore,
no relief is warranted on this claim.
B. Finding of CCP
“In order to find the CCP aggravating factor, the jury must determine that
the killing was the product of cool and calm reflection and 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.” Franklin v. State, 965
So. 2d 79, 98 (Fla. 2007) (citing Jackson v. State, 648 So. 2d 85, 89 (Fla. 1994)).
It is the State’s burden to prove CCP beyond a reasonable doubt. See Walker v.
State, 957 So. 2d 560, 581 (Fla. 2007).
A determination of whether CCP is present is properly based on a
consideration of the totality of the circumstances. Wike v. State, 698 So. 2d 817,
823 (Fla. 1997); see also Lynch v. State, 841 So. 2d 362, 372 (Fla. 2003). “[T]he
facts supporting CCP must focus on the manner in which the crime was executed,
e.g., advance procurement of weapon, lack of provocation, killing carried out as a
matter of course.” Lynch, 841 So. 2d at 372 (quoting Looney v. State, 803 So. 2d
656, 678 (Fla. 2001)). In this case, the trial court’s finding of CCP included the
fact that Hudson took a loaded firearm to the apartment; he discussed the
- 35 -
impending murder with Peller for a substantial period of time; Peller offered no
resistance and was shot in the head execution-style; and the murder was not
spontaneous or impulsive. The trial court found the murder involved heightened
premeditation over and above what is required for unaggravated first-degree
murder, noting that the degree of ruthlessness is evident in the fact that Hudson let
Peller use the telephone to call his father to say goodbye and then shot the
unarmed, unresisting victim in the head. Hudson informed Peller that he had been
sent there to kill him, evidencing a prearranged plan. The trial court correctly
concluded there was no pretense of moral or legal justification.
It is significant that Hudson was in the apartment for at least forty-five
minutes before the shooting. Even though Hudson may have agonized over the
final act and tried to get out of the shooting by calling someone, he clearly had
“ample opportunity” to reflect upon his actions, following which he decided to
shoot Peller execution-style. Id. at 371 (quoting Looney, 803 So. 2d at 678).
Heightened premeditation necessary for CCP is established where, as here, the
defendant had ample opportunity to release the victim but instead, after substantial
reflection, “acted out the plan [he] had conceived during the extended period in
which [the] events occurred.” Alston v. State, 723 So. 2d 148, 162 (Fla. 1998)
(quoting Jackson v. State, 704 So. 2d 500, 505 (Fla. 1997)); see also Looney, 803
So. 2d at 679. This evidence alone would be sufficient to establish heightened
- 36 -
premeditation, but coupled with the facts that Peller’s murder had been planned
weeks in advance and that Hudson took the murder weapon to the scene,
heightened premeditation is clearly proven.
The evidence was also sufficient to support the trial court’s finding that the
murder was calculated. Hudson calculated and prepared in advance to shoot Peller
and took the loaded murder weapon to the apartment where he found Peller alone.
The shooting was not done in a fit of rage but according to a prearranged plan, and
the evidence clearly established that it was also “cold.” The fact that Hudson did
not immediately kill Peller does not make the murder less cold, calculated or
premeditated. In the end, Hudson picked up a blanket to muffle the shot and killed
Peller with a single gunshot to the head.
The trial court recognized and applied the correct rule of law and had before
it competent, substantial evidence to conclude that the cold, calculated and
premeditated (CCP) aggravator was present. Accordingly, this claim is without
merit.
C. Weighing of Sentencing Circumstances and Findings
Hudson contends that the trial court erred in its assignment of weight to the
aggravating and mitigating circumstances that it found. We disagree. The trial
court entered a detailed sentencing order outlining the evidence upon which the
aggravating and mitigating circumstances were found. The judge also explained in
- 37 -
detail why no statutory mitigation had been established. Nonstatutory mitigation
was found in the sentencing order, but as explained by the trial court, was given
little weight. The record supports these findings.
Dr. Kramer testified hypothetically about the effect that adolescent sexual
abuse and parental abandonment could have on a person. However, he did not
examine Hudson and did not connect the evidence of sexual abuse and
abandonment in Hudson’s past to the murder or to Hudson’s actions or motivations
in the case. The evidence, including portions of Hudson’s own testimony,
suggested that the murder was business-related and not personal or the result of
rage or any other mental condition. The rejection of statutory mitigators is
supported by the record, and the trial court’s findings and weight given to the many
nonstatutory mitigators found is both reasoned and supported. The trial judge
correctly weighed the aggravators it found against the mitigators proven by the
evidence and we will not reweigh the sentencing circumstances in this appeal. See
Rodgers v. State, 948 So. 2d 655, 669 (Fla. 2006), cert. denied, 128 S. Ct. 59
(2007). No error has been shown in either the rejection of the statutory mitigators
or in the weighing of the nonstatutory mitigators.
Hudson also contends that the trial court failed to make the specific written
findings required under section 921.141(3), Florida Statutes (2001), expressly
stating that sufficient aggravating circumstances exist and that there are
- 38 -
insufficient mitigating circumstances to outweigh the aggravating circumstances.
This precise claim was found to be without merit in Williams v. State, 967 So. 2d
735, 761 (Fla. 2007) (citing Holmes v. State, 374 So. 2d 944, 950 (Fla. 1979)), and
we reject it here. We said in Holmes that “[t]here is no prescribed form for the
order containing the findings of mitigating and aggravating circumstances. . . . It
must appear that the sentence imposed was the result of reasoned judgment.” 374
So. 2d at 950.
In this case, the trial judge entered a detailed sentencing order in which he
stated the applicable law and made specific findings of fact as to each aggravator
and mitigator. The sentencing order stated that statutory aggravators were found,
that no statutory mitigators were found, that twelve nonstatutory mitigators were
established, and that the aggravators “far outweigh the mitigators.” The court also
found that the aggravators were “overwhelming.” This sentencing order “was the
result of reasoned judgment,” id., and meets the requirements of the statute under
the analysis set forth in Williams and Holmes. Thus, we deny relief on this claim.
VIII. Constitutional Challenge to Capital Sentencing
Hudson challenges the constitutionality of section 921.141, Florida Statutes
(2001), based on Ring v. Arizona, 536 U.S. 584 (2002), and Furman v. Georgia,
408 U.S. 238 (1972). Hudson’s Ring claim fails because the evidence established
that he had a prior violent felony conviction—the second-degree murder
- 39 -
conviction that he incurred as a juvenile—and he was convicted by a unanimous
jury of the contemporaneous kidnapping of Fizzuoglio in this case. See Johnson v.
State, 969 So. 2d 938, 961 (Fla. 2007) (holding that relief is not available under
Ring where one of the aggravators rests on the separate conviction for kidnapping,
which satisfies Sixth Amendment requirements), cert. denied, 128 S. Ct. 2056
(2008); Bryant v. State, 901 So. 2d 810, 823 (Fla. 2005) (holding that Ring does
not apply where one of the aggravating circumstances is a prior violent felony).
The “prior violent felony conviction alone satisfies constitutional mandates
because the conviction was heard by a jury and determined beyond a reasonable
doubt.” Id. (quoting Johnston v. State, 863 So. 2d 271, 286 (Fla. 2003)).
Hudson also claims that his death sentence is unconstitutional because it
results from a sentencing scheme that does not properly narrow the class of deatheligible defendants, in violation of Furman. “[T]his Court has ‘rejected the claim
that the death penalty system is unconstitutional as being arbitrary and capricious
because it fails to limit the class of persons eligible for the death penalty.’”
Williams, 967 So. 2d at 767 (quoting Miller v. State, 926 So. 2d 1243, 1260 (Fla.
2006)); see also Lugo v. State, 845 So. 2d 74, 119 (Fla. 2003). This Court has held
that Florida’s capital sentencing scheme is constitutional in this regard because “[a]
capital sentencing scheme passes constitutional muster if it rationally narrows the
class of death-eligible defendants and permits the sentencer to consider any
- 40 -
mitigating evidence relevant to its determination.” Johnson, 969 So. 2d at 962
(citing Kansas v. Marsh, 548 U.S. 163, 175 (2006)). Johnson also noted that “the
channeled discretion required by the Eighth Amendment is provided by Florida’s
scheme requiring statutory and mitigating circumstances to be found and weighed
first by the advisory jury and then independently by the trial court.” Id. (citing
Proffitt v. Florida, 428 U.S. 242, 248-52 (1976)). Because the Court has
previously addressed all the constitutional claims raised by Hudson and found
them to be without merit, relief will not be granted on these claims.
IX. Sufficiency of the Evidence
Hudson has not challenged the sufficiency of the evidence. This Court,
however, has a mandatory obligation to review the sufficiency of the evidence in
every case in which a sentence of death has been imposed. Jones v. State, 963 So.
2d 180, 184 (Fla. 2007). In this case, the State presented eyewitness testimony by
Jennifer Fizzuoglio, whom Hudson was also convicted of kidnapping, establishing
that when she arrived at the apartment, Hudson was there and that he pulled out a
handgun and held both her and Peller at gunpoint for an extended period of time.
She saw Hudson pick up the blanket and enter the bathroom where Peller was
sitting on the floor. Fizzuoglio heard one shot and Peller was then dead. She
testified that no one else was in the apartment at the time.
- 41 -
Fizzuoglio also testified that Hudson forced her at gunpoint to leave with
him in her car. The State also proved that Hudson’s DNA was on the steering
wheel of Fizzuoglio’s red Mustang. The car was left with the engine running near
the First Presbyterian Church, which is very close to the Dairy Queen where
Hudson was picked up by his friend on the night of the murder. The murder
weapon was found some months later buried in a flower bed at the First
Presbyterian Church.
Hudson also gave statements to police, not challenged on appeal, in which
he admitted that he was being pressured to kill Peller, although he denies having
done so. Hudson’s roommate testified that about a month before the murder, he
saw Hudson in possession of a handgun that looked like the murder weapon. A
bullet that was capable of being fired by the murder weapon was found in the side
pocket of Hudson’s car the day after the murder. Hudson had Peller’s credit cards
and driver’s license in his possession when he was arrested and had used the credit
card for a purchase the day after the murder. He also had Fizzuoglio’s driver’s
license in his possession. John Coyne, an acquaintance of Hudson’s, testified that
Hudson admitted committing the murder in a telephone conversation they had
while Hudson was in jail. We conclude that the evidence against Hudson was
legally sufficient to support his first-degree murder conviction.
X. Proportionality of the Death Sentence
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In all cases in which a sentence of death has been imposed, we must also
review that sentence for proportionality. In the sentencing order entered below, the
trial court found four statutory aggravators: (1) a previous conviction for a felony
involving violence (second-degree murder as a juvenile); (2) the contemporaneous
conviction of a felony involving use or threat of violence (the contemporaneous
armed kidnapping); (3) the murder was heinous, atrocious, or cruel (HAC); and (4)
the murder was cold, calculated and premeditated (CCP). 9 Each of the aggravating
circumstances was accorded great weight. The trial court found no statutory
mitigators but found twelve nonstatutory mitigators, which were accorded little
weight. 10 The trial court found that Hudson had not proven that he had a history of
drug addiction and Attention Deficit Disorder or that he had an extensive history of
sexual abuse.
9. Both (1) and (2) were found based on section 921.141(5)(b), Florida
Statutes (2001). Hudson does not challenge the trial court’s finding of two
separate aggravating circumstances based on the same statutory subsection.
However, because the record shows that the murder was committed in the course
of a kidnapping, which qualifies as a separate aggravator under section
921.141(5)(d), the aggravating circumstance set out in (2) is supported. Therefore,
the total number of statutory aggravators found by the trial court was not
erroneous.
10. The nonstatutory mitigators found were: (1) Hudson’s abandonment by
his birth mother; (2) mental abuse by stepmother; (3) history of substance abuse;
(4) limitations on contact with his siblings; (5) inappropriate sexual contact as an
adolescent; (6) good prisoner; (7) ability to excel at work; (8) cares for others; (9)
positive relationships with others; (10) good courtroom behavior; (11) ability to
use computers; and (12) use of drugs during crime.
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In Walker v. State, 957 So. 2d 560 (Fla. 2007), this Court found the death
sentence proportional where, as here, the case involved an execution-style murder
and a kidnapping, findings of HAC and CCP, and four nonstatutory mitigators to
which the trial judge assigned little to moderate weight. Id. at 585. In Floyd v.
State, 913 So. 2d 564, 573 (Fla. 2005), an execution-style murder in which Floyd
shot the victim in the head, the trial court found three aggravating circumstances—
that the murder was committed while Floyd was under sentence of imprisonment,
prior violent felony conviction, and that the murder was committed in the course of
a kidnapping—as well as one statutory mitigator and several nonstatutory
mitigators. Id. at 578. We held there that the death sentence was proportional
when considered in relation to other death sentences the Court has upheld. Id. at
578-79.
In this case, Hudson’s four weighty aggravators—HAC, CCP, prior violent
felony conviction, and the contemporaneous kidnapping of a separate victim—far
outweigh the minimal mitigation. Accordingly, we find that the death sentence
imposed in this case is proportionate.
CONCLUSION
After a thorough review of all the issues raised by Hudson, and after our
own independent review of the evidence and the sentence, we affirm Hudson’s
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convictions for first-degree murder and the sentence of death. We also affirm his
conviction for armed kidnapping and the sentence imposed for that offense.
It is so ordered.
WELLS, ANSTEAD, PARIENTE, LEWIS, CANTERO, and BELL, JJ., concur.
QUINCE, C.J., concurs in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Broward County,
Paul L. Backman, Judge – Case No. 01-17757-CF10A
Carey Houghwout, Public Defender, and Gary Lee Caldwell, Assistant Public
Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida,
for Appellant
Bill McCollum, Attorney General, Tallahassee, Florida, and Sandra S. Jaggard,
Assistant Attorney General, Miami, Florida,
for Appellee
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