Delmer Smith v. State of Florida

Supreme Court of Florida
____________

No. SC13-1550
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DELMER SMITH,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

[July 9, 2015]

PER CURIAM.

Delmer Smith, who was thirty-eight years old at the time of the crime, was

convicted of the August 3, 2009, first-degree murder of Kathleen Briles, which

occurred during a home invasion and robbery. In this proceeding, Smith appeals

his conviction and the sentence of death that the trial court imposed for this

murder. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons

that follow, we affirm Smith’s conviction for first-degree murder and his sentence

of death.

FACTS
 On the afternoon of August 3, 2009, Kathleen Briles was accosted outside of

her home in Manatee County, after returning from grocery shopping. Briles was

then dragged inside her home, where she was bound, gagged, and beaten to death

with her own antique twenty-three-pound cast iron sewing machine. Numerous

items were stolen from the home.

The victim’s husband, Dr. James Briles, returned home at about 7:30 p.m.,

after completing his rounds at the hospital, and found his deceased wife. When he

first arrived, he noticed that his wife’s car was not parked in its usual spot closest

to their home and that all of the lights inside the home were off. After turning on

the lights, he saw his wife lying facedown on the floor in front of the love seat, her

ankles and hands bound with duct tape. The victim had a duct tape gag around her

mouth, and she was lying in a pool of blood. Her left jaw and head were

deformed, and the antique cast iron sewing machine was on the ground behind her

head.

According to Dr. Briles, it appeared as if somebody had gone through their

belongings and had closed the window blinds, which were usually open. The

furniture was moved around, drawers and doors had been opened, and even their

outdoor shed had been breached. Approximately $30,000-$40,000 worth of

jewelry was missing, including the victim’s wedding band and a diamond baguette

necklace that Dr. Briles had purchased for his wife years before. Further, while the

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victim had been seen wearing a watch earlier that day, she was not wearing a

watch when she was discovered. Dr. Briles identified many unique items that were

missing from the house, including a rare set of nickels a patient had given him, an

old medical encyclopedia that the victim purchased at a yard sale, and a pewter

Minnie Mouse keychain produced by Hudson Creek—a company that went out of

business years ago.

The victim’s purse was found on the front seat of her car, along with a

Publix supermarket receipt that indicated the victim had purchased groceries that

afternoon. Her groceries, which included frozen and refrigerated items, were still

in the trunk of her car. Video surveillance from the Publix store showed the victim

leaving the store with a cart full of groceries at 3:36 p.m. that afternoon and her car

leaving the parking lot a couple of minutes later. Her house was located only

minutes away from the store.

Dr. Wilson Broussard, the medical examiner, performed an autopsy on the

victim, which established that she was killed between noon and 8:00 p.m. on

August 3. She was bound with duct tape before she was killed and had sustained

numerous blows to the back of her head that were consistent with being hit by the

antique sewing machine. In particular, she had sustained a significant blow

consisting of a single impact on one part of her head, in addition to a minimum of

four to five blows to the right side of her head and another four to five blows to

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another portion of her head. In fact, the victim’s skull was so damaged by these

blows that brain matter was visible. Further, she had an eyebrow injury and a

fractured jaw that could have been caused indirectly when blows to the back of her

head caused the front of her head to impact the floor.

In addition to the injuries to her head, the victim had a few abrasions around

her shoulders, a bruised elbow that could have been caused by a direct blow or

rolling on top of her elbows, and a lacerated liver that was likely caused by a kick

or blow to her abdomen. Dr. Broussard testified that based on his review of the

victim and the crime scene, the victim was lying facedown on the floor while she

was hit multiple times with the sewing machine. The blows caused numerous

lacerations to her scalp, resulting in a large volume of blood found at the crime

scene. Dr. Broussard believed that most of the injuries occurred while the victim

was alive. However, he was unable to determine how long the victim remained

conscious after the first blow to her head. Richard Talbot, the crime scene unit

manager with the Manatee County Sheriff’s Office, also testified that the blood

stains found at the crime scene were consistent with the victim being close to the

ground when she was struck.

On the day after the murder, Smith picked up a friend, James Cellecz, in his

Chevy Blazer, and the two ran some errands together. Afterwards, they stopped at

Pawn Stars, a pawn shop. Smith told Cellecz that he wanted to pawn some jewelry

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he had purchased from a friend but had forgotten his identification, so Smith asked

Cellecz if Cellecz could pawn the items for him. One of the items was the

diamond baguette necklace that was later identified as belonging to the victim.

Cellecz agreed to pawn the items, and they both went into the store together.

Cellecz obtained Smith’s permission to accept the price he was offered by the

pawn store clerk for the necklace. During this trip, Cellecz noticed that Smith had

a medical encyclopedia on the floor of his vehicle, which Cellecz thought was odd

because Smith did not have any knowledge of medicine.

At trial, Cellecz testified that Smith usually carried a black backpack that

contained a ski mask, gloves, and a roll of gray duct tape in it. Cellecz expressly

denied breaking into the Briles’s home and killing the victim. He further denied

collaborating with anybody to frame Smith for the crime.

Smith was arrested on February 11, 2010. Following his arrest, he called

Martha Tejeda on multiple occasions, asking her to pick up two duffle bags that

were in storage. Tejeda went to the storage shed and retrieved some of Smith’s

belongings, including a red duffle bag that Smith requested. Before she hid the

bag in her attic, she noticed that there was a lock box inside the bag. She also

retrieved Smith’s vehicle. When the police arrived at her home, she gave them

Smith’s vehicle, and the next day, she gave them the duffle bag. Inside the bag

was a lock box that contained a coin collection in a plastic container, a Minnie

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Mouse keychain, a gold-colored lock, and a watch—all items that had been stolen

from the Briles’s home.

At trial, Dr. Briles identified the items from the duffle bag, including the

unique coin collection and the uncommon pewter Minnie Mouse keychain, even

producing a receipt for the keychain. Attached to the Minnie Mouse keychain

were keys to a vehicle that Smith owned. The medical encyclopedia was also

recovered, and a fingerprint within the book was matched to Smith. None of the

prints within the book matched the Briles or Cellecz. Both Dr. Briles and his son,

Dr. Calvin Briles, identified the medical encyclopedia found with Smith’s

belongings as the one that the Briles had owned.

Michelle Quinones was Smith’s girlfriend, and they lived together at the

time of the crime. At some point, Smith gave Quinones a set of his vehicle’s keys,

which were on a Minnie Mouse keychain. Smith also showed Quinones a his-and-

her watch set, and she put one of the watches in her jewelry box. Smith moved out

in August 2009 and took many of his possessions with him, including a backpack

that contained a black hoodie, a black ski mask, screwdrivers, and pliers.

Quinones later placed the watch that Smith gave her in a trash bag and called the

police to come and pick it up, which an officer did. At trial, she identified the

watch that Smith gave her.

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 The State presented evidence to establish that on 3:44 p.m. on the day of the

murder, Smith’s cell phone was at a location close to where the murder took

place—a fact that was established when Smith’s cell phone received a call that

went unanswered and records indicated that his cell phone used a cell tower that

was 1.24 miles away from the victim’s home. This timing was particularly striking

because the victim had left Publix at 3:38 p.m. and lived only a few minutes away

from the store. Cell phone records further demonstrated that both before and after

this time, Smith’s cell phone was located close to where Smith lived in Sarasota

County. The State also called numerous people who had called Smith’s cell phone

number or had received a phone call from Smith’s cell phone number on the day of

the murder. While none of the witnesses could recall specific telephone calls they

made on August 3, nobody reported receiving a call from Smith’s number from a

person other than Smith. Similarly, nobody recalled calling Smith and having

anyone other than Smith answer the call.

Finally, the State presented evidence demonstrating that, after both Smith

and Cellecz were in jail, Smith met another inmate, Joshua Hull, and learned that

Hull was housed near Cellecz and knew him. Smith asked Hull to pass along a

message to Cellecz that Smith had “something for his ass” and that he knew where

Cellecz’s wife and child were and had “something for them,” as well. When

questioned why Smith was asking Hull to pass along the messages, Hull testified

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that Smith was upset at Cellecz because Smith had given Cellecz some “jewelry

and stuff” to pawn and Cellecz was “snitching” on Smith.

The jury convicted Smith of first-degree murder.

At the penalty phase, the State presented evidence that Smith had prior

violent felony convictions (a 1991 state robbery conviction and 1995 federal

convictions for armed bank robbery and carrying a firearm during a crime of

violence). The State then established that Smith was on felony probation at the

time of the murder based on his 1995 federal convictions. Further, the State

presented evidence that on March 14, 2009, Smith committed a home invasion in

Sarasota where he entered the home of a different victim at approximately 10 p.m.,

wearing a mask and gloves, and threatened to kill the victim. After he forced her

through the house in a search for valuables to steal, Smith bound her hands behind

her back, bound her ankles, and wrapped the binding around her neck so she would

strangle herself if she moved her legs. The State also presented victim impact

statements from two of the victim’s family members: Diane Brinker (the victim’s

sister) and Dr. James Briles (the victim’s husband).

Smith presented testimony from two of his nieces, who are close to Smith

and testified how Smith provided guidance and helped them. Smith also presented

testimony from a psychologist, Dr. Hyman Eisenstein. Dr. Eisenstein reviewed

Smith’s background and various records and testified about Smith’s dismal

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progress in school, including the fact that he repeated grades so often in elementary

school that he was fourteen years old when he was in the fifth grade and was then

promoted to the ninth grade for special education. A report indicated that, during

his childhood, Smith had been physically and emotionally abused by both of his

parents and suffered sexual abuse by his father.

Dr. Eisenstein noted that Smith was in a motorcycle crash that caused some

head trauma. Dr. Eisenstein opined that Smith has attention deficient disorder

(hyperactivity), academic failure, and unequivocal brain damage. While Dr.

Eisenstein recognized that Smith could have met the definition of antisocial

personality disorder, he believed Smith had intermittent explosive disorder instead.

Further, Dr. Eisenstein testified that Smith’s decision-making ability was

profoundly impaired and his judgment, reasoning, executive functioning, and

higher critical processing of information were three to four standard deviations

below the norm. Dr. Eisenstein stressed that Smith had excellent behavior in

prison—a controlled environment where self-control is not as necessary. Dr.

Eisenstein concluded that Smith committed the murder while under the influence

of an extreme mental or emotional disturbance and that Smith’s ability to

appreciate the criminality of his conduct or conform to the requirements of law was

impaired.

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 In rebuttal, the State called Dr. Wade Myers, a medical doctor and professor

in the psychiatry department at Brown University. Dr. Myers reviewed Smith’s

records and Dr. Eisenstein’s report, including the raw data underlying that report.

Dr. Myers disagreed that Smith had impulse problems, noting that Smith did not

have any records of being in fights while he was in prison and that Smith exercised

self-control during the prior Sarasota home invasion. However, Dr. Myers

diagnosed Smith with antisocial personality disorder.

The jury unanimously recommended that Smith be sentenced to death. The

trial court conducted a Spencer1 hearing, during which Smith presented the

testimony of Dr. Ruben Gur, a psychologist who specialized in neuroimaging. Dr.

Gur reviewed Smith’s MRI and asserted that Smith’s brain had tissue loss and

opined that Smith had brain damage on the right side and in the orbital frontal area

of his brain. In reviewing Smith’s PET scan, Dr. Gur testified that some areas

showed hyper-metabolism, which can cause brain damage because toxic chemicals

are released, while other portions of Smith’s brain showed decreased metabolism.

These abnormalities would cause deficits in the ability to experience normal

emotions and affect his self-control. Dr. Gur concluded that based on these issues,

1. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

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Smith’s “thinking brain” was hyperactive at the resting state and that if Smith felt

threatened, his “thinking brain [would] become deactivated.”

Smith also recalled Dr. Eisenstein, who reaffirmed his conclusion that Smith

has brain damage. He also stated that Smith had a “very primitive amygdala melt-

down response,” which hindered his ability to modulate emotional responses and

respond appropriately in high stress situations, including the ability to walk away

from difficult situations.

The State then called Dr. Helen Mayberg, a board certified neurologist with

a strong background in neuroimaging. Dr. Mayberg disagreed that a PET scan

could be used as a “general screening test,” testifying that a PET scan can be

influenced by the level of anxiety present at the time of testing and noting that

Smith had complained of anxiety shortly before the testing. Dr. Mayberg further

emphasized that she was unaware of any medical professional who used Dr. Gur’s

method of analysis to reach a medical diagnosis. According to Dr. Mayberg,

Smith’s PET scan was “very normal looking” and showed no areas of brain

damage. She further disagreed that Smith had a demonstrated impulse control

problem, testifying that brain damage to the frontal lobe affects all aspects of a

person’s life, as opposed to the very narrow circumstances present in Smith’s

record.

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 After considering the evidence presented during the penalty phase and the

Spencer hearing, the trial court found that the aggravating circumstances

“overwhelme[d]” the mitigating factors. The trial court found that five aggravating

circumstances applied and assigned each the following weight: (1) Smith was on

felony probation (moderate weight even though the murder occurred less than a

year from the date of Smith’s release from prison); (2) Smith had prior violent

felony convictions (great weight as to the 1991 state robbery conviction and the

1995 federal armed bank robbery convictions and noting that the court would also

assign great weight to the Sarasota home invasion armed robbery conviction if that

conviction was upheld on appeal2); (3) the murder was committed in the course of

a burglary (moderate weight); (4) the murder was committed for pecuniary gain

(no weight because it merged with the committed-in-the-course-of-a-burglary

aggravator); and (5) the murder was especially heinous, atrocious, or cruel (HAC)

(great weight).

The trial court, however, rejected both of Smith’s proposed statutory

mitigators: (1) Smith committed the murder while under the influence of an

extreme mental or emotional disturbance; and (2) Smith’s capacity to appreciate

2. The Sarasota home invasion armed robbery conviction has since been
upheld on appeal. See Smith v. State, 147 So. 3d 997 (Fla. 2d DCA 2014) (table
decision).

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the criminality of his conduct or conform his conduct to the requirements of law

was substantially impaired. In making this finding, the trial court recognized that

the State’s expert witness testimony “conflicted radically” with the defendant’s

expert witness testimony and found the State witnesses to be “more persuasive and

convincing.” The trial court did find that five nonstatutory mitigating factors

applied and assigned each the following weight: (1) intermittent explosive disorder

(moderate weight); (2) loving relationship with nieces (little weight); (3) physical,

emotional, and sexual abuse as a child (little weight); (4) acute academic failure

and attention deficit disorder (significant weight); and (5) good conduct while in

custody (moderate weight).

Based on these findings, and in accordance with the jury’s unanimous

recommendation, the trial court sentenced Smith to death. This direct appeal

follows.

ANALYSIS

Smith asserts that he is entitled to relief because: (1) the trial court erred in

denying his motion for judgment of acquittal; (2) the trial court erred in denying a

motion for mistrial; (3) the trial court erred in permitting inmate Hull to testify as

to the threat that Smith made to a witness, Cellecz, through Hull; (4) the trial court

erred in denying a continuance; (5) the trial court erred in finding HAC; (6) the

trial court erred in rejecting the two proposed statutory mitigators; and (7)

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Florida’s death penalty scheme is unconstitutional. We address each of these

claims in turn, and in addition, we review whether the sentence of death is

proportional in this case.

I. Denial of Motion for Judgment of Acquittal

In his first challenge, Smith asserts that the trial court erred in denying his

motion for judgment of acquittal because the State presented insufficient evidence

to establish his guilt. “A trial court should not grant a motion for judgment of

acquittal ‘unless there is no view of the evidence which the jury might take

favorable to the opposite party that can be sustained under the law.’ ” Jackson v.

State, 25 So. 3d 518, 531 (Fla. 2009) (quoting Coday v. State, 946 So. 2d 988, 996

(Fla. 2006)). “In reviewing the denial of a motion for judgment of acquittal,

appellate courts apply a de novo standard of review and do not reverse a conviction

where the conviction is supported by competent, substantial evidence.” Id. “In

determining the sufficiency of the evidence, the question is whether, after viewing

the evidence in the light most favorable to the State, a rational trier of fact could

have found the existence of the elements of the crime beyond a reasonable doubt.”

Simmons v. State, 934 So. 2d 1100, 1111 (Fla. 2006) (quoting Bradley v. State,

787 So. 2d 732, 738 (Fla. 2001)).

As the conviction in this case is based wholly upon circumstantial evidence,

a special standard of review applies. “Where the only proof of guilt is

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circumstantial, no matter how strongly the evidence may suggest guilt, a

conviction cannot be sustained unless the evidence is inconsistent with any

reasonable hypothesis of innocence.” Gosciminski v. State, 132 So. 3d 678, 710

(Fla. 2013) (quoting State v. Law, 559 So. 2d 187 (Fla. 1989)), cert. denied, 135 S.

Ct. 57 (2014). The State need not “ ‘rebut conclusively every possible variation’

of events which could be inferred from the evidence, but only to introduce

competent evidence which is inconsistent with the defendant’s theory of events.”

Id. (quoting Law, 559 So. 2d at 189). Once this requirement is met, “it becomes

the jury’s duty to determine whether the evidence is sufficient to exclude every

reasonable hypothesis of innocence beyond a reasonable doubt.” Id. Appellate

courts will sustain a conviction based solely on circumstantial evidence so long as

the evidence is “(1) ‘consistent with the defendant’s guilt’ and (2) ‘inconsistent

with any reasonable hypothesis of innocence.’ ” Delgado v. State, 948 So. 2d 681,

689-90 (Fla. 2006) (quoting Orme v. State, 677 So. 2d 258, 261 & n.1 (Fla. 1996)).

We conclude that the record contains competent, substantial evidence to

support Smith’s conviction for the first-degree murder of Kathleen Briles and that

the trial court did not err in denying the motion for judgment of acquittal. Smith

asserts that he is innocent of the crime and that either Cellecz or somebody else

committed the murder. However, the State presented evidence that contradicted

Smith’s hypothesis of innocence. Specifically, the State presented evidence to

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establish that on the day after the murder, Smith possessed a medical encyclopedia,

which was seen on the floorboard of his vehicle. This book was later found with

Smith’s possessions and had one of his fingerprints in it. The Briles were able to

positively identify the book based on specific characteristics, including the location

of a crease in the cover, and identified pictures of the book in their house before

the murder, which permitted the jury to compare the book in the Briles’s home

with the book found among Smith’s possessions. Moreover, the day after the

murder, Cellecz testified that Smith asked him to pawn the victim’s necklace,

claiming he bought it from a friend. Cellecz pawned the necklace, and the victim’s

husband later positively identified it as belonging to the victim based on unique

flaws in the necklace.

Further, testimony was presented that Smith was in possession of other items

stolen from the home. After Smith was arrested, he called a friend and asked her

to remove several bags from his storage facility, which she did, but subsequently

turned these items over to the police. One of the bags contained numerous items

that had been stolen at the time of the crime, including a special set of coins and

the Minnie Mouse keychain, which was connected to the keys for a vehicle that

Smith owned. Each of these items was unique and specifically identified by Dr.

Briles, the victim’s husband.

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 Regarding the timing of the murder and Smith’s whereabouts, the evidence

established that the victim left Publix with frozen groceries in her trunk on

August 3 at 3:38 p.m. and never removed the groceries. At 3:44 p.m. on the same

day, Smith’s cell phone received a call that he never answered. The call was

relayed through a cell tower that was approximately a mile from the victim’s home

in Terra Ceia, a town in Manatee County. However, calls received prior to and

after that time were relayed though cell towers in Sarasota County, close to where

Smith lived.

Smith’s theory of defense was that either Cellecz or another person had

killed the victim. To rebut this theory, the State called Cellecz, who testified that

he did not break into the victim’s home, but that he had received the stolen items

he later pawned from Smith the day following the murder. Further, Hull testified

that Smith was upset with Cellecz because Smith had given Cellecz some jewelry

to pawn and Cellecz “snitched” on Smith. While Smith disputes the weight and

credibility of this evidence, it nevertheless constitutes competent evidence that is

inconsistent with Smith’s theory of events and it was up to the jury to resolve these

inconsistencies. In addition, the State’s evidence that Smith provided the victim’s

necklace to Cellecz to pawn the day after the murder, as well as evidence that

Smith gave his girlfriend a unique Minnie Mouse keychain that had belonged to

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the victim, likewise constitutes competent evidence that is inconsistent with

Smith’s theory of events.

In reviewing all the evidence presented in the light most favorable to the

State, as well as Smith’s hypothesis of innocence, we conclude that competent,

substantial evidence supports the jury’s finding of guilt and is inconsistent with

any reasonable hypothesis of innocence. Accordingly, we conclude that the trial

court did not err in denying the motion for judgment of acquittal.

II. Denial of Motion for Mistrial

Smith next contends that the trial court erred in denying his motion for

mistrial after a witness revealed another investigation that was occurring in a

different jurisdiction. Specifically, Smith objected to the following testimony from

Detective Linda Deniro, a police officer with the City of Sarasota, who participated

in an investigation involving Smith:

Q. As part of that investigation did you speak to someone
named Michele Quinones?
A. I did.
Q. And did she give you some of the defendant’s property?
A. Yes, she did.
Q. How did that exchange come about?
A. Regarding my investigation that I was doing for the City of
Sarasota—
Q. Well let me stop you there. What I meant was, did she call
you, did you call her, how did she give you the property?
A. Oh, I called her, we talked, and she said she had some
property she would like to turn over to the Sarasota Police
Department. At that time I—

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At that point, defense counsel objected and moved for a mistrial on the basis that

the detective referred to an investigation for the City of Sarasota in an unrelated

case. The trial court denied the motion, stating:

It was a very poor choice of words by the detective. After 23
years in the force, she should have known better than to talk like that.
I believe her exact words, we can look it up, but I believe her exact
words was the investigation I was doing for the City of Sarasota.
“Regarding my investigation that I was doing for the City of Sarasota”
is exactly what she said.
All right, in light of the fact that investigations were being
conducted in multiple cities, and by multiple agencies, I don’t think
the jury would draw the inference that there was a separate
investigation that this officer was working on behalf of the City of
Sarasota for. While that is certainly a possible inference that could be
drawn, in the context of this case I don’t find that it rises to the level
that would require a mistrial. Motion is denied.

The trial court should grant a motion for mistrial only “when an error is so

prejudicial as to vitiate the entire trial.” Jackson, 25 So. 3d at 528 (quoting Salazar

v. State, 991 So. 2d 364, 372 (Fla. 2008)). “[T]his Court reviews a trial court’s

ruling on a motion for mistrial under an abuse of discretion standard.” Id. (quoting

Salazar, 991 So. 2d at 371).

Although Smith alleges that Detective Deniro informed the jury that Smith

was being investigated for other crimes, we disagree that this marginal reference to

an investigation for the City of Sarasota informed the jury about other crimes.

Detective Deniro referenced only “an investigation” she was performing for the

City of Sarasota. At that point, the prosecutor immediately stopped her and

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redirected the question, asking Detective Deniro how she received property from

Michele Quinones. In response, Detective Deniro stated that she had called

Quinones and Quinones said that she had property that she wanted to turn over to

the Sarasota Police Department.

While the trial court acknowledged that it was a “very poor choice of

words,” the trial court also observed that it did not believe that the “jury would

draw the inference that there was a separate investigation.” If, for some reason

from this passing reference, the jury would have concluded there was a separate

investigation, nothing within the detective’s statement informed the jury about the

nature of any investigation or implied that Smith was the focus of the investigation.

The State stopped the witness, and there was no further mention by the State or any

other witnesses of multiple investigations.

We conclude that the trial court did not abuse its discretion in denying the

motion for mistrial on the basis of this isolated reference. Accordingly, we deny

this claim.

III. Objections to Hull’s Testimony

In his third claim, Smith contends that the trial court erred in overruling his

objections to testimony from Hull concerning threats that Smith asked Hull to relay

to Cellecz. “This Court reviews evidentiary rulings for abuse of discretion.”

Gregory v. State, 118 So. 3d 770, 780 (Fla. 2013). However, “[a] judge’s

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discretion is limited by the rules of evidence and by the principles of stare decisis.”

Id. (quoting Johnson v. State, 969 So. 2d 938, 949 (Fla. 2007) (citation omitted)).

At trial, the trial court permitted the State to present Hull as a witness over

defense objection. Hull testified that while he resided at the Manatee County Jail,

he met Smith on the transportation bus when they were both returning to the

county jail after a trip to the courthouse. Smith asked Hull where he was housed,

and after learning that Hull was housed in the G2 West Unit, Smith then inquired

whether Hull knew an inmate named James Cellecz. After Hull acknowledged that

he knew Cellecz, Smith told Hull to relay a message to Cellecz that Smith had

“something for his ass.” Smith then said that he knew where Cellecz’s wife and

child were and that he had “something for them.” Hull explained that Smith

wanted him to relay this message to Cellecz because Smith was upset at Cellecz

after Smith had given Cellecz some “jewelry and stuff” to pawn and Cellecz was

“snitching” on Smith.

Smith acknowledges that he presented only two arguments to the trial court:

(1) the evidence was inadmissible because it was evidence pertaining to a

collateral, uncharged crime; and (2) the prejudicial impact outweighed any

probative value. However, Smith now asserts that the statements were too vague

to be considered threats and nothing linked his statements to Hull with the murder.

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 We conclude that Smith has failed to properly preserve his objection to the

trial court’s admission of Hull’s testimony. As this Court has held, “in order for an

argument to be cognizable on appeal, it must be the specific contention asserted as

legal ground for the objection, exception, or motion below.” Carmichael v. State,

715 So. 2d 247, 248 (Fla. 1998) (quoting Steinhorst v. State, 412 So. 2d 332, 338

(Fla. 1982)). As Smith failed to present this ground to the trial court, we conclude

that this claim is waived.

Even if this Court were to consider this claim on the merits, however, Smith

has failed to show that the trial court abused its discretion in admitting the

evidence. This Court has long recognized that “a defendant’s attempt to intimidate

a state witness is relevant and admissible.” England v. State, 940 So. 2d 389, 401

(Fla. 2006) (quoting Heath v. State, 648 So. 2d 660, 664 (Fla. 1994)). As this

Court explained, “such evidence is based on consciousness of guilt inferred from

such actions.” Id. In England, the defendant told a witness that if a codefendant

“got me in trouble, I would kill him.” Id. That statement was held admissible. Id.;

see also Anderson v. State, 574 So. 2d 87, 93 (Fla. 1991) (holding that a threat was

relevant and admissible even though the defendant did not link his attempt to kill

the witness to the possibility of the witness testifying in court against him).

In this case, Hull’s testimony was relevant because it established that Smith

was attempting to intimidate a State witness—evidence that could support

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consciousness of guilt. Moreover, Hull testified that Smith was upset at Cellecz

because Cellecz was “snitching” on him after Smith gave Cellecz certain jewelry

to pawn—relevant evidence that was also in dispute. While Smith asserts that the

evidence was vague and unreliable, this goes to the weight that a jury might assign

to such evidence and not to its admissibility. We thus reject this claim.

IV. Denial of a Continuance

In his next claim, Smith argues that the trial court erred in denying his July

20, 2012, motion for continuance that was based on two factors: (1) defense

counsel sought its own fingerprint expert to test the medical encyclopedia; and (2)

defense counsel was considering calling Alex Ramos, a federal inmate who was

allegedly important to Smith’s claim that the medical encyclopedia was from a

federal prison. As this Court has stated, “[a] court’s ruling on a motion for

continuance will only be reversed when an abuse of discretion is shown.”

Snelgrove v. State, 107 So. 3d 242, 250 (Fla. 2012) (quoting Doorbal v. State, 983

So. 2d 464, 486 (Fla. 2008)). This standard is generally not met “unless the court’s

ruling on the continuance results in undue prejudice to the defendant.” Id. If the

motion for continuance concerns the absence of a witness, “the defendant must

show: (1) prior due diligence to obtain the witness’s presence; (2) substantially

favorable testimony would have been forthcoming; (3) the witness was available

and willing to testify; and (4) the denial of the continuance caused material

- 23 -
prejudice.” Mosley v. State, 46 So. 3d 510, 525 (Fla. 2009). “While death penalty

cases command our closest scrutiny, it is still the obligation of an appellate court to

review with caution the exercise of experienced discretion by a trial judge in

matters such as a motion for a continuance.” Doorbal, 983 So. 2d at 486 (quoting

Hernandez-Alberto v. State, 889 So. 2d 721, 730 (Fla. 2004)).

In this case, defense counsel was appointed approximately twenty months

prior to trial. Nearly six weeks before trial, defense counsel filed a motion to

compel fingerprinting, asking the trial court to compel the State to inspect each

page of the medical encyclopedia for fingerprints and alleging a good faith belief

that this would produce exculpatory evidence by comparing any fingerprints found

to known fingerprints in the federal fingerprinting database. The trial court granted

this motion.

On the eve of trial, defense counsel attempted to continue the case, after two

continuances were previously granted. Initially, defense counsel asserted that this

late request was necessary based on new cell phone records and witnesses recently

disclosed by the State. The State clarified that the information it would be

presenting at trial was not new evidence that was recently disclosed and explained

that the State would be inquiring only whether the witnesses knew if a person other

than Smith used Smith’s cell phone on the day of the murder. At that point,

defense counsel changed the underlying basis of the motion to continue, asserting

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that the defense should be able to obtain its own fingerprint expert. The trial court

denied the motion, finding that the request seemed to be “simply a delay tactic.”

The trial court also noted that to the extent defense counsel made a vague

suggestion requesting its own fingerprint expert, such a motion was never reduced

to writing.

Defense counsel subsequently amended his motion to continue, specifically

requesting a fingerprint expert. When the trial court questioned the necessity of

that request, defense counsel again attempted to modify the basis for the request

for a continuance, suggesting that the defense needed time to secure Alex Ramos

as a witness. Defense counsel, however, never proffered what testimony Ramos

would have provided. Apparently, Ramos was previously in federal prison with

Smith and presumably would have testified that the medical encyclopedia was

obtained from the federal prison. But Smith has never pointed to any identifying

information on the medical encyclopedia to support that it was the property of the

federal prison, while the medical encyclopedia was positively identified by the

victim’s husband and son as belonging to the Briles. Further, the first time the

medical encyclopedia was seen in Smith’s possession was the day after the murder.

Based on this record, we hold that Smith has failed to show any abuse of

discretion in the denial of the motion to continue or any specific prejudice as a

result. As it pertains to the medical encyclopedia, based on a specific request from

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Smith’s attorney, the fingerprint expert retained by the State reviewed every page

within the book for fingerprints and Smith fails to allege how another examination

of the book would have assisted his defense. Defense counsel’s only objection is

the fact that the State’s expert was unable to match the fingerprints to any

exculpatory evidence and thus Smith wanted to hire his own expert in order to

determine whether a different expert could obtain a different result. For all these

reasons, we conclude that no abuse of discretion has been shown and reject this

claim of error.

V. Finding of HAC

Smith’s first claim of penalty-phase error consists of a challenge to the trial

court’s finding that the HAC aggravator applies. The State bears the burden to

prove each aggravating circumstance beyond a reasonable doubt. Williams v.

State, 37 So. 3d 187, 194-95 (Fla. 2010). “When reviewing a trial court’s finding

of an aggravator, ‘it is not this Court’s function to reweigh the evidence to

determine whether the State proved each aggravating circumstance beyond a

reasonable doubt—that is the trial court’s job.’ ” Williams, 37 So. 3d at 195

(quoting Aguirre-Jarquin v. State, 9 So. 3d 593, 608 (Fla. 2009)). Rather, on

appeal, this Court must “review the record to determine whether the trial court

applied the right rule of law for each aggravating circumstance and, if so, whether

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competent substantial evidence supports its finding.” Id. (quoting Aguirre-Jarquin,

9 So. 3d at 608).

This Court has defined the HAC aggravator as follows:

It is our interpretation that heinous means extremely wicked or
shockingly evil; that atrocious means outrageously wicked and vile;
and, that cruel means designed to inflict a high degree of pain with
utter indifference to, or even enjoyment of, the suffering of others.
What is intended to be included are those capital crimes where the
actual commission of the capital felony was accompanied by such
additional acts as to set the crime apart from the norm of capital
felonies—the conscienceless or pitiless crime which is unnecessarily
torturous to the victim.

Hernandez v. State, 4 So. 3d 642, 668-69 (Fla. 2009) (quoting State v. Dixon, 283

So. 2d 1, 9 (Fla. 1973)). While this Court has upheld HAC in beating deaths such

as this case, “the evidence must show that the victim was conscious and aware of

impending death.” Douglas v. State, 878 So. 2d 1246, 1261 (Fla. 2004); see also

Zakrzewski v. State, 717 So. 2d 488, 493 (Fla. 1998) (holding that it was error for

the trial court to find HAC because “[m]edical testimony was offered during the

trial which established that [the victim] may have been rendered unconscious upon

receiving the first blow from the crowbar, and as a result, she was unaware of her

impending death”).

In this case, the trial court found HAC based on the following analysis:

The Court will begin its analysis by focusing on the experience
of Ms. Briles. Arriving home from a routine visit to the grocery store
the five-foot-three-inch, 142 pound housewife was accosted and
incapacitated in her own home by the five-foot-eleven-inch, 260-

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pound intruder Delmer Smith. Upon examination, the medical
examiner found three areas of binding: around her neck and throat
with duct tape, hands duct taped together and bound behind her back,
and her legs around the ankles also bound. The medical examiner
opined this took place while she was alive. Contusions found on the
victim’s body were attributed to blunt trauma, most likely received by
blows or kicks. The most significant nonlethal blow received by Ms.
Briles was a fracture to the jaw bilaterally. The medical examiner
concluded this was most likely caused by her head hitting the floor or
some other blunt object striking the jaw directly. Displacement of
furniture about the house evidenced at least some futile resistance put
up by Ms. Briles.
Before addressing the manner by which death was inflicted, the
Court notes that a significant abdominal injury was suffered by Ms.
Briles. Ms. Briles’ liver suffered a 5-6 centimeter laceration spanning
the two lobes of the liver. The liver injury was inflicted while Ms.
Briles was still alive as established by the presence of 500 milliliters
of unclotted blood in the abdomen. Since no external injury
corresponded to the internal injury, the medical examiner concluded
that blunt trauma (a kick or knee to the abdomen) caused this injury,
which would have been fatal without medical attention.
As for the mechanism by which death actually resulted, the
[medical] examiner concluded that multiple blows to Ms. Briles’ head
with a 23-pound metal antique sewing machine created numerous
skull fractures which compressed the bone into the brain causing
massive hemorrhage and, ultimately, death.
From this outline of the sequalae leading to Ms. Briles’ death, it
takes little effort to imagine the fear, terror, anxiety, and hopelessness
that the victim experienced in the minutes before she died. From the
evidence, we also know that the antique sewing machine used as the
instrument of death was obtained by the defendant from a closet in
which it was stored. Transporting it from that location, the Defendant
(having previously subjected Ms. Briles to excruciating pain and
discomfort) brought the instrument down with great force on Ms.
Briles’ skull. From an objective standpoint, it is evident that this
murder was shockingly evil and outrageously wicked, conscienceless,
and pitiless.

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 Smith urges this Court to reject these findings, resting his argument

primarily on two factors. First, he relies on the medical examiner’s testimony that

the victim was lying facedown on her stomach when she was beaten to death,

concluding that this means the victim did not see Smith strike her with the sewing

machine. Second, he contends that the first blow to the victim’s head could have

rendered the victim immediately unconscious.

Upon a review of the record, we conclude that competent, substantial

evidence supports the trial court’s findings. The testimony from trial, as recounted

by the trial court in its sentencing order, supports the trial court’s conclusion that

the crime began when the victim was “accosted” outside of her home and then

“incapacitated in her own home.” She was bound with duct tape with “her hands

. . . together and bound behind her back, and her legs around the ankles also

bound.” Duct tape also covered her mouth so that not only was she rendered

completely helpless but she could not cry out. As she was not blindfolded, she was

able to see the events transpire around her.

After conducting an autopsy, Dr. Broussard concluded that the victim

sustained numerous injuries that were in addition to the fatal injuries caused by the

significant blows to the back of the victim’s head. Many of the victim’s injuries

could not have occurred while she was lying facedown. Specifically, the victim

sustained a bruised elbow, even though her arms were bound behind her back.

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Further, her lacerated liver was caused by a serious kick or blow to the abdomen—

additional indication of the suffering the victim endured while bound and aware of

her impending death. The injury to the victim’s liver caused significant bleeding—

500 milliliters of blood. This evidence established that the injury occurred long

enough before her death to permit this significant amount of blood to accumulate

and that the injury did not occur after the fatal blows to the head.

After causing a serious injury to the victim’s abdomen while she was

helpless and confined, Smith then used his weapon of choice—a sewing machine

from another room—to brutally beat the victim to death. Accordingly, all of these

facts provide competent, substantial evidence to support the trial court’s finding of

HAC.

However, even if this aggravator were struck, any error in finding HAC

would be harmless beyond a reasonable doubt as it would not have affected the

trial court’s weighing process in light of the other four significant aggravators that

apply to the murder. See, e.g., Cole v. State, 36 So. 3d 597, 610 (Fla. 2010)

(holding that in light of the remaining aggravators, the erroneous consideration of

HAC did not prejudicially affect the weighing process); Watts v. State, 593 So. 2d

198, 204 (Fla. 1992). We therefore deny relief as to this claim.

VI. Rejection of Two Statutory Mitigators

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 In Smith’s next penalty-phase claim, he asserts that the trial court erred in

rejecting two statutory mitigators: (1) Smith committed the capital felony while he

was under the influence of an extreme mental or emotional disturbance; and (2)

Smith’s ability to appreciate the criminality of his conduct or to conform his

conduct to the requirements of law was substantially impaired.

When a trial court is considering whether a mitigating circumstance is

established, this Court has described the applicable standard as follows:

Whenever a reasonable quantum of competent, uncontroverted
evidence of mitigation has been presented, the trial court must find
that the mitigating circumstance has been proved. A trial court may
reject a defendant’s claim that a mitigating circumstance has been
proved if the record contains substantial evidence to support the trial
court’s rejection of the mitigating circumstance.

Hoskins v. State, 965 So. 2d 1, 16 (Fla. 2007) (quoting Nelson v. State, 850 So. 2d

514, 529 (Fla. 2003)). However, with respect to expert psychological evaluations,

“expert testimony alone does not require a finding of extreme mental or emotional

disturbance.” Heyne v. State, 88 So. 3d 113, 125 (Fla. 2012) (quoting Foster v.

State, 679 So. 2d 747, 755 (Fla. 1996)). “Instead, the trial court may disregard

expert opinion where it determines that the opinion is unsupported by the facts or

conflicts with other evidence.” Id. “A trial court has broad discretion in

determining the applicability of a particular mitigating circumstance, and this

Court will uphold the trial court’s determination of the applicability of a mitigator

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when supported by competent substantial evidence.” Hoskins, 965 So. 2d at 17

(quoting Philmore v. State, 820 So. 2d 919, 936 (Fla. 2002)).

The trial court’s sentencing order provided the following analysis regarding

its rejection of the statutory mitigation at issue:

1. The capital felony was committed while the defendant was under
the influence of extreme mental or emotional disturbance.
During the penalty stage, the defense called Dr. Hyman
Eisenstein, a licensed psychologist, to testify about defendant’s mental
health. Dr. Eisenstein performed neuropsychological testing and
conducted a clinical interview. After his examination, Dr. Eisenstein
concluded that Mr. Smith has “unequivocal brain damage” and “brain
impairment,” and as a result of these deficits Mr. Smith’s decision-
making ability is profoundly impaired. While Dr. Eisenstein also
suggested Mr. Smith has an Antisocial Personality Disorder, he
believes that “brain pathology” better explains Mr. Smith’s behavior.
Ultimately Dr. Eisenstein testified that Mr. Smith was under the
influence of extreme mental and emotional disturbance and that he
lacked the capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law.
To bolster the testimony of Dr. Eisenstein, the defense
requested that an MRI and a PET scan be performed. To interpret the
results of these tests the defense asked the court to appoint Dr. Ruben
Gur to analyze the results. . . . At the Spencer hearing, Dr. Gur
testified that the brain testing revealed the existence of frontal lobe
damage which has major behavioral consequences for Mr. Smith, and
Dr. Eisenstein repeated his previous conclusion that Mr. Smith lacks
the ability to control himself in high pressure situations through his
inability to control his “amygdala response.” In fact, Dr. Eisenstein
testified that Mr. Smith was subject to “amygdala meltdown” in
highly stressful situations. Both doctors testified that Mr. Smith’s
brain damage inevitably led to disinhibited behavior; nevertheless,
both doctors conceded that there was no current scientific consensus
on the existence or degree of frontal lobe damage and the
corresponding “disinhibited” behavior one might expect to see.
To rebut the testimony of Eisenstein and Gur, the State called
Dr. Wade Myers to testify at the penalty phase before the jury and Dr.

- 32 -
 Helen Mayberg at the Spencer hearing. In brief, Dr. Myers opined
that Mr. Smith had Antisocial Personality Disorder, and Dr. Mayberg
opined that her review of the MRI and PET scan showed no brain
damage whatsoever.
This brief recitation reflects that the opinion of the experts
conflicted radically. It is the burden of the defendant to establish the
existence of mitigating factors; and it is within the discretion of the
Court to reject a statutory mitigator where the defense expert’s
testimony is rebutted by another expert. Since the Court finds the
testimony of Dr. Myers and Dr. Mayberg more persuasive and
convincing, the defendant failed to meet this burden. Even if frontal
lobe damage exists (which the court does not find to be the case) there
is simply no competent evidence to suggest that on August 3, 2009,
Delmer Smith was under the influence of an extreme mental or
emotional disturbance. All of his behavior on the day of the murder
and the days after appears cold, calculated, rational, and goal-directed.
Based on this evidence, the Court is not reasonably convinced of the
existence of this factor.

2. The capacity of the defendant to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
substantially impaired.
For the reasons discussed in the preceding section the Court
finds that the defendant did not meet his burden and this mitigator has
not been proved.

Smith asserts that the trial court erred in failing to find these two statutory

mitigators based on the claim that “Dr. Eisenstein’s opinion was unequivocal and

not refuted by another psychologist trained to interpret the neuropsychological

testing.” Further, Smith criticizes the State’s expert, Dr. Myers, because Dr. Myers

did not perform his own testing for brain damage.

While Smith contends that a trial court cannot reject unrebutted mitigation,

the cases upon which he relies are factually distinguishable because in those cases,

- 33 -
unlike here, the mitigation was, in fact, unrebutted. See Coday v. State, 946 So. 2d

988, 1004-05 (Fla. 2006) (holding that the trial court erred in rejecting the statutory

mitigator because the defendant presented six defense mental health experts who

testified that the defendant was unable to conform his conduct to the requirements

of the law at the time of the murder, particularly as the State did not offer any

expert witnesses to refute such testimony and there was no other rational basis to

reject the testimony); Nibert v. State, 574 So. 2d 1059, 1062 (Fla. 1990) (holding

that the trial court erred in rejecting the statutory mitigators that the defendant

committed the murder while under the influence of an extreme mental or emotional

disturbance and that his capacity to control his behavior was substantially impaired

because (1) the defendant presented an expert who supported those conclusions

with a battery of tests and interviews with family members; (2) the record also

supported those conclusions; and (3) this evidence was not refuted by the State).

In this case, Smith is merely attacking the appropriate weight of the experts’

testimony, and as the trial court recognized, the experts’ opinions varied wildly. In

considering all of the evidence presented, the trial court found that the testimony of

Dr. Myers and Dr. Mayberg was “more persuasive and convincing.” In addition,

the trial court further noted that the evidence did not support that Smith committed

the murder while under the influence of an extreme mental or emotional

disturbance because “[a]ll of his behavior on the day of the murder and the days

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after appears cold, calculated, rational, and goal-directed.” As this Court has held,

“[f]inding or not finding a specific mitigating circumstance applicable is within the

trial court’s domain, and reversal is not warranted simply because an appellant

draws a different conclusion.” Cook v. State, 542 So. 2d 964, 971 (Fla. 1989)

(quoting Stano v. State, 460 So. 2d 890, 894 (Fla. 1984)).

Because the record provides competent, substantial evidence to support the

trial court’s findings and the trial court rejected these mitigators based on

credibility determinations, we reject this claim.

VII. Constitutionality of Florida’s Death Penalty Scheme

In his last claim, Smith contends that his death sentence is unconstitutional

in light of Ring. However, because the trial court found the prior-violent-felony

aggravator and because the jury unanimously recommended the sentence of death,

Ring is not implicated. See Gonzalez, 136 So. 3d at 1168; Crain v. State, 894 So.

2d 59, 78 (Fla. 2004). This claim is therefore without merit and does not implicate

the issues raised in Hurst v. State, 147 So. 3d 435 (Fla. 2014), which the United

States Supreme Court granted certiorari to review. Hurst v. Florida, 135 S. Ct.

1531 (2015).

VIII. Proportionality of Sentence of Death

Although Smith does not raise proportionality on appeal, this Court has an

independent obligation to review the proportionality of a sentence of death,

- 35 -
regardless of whether it is raised by a party. See England v. State, 940 So. 2d 389,

407 (Fla. 2006); see also Fla. R. App. P. 9.142(a)(5). Because the death penalty is

reserved for only those cases where the most aggravating and least mitigating

circumstances exist, this Court must undertake a proportionality review “in order

to determine whether the crime falls within the category of both the most

aggravated and the least mitigated of murders, thereby assuring uniformity in the

application of the sentence.” Anderson v. State, 841 So. 2d 390, 407-08 (Fla.

2003) (citation omitted). In performing this review, this Court considers the

totality of the circumstances and compares the case with other similar capital cases.

Duest v. State, 855 So. 2d 33, 47 (Fla. 2003). This Court does not simply compare

the number of aggravating and mitigating circumstances, but rather performs a

qualitative review of the underlying basis for each aggravator and mitigator. See

McCoy v. State, 132 So. 3d 756, 771 (Fla. 2013), cert. denied, 135 S. Ct. 90

(2014); Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998).

In this case, the jury unanimously recommended that Smith be sentenced to

death. The trial court found five aggravators and assigned each the following

weight: (1) Smith was on felony probation (moderate weight); (2) Smith had prior

violent felony convictions (great weight as to the 1991 state robbery conviction

and the 1995 federal armed bank robbery convictions); (3) the murder was

committed in the course of a burglary (moderate weight); (4) the murder was

- 36 -
committed for pecuniary gain (merged with the committed-in-the-course-of-a-

burglary aggravator); and (5) the murder was HAC (great weight). Against these

aggravators, the trial court rejected Smith’s proposed statutory mitigation and

found and weighed five nonstatutory mitigating factors: (1) intermittent explosive

disorder (moderate weight); (2) a loving relationship with nieces (little weight); (3)

physical, emotional, and sexual abuse as a child (little weight); (4) acute academic

failure and attention deficit disorder (significant weight); and (5) good conduct

while in custody (moderate weight).

Given the extremely significant aggravation, including Smith’s history of

violent crime and the fact that he was on felony probation at the time of the

murder, together with the facts and circumstances of this crime, we conclude that

death is a proportionate sentence. This is neither the least aggravated nor most

mitigated of death cases. A review of other cases establishes that death is a

proportionate punishment in this case. For example, in King v. State, 130 So. 3d

676, 686-87 (Fla. 2013), cert. denied, 134 S. Ct. 1323 (2014), we held the sentence

of death to be proportionate based on a murder in which the defendant bludgeoned

the victim to death during a burglary. The trial court found two aggravators—

committed during a burglary (merged with pecuniary gain) and HAC—and

weighed those against sixteen nonstatutory mitigators, including the lack of a

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violent history, and determined that death was a proportionate punishment. Id.

Here, instead of a nonviolent criminal history, Smith had a violent criminal history.

We have also considered Banks v. State, 46 So. 3d 989, 1000-01 (Fla. 2010),

where we concluded that the death sentence was proportionate after the defendant

stabbed the victim to death and then took her car. In that case, the trial court found

three aggravators—prior violent felony convictions; HAC; and cold, calculated,

and premeditated—which were weighed against low IQ, brain deficits, antisocial

personality traits, and difficult youth. Id.; see also Gosciminski, 132 So. 3d at 716-

17 (holding that the death sentence was proportionate where the defendant fatally

stabbed and bludgeoned the victim during a burglary; the trial court found three

aggravators—CCP, HAC, and committed during a robbery or burglary—and then

weighed those aggravators against the statutory mitigator of no significant history

of criminal activity and thirteen nonstatutory mitigators, which were given little to

moderate weight); Miller v. State, 42 So. 3d 204, 229-30 (Fla. 2010) (holding that

the death sentence was proportionate where the defendant fatally stabbed a

seventy-two-year-old victim; the trial court found five aggravators—prior violent

felony conviction, HAC, committed while on parole, committed during a burglary,

and victim was particularly vulnerable—which were weighed against six

nonstatutory mitigating circumstances).

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 Examining the facts of this case, including the aggravators and mitigators

found, and comparing it to other similar cases where this Court has upheld the

death sentence as a proportionate penalty, we conclude that Smith’s death sentence

is proportionate.

CONCLUSION

After a thorough review of all the issues raised by Smith, and after our own

independent review of the proportionality of Smith’s sentence of death, we affirm

Smith’s conviction for first-degree murder and sentence of death.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Manatee County,
Peter A. Dubensky, Judge - Case No. 412010CF000479CFAXMA

Howard L. Dimmig, II, Public Defender, and Julius Joseph Aulisio, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Carol Marie
Dittmar, Senior Assistant Attorney General, Tampa, Florida,

for Appellee

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