Leon Davis, Jr. v. State of Florida

Supreme Court of Florida
____________

No. SC13-1
____________

LEON DAVIS, JR.,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

[November 10, 2016]

PER CURIAM.

This case is before the Court on appeal from two judgments of conviction of

first-degree murder and two sentences of death. We have jurisdiction. See art. V,

§ 3(b)(1), Fla. Const. Leon Davis, Jr. (Davis), was convicted in Polk County of the

2007 murders of Dashrath Patel and Pravinkumar Patel, and he now pursues the

direct appeal of his convictions and sentences which are subject to automatic

review by this Court. For the reasons explained below, we affirm the trial court’s

judgments of conviction and sentences of death.

Before we begin, we further explain that Davis is the appellant in two

separate death penalty direct appeals. In the present case, SC13-1, Davis was
convicted of two counts of first-degree murder, one count of attempted first-degree

murder, and one count each of attempted armed robbery and possession of a

firearm by a convicted felon. These convictions arose from the attempted armed

robbery of a BP gas station and convenience store in Polk County, and Davis was

sentenced to death for both of the murders.

Today, this Court also released its opinion in Davis v. State, No. SC11-1122

(Fla. Nov. 10, 2016). In that case, Davis was convicted of three counts of first-

degree murder, one count of attempted first-degree murder, and one count each of

armed robbery and first-degree arson. The convictions arose from a series of

events at the Headley Insurance Agency in Lake Wales. Davis was sentenced to

death for two of the murders. The murders in the Headley case occurred within

several days of the murders in this case. A limited scope of evidence from the

Headley trial was introduced during the guilt phase of the BP trial, and the entire

Headley record was admitted for purposes of the penalty phase. Some of the issues

that Davis raises in the present appeal challenge the admission of evidence from

the Headley case. Additionally, Davis raises two issues (dying declaration and

eyewitness identifications) in both direct appeals. We now set forth the facts of

this case and then address Davis’s claims on direct appeal.

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 STATEMENT OF FACTS AND PROCEDURAL HISTORY

On the evening of December 7, 2007, Davis drove to the vicinity of a BP gas

station and convenience store (BP) with the intent to commit robbery. The BP was

located near the intersection of Highway 557 and Interstate 4 in Polk County.

Around 8:51 p.m. that evening, BP employee Dashrath Patel (Dashrath) and his

friend Pravinkumar Patel (Pravinkumar) walked out of the convenience store’s

front door and across the parking lot to change the gas price sign.

The BP had closed for the evening, and the convenience store lights were

turned off. While talking on the telephone, another BP employee, Prakashkumar

Patel (Prakashkumar), remotely locked the store’s front door and began to change

the gas prices on the cash register. Seconds later, the surveillance camera captured

a person who appeared to be a black man, about six feet tall, who approached the

front door of the store and pulled on the door. The man, who had a large build,

was dressed in dark clothing and wore a hood and a face mask.

Prakashkumar indicated to the man that the store was closed. The man then

raised a gun to the window and fired one shot into the store towards Prakashkumar.

Suddenly, the shooter’s attention was drawn to Dashrath and Pravinkumar, and he

ran across the parking lot toward them. Surveillance footage showed both men

with their hands in the air, and Prakashkumar reported hearing two gunshots that

occurred about five to ten seconds apart. According to the surveillance footage,

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the gunshots were fired at approximately 8:53 p.m. After firing the gunshots, the

shooter ran back to the store’s locked front door and tried in vain to open it. He

raised his gun again, but he then turned and ran away from the scene.

In the meantime, Prakashkumar had activated the silent alarm, called 9-1-1,

and sheltered in the storeroom. Upon arrival at the scene, the responding deputies

learned that there were two missing people. Following a brief search, the bodies of

Dashrath and Pravinkumar were located. Both victims were shot in the head

execution-style with .38 caliber bullets.

With the assistance of a trained K-9 search dog, law enforcement searched

the immediate area for the scent of a person who may have recently left the scene.

The K-9 detected a scent that tracked about one quarter of a mile to the north of the

gas station. Footprints led in the same direction that the K-9 tracked, up to the

point where a set of tire tracks began. A crime scene technician photographed and

made casts of the tire tracks.

In the days following the murders, law enforcement conducted traffic stops

in the area of the BP to question drivers who may have seen something pertinent

on the evening of the murders. During the course of these stops, four people

provided information regarding a car that was parked that evening in an isolated

area near the gas station. The witnesses described a dark-colored car, possibly a

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black Nissan, backed up against a gate. One of the witnesses described the car as

having a distinctive grille on the front end.

Davis was not identified as a suspect in the December 7 BP murders until

after the December 13 robbery, arson, and shootings at the Headley Insurance

Agency in Lake Wales (Headley). Davis was positively identified as the

perpetrator of those crimes. The lead detective in both the BP and the Headley

investigations was Detective Ivan Navarro. Detective Navarro requested an

analysis of the ballistics evidence obtained during the course of the BP and

Headley investigations. The results of the analysis demonstrated that the same gun

was used in the crimes at the BP and at Headley.

During the Headley investigation, a black Nissan Altima with a distinctive

grille was seized from the parking lot of a local nightclub, and during a search of

the car, Davis’s driver license was found inside. Additionally, two dark-colored

jackets were found in the car’s trunk, and a pair of black gloves was found in the

glove compartment. In light of the witness reports that a possibly black Nissan

was parked near the BP on the evening of December 7, Detective Navarro

requested an analysis of the BP tire casts and the tires from the Nissan Altima

linked to Davis to look for similarities. The tires from Davis’s Nissan Altima were

consistent with the BP tire casts.

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 A grand jury later indicted Davis for multiple counts stemming from the BP

events: two counts of first-degree murder, one count of attempted first-degree

murder, one count of attempted armed robbery, and one count of possession of a

firearm by a convicted felon.

Guilt Phase

Davis waived a jury trial in favor of a bench trial. The State’s theory was

that Davis was a man burdened by significant financial distress and that he

committed the murders of Dashrath and Pravinkumar during the course of an

attempted armed robbery of the BP.

Evidence admitted at the trial revealed the following. At the time of the

murders, Davis and his wife, Victoria, were in debt and unemployed. Victoria was

pregnant at the time and was on a leave of absence from work due to pregnancy

complications. The mortgage payment for the couple’s home was delinquent, and

the couple had given up driving one of their vehicles and cancelled their cell phone

accounts because of their financial troubles. The couple shared Victoria’s black

Nissan Altima.

On the day of the BP murders, Davis purchased a Dan Wesson .357 magnum

revolver from his cousin, Randy Black. Black also gave Davis .38 caliber bullets

which were compatible with the .357 magnum. Davis returned home after

purchasing the revolver, but he left home again that evening between 6 and 7 p.m.

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Davis was alone when he left, and he was driving the black Nissan Altima. Davis

did not return home until between 9 and 9:30 p.m. Davis’s home was a twenty-two

to twenty-three minute drive from the BP.

Two days after the murders, Davis showed his mother the revolver that he

purchased from Black. The known rifling characteristics of Davis’s revolver, six

lands and six grooves with right twists, were consistent with the characteristics of

the projectiles obtained during the BP investigation, including the projectiles

removed from the heads of the victims. The State’s ballistics expert testified that

.38 caliber projectiles could be fired from a .357 magnum firearm, and that the

projectiles obtained during the BP investigation were consistent with having been

fired from a Dan Wesson .357 magnum revolver.

The State introduced evidence from the Headley trial during the guilt phase

of the BP trial. To prevent the introduction of improper evidence, the trial court

entered a pretrial order that sharply limited the admissibility of Headley evidence.

The limited Headley evidence revealed that on the morning of December 13, 2007,

Davis went to the Lake Wales Walmart to make a purchase. Surveillance video

footage obtained from the store depicted a tall black man entering the store around

7 a.m., and both a store manager and an employee positively identified the man in

the video as Davis. While at Walmart, Davis purchased an orange lunch cooler.

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 That afternoon, Davis went to Headley, where he encountered Headley

employee Yvonne Bustamante and shot her in her left hand. Shortly thereafter,

Davis encountered Brandon Greisman near the Headley building. Greisman and

his neighbors, who lived nearby, had walked towards the Headley building upon

noticing the presence of smoke in the area. Greisman, who saw Davis and thought

that he was there to offer help, saw Davis pull a gun out of an orange lunch bag

and point it in his direction. Greisman tried to get away but was unable to do so

before Davis shot him in the nose. Greisman was transported to Lake Wales

Hospital, where he underwent surgery and remained in the hospital overnight.

When Greisman was released, his mother drove him to the Lake Wales

Police Department to speak to detectives. Greisman was shown a photographic

lineup and asked if he recognized the man who shot him the day before. Greisman

recognized Davis’s photograph almost immediately and identified him as the

shooter. At trial, Greisman also identified Davis from the witness stand.

Eyewitness Carlos Ortiz, who saw Davis place the gun into a lunch bag

shortly after Greisman was shot, also identified Davis as the Headley shooter. At

trial, Ortiz testified that in addition to getting an extended look at Davis at the

scene, he recognized Davis because he previously saw Davis at Florida Natural

Growers, where both men used to work. A few days after the Headley incident,

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Ortiz identified Davis’s photograph from a photographic lineup. Ortiz also

identified Davis from the witness stand.

Another Headley eyewitness, Fran Murray, testified that as she approached

the Headley building, she saw a tall black man carrying an orange collapsible

lunch pail, and she saw him place what appeared to be a gun inside of it.

Evelyn Anderson, a Headley customer, saw a tall black man exit the

Headley building with a bag under his arm.

Ortiz and Murray also testified that they saw a black car in the area of the

Headley building around the time of the shooting. The car was parked near a

vacant house. Murray described the car as mid-sized, and Ortiz identified it as a

Nissan.

Davis was also identified by the dying declaration of Yvonne Bustamante.

Upon arriving at the Headley scene, Lt. Joe Elrod asked Bustamante if she knew

the perpetrator’s identity, and she responded, “Leon Davis.” Bustamante told

Lt. Elrod that Davis was a former Headley customer. In addition to Lt. Elrod, two

emergency medical responders and eyewitness Anderson heard Bustamante

identify Davis as the perpetrator.

The State’s ballistics expert testified that the same gun was used in the BP

murders and in the shootings at Headley.

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 Davis’s Defense

Davis’s defense was misidentification. He offered an alibi for the time of

the murders and attacked the eyewitness identifications made during the course of

the Headley investigation.

Testifying in his own defense, Davis stated that on December 7, 2007, he

brought his son to his home. Around 7:15 p.m., he left home alone to go

Christmas shopping at the mall. Davis admitted that he was driving the black

Nissan Altima at the time. While shopping, Davis did not see anyone that he

recognized. Davis testified that although he spent around $150 in cash on clothing

purchases, he did not have documentation for the purchases. He also testified that

the money that he used to go shopping came from money that he had at home and a

paycheck he had received the day before.

Davis testified that he left the mall around 8:30 p.m. and returned home

around 9 p.m. He stated that he spent the rest of the evening at home with his

family, leaving only briefly with his family between 9 and 10 p.m. to get dinner.

Davis also testified that less than one week later, he left the Nissan Altima

parked at a nightclub, and that the gloves and jacket that the police later found in

the car belonged to his wife, Victoria. Davis testified that he kept an unloaded gun

in a toolbox in the garage that may have been unlocked, and that neither Victoria

nor his son knew about the gun.

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 Davis was convicted as charged.

Penalty Phase

Davis’s bench trial proceeded to the penalty phase, where he waived his

right to a penalty phase jury. The State sought to prove four aggravating

circumstances: (1) the capital felony was committed by a person previously

convicted of a felony and on felony probation; (2) the defendant was previously

convicted of another capital felony or a felony involving the use or threat of

violence to the person; (3) the capital felony was committed while the defendant

was engaged in a commission of, or an attempt to commit, or flight after

committing a robbery; and (4) the capital felony was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an escape from custody.1

The parties stipulated to Davis’s July 2007 convictions for grand theft.

Additionally, the State presented three witnesses who testified about the facts of

the Headley murders, which were the basis for the prior capital/violent felony

aggravating circumstance.2 Lt. Elrod, who previously testified that Headley

1. The trial court later rejected the avoid arrest aggravating circumstance as
not proven.
2. The trial court’s order limited the scope of the Headley evidence that was
admissible during the guilt phase. However, during the penalty phase, the trial
court learned that prior to the shootings of Yvonne Bustamante and Brandon
Greisman, Davis had robbed the insurance agency and set the building and two
employees, Bustamante and Juanita Luciano, on fire. At the time, Luciano was

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shooting victim Bustamante identified Davis as the perpetrator and explained that

Davis tried to rob her, testified during the penalty phase that Bustamante explained

how Davis threw gasoline on her and set her on fire when she told him that she did

not have any money.

The medical examiner in the Headley case, Dr. Stephen Nelson, testified

regarding the injuries and causes of death of the three deceased victims,

Bustamante, Juanita Luciano, and Luciano’s newborn son, Michael. Bustamante

and Luciano both died from thermal burns. Bustamante’s burns covered eighty to

ninety percent of her body, and Luciano’s burns covered ninety percent of her

body. Luciano’s son, Michael, was delivered prematurely on the day of the events

at Headley and died from extreme prematurity three days later. Additionally,

crime scene technician Stacy Greatens testified regarding photographs of the

Headley crime scene, including photographs of a cigarette lighter, duct tape, a

burnt gas can, burnt shoes, and a burnt chair.

Davis’s Mitigation

As mitigation, Davis presented evidence of a sexual assault when he was

eight years old, severe physical abuse by a caretaker in the years following the

sexual assault, ongoing depressive and mood episodes, and a suicide attempt while

twenty-four weeks pregnant. Davis shot Bustamante and Greisman during the
course of his escape from the building.

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he was in the military. Davis submitted for the court’s consideration the testimony

of the three mitigation witnesses from the Headley trial: Dawn Henry, the mother

of Davis’s son; Linda Davis, Davis’s mother; and India Owens, Davis’s sister.

Davis also introduced his medical records from his military service.

Davis’s mother described her relationship with Davis as very close.

Although Davis’s father moved out of the family home when Davis was about one

year old, his father maintained a relationship with Davis.

From elementary through high school, Davis suffered an ongoing pattern of

bullying. When Davis was eight years old, another boy beat and sexually assaulted

him. Although Davis’s family members were aware of the assault, they did not

talk about it.

Additionally, when Davis was around eight or nine years old, a woman

named Ms. Clark came to live in the family home as a roommate. Eventually,

Davis and his brother moved out of the family home and into another home with

Clark. Clark was an alcoholic and was physically and verbally abusive. She

taunted and verbally abused Davis because he was bullied, and she also beat him

with extension cords and water hoses and punched him in the chest in order to try

and make him “be a man.” On one occasion, Clark severely beat Davis with an

extension cord. Davis ran home to his mother, who observed severe injuries to his

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back. Family members observed physical injuries such as welts, bleeding, and

scabs and sores on Davis’s body.

In middle school, Davis contemplated suicide, and his mother encouraged

him not to take his life. Davis received mental health counseling for two to three

months. Davis later joined the military and while enlisted, he attempted suicide by

hitting a concrete pole while driving at a high rate of speed. Thereafter, he was

discharged from the military.

After Davis was discharged from the military, he met Dawn Henry. Henry

and Davis eventually had a son who was born with Down Syndrome. Henry

testified that while she had trouble adjusting to being a mother of a child with

special needs, Davis immediately accepted his son and was consistently and

frequently present in his life. Around the time of the Headley robbery, Davis was

depressed and upset that he could not afford to do anything for his son’s

approaching birthday. When Davis purchased the gun shortly before the robbery,

his mother was concerned that he might use the gun to commit suicide.

Spencer Hearing and Sentencing

Prior to sentencing Davis for the BP crimes, the trial court held a Spencer3

hearing. Although no additional evidence was introduced, the defense made

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

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additional argument, and Davis made a statement to the Court that he was not near

the BP gas station on December 7. The trial court ultimately sentenced Davis to

death for the murders of Dashrath and Pravinkumar. Each sentence of death was

based on the following aggravating circumstances: (1) the capital felony was

committed by a person previously convicted of a felony and on felony probation

(moderate weight); (2) the defendant was previously convicted of another capital

felony or a felony involving the use or threat of violence to the person (very great

weight); and (3) the capital felony was committed while the defendant was

engaged in the commission of, or an attempt to commit, or flight after committing

a robbery (great weight). The trial court rejected as not proven that either capital

felony was committed for the purpose of avoiding or preventing a lawful arrest or

effecting an escape from custody.

The trial court also considered statutory and nonstatutory mitigating

circumstances. The trial court found the existence of one statutory mitigating

circumstance: the crime was committed while Davis was under the influence of

extreme mental or emotional disturbance (little weight). Due to Davis’s

convictions for grand theft several months before the BP murders, the trial court

rejected as statutory mitigation that Davis had no significant prior criminal history.

The trial court also considered fifteen nonstatutory mitigating circumstances:

(1) victim of bullying throughout childhood (moderate weight); (2) victim of

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sexual assault as a child (moderate weight); (3) victim of child abuse, both physical

and emotional, by a caretaker (moderate weight); (4) overall family dynamics

(little weight); (5) military service in the U.S. Marine Corps (little weight);

(6) history of being suicidal both as a child and as an adult (slight weight);

(7) diagnosed personality disorder (slight weight); (8) history of depression (slight

weight); (9) stressors at the time of the incident (little weight); (10) good person in

general (very slight weight); (11) good worker (little weight); (12) good son, good

sibling, good husband (moderate weight); (13) good father to a child with Down

Syndrome (moderate weight); (14) good behavior during trial as well as other court

proceedings (slight weight); and (15) good behavior while in jail and in prison

(little weight).

In addition to the sentences of death, the court also sentenced Davis to life

imprisonment with a twenty-year minimum mandatory sentence for the attempted

murder of Prakashkumar, twenty years’ imprisonment with a twenty-year

minimum mandatory sentence for attempted armed robbery, and fifteen years’

imprisonment with a three-year minimum mandatory sentence for possession of a

firearm by a convicted felon. Davis now appeals his convictions and sentences,

which are subject to mandatory review by this Court.

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 ISSUES ON APPEAL

On direct appeal, Davis raises twelve issues: (1) whether the trial court erred

in admitting evidence of the Headley events during the guilt phase; (2) whether the

trial court relied on facts not in evidence to find Davis guilty; (3) whether the trial

court erred by allowing the impeachment of Victoria Davis; (4) whether the trial

court improperly shifted the burden of proof to Davis; (5) whether the trial court

erroneously used Davis’s prior theft convictions as circumstantial evidence of his

guilt for all charges; (6) whether the trial court erred in denying the motion for

judgment of acquittal; (7) whether the evidence is sufficient to support Davis’s

attempted robbery conviction; (8) whether the trial court erred in admitting the

hearsay statement of Yvonne Bustamante as a dying declaration; (9) whether the

trial court erred in allowing the prosecution to introduce the pretrial and in-court

identifications made by Brandon Greisman and Carlos Ortiz; (10) whether the trial

court abused its discretion and distorted the weighing process by improperly

diminishing the weight assigned to two mitigating factors and attributing a greater

weight to one aggravator than was previously assigned; (11) whether Davis’s death

sentences are proportionate; and (12) whether the Florida death penalty statutory

scheme is facially unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002).

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 I. Admission of Headley Facts During the State’s Case

Before trial, the trial court entered a narrow ruling that allowed the State to

introduce a limited amount of evidence from the Headley trial during the guilt

phase of the BP trial. Among this evidence was eyewitness testimony identifying

Davis as the Headley shooter, placing a black Nissan in the vicinity of the Headley

building at the time of the shootings, and establishing that the same gun was used

in both the BP and the Headley shootings. Davis argues that the trial court erred in

admitting this evidence. However, on the distinct facts of this case, we conclude

that this relevant and limited evidence, which did not become a feature of the trial,

was properly admitted to establish the nexus between Davis and the BP crimes.

The trial court’s detailed pretrial order provided that the following evidence

would be admissible during the State’s case:

1. Randy Black, William Wagle, and Linda Davis will be
allowed to testify about the gun and the Defendant’s
possession of a gun.

2. Brandon Greisman and Carlos Ortiz (along with
Detective Townsell who showed them the photo packs)
will be allowed to testify as to their identifying Leon
Davis as the man with the gun at the “Headley” crime
scene but should not testify concerning the condition of
the building (burning) or the condition of the victims
(Ms. Bustamonte [sic] and Ms. Luciano).

3. Evelyn Anderson, Lt. Joe Elrod, Ernest Froehlich, and
John Johnson will be allowed to testify that Ms.
Bustamonte [sic] identified Leon Davis as the person
who shot her at the “Headley” crime scene but not

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 discuss Ms. Bustamonte’s [sic] condition or any of their
observations about her injury during direct examination,
and should not testify concerning her other statements
regarding the incident.

4. Mark Gammons and Jennifer Debarros (both employees
of Wal-Mart) will be allowed to testify concerning their
observations of the Defendant at the Wal-Mart store and
the purchase of a cooler/lunch bag, but should not testify
regarding the purchase of a cigarette lighter or other
items not related to the BP case.

5. The videos and testimony concerning those videos
obtained at Mid-Florida Credit Union, Beef O’Brady’s
and Enterprise Leasing will be admissible for
comparative purposes in viewing the Wal-Mart video.
The McDonald’s video is not to be introduced into
evidence until such time as the person depicted in it can
be positively identified as Leon Davis, Jr.

6. Jacquelyn Hare and/or Scott Headley will be allowed to
testify about the Defendant’s prior business relationship
with Headley Insurance Agency to the extent that he was
a customer of the agency and had been seen at the agency
on prior occasions. Neither of them will be allowed to
testify as to the specific business transactions the
Defendant had with Headley Insurance Agency.

7. In regard to the black Nissan that was purportedly seen at
the “Headley” crime scene, Carlos Ortiz will be allowed
to testify as to his observations. Other evidence
concerning a black Nissan can be introduced outside of
the context of it somehow being involved at the Headley
Insurance Agency crime scene.

8. FDLE firearms analyst, James Kwong, will be allowed to
testify that he identified the gun used in the “Headley”
crimes as the same gun that was used in the BP crimes.

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Our meticulous review of the trial transcript reveals that the State’s presentation of

evidence was consistent with the terms of the trial court’s order. As we evaluate

the propriety of the trial court’s decision to admit evidence from the Headley trial,

we consider the substance of the State’s case, which may be summarized as

follows.

On the afternoon of December 7, 2007, Davis purchased a .357 magnum

Dan Wesson revolver from his cousin, Randy Black. That evening, Davis left

home alone driving his wife’s black Nissan Altima. At approximately 8:51 p.m., a

man fitting Davis’s description attempted to enter the BP convenience store and

fired a shot into the store. At approximately 8:53 p.m., the man shot and killed

Dashrath and Pravinkumar outside of the BP and left the scene. Around this time,

four separate witnesses observed a dark-colored car parked in an isolated area in

the vicinity of the BP. This car, definitively identified by one witness as a Nissan,

bore a distinctive front-end grille. The description of this car was consistent with

the black Nissan Altima admittedly driven by Davis that evening, and tire tracks

left in the area of the BP were consistent with tires later removed from that car.

Two days after the BP murders, Davis showed his mother the revolver that

he purchased from Black. Four days later, Davis was positively identified as the

gun-wielding perpetrator of the shootings at Headley. In particular, Davis was

positively identified by the two shooting victims, one of whom knew Davis as a

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Headley customer. Multiple witnesses saw Davis conceal his gun in an orange

lunch cooler after the shootings. One of the eyewitnesses who identified Davis as

the Headley shooter also observed a black Nissan parked in the vicinity of

Headley.

Ballistics evidence revealed that the projectiles retrieved from the BP and

Headley crime scenes and from the autopsies of the deceased victims were all fired

from the same gun. The rifling characteristics of the gun used to murder Dashrath

and Pravinkumar at the BP and to shoot Bustamante at Headley were consistent

with those of the .357 magnum Dan Wesson revolver that Davis purchased from

Black mere hours before the BP murders.

Thus, evidence obtained as a part of the Headley investigation established

the nexus between Davis and the BP crimes. Davis argues that the trial court erred

in allowing the State to introduce this evidence as a part of its case against him. As

we explain below, we disagree.

Our analysis begins with the threshold matter of relevance. In order to be

admissible, evidence must be relevant. That is, the evidence must “tend[] to prove

or disprove a material fact.” § 90.401, Fla. Stat. (2012). While relevant evidence

is generally admissible, such evidence “is inadmissible if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of issues,

misleading the jury, or needless presentation of cumulative evidence.” §§ 90.402-

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403, Fla. Stat. (2012). “A trial court has broad discretion in determining the

relevance of evidence and such a determination will not be disturbed absent an

abuse of discretion.” Jorgenson v. State, 714 So. 2d 423, 427 (Fla. 1998) (citing

Heath v. State, 648 So. 2d 660, 664 (Fla. 1994)).

This Court has observed that relevant evidence of another crime may be

admissible against a defendant at trial. See Steverson v. State, 695 So. 2d 687, 689

(Fla. 1997). In deciding whether to admit such evidence though, the trial court

must be acutely aware of the danger of the unfair prejudice that may result. “Even

when evidence of a collateral crime is properly admissible in a case, we have

cautioned that ‘the prosecution should not go too far in introducing evidence of

other crimes. The state should not be allowed to go so far as to make the collateral

crime a feature instead of an incident.’ ” Id. (quoting Randolph v. State, 463 So.

2d 186, 189 (Fla. 1984)).

In the present case, the trial court did not abuse its discretion in determining

that certain Headley evidence was relevant to prove that Davis committed the BP

crimes. The purpose of admitting this evidence was to prove a material issue at

trial. While the State lacked direct evidence that Davis fired the shots at the BP,

ballistics evidence revealed that the same gun that fired the bullets that killed

Dashrath and Pravinkumar at the BP also fired the bullets at Headley. Thus,

Davis’s possession of a gun at Headley, his firing of the gun, the retrieval of

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projectiles fired from the gun, and the comparison of those projectiles with those

obtained during the BP investigation established the nexus between Davis and the

BP crimes.

Further relevant to placing Davis at the BP crime scene—and near an

isolated location where a dark-colored vehicle, likely a black Nissan, was seen by

four people—was the presence of a black Nissan in the vicinity of Headley around

the time of the Headley shootings. Davis admittedly drove his wife’s black Nissan

Altima on the night of the BP murders. Thus, testimony that a black Nissan was

spotted near the Headley crime scene where Davis was positively identified as the

Headley shooter was relevant to place Davis at the BP on the night of the

attempted robbery and murders.

We strongly emphasize that it is the totality of the evidence relating to the

gun and the Nissan Altima that forms a solid evidentiary nexus between the two

cases and leads us to conclude that limited Headley evidence was properly

admitted during the guilt phase of the BP trial. The record reveals that the trial

court closely guarded the admission of Headley evidence so as to allow only

relevant evidence. Moreover, the court was also extremely careful to guard against

the admission of the highly prejudicial details of the events at Headley involving

the arson and Bustamante’s condition. The court’s carefully circumscribed order

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prevented the details of the Headley crimes from becoming a feature of the BP

trial.

The admission of limited Headley evidence avoided the error that occurred

in Steverson, 695 So. 2d 687. Steverson was tried for the murder of an

acquaintance, Lucas. Four days after Lucas’s murder, Steverson shot a police

officer who approached him while acting on an informant’s tip. Id. at 689.

Steverson was tried for the shooting of the officer before being tried for Lucas’s

murder, and was convicted. During the trial for the murder of Lucas, the State also

introduced extensive evidence of the shooting of the police officer. Id. at 690.

While we concluded that some limited evidence of the shooting was relevant to the

State’s case, “there was no justification for the admission of extensive details of

[the officer’s shooting] offered by four different witnesses, all of whom focused

most of their testimony on the police officer’s injuries and recovery.” Id. In

reversing and remanding Steverson’s case for a new trial, we instructed that

evidence of the police officer’s shooting be “appropriately limited if it is sought to

be admitted again.” Id. at 691.

In the present case, acutely aware of the highly prejudicial details of the

Headley crimes, the trial court carved out a narrow scope of admissible evidence.

The trial court’s strict order and the subsequent admission of the evidence

described therein carefully avoided the pitfalls of admitting irrelevant or unfairly

- 24 -
prejudicial evidence and prevented the Headley crimes from becoming a feature of

the trial. Therefore, Davis is not entitled to relief.

II. Reliance on Headley Facts in Sentencing Order

Davis also maintains that the trial court improperly determined his guilt in

the BP case based on his convictions in the Headley case and facts about the

Headley events that were not admitted during the guilt phase. In particular, Davis

points to statements in the sentencing order and argues that these statements

demonstrate the trial court’s erroneous consideration of the Headley convictions

when determining his guilt in the BP case. In the sentencing order, the trial court

said the following:

On December 13, 2007, a robbery and two murders occurred at
the Headley Insurance Agency in Lake Wales, Florida.
....
On Thursday, December 13, 2007, the Headley Insurance
Agency in Lake Wales was robbed and Yvonne Bustamonte [sic] and
Juanita “Jane” Luciano were bound with duct tape, saturated with
gasoline, and set on fire. They died as a result of their injuries.
....
The Jury in case number CF07-009386 found, beyond and to
the exclusion of all reasonable doubt that the Defendant, Leon Davis,
Jr., was the tall black male involved in the Headley Insurance Agency
robbery and murders. He was seen wielding and shooting a firearm
during those crimes. The Court finds that the same firearm fired the
projectiles that were recovered during the investigation of the crimes
occurring at the BP Station.
....
The circumstantial and non-circumstantial evidence concerning
the Headley Insurance Agency crimes proves, beyond a reasonable
doubt, that Leon Davis, Jr. robbed the Headley Insurance Agency and

- 25 -
 killed Yvonne Bustamonte [sic] and Juanita “Jane” Luciano as was
found by the Jury in that case.
....
The evidence comes down to this; Leon Davis, Jr. was
positively identified as the gun wielding perpetrator of the Headley
Insurance Agency crimes and was convicted of those crimes.

(Emphasis added.)

It is improper for a trial court to consider “evidence from a different trial that

was not introduced in the guilt phase of the present trial.” Dailey v. State, 594 So.

2d 254, 259 (Fla. 1991). However, Davis’s argument that such error occurred in

this case is without merit. Our review of the sentencing order reveals that the trial

court was simply setting forth the historical facts of this case. Following an

evidentiary hearing, the court concluded that during the guilt phase, the State

would not be permitted to introduce evidence of the fire and the events inside

Headley. A careful reading of the trial transcript reveals that this order was

assiduously followed. In closely reading the testimony of the guilt phase witnesses

who testified due to their roles in the Headley case, to a person, the testimony of

each of these witnesses carefully avoided any comment on the facts surrounding

what actually happened inside of Headley, the victims’ burn conditions, and events

that occurred later that day. For example, Fran Murray, Evelyn Anderson, Lt.

Elrod, and the medical personnel, who offered graphic testimony about

Bustamante’s condition during the Headley trial, did not refer to this evidence

during the BP trial. However, the entire Headley record was admitted during the

- 26 -
penalty phase of the BP trial, and evidence that was specifically excluded from the

guilt phase was admitted during the penalty phase.

Davis’s argument that the court relied on facts outside of the guilt phase

record in determining his guilt for the BP crimes is inconsistent with the record

evidence of the court’s caution to avoid the introduction of irrelevant and

prejudicial Headley evidence during the guilt phase. We are convinced that the

trial court did not rely on such facts to establish Davis’s guilt in the BP case and

was merely setting forth the historical context of the case. Thus, we conclude that

Davis is not entitled to relief.

III. Impeachment of Victoria Davis

Davis also argues that the trial court erred when it allowed the State to

impeach his wife, Victoria, during her guilt phase testimony. In 2008, when

Victoria testified before the grand jury, she stated that on the evening of

December 7, Davis arrived home between 9 and 9:30 p.m. However, when she

testified at Davis’s trial, Victoria stated that Davis left home between 6 and 7 p.m.

that night, and he was gone for about one hour. The trial court permitted the State

to impeach Victoria on the grounds that her grand jury testimony was a prior

inconsistent statement. The trial court did not err in doing so.

“The theory of admissibility [of a prior inconsistent statement] is not that the

prior statement is true and the in-court testimony is false, but that because the

- 27 -
witness has not told the truth in one of the statements, the [finder of fact] should

disbelieve both statements.” Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004). To

be admissible, a prior inconsistent statement must either directly contradict or

materially differ from the expected testimony at trial. Id. Moreover, “the

inconsistency must involve a material, significant fact rather than mere details.”

Id.

In this case, the testimony at issue involved Davis’s whereabouts at the time

of the murders. If, as Victoria stated during her grand jury testimony, Davis did

not come home until between 9 and 9:30 p.m., she could not account for Davis’s

whereabouts at the time of the murders. However, if Davis left home between 6

and 7 p.m. and returned about one hour later as Victoria testified at trial, Davis

could not have been at the BP when the murders occurred shortly before 9 p.m.

Thus, the inconsistency in Victoria’s testimony relates to a “material, significant

fact” and not “mere details.” Id.

Victoria’s grand jury testimony materially differed from her trial testimony

and thus constituted a prior inconsistent statement. The salient portion of her trial

testimony is as follows:

Prosecutor: As you sit here today, do you remember how long
he was gone?

Victoria: Exactly?

Prosecutor: No, not exactly.

- 28 -
 Victoria: I remember that it wasn’t too long, that it had to be
somewhere around an hour, maybe a little more or
a little less. I can’t exactly tell you. I just know it
wasn’t that long because he knew I was sick.

(Emphasis added.)

Davis argues that Victoria’s trial testimony was not inconsistent with her

grand jury testimony and suggests that Victoria only said that she did not recall

when Davis returned home. However, the salient portion of her answer was that

“it had to be somewhere around an hour, maybe a little more or a little less.” In

contrast to her grand jury testimony where she testified that Davis returned home

between 9 and 9:30 p.m., she testified at trial that Davis was gone for only one

hour after he left home between 6 and 7 p.m. Because of this material

inconsistency, the trial court did not err in allowing the State to impeach her on

these grounds.

IV. Shifting the Burden of Proof

Davis also argues that during the BP trial, the trial court improperly shifted

the burden of proof to the defense. In support of his argument, he points to the

following language in the sentencing order:

On the evening of December 7, 2007, Mr. Davis left his home
sometime between 6:00 p.m. and 7:00 p.m. in his wife’s Nissan
Altima, allegedly to go shopping. His whereabouts are unknown until
he returned sometime after 9:00 p.m. to 9:30 p.m. Mr. Davis claims
he was at the Eagle Ridge Mall, but there is no evidence whatsoever
to corroborate that claim.

- 29 -
Davis’s burden-shifting argument is without merit.

“The accused is not required to prove an alibi beyond a reasonable doubt but

where the accused attempts to establish an alibi, proof thereof must be sufficient to

raise a reasonable doubt in the mind[s] of the [finder of fact] as to whether or not it

was possible for the accused to have been at the scene of the crime at the time

when the crime is shown to have been committed.” Blakes v. State, 182 So. 447,

448 (Fla. 1938). Davis’s alibi failed to raise a reasonable doubt in the trial court’s

mind as to whether Davis was at the BP at the time of the murders. The trial

court’s comment, therefore, merely reveals the deficiency of Davis’s alibi defense.

Davis is not entitled to relief.

V. Prior Felony Convictions

In the sentencing order, the trial court referred to the fact that at the time that

Davis attempted to rob the BP and murdered Dashrath and Pravinkumar, Davis

was a convicted felon and on felony probation. In July 2007, several months

before the BP crimes, Davis was convicted of felony grand theft and sentenced to

probation. Based on this evidence, Davis was convicted of possession of a firearm

by a convicted felon. Davis, though, argues that the trial court also considered the

felony convictions as proof of his guilt for the murder, attempted murder, and

attempted robbery charges. In the sentencing order, the trial court said the

following:

- 30 -
 The circumstantial and non-circumstantial evidence concerning
the Headley Insurance Agency crimes proves, beyond a reasonable
doubt, that Leon Davis, Jr. robbed the Headley Insurance Agency and
killed Yvonne Bustamonte [sic] and Juanita “Jane” Luciano as was
found by the Jury in that case. The gun used in those crimes was also
used to murder Pravinkumar C. Patel and Dashrath Patel. Beyond the
fact that the Defendant purchased a Dan Wesson .357 revolver from
Randy Black and all six projectiles recovered from the two crime
scenes are consistent with having been shot from the same type of
firearm, there are numerous other circumstantial facts that lead to the
conclusion, beyond a reasonable doubt, that Leon Davis, Jr.
committed the BP murders.
Leon Davis, Jr. was facing some very serious financial
setbacks. He did not have a job, and his wife was on leave from her
employment due to a problem pregnancy. His credit cards were
maxed out, and he only had a few dollars in his accounts at Mid
Florida Federal Credit Union. He was behind on his mortgage
payments, and he owed money on a loan to the bank. He had even
given up his cell phone. Due to an inability to pay his insurance
payments, he parked his Nissan Maxima and was using his wife’s car.
He was also facing his son’s, Garrion’s, upcoming birthday and the
Christmas holidays.
In spite of his financial difficulties, Mr. Davis decided to
purchase a gun and spent $220.00 on a Dan Wesson .357 revolver.
This is a very strange purchase, and an unlawful act, in light of the
fact that the Defendant was a convicted felon on felony probation at
the time of his acquisition of the firearm.

(Emphasis added.) Davis argues that this language proves that the trial court

considered his felony convictions as proof of his guilt on all of the charged

offenses. Davis’s argument is without merit.

The language emphasized by Davis must be read in context. The trial court

did not conclude that Davis committed the BP crimes because he was a convicted

felon. Rather, the trial court focused on Davis’s purchase of the revolver before

- 31 -
the BP crimes. The fact that Davis purchased a .357 magnum revolver on the same

day of the BP crimes is circumstantial evidence of his guilt. Davis is not entitled to

relief on this issue.

VI. Denial of Judgment of Acquittal

Davis also argues that the trial court erred when it denied his motion for

judgment of acquittal for the murders of Dashrath and Pravinkumar. “In reviewing

a motion for judgment of acquittal, a de novo standard of review applies.”

Reynolds v. State, 934 So. 2d 1128, 1145 (Fla. 2006) (citing Pagan v. State, 830

So. 2d 792, 803 (Fla. 2002)). “[C]ourts should not grant a motion for judgment of

acquittal unless the evidence is such that no view which the jury may lawfully take

of it favorable to the opposite party can be sustained under the law.” Id. (quoting

Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). “However, ‘where a conviction is

based wholly upon circumstantial evidence, a special standard of review applies.’ ”

Id. (quoting Darling v. State, 808 So. 2d 145, 155 (Fla. 2002)).

“[A] motion for judgment of acquittal should be granted in a case based

wholly upon circumstantial evidence if the [S]tate fails to present evidence from

which the jury could exclude every reasonable hypothesis except that of guilt.”

Id. at 1146. However, “[t]he [S]tate is not required to ‘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

- 32 -
events.” Darling, 808 So. 2d at 156 (quoting State v. Law, 559 So. 2d 187, 189

(Fla. 1989)). “Once the State meets this threshold burden, it becomes the jury’s

duty to determine ‘whether the evidence fails to exclude all reasonable hypotheses

of innocence . . . , and where there is substantial, competent evidence to support

the jury verdict, [the Court] will not reverse.’ ” Reynolds, 934 So. 2d at 1146

(quoting Law, 559 So. 2d at 188)). In this circumstantial evidence case, Davis’s

hypothesis of innocence was that of misidentification. However, the State

introduced competent evidence that is inconsistent with Davis’s theory.

On December 7, 2007, Leon Davis purchased a .357 magnum Dan Wesson

revolver from his cousin. That evening, Davis left home alone between 6 and 7

p.m., driving a black Nissan Altima. Around 8:51 p.m., a man fitting Davis’s

description attempted to enter the BP convenience store. When he could not gain

entry, he fired a gunshot into the store. The man then ran across the parking lot

and shot Dashrath and Pravinkumar in the head. The man ran back to the front

door of the store, tried again to open it, raised the gun again, and then ran away.

Around the time of the attempted robbery and murders, four witnesses saw a

dark-colored, likely black car parked in a secluded area in the vicinity of the BP.

One of the witnesses definitively identified the car as a Nissan and described the

car’s distinctive grille on the front end. These descriptions are consistent with the

black Nissan Altima that Davis admitted he was driving when he left home on the

- 33 -
evening of the murders. Testing later revealed that the tire tracks found near the

BP were consistent with the tires on the Altima driven by Davis.

Two days after the murders, Davis remained in possession of the gun he

purchased from his cousin and showed it to his mother. Four days later, Davis

robbed the Headley Insurance Agency. He shot one of the employees, Yvonne

Bustamante, in her left hand, and a concerned neighbor, Brandon Greisman, in the

face. Bustamante identified Davis by name, as she knew Davis as a Headley

customer. Greisman and another neighbor, Carlos Ortiz, identified Davis from

photographic lineups shown shortly after the events at Headley. Ortiz also

observed a black Nissan parked in an area behind a vacant house around the time

of the Headley shootings.

Projectiles retrieved from the Headley crime scene and from Bustamante’s

autopsy were compared with the projectiles retrieved from the BP crime scene and

from the autopsies of Dashrath and Pravinkumar. The projectiles were fired from

the same gun, a gun whose rifling characteristics are consistent with the .357

magnum Dan Wesson revolver purchased by Davis on the same day as the BP

murders. In sum, the same gun was used to murder Dashrath and Pravinkumar on

December 7 as was used to shoot Bustamante and Greisman just days later, and

Bustamante identified Davis as the shooter based on her personal knowledge of

Davis. A car fitting the description of the black Nissan Altima driven by Davis

- 34 -
was seen near both crime scenes. This evidence is inconsistent with Davis’s

misidentification defense.

Davis’s reliance on this Court’s decision in Dausch v. State, 141 So. 3d 513

(Fla. 2014), is misplaced. Although Dausch was also a case where the defense was

misidentification, there were significant deficiencies in the State’s case in Dausch

that do not exist in Davis’s case. In Dausch, there was no link between Dausch

and a murder weapon. In contrast, Davis purchased a .357 magnum revolver on

the same day as the BP murders. Davis’s revolver is consistent with the type of

gun used to kill Dashrath and Pravinkumar. Moreover, in Dausch, the State was

not able to place Dausch in the county where the crime occurred, let alone at the

crime scene. In contrast, Davis’s own testimony established that he was driving

the black Nissan Altima that night, and four witnesses testified that a car

resembling the one driven by Davis was near the crime scene at the time of the

murders. Moreover, the tires from Davis’s Nissan Altima were consistent with the

tire tracks left near the BP, and his driver license was later found inside that car.

Because the State produced competent evidence that is inconsistent with

Davis’s theory of misidentification, the trial court properly denied Davis’s motion

for judgment of acquittal. Moreover, we conclude that the State introduced

competent, substantial evidence of guilt sufficient to affirm Davis’s convictions.

- 35 -
 VII. Sufficiency of Evidence of Attempted Armed Robbery

Davis contends that the State failed to prove intent to commit robbery of the

BP, and that as such, the trial court should have granted his motion for judgment of

acquittal on the charge of attempted armed robbery. The trial court’s denial of a

motion for judgment of acquittal is subject to de novo review. Pagan, 830 So. 2d

at 803.

“[T]o prove attempted armed robbery, the State must show: (1) the

formation of an intent to commit the crime of robbery; (2) the commission of some

physical act in furtherance of the robbery; and (3) the use of a firearm.” Franqui v.

State, 699 So. 2d 1312, 1317 (Fla. 1997). “The overt act necessary to fulfill the

requirements of attempted robbery . . . must be adapted to effect the intent to

commit the crime; it must be carried beyond mere preparation, but it must fall short

of executing the ultimate design.” Mercer v. State, 347 So. 2d 733, 734 (Fla. 4th

DCA 1977) (citing Gustine v. State, 86 Fla. 24, 97 So. 207 (1923)).

The intent to commit an armed robbery must be supported by “competent,

substantial evidence from which the [finder of fact] could infer the defendant’s

intent to deprive the victim of property.” Grant v. State, 138 So. 3d 1079, 1084

(Fla. 4th DCA 2014) (quoting Fournier v. State, 827 So. 2d 399, 401 (Fla. 2d DCA

2002)). Such intent “may be proved by considering the conduct of the accused . . .

before, during, and after the alleged attempt along with any other relevant

- 36 -
circumstances.” Franqui, 699 So. 2d at 1317 (citing Cooper v. Wainwright, 308

So. 2d 182, 185 (Fla. 4th DCA 1975)).

Davis’s intent to commit armed robbery is supported by competent,

substantial evidence of his conduct before, during, and after the attempt. Before

the attempted robbery, indeed, on the very same day, Davis purchased a .357

magnum revolver from his cousin. That evening, when he arrived in the vicinity of

the BP, Davis parked his car off site in a secluded area. In doing so, he backed his

car up to a gate and hid the license plate from view. Moreover, to shield his

identity, Davis dressed in dark clothes and donned a hood and a face mask.

Additionally, Davis’s conduct during and immediately after the attempt

indicates his intent to commit armed robbery. Davis approached the convenience

store at night and at closing time. He pulled at the store door attempting to gain

entry. Upon Prakashkumar’s indication that the store was closed, Davis fired a

gunshot through the window. His attempt was somehow distracted by Dashrath

and Pravinkumar, because Davis quickly ran in their direction. However, after

Davis shot both men, he ran back to the store and pulled at the door again. Then,

after unsuccessfully trying again to gain access to the store, Davis ran away and

left the scene.

Additional relevant circumstances are strong indicators of Davis’s motive to

commit robbery. Through multiple witnesses, the State presented evidence that

- 37 -
Davis was suffering from financial difficulty. Davis was delinquent on his

mortgage, was no longer working, and was supporting his wife, who was on a

leave of absence from work due to pregnancy complications. Davis was no longer

gainfully employed. His car was parked in the garage because he could not afford

the insurance payments, and he and his wife shared the black Nissan Altima. They

also terminated their cell phone service because they could not afford the expense.

Consequently, Davis’s conduct surrounding the attempted armed robbery

and relevant circumstances of his significant financial difficulty constitute

competent, substantial evidence of his intent to commit robbery. We therefore

affirm the trial court’s finding that the murders were committed during the course

of an attempted armed robbery.

VIII. Dying Declaration

Davis argues that the trial court erred in admitting—during the BP trial—the

dying declaration of Headley victim Yvonne Bustamante.4 On the day of the

Headley crimes, responding officer Lt. Elrod questioned Bustamante at the scene.

When asked about what had taken place at Headley, Bustamante made statements

describing the events. Among these statements, she identified Davis as the

4. Davis also raised the issue of Bustamante’s dying declaration in the direct
appeal of his Headley convictions. See Davis v. State, No. SC11-1122 (Fla. Nov.
10, 2016). Davis raises similar issues relating to Bustamante’s dying declaration in
this case.

- 38 -
perpetrator and also indicated that Davis was a former Headley customer. Davis

sought to exclude Bustamante’s statements from the Headley trial, and the trial

court held an extensive evidentiary hearing to determine their admissibility.

Following the hearing, the trial court held that Bustamante’s statements were

admissible in their entirety under the dying declaration hearsay exception.

Because the same gun that was used in the BP murders of Dashrath and

Pravinkumar was used to shoot Bustamante during the events at Headley, the State

sought to introduce—during the BP trial—Bustamante’s statements identifying

Davis as the person who shot her. Before the BP trial, the court conducted an

independent review of the evidentiary hearing testimony and concluded that

Bustamante’s statements would be admissible in that trial as a dying declaration.

However, the trial court sharply limited the extent to which her statements would

be admissible. To that end, as discussed in Issue I, Lt. Elrod and other witnesses

testified regarding Bustamante’s identification of Davis as the person who shot her,

and Bustamante’s identification of Davis based on her personal knowledge of him.

We have already concluded that the trial court did not err in admitting

Bustamante’s statements in this limited manner.

In the present issue, Davis maintains that Bustamante’s statements were

improperly admitted under the dying declaration hearsay exception, and he raises

two points. First, he urges this Court to hold that as a matter of law, the dying

- 39 -
declaration is no longer a valid hearsay exception in Florida. Davis argues that the

dying declaration is not an exception to the United States Supreme Court’s holding

in Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding that the admission of

a testimonial statement violates a defendant’s Sixth Amendment right to

confrontation where the declarant is unavailable and the defendant lacked a prior

opportunity to cross-examine the declarant). Second, Davis argues that even if the

dying declaration survived Crawford, Bustamante’s statements did not constitute a

valid dying declaration because Bustamante did not have a fear of impending

death. As we explain below, we reject both arguments.5

A. Bustamante’s Dying Declaration

We now set forth an overview of the circumstances under which Bustamante

made her statements at the Headley scene. As we discuss this issue, we emphasize

that evidence relating to the Headley robbery and fire and Bustamante’s burn

injuries is only relevant to determine whether Bustamante’s statements constituted

a valid dying declaration. This evidence is necessary to evaluate the totality of the

circumstances under which Bustamante’s statements were made.

5. Davis also contends that the trial court erroneously admitted
Bustamante’s statements under the forfeiture by wrongdoing exception. This
argument is without merit. The trial court expressly concluded that Bustamante’s
statements were admissible as a dying declaration. We therefore reject this
argument without further discussion.

- 40 -
 At the evidentiary hearing held before the Headley trial, Lt. Elrod testified

that when he first approached Bustamante, he observed a badly burned woman

lying on a gurney who appeared to be burned over about eighty percent of her

body. Lt. Elrod quickly surmised that Bustamante would not survive her injuries.

As a result, he began to ask Bustamante pointed questions for the purpose of

obtaining her statement. Lt. Elrod testified as follows:

Lt. Elrod: At that point, I knew she wasn’t going to survive the
burns.

State: Did that affect the way that you then began to handle
your responsibilities as the first Lake Wales officer to
have contact with her?

Lt. Elrod: Yes, sir.

State: What—what did you do? Why did you do it?

Lt. Elrod: I wanted to get her statement before it wouldn’t ever be
gotten.

State: Now, normally, if you were the first officer on the scene,
someone is being treated by medical personnel, would
you just go ahead and start asking them questions if you
thought they were going to survive and be in the
hospital?

Lt. Elrod: No, sir. I would have let the medical people try to take
care of them.

State: But in this case, did you go ahead and begin to actually
speak with the woman on the gurney and ask her very
pointed questions?

Lt. Elrod: Yes, sir.

- 41 -
 When Lt. Elrod asked Bustamante what happened, Bustamante explained

that she and Luciano were working when Davis entered their office, demanded

money from them, and tried to rob them. She said that when they did not give

Davis the money that he wanted, he threw gasoline on them and set them on fire.

Lt. Elrod asked her if she knew the perpetrator’s identity. Bustamante told him,

“yes, it was Leon Davis,” and that he was a client of their insurance business.

Bustamante appeared coherent and alert, and she spoke clearly in response to

Lt. Elrod’s questions.

Other witnesses at the evidentiary hearing also testified that they heard

Bustamante describe the events at Headley and identify Davis. Additionally,

medical personnel testified about Bustamante’s grave physical condition, and

eyewitness Fran Murray testified that Bustamante stated that she was going to die.

Based on this testimony, the Headley and BP trial courts concluded that

Bustamante’s statements constituted a dying declaration. We now turn to Davis’s

argument that the trial court erred when it admitted as a dying declaration

Bustamante’s statements during the BP trial. We begin with Davis’s argument that

the dying declaration did not survive the United States Supreme Court’s decision

in Crawford.

- 42 -
 B. The Dying Declaration and Crawford

Ratified in 1791, the Sixth Amendment to the United States Constitution

provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to

be confronted with the witnesses against him[.]” U.S. Const. amend. VI. This

protection extends to prosecutions in both federal and state courts. See Pointer v.

Texas, 380 U.S. 400, 406 (1965). “Indeed, [the United States Supreme Court]

ha[s] expressly declared that to deprive an accused of the right to cross-examine

the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of

due process of law.” Id. at 405. However, “the [Confrontation] Clause permits,

where necessary, the admission of certain hearsay statements against a defendant

despite the defendant’s inability to confront the declarant at trial.” Maryland v.

Craig, 497 U.S. 836, 847-48 (1990). One example where such a necessity may

arise is in the context of the admission of a declarant’s dying declaration.

The admissibility of the dying declaration was recognized at common law on

the grounds that such declarations are “made in extremity, when the party is at the

point of death, and when every hope of this world is gone; when every motive to

falsehood is silenced, and the mind is induced by the most powerful considerations

to speak the truth; a situation so solemn and so awful is considered by the law as

creating an obligation equal to that which is imposed by a positive oath

administered in a court of justice.” King v. Woodcock, 1 Leach 500, 502, 168

- 43 -
Eng. Rep. 352, 353 (K.B. 1789). More than a century ago, the United States

Supreme Court recognized that “from time immemorial [dying declarations] have

been treated as competent testimony, and no one would have the hardihood at this

day to question their admissibility. They are admitted, not in conformity with any

general rule regarding the admission of testimony, but as an exception to such

rules, simply from the necessities of the case, and to prevent a manifest failure of

justice.” Mattox v. U.S., 156 U.S. 237, 243-44 (1895). “[The dying declaration]

exception was well established before the adoption of the constitution, and was not

intended to be abrogated. The ground upon which such exception rests is that,

from the circumstances under which dying declarations are made, they are

equivalent to the evidence of a living witness upon oath[.]” Kirby v. U.S., 174

U.S. 47, 61 (1899).

Similarly, Florida has long recognized the dying declaration as a valid

exception to the rule against hearsay:

Dying declarations in cases of homicide form an exception to the rule
against the admissibility of hearsay evidence. The law regards the
declarant, when in the presence of imminent and inevitable death, as
being under as solemn an inspiration to tell the truth as though he
were pledged thereto by oath. To render such declaration admissible,
however, the court must be satisfied that the deceased declarant, at the
time of their utterance, knew that his death was imminent and
inevitable, and that he entertained no hope whatever of recovery. This
absence of all hope of recovery, and appreciation by the declarant of
his speedy and inevitable death, are a preliminary foundation that
must always be laid to make such declarations admissible.

- 44 -
Lester v. State, 20 So. 232, 233 (Fla. 1896).

However, Davis argues that in light of the United States Supreme Court’s

2004 decision in Crawford, the admission of a testimonial dying declaration

violates the Sixth Amendment right of confrontation. This Court has previously

recognized that in Crawford, the Supreme Court “held that the introduction of a

hearsay statement will result in a violation of the defendant’s Sixth Amendment

right to confrontation if (1) the statement is testimonial; (2) the declarant is

unavailable; and (3) the defendant lacked a prior opportunity for cross-examination

of the declarant.” Hayward v. State, 24 So. 3d 17, 32 (Fla. 2009). In the present

case, the State introduced, as a dying declaration, out-of-court testimonial

statements of the declarant, Bustamante. Bustamante was unavailable to testify at

trial, and Davis lacked a prior opportunity to cross-examine her. Thus, Davis

argues that Bustamante’s statements were inadmissible under the holding in

Crawford.

To date, the United States Supreme Court has not answered whether the

dying declaration exception remains viable in light of Crawford. Yet, in dicta, the

Supreme Court has provided some guidance on the matter. Notably, in Crawford,

although the facts of that case did not involve a dying declaration, the Court

observed that dying declarations have been the “one deviation” to the rule

excluding testimonial hearsay in criminal cases:

- 45 -
 The one deviation we have found involves dying declarations.
The existence of that exception as a general rule of criminal hearsay
law cannot be disputed. . . . Although many dying declarations may
not be testimonial, there is authority for admitting even those that
clearly are. . . . We need not decide in this case whether the Sixth
Amendment incorporates an exception for testimonial dying
declarations. If this exception must be accepted on historical grounds,
it is sui generis.

Crawford, 541 U.S. at 56 n.6 (internal citations omitted). Subsequently, in Giles v.

California, 554 U.S. 353, 358 (2008), the Supreme Court stated: “We have

previously acknowledged that two forms of testimonial statements were admitted

at common law even though they were unconfronted. The first of these were

declarations made by a speaker who was both on the brink of death and aware that

he was dying.” Courts that have confronted the post-Crawford viability of the

dying declaration have generally interpreted these statements as strong suggestions

by the United States Supreme Court that the dying declaration exception does not

run afoul of the Sixth Amendment right of confrontation.6 Davis now calls upon

6. See, e.g., People v. Monterroso, 101 P.3d 956, 972 (Cal. 2004)
(concluding that “the common law pedigree of the exception for dying declarations
poses no conflict with the Sixth Amendment.”); Walton v. State, 603 S.E.2d 263,
265-66 (Ga. 2004) (recognizing that Crawford did not extend its holding to dying
declarations); People v. Gilmore, 828 N.E.2d 293, 302 (Ill. App. Ct. 2005)
(concluding “that the [United States Supreme] Court does not believe that
admitting testimonial dying declarations violates the confrontation clause.”);
Wallace v. State, 836 N.E.2d 985, 993-96 (Ind. Ct. App. 2005) (rejecting
appellant’s argument that the dying declaration offends an accused’s right to
confrontation); State v. Jones, 197 P.3d 815, 821-22 (Kan. 2008) (concluding that
“the [United States] Supreme Court would confirm that a dying declaration may be
admitted into evidence, even when it is testimonial in nature and is

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this Court to determine whether Florida’s dying declaration exception remains

viable post-Crawford.

Majority View vs. Minority View

Davis acknowledges that there is a split of authority on whether the dying

declaration survived Crawford. However, Davis’s position, that the exception is

no longer viable, falls clearly within the minority. Nonetheless, Davis argues that

Florida’s dying declaration exception is inconsistent with the dying declaration that

existed at common law, and thus, it does not satisfy Crawford’s historical grounds

exception. Davis also contends that the dying declaration is not a valid hearsay

exception because dying declarations are inherently unreliable. Today, Davis’s

unconfronted.”); Commonwealth v. Nesbitt, 892 N.E.2d 299, 310-11 (Mass. 2008)
(recognizing Crawford’s acknowledgment of the dying declaration as an exception
under the Sixth Amendment right of confrontation); State v. Martin, 695 N.W.2d
578, 585-86 (Minn. 2005), abrogated on other grounds by State v. Moua Her, 750
N.W.2d 258, 265 n.5 (Minn. 2008) (holding “that the admission into evidence of a
dying declaration does not violate a defendant’s Sixth Amendment right to
confrontation within the meaning of Crawford because an exception for dying
declarations existed at common law and was not repudiated by the Sixth
Amendment.”); Harkins v. State, 143 P.3d 706, 710-11 (Nev. 2006) (holding that
the dying declaration is an exception to the Confrontation Clause); State v.
Calhoun, 657 S.E.2d 424, 426-28 (N.C. 2008) (holding that dying declarations do
not violate the Sixth Amendment); State v. Lewis, 235 S.W.3d 136, 147-48 (Tenn.
2007) (holding “that this single hearsay exception survives the mandate of
Crawford regardless of its testimonial nature”); State v. Beauchamp, 796 N.W.2d
780, 795 (Wis. 2011) (concluding that “a hearsay exception as long-standing, well-
established and still necessary as [the dying declaration], . . . cannot lightly be
dismissed.”).

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arguments notwithstanding, this Court joins the overwhelming majority view that

the dying declaration exception remains viable post-Crawford. The unique nature

and purpose of the dying declaration exception, observed in Crawford and Giles,

justifies its continuing utility and validity as an exception to the rule against

hearsay. We therefore reaffirm the continued use of the dying declaration in this

state in a manner that is consistent with the applicable law that defines the

exception.

Historical Grounds

Davis argues that Florida’s dying declaration exception is no longer valid

because the modern exception has evolved from that which existed at common

law. Davis asserts that at common law, the justification for admitting a declarant’s

dying declaration was the declarant’s religious belief in the afterlife, and he

maintains that in contrast to a justification based on the declarant’s religious belief,

Florida’s existing dying declaration exception is secular and nondenominational.

See § 90.804(2)(b), Fla. Stat. (requiring an unavailable declarant’s reasonable

belief “that his or her death was imminent, concerning the physical cause or

instrumentalities of what the declarant believed to be impending death or the

circumstances surrounding impending death.”). Consequently, Davis argues,

Crawford’s “historical grounds” for Florida’s dying declaration exception can no

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longer be used to justify the admission of a dying declaration in Florida’s courts.

See Crawford, 541 U.S. at 56 n.6.

It is true that “[t]he [dying declaration] hearsay exception has sometimes

been justified on the grounds that a dying person was presumed under the common

law to have, due to commonly held religious beliefs concerning the afterlife, such a

fear of dying without the opportunity to expiate a lie that the reliability of any

statement made in those circumstances was deemed equivalent to that of sworn

testimony.” State v. Beauchamp, 796 N.W.2d 780, 794 (Wis. 2011). Thus, Davis

argues that Florida’s dying declaration exception does not fall under the “historical

grounds” suggested in Crawford, because it lacks the religious justification that

existed at common law. See Crawford, 541 U.S. at 56 n.6.

Davis cites two federal district court opinions which concluded that dying

declarations are not an exception to the confrontation clause. In U.S. v. Mayhew,

380 F. Supp. 2d 961, 966 (S.D. Ohio 2005), a federal district court expressly

“reject[ed] the government’s argument that dying declarations are an exception to

the Confrontation Clause.” Id. at 965. In U.S. v. Jordan, No. 04-CR-229-B, 2005

WL 513501 (D. Colo. Mar. 3, 2005), an unpublished memorandum and order, the

federal district court suggested that historical underpinnings do not continue to

justify the dying declaration. The court concluded that “there is no rationale in

Crawford or otherwise under which dying declarations should be treated

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differently than any other testimonial statement. This is so especially since the

historical underpinnings of the exception fail to justify it.” Id. at *3.

However, the religious justification as the sole or primary justification of the

dying declaration has not been universally accepted. In 1860, Wigmore on

Evidence included the following analysis:

[A dying declaration] is not received upon any other ground
than that of necessity, in order to prevent murder going unpunished.
What is said in the books about the situation of the declarant, he being
virtually under the most solemn sanction to speak the truth, is far from
presenting the true ground of the admission. . . . [T]he rule is no
doubt based upon the presumption that in the majority of cases there
will be no other equally satisfactory proof of the same facts. This
presumption and the consequent probability of the crime going
unpunished is unquestionably the chief ground of this exception in the
law of evidence.

Wigmore on Evidence, § 1431 (quoting 1 Greenleaf, Evidence § 156, editorial note

(1860) (emphasis added)). “It is scarcely necessary to say that, to the rule that an

accused is entitled to be confronted with witnesses against him, the admission of

dying declarations is an exception which arises from the necessity of the cause.”

Kirby, 174 U.S. at 61. A declarant’s religious belief notwithstanding, the dying

declaration exception recognizes the extraordinary nature of the dying person’s

ability to speak to the circumstances that placed her in that grave position, and

quite possibly to identify the perpetrator and ensure that the one who commits

murder is held accountable. As such, we reject Davis’s argument.

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 Reliability of the Dying Declaration

Davis also suggests that dying declarations are inherently unreliable. In

Mayhew, the court suggested that a dying person might have an incentive to offer

false dying statements:

For example, the declarant might have been in a revengeful
state of mind which would color his dying statements. No longer
subject to the fear of retaliation by his enemies, the declarant might
falsely incriminate those persons whom he disliked. If the decedent
had no religious belief or fear of punishment after death, the
statements made while dying would seem to lose much of the
trustworthiness traditionally attributed to them. In general, self-
serving declarations would be particularly suspect, for the decedent
could thereby exculpate himself from questionable association with
the circumstances surrounding his death. The declarant’s physical and
mental state of mind at the moment of death may weaken the
reliability of his statements.

380 F. Supp. 2d at 965 n.5 (quoting Note, Affidavits, Depositions, and Prior

Testimony, 46 Iowa L. R. 356, 375-76 (1961)).

While not impossible, we do think it improbable that a dying person would

use the fleeting moments of her earthly existence to, rather than place blame at the

feet of her actual murderer, intentionally falsely incriminate someone else. After

all, “[t]he admission of the [dying declaration] is justified upon the ground of

necessity, and in view of the consideration that the certain expectation of almost

immediate death will remove all temptation to falsehood and enforce as strict

adherence to the truth as the obligation of an oath could impose.” Mattox, 146

- 51 -
U.S. at 152. Consequently, we reject Davis’s challenge to the reliability of the

dying declaration.

Having concluded that Davis’s arguments are without merit, we reject his

invitation to abrogate Florida’s dying declaration exception. Our analysis and the

conclusion that we reach today are consistent with that of other jurisdictions that

have considered the post-Crawford viability of the dying declaration. For instance,

shortly after Crawford was decided, the California Supreme Court decided People

v. Monterroso, 101 P.3d 956 (2004). In Monterroso, the court rejected the

defendant’s claim “that Crawford has abrogated the exception for dying

declarations.” Id. at 972. Concluding that “the holding of Crawford does no such

thing,” the court observed:

To exclude such evidence as violative of the right to confrontation
“would not only be contrary to all the precedents in England and here,
acquiesced in long since the adoption of these constitutional
provisions, but it would be abhorrent to that sense of justice and
regard for individual security and public safety which its exclusion in
some cases would inevitably set at naught.”

Monterroso, 101 P.3d at 972 (quoting State v. Houser, 26 Mo. 431, 438 (Mo.

1858)). The court concluded: “it follows that the common law pedigree of the

exception for dying declarations poses no conflict with the Sixth Amendment.” Id.

(citations omitted).

The Supreme Court of Wisconsin upheld the post-Crawford viability of the

dying declaration in Beauchamp, 796 N.W.2d at 791, reasoning: “If we were to

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accept that the Confrontation Clause, as set forth in Crawford’s seemingly

unbending declaration, requires that all testimonial statements be subject to

confrontation to test their reliability, we would exclude dying declarations as, by

definition, unconfrontable, and therefore, statements whose reliability cannot be

tested.” We agree with the court in Beauchamp that “such a seemingly rigid

approach cannot prevail here.” Id.

Most recently, the highest appellate court in Maryland, the Special Court of

Appeals, held that the dying declaration remains viable in Maryland. The state’s

high court explained:

Here, we reach the same conclusion that the Supreme Court has
consistently endorsed for more than a century, and hold that the
Confrontation Clause does not apply to dying declarations. . . .
Although it is accurate that, in Crawford and its progeny, the Supreme
Court has not yet held that the Confrontation Clause does not apply to
dying declarations, our holding is entirely consistent with Crawford
and its progeny.

Hailes v. State, 113 A.3d 608, 611 (Md. 2015).

Although Crawford “deliberately avoided the question of how [the holding

in Crawford] would apply in a dying declaration case,” we are persuaded that the

United States Supreme Court has nonetheless “made clear that notwithstanding the

categorical language employed in Crawford, there remain situations in which a

defendant may not successfully invoke the Confrontation Clause to exclude

testimonial hearsay statements.” Beauchamp, 796 N.W.2d at 791. The

- 53 -
introduction of a valid dying declaration is such a situation. Thus, we reject

Davis’s urging to abrogate the dying declaration exception, and we join the

majority of courts that have considered the post-Crawford viability of the dying

declaration and have concluded that the dying declaration did survive Crawford.

C. Whether Bustamante’s Statements Qualify as a Dying Declaration

In light of our holding that Crawford did not abrogate the dying declaration

exception in Florida, we now turn to whether Bustamante’s statements constituted

a dying declaration. Davis argues that Bustamante did not believe that her death

was imminent, and thus, her statements were inadmissible as a dying declaration.

As we have already observed, the trial court properly limited the scope of

the Headley evidence that was admissible during the guilt phase of the BP trial.

Evidence relating to the Headley robbery and fire and the victims being set on fire

was properly excluded during the guilt phase. However, this excluded evidence is

relevant to a determination of whether Bustamante’s statements constituted a dying

declaration. We reiterate that while such evidence was relevant to the admissibility

of Bustamante’s statements under the dying declaration exception, it was not

introduced during the guilt phase of the BP trial. We review such evidence here

for the sole purpose of evaluating the totality of the circumstances surrounding

Bustamante’s statements and the propriety of the trial court’s decision to admit

even a limited scope of her statements as a dying declaration.

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 “In considering a trial court’s ruling on admissibility of evidence over an

objection based on the Confrontation Clause, [this Court’s] standard of review is

de novo.” McWatters v. State, 36 So. 3d 613, 637 (Fla. 2010) (quoting Milton v.

State, 993 So. 2d 1047, 1048 (Fla. 1st DCA 2008)). In order for the dying

declaration exception to apply, “the deceased must have known and ‘appreciated

his condition as being that of an approach to certain and immediate death,’

although it is not necessary that the declarant ‘make express utterances’ that he

would never recover.” Hayward, 24 So. 3d at 30 (quoting Henry v. State, 613 So.

2d 429, 431 (Fla. 1992)). In determining whether to admit hearsay as a dying

declaration, “ ‘the court should satisfy itself, on the totality of the circumstances,’

that the deceased knew he was dying.” Id. at 30-31 (quoting Henry, 613 So. 2d at

431). The “absence of all hope of recovery, and appreciation by the declarant of

his speedy and inevitable death, are a preliminary foundation that must always be

laid to make such declarations admissible.” Id. at 31 (quoting McRane v. State,

194 So. 632, 636 (1940)). Based on the totality of the circumstances, the trial court

did not err in admitting Bustamante’s dying declaration.

Before the Headley trial, the trial court held an extensive evidentiary hearing

during which the State presented the testimony of witnesses who were in contact

with Bustamante at the scene. One of these witnesses was Fran Murray, who

testified as follows:

- 55 -
 She started talking about her kids. And she said she was in so
much pain. She kept saying it over and over, and that her body hurt
so bad, and that she knew that she wasn’t going to make it. She said,
please keep me in your prayers. I’m not going to make it.

Bustamante, who was oriented and alert at the scene, was aware of her extensively

burned body. Witnesses testified that Bustamante received extensive burns of the

second, third, and fourth degree, she was burned over at least eighty percent of her

body, her flesh was falling off of her body, she was in severe pain, and the severity

of her burns was indicative of a high probability of death.

While Bustamante’s statement that “she wasn’t going to make it” was

certainly an important factor for the trial court’s consideration, as we did in

Hayward, we emphasize that a verbal acknowledgment of impending death is not

required in order to find that a declarant’s statement constitutes a dying

declaration. The testimony of multiple witnesses revealed the dire circumstances

that Bustamante faced after Davis set her body on fire.

Given the totality of the circumstances, Davis’s assertion that Bustamante’s

statements were not properly admitted as a dying declaration is without merit. The

trial court received a substantial amount of consistent witness testimony about

Bustamante’s condition. Moreover, Bustamante clearly expressed her belief that

she was not going to survive. Thus, we conclude that the trial court properly

admitted Bustamante’s statements under the dying declaration exception, which

remains a valid hearsay exception in this state.

- 56 -
 IX. Identifications by Greisman and Ortiz

Davis also argues that the pretrial and in-court identifications made by

Headley eyewitnesses Greisman and Ortiz should not have been admitted during

the BP trial. At separate times within days of the Headley shootings, Greisman

(shooting victim) and Ortiz offered out-of-court identifications of Davis after

viewing his photograph in a photopack (also known as a photographic lineup).

Both men also identified Davis in court during their trial testimony. Davis argues

that these identifications were unreliable and should have been excluded as

evidence. Similar to Davis’s claims relating to the admission of Bustamante’s

dying declaration, Davis also challenged the admissibility of Greisman’s and

Ortiz’s identifications in the direct appeal of his convictions stemming from the

events at Headley. See Davis v. State, No. SC11-1122 (Fla. Nov. 10, 2016). In

Issue I in the present opinion, we concluded that the trial court did not err in

admitting Greisman’s and Ortiz’s identifications during the guilt phase of the BP

trial to the extent that they identified Davis as the Headley shooter. Thus, we now

address Davis’s claims that (1) the pretrial identifications of Davis were

unnecessarily suggestive, and (2) the pretrial identifications rendered the in-court

identifications inadmissible. As we explain below, we reject both claims. The

circumstances surrounding each witness’s identification are as follows.

- 57 -
 Greisman testified that upon reaching the vicinity of the Headley building,

he observed Davis walking towards him. Greisman saw Davis’s face clearly and

made eye contact with him. Greisman thought that Davis was responding to the

events at Headley and that he intended to offer assistance. Instead, Davis shot him

in the face. After being transported to the hospital, Greisman underwent surgery

and remained in the hospital overnight. He was not allowed to watch television,

and he denied seeing any newspaper or other media accounts during his hospital

stay. When Greisman was released from the hospital, his mother drove him to the

Lake Wales Police Department to speak to two detectives. While at the police

station, Greisman viewed a photopack containing six photographs, one of which

was a photograph of Davis. When asked if he recognized the person who shot him,

Greisman quickly recognized Davis’s photograph, and he placed his initials next to

it. Greisman identified Davis again from the witness stand at trial.

Similarly, Ortiz identified Davis as the shooter and testified that he saw

Davis’s face clearly. After Greisman was shot, Ortiz looked Davis in the eyes and

maintained his view of Davis because he was concerned that Davis would attack

him. Four days after the events at Headley, Ortiz viewed a photopack containing

Davis’s photograph. Ortiz easily identified Davis as the perpetrator. In addition to

Ortiz’s observations of Davis at the time of the shooting, Ortiz testified that he

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recognized Davis as someone whom he previously saw at the Florida Natural

Growers juice plant. Ortiz previously worked at the plant.

A. Validity of the Out-of-Court Identifications/Photopacks

First, Davis contends that the photopacks shown to Greisman and Ortiz were

unnecessarily suggestive and that as a result, their out-of-court identifications of

Davis were invalid. “This Court has adopted a two-part test to determine whether

an out-of-court identification may be admitted: First, whether police used an

unnecessarily suggestive procedure to obtain an out-of-court identification, and,

second, if so, considering all the circumstances, whether the suggestive procedure

gave rise to a substantial likelihood of irreparable misidentification.” Green v.

State, 641 So. 2d 391, 394 (Fla. 1994) (citing Grant v. State, 390 So. 2d 341, 343

(Fla. 1980)). When evaluating the likelihood of misidentification, a court should

consider:

the opportunity of the witness to view the criminal at the time of the
crime, the witness’ degree of attention, the accuracy of the witness’
prior description of the criminal, the level of certainty demonstrated
by the witness at the confrontation, and the length of time between the
crime and the confrontation.

Rimmer v. State, 825 So. 2d 304, 316 (Fla. 2002) (quoting Grant, 390 So. 2d at

343). However, where the procedure used to obtain the out-of-court identification

was not unnecessarily suggestive, the likelihood of irreparable misidentification

need not be explored. See id. In this case, the procedures used to obtain the out-

- 59 -
of-court identifications made by Greisman and Ortiz were not unnecessarily

suggestive.

Greisman and Ortiz were each shown a photopack that was printed on a

piece of letter-sized paper and contained six photographs. The photographs were

divided into two rows, with three photographs in each row. The lower left corner

of each photograph contained an identifying number ranging from one through six.

Below the bottom row of photographs were six sets of book-in numbers, each of

which corresponded to one of the photographs. Each of the numbers contained

between seven and eleven digits and was printed in small font. Davis’s book-in

number contained the number 2007, and the other photographs each contained the

number 93 or 94, representing the year that the photograph was taken. As a result,

Davis argues that the placement of the number 2007 in his book-in number

distinguished it from the other book-in numbers that contained the numbers 93 and

94, and unnecessarily suggested that his was the suspect’s photograph. We

disagree.

The photopack in this case is distinguishable from cases cited by Davis

where a date was actually placed on the suspect’s photograph. For instance, in

Brown v. Commonwealth, 564 S.W.2d 24 (Ky. Ct. App. 1978), a case involving

the appeal of two defendants’ robbery convictions, the appellate court detailed the

following facts:

- 60 -
 The seven photographs shown Lineberry and Scott were mug
shots from the files of the Jefferson County Police Department.
In each photograph a board was suspended from around the neck of
the individual. Each board contained information for identification
purposes. In the case of Brown and Hill [the appellants], each board
contained the abbreviation “ROB” and the date “November 17, 1975.”
In the other five photographs, the boards did not contain the robbery
date of November 17, 1975, nor were any two dates the same. Only
one of the other five photographs contained the abbreviation “ROB.”

Id. at 26. These facts, which include the unequivocal use of the date of the crime

and the abbreviation “ROB” within the suspects’ photographs, demonstrate an

unnecessarily suggestive photographic lineup.

In contrast, the photopacks shown to Greisman and Ortiz contained, beneath

the entire set of photographs, six sets of book-in numbers that corresponded to the

photographs above. The numbers were printed in small font and were innocuous.

Both Greisman and Ortiz quickly identified Davis’s photograph. Therefore, we

reject Davis’s argument that the book-in numbers rendered the photopacks

unnecessarily suggestive. Consequently, the trial court did not err in admitting the

out-of-court identifications made by Greisman and Ortiz.

B. Validity of the In-Court Identifications

Second, Davis argues that the in-court identifications made by Greisman and

Ortiz are invalid. He asserts that the in-court identifications were rendered

unreliable by the earlier use of unnecessarily suggestive photopacks. However,

because the photopacks were not unnecessarily suggestive and did not invalidate

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Greisman’s and Ortiz’s out-of-court identifications, Davis’s argument that the

photopacks rendered their in-court identifications invalid is without merit. Davis is

not entitled to relief.

X. Weight Assigned to Aggravating and Mitigating Factors

Davis also challenges the weight assigned by the trial court to two mitigating

circumstances, arguing that the trial court failed to individually weigh each on its

own merits. Second, Davis argues that the court improperly weighed the

aggravating circumstances. We address each claim in turn.

Mitigating Circumstances

First, Davis argues that the trial court improperly discounted two

nonstatutory mitigating circumstances. “[A] defendant must raise a proposed

nonstatutory mitigating circumstance before the trial court in order to challenge on

appeal the trial court’s decision about that nonstatutory mitigating factor.” Davis

v. State, 2 So. 3d 952, 962 (Fla. 2008) (citing Lucas v. State, 568 So. 2d 18, 23-24

(Fla. 1990)). Yet, when determining the appropriateness of a sentence of death,

“trial courts are required to consider all mitigating evidence presented by the

defendant and supported by the record.” Griffin v. State, 820 So. 2d 906, 913 (Fla.

2002) (citing Walker v. State, 707 So. 2d 300, 318 (Fla. 1997)). Davis challenges

the trial court’s findings with respect to nonstatutory circumstances nine (stressors

at the time of incident) and ten (good person in general):

- 62 -
9. Stressors at the time of incident.

It is obvious that the Defendant was under some financial stress in
December 2007. By that time, he had lost his long term, good paying
job at Florida Natural Growers and had gone to work for the City of
Eagle Lake. However, he also lost that job and received his last
paycheck from the City of Eagle Lake on December 6, 2007.

The Defendant’s wife, Victoria Lynn Davis, was on a leave of
absence from her job due to problems with her pregnancy. The family
owed past due mortgage payments and had maxed out their credit
cards. The Defendant did not have any significant amount of cash in
the bank and was facing his son’s upcoming birthday and the
Christmas holidays.

His son . . . was born with [Down] syndrome, and the Defendant was
actively participating in this upbringing. It is clear that he spent a lot
of time with his son . . . .

The Court finds this mitigating circumstance has been proven by a
greater weight of the evidence, but it does not justify a decision to rob
a convenience store and murder two victims in the course of the
attempted robbery.

The Court assigns this mitigator little weight.

10. Good person in general.

The evidence establishes that the Defendant, Leon Davis Jr., was a
loving husband, who was devoted to his [Down] syndrome son . . . .
He was also actively involved in his family, regularly seeing his
brother and his sisters.

It appears that he was very well regarded by his entire family, his
friends, and his employers.

The Court finds this mitigator has been proven by a greater weight of
the evidence but, in light of the murders at Headley Insurance
Agency, assigns it little weight.

- 63 -
(Emphasis added.)

When evaluating mitigating circumstances, “each mitigating circumstance is

to be analyzed and weighed individually.” Perez v. State, 919 So. 2d 347, 373-74

(Fla. 2005) (citing Peterka v. State, 640 So. 2d 59, 70 (Fla. 1994)). Furthermore,

“the written findings chronicling the trial court’s analysis and reasons for the

weight assigned by it should be ‘unmistakably clear’ to ensure that a defendant is

afforded a full appellate review in cases where the ultimate sentence is death.” Id.

In this case, the trial court found as a nonstatutory mitigating circumstance

that Davis was subject to stressors at the time of the BP murders but discounted the

mitigation because it did not justify the BP attempted robbery and murders. The

trial court’s analysis was improper. Additionally, while the trial court found as a

nonstatutory mitigating circumstance that Davis was a good person in general, the

court assigned the mitigation little weight “in light of the murders at Headley

Insurance Agency.” Likewise, this analysis was improper. We addressed a similar

issue in Perez, and we again “remind the trial court below that each mitigating

circumstance is to be analyzed and weighed individually.” Id. at 373.

While we conclude that the trial court erred when it discounted these

nonstatutory mitigating circumstances based on other factors, in light of the

weighty aggravating circumstances in this case, we conclude that the trial court’s

error is harmless.

- 64 -
 Aggravating Circumstances

In the conclusion of the sentencing order, the trial court said: “The State has

proven, beyond and to the exclusion of all reasonable doubt, 3 Statutory

Aggravators, to which the Court has assigned great weight.” This language is

inconsistent with the court’s specific findings contained in the sentencing order:

(1) capital felony committed by person previously convicted of a felony and on

felony probation (moderate weight); (2) prior capital/violent felony conviction

(very great weight); and (3) capital felony committed during the course of an

attempted robbery (great weight).

The trial court did misstate the weight that it gave to two of the aggravating

factors. However, while the court overstated the weight assigned to one

aggravating circumstance (Davis was previously convicted of a felony and on

felony probation), it understated the weight assigned to another (prior

capital/violent felony). The sentencing order reflects a detailed consideration of

each aggravating circumstance and acknowledges “that the process is not simply a

quantitative analysis but a qualitative one.” Having conducted its qualitative

analysis, the trial court concluded that the aggravating circumstances outweighed

the mitigating circumstances. Davis is not entitled to relief.

- 65 -
 XI. Proportionality

This Court is required to conduct “a comprehensive analysis 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.” Offord v. State, 959 So. 2d 187, 191 (Fla. 2007) (quoting

Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003)). “This entails ‘a qualitative

review . . . of the underlying basis for each aggravator and mitigator rather than a

quantitative analysis.’ ” Id. (quoting Urbin v. State, 714 So. 2d 411, 417 (Fla.

1998)). Thus, in determining whether a death sentence is proportionate, this Court

does not simply compare the number of aggravating circumstances versus the

number of mitigating circumstances. See id.

In this case, involving the murders of two victims, the trial court found the

following aggravating circumstances: (1) capital felony committed by person

convicted of a felony and on felony probation (moderate weight); (2) prior

capital/violent felony conviction (very great weight); and (3) capital felony

committed during the course of an attempted robbery (great weight). The court

found as a statutory mitigating circumstance that Davis was under the influence of

extreme mental or emotional distress and assigned it little weight. The trial court

also found multiple nonstatutory mitigating circumstances; the weightiest of these,

related to abuse and bullying in his childhood, and his role as a good father, son,

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and brother, were afforded moderate weight. Ultimately, the trial court concluded

that the aggravating circumstances justified the imposition of the death penalty and

that the mitigating circumstances were insufficient to overcome the weighty

aggravation.

Davis’s case is proportionate to cases involving shooting deaths where this

Court has upheld the appellant’s sentence of death. In Sanchez-Torres v. State,

130 So. 3d 661, 674-76 (Fla. 2013), this Court upheld the death sentence where the

trial court found two aggravating circumstances, including prior violent felony, and

weighed the aggravating circumstances against “numerous nonstatutory

mitigators.” Likewise, in Hayward, this Court upheld the death sentence as

proportionate where the trial court found two aggravating circumstances, including

prior violent felony, and weighed these aggravating circumstances against several

nonstatutory mitigating circumstances. Hayward, 24 So. 3d at 46. See also

McMillian v. State, 94 So. 3d 572 (Fla. 2012) (death sentence upheld where trial

court weighed two aggravating circumstances, including prior violent felony,

against several nonstatutory mitigating circumstances); Lebron v. State, 982 So. 2d

649 (Fla. 2008) (death sentence for shooting murder upheld where trial court

weighed two aggravating circumstances, including prior violent felony, against

several nonstatutory mitigating circumstances).

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 Moreover, Davis’s case is also proportionate to other cases involving double

murders. See Marquardt v. State, 156 So. 3d 464 (Fla.) (death sentence upheld

where the trial court weighed four aggravating circumstances as to one victim and

three as to the second victim, including prior violent felony, against two statutory

mitigating circumstances and two nonstatutory mitigating circumstances), cert.

denied, 136 S. Ct. 213 (2015).

Davis argues that his death sentence is disproportionate because the trial

court did not find that the murders were especially heinous, atrocious, or cruel

(HAC), or that the murders were cold, calculated, and premeditated (CCP). While

the absence of HAC or CCP alone does not render a death sentence

disproportionate, this Court has stated that “while their absence is not controlling,

it is also not without some relevance to a proportionality analysis.” Larkins v.

State, 739 So. 2d 90, 95 (Fla. 1999).

In this case, although HAC and CCP are not present, we are especially

mindful of the extremely weighty aggravating circumstance properly found by the

trial court based on Davis’s prior capital felony convictions. The prior

capital/violent felony aggravating circumstance, to which the trial court assigned

the greatest weight, involved the brutal murders of Bustamante and Luciano—

murders that occurred within one week of the BP murders. Like HAC and CCP,

this Court has observed that the prior violent felony aggravating circumstance is

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“among the weightiest aggravators set out in the statutory sentencing scheme.”

Hodges v. State, 55 So. 3d 515, 542 (Fla. 2010).

Also without merit is Davis’s argument that his sentence is disproportionate

because the murders that served as the basis for the prior capital/violent felony

aggravating circumstance occurred one week after the BP murders. This Court has

stated that “previous violent felony convictions suffice for purposes of the prior

violent felony aggravator so long as the convictions predate the sentencing, even

when the crimes underlying the conviction occurred after the crime for which the

defendant is being sentenced.” Knight v. State, 746 So. 2d 423, 434 (Fla. 1998)

(citing Elledge v. State, 346 So. 2d 998 (Fla. 1977)). Davis was convicted of the

murders of Bustamante and Luciano before he was sentenced to death for the

murders of Dashrath and Pravinkumar. Davis is not entitled to relief on this

ground. We therefore affirm on the ground of proportionality.

XII. Ring/Hurst v. Florida Claim

Davis’s final argument is that Florida’s capital sentencing scheme is

unconstitutional and violates the requirements set forth in Ring v. Arizona, 536

U.S. 584 (2002), because it relies on the trial court as the fact finder for an

aggravating circumstance and does not require a unanimous jury finding. Davis

preserved this argument before he waived his right to trial by jury. While Davis’s

appeal was pending, the United States Supreme Court issued Hurst v. Florida, 136

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S. Ct. 616, 621 (2016) (Hurst v. Florida), in which it held that Florida’s capital

sentencing scheme violated the Sixth Amendment under Ring. The Supreme Court

concluded that “[t]he Sixth Amendment requires a jury, not a judge, to find each

fact necessary to impose a sentence of death.” Id. at 619. Davis filed a notice of

supplemental authority stating that he intended to rely upon Hurst v. Florida in

support of his Ring claim. On July 26, 2016, we granted Davis’s “Motion for

Supplemental Briefing Regarding the Application of Hurst v. Florida to This

Case.”

In Mullens v. State, 197 So. 3d 16, 38 (Fla. 2016), we held that a defendant

who has waived the right to a penalty phase jury is not entitled to relief under

Hurst v. Florida. We concluded that a defendant “cannot subvert the right to jury

factfinding by waiving that right and then suggesting that a subsequent

development in the law has fundamentally undermined his sentence.” Id. at 40.

See also Brant v. State, 197 So. 3d 1051, 1079 (Fla. 2016) (relying upon Mullens

to deny relief under Hurst v. Florida in the postconviction context). We have

considered the arguments presented in the supplemental briefing, and based upon

our reasoning in Mullens, we reject Davis’s Ring/Hurst v. Florida claim.

CONCLUSION

For these reasons, we affirm Davis’s convictions and his sentences of death.

It is so ordered.

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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 Polk County,
Donald G. Jacobsen, Judge - Case No. 532007CF00961301XXXX

Howard L. Dimmig, II, Public Defender, and Karen Mary Kinney, Assistant Public
Defender, Tenth Judicial Circuit, Bartow, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Marilyn Muir
Beccue, Assistant Attorney General, Tampa, Florida,

for Appellee

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