Supreme Court of Florida
____________
No. SC11-1122
____________
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
murders of Yvonne Bustamante and Juanita Luciano. Davis 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. We first set forth the facts of this case and
we then address Davis’s claims on direct appeal. We conclude by evaluating the
sufficiency of the evidence used to convict Davis, the proportionality of Davis’s
death sentences, and Davis’s assertion that he is entitled to relief under Hurst v.
Florida, 136 S. Ct. 616 (2016) (Hurst v. Florida).
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The Events at Headley Insurance
The evidence introduced at Davis’s trial revealed the following. Around
3 p.m. on December 13, 2007, Davis entered the Lake Wales location of the
Headley Insurance Agency (Headley) with the intent to commit robbery. Davis
was armed with a loaded .357 magnum revolver and equipped with duct tape, a
cigarette lighter, gloves, a gasoline can that contained gasoline, and a lunch cooler
to conceal the revolver.
That afternoon, two Headley employees, Yvonne Bustamante (Bustamante)
and Juanita Luciano (Luciano), were working. Bustamante, a licensed customer
service representative, had worked at Headley for nine years. Luciano, a customer
service representative, had worked at Headley for about three years. At the time,
Luciano was twenty-four weeks pregnant. Upon entering the business, Davis
locked the front door to prevent other customers from entering. He also placed
duct tape over the lens of a security camera. Davis demanded money from the
women, who initially refused to comply.
Davis then forced the women to open the company’s safe and cash box,
which contained a combined amount of about $900. During the course of the
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robbery, Davis bound the women with duct tape, poured gasoline on them, and set
them on fire. At 3:35 p.m., one of the women activated the office’s panic alarm,
which sent a signal to the alarm company. The Lake Wales Police Department was
contacted one minute later.
Victims Seek Help; Davis Shoots Bystander
Bustamante and Luciano escaped the burning building and ran in separate
directions seeking help. Bustamante eventually ran to the parking lot of the
Headley building, and Luciano ran to a nearby restaurant, Havana Nights. As
Bustamante tried to escape, Davis shot her in her left hand.
By this time, concerned people who lived nearby had noticed the presence of
smoke and walked to the area to investigate. These people, Fran Murray, Brandon
Greisman, and Carlos Ortiz, were on the scene before emergency personnel arrived
and became eyewitnesses to the aftermath of the robbery. Another eyewitness,
Evelyn Anderson, was a Headley customer who arrived at Headley while the
robbery was in progress. At trial, these eyewitnesses testified about the events at
Headley, including their various encounters with Davis.
Fran Murray (formerly Fran Branch) testified that at the time of the robbery,
she was sitting outside of her apartment and saw smoke nearby. She walked
toward the smoke to investigate its source. Around the same time, her neighbors,
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including Greisman and Ortiz, also noticed the smoke. They all proceeded to walk
toward the smoke to investigate.
As Murray approached the smoke, she realized that it was coming from the
Headley building. She then saw Bustamante, who was yelling for help and whose
body was burning. Murray observed that Bustamante was wriggling her wrists to
free them of a thick gray tape, and that Bustamante’s “skin was falling off of her.”
“And, just, she wasn’t screaming, but she wasn’t talking lightly either. She was
just trying to get away.”
As Greisman approached the building, he saw a woman whose body was
burning, and he went to help her. At the same time, Greisman saw Davis walking
towards them, and he originally thought that Davis was coming to help the
distressed woman. Greisman made eye contact with Davis, who pulled a gun out
of the cooler that he was carrying and pointed it at Greisman. Greisman tried to
get away, but Davis shot him in the face, hitting him in the nose. The gunshot
caused profuse bleeding and removed the tip of Greisman’s nose.
Murray, who was still in the vicinity, heard popping sounds and saw
Greisman fall to the ground and catch himself with his hands. She saw Davis walk
away and place a gun into his lunch cooler. Murray then assisted Greisman, who
was getting up from the ground.
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Carlos Ortiz also heard the popping sounds as he approached the Headley
building. As he got closer to the building, Greisman was walking back toward him
with a bloody face. Greisman told Ortiz that he had been shot, and Ortiz saw
Davis behind Greisman. Ortiz saw a part of the gun that Davis was carrying, and
he saw Davis stick his hand into the lunch cooler. Ortiz made eye contact with
Davis while trying to help Greisman as well as make sure that Davis was not
following them. Greisman walked back to his home, and Ortiz and Murray
assisted him while awaiting the arrival of emergency help.
Evelyn Anderson, a Headley customer, arrived at Headley to pay her
insurance bill during the time that the robbery was taking place. Anderson parked
her sport utility vehicle in front of Headley, and her teenage granddaughter and
infant grandson remained inside the vehicle. When Anderson tried to open the
front door of the Headley building, she discovered that it was locked. Anderson
walked to the side of the building to try and determine why she was unable to enter
the building during normal business hours. While walking, she noticed that smoke
was coming out of the building. Anderson also heard popping sounds, and shortly
thereafter, Davis walked out of the building and placed the cooler under his arm.
Anderson asked Davis what was happening. Davis continued walking away but
responded that there was a fire in the building. Davis then walked to his vehicle, a
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black Nissan Altima, that was parked at a vacant house nearby. Davis got inside of
the vehicle and drove away.1
Shortly thereafter, Anderson came into contact with Bustamante. Anderson
received a minor burn on her hand when she touched Bustamante, who was
screaming for help and was severely burned. Bustamante walked towards
Anderson’s vehicle, and Anderson’s granddaughter, who was seated in the front
seat of the vehicle, ran away from the vehicle after seeing Bustamante’s burning
body. Bustamante walked to the open vehicle door and climbed inside the vehicle.
Anderson encouraged Bustamante to get out of the vehicle because the paramedics
were on the way. Bustamante got out of the vehicle and leaned on the hood.
By this time, Murray had finished attending to Greisman, and she returned to
Headley to see if she could provide further help. Murray saw Bustamante leaning
against Anderson’s SUV. Murray described the scene as follows:
She [Bustamante] was um, screaming she was hot. And that
her skin was rolling off of her body at this time. It was disgusting.
You could smell the burnt skin and flesh. And she was screaming she
was really, really hot and she was thirsty. And so I ran across the
street at that time to Havana Nights, which was a restaurant, a Cuban
1. Earlier that afternoon, Murray saw a black car sitting on a back street
near a vacant house. After the robbery, she noticed that the car was not there.
Additionally, Ortiz saw Davis walk away from the scene and towards the back of
the vacant house. Ortiz also noticed a black Nissan that he had not seen parked in
that location before. Ortiz saw the Nissan being driven away, but he did not see
the driver.
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restaurant, across the street of Headley, off of the other corner of
Phillips, and got a cup of ice water in a to go cup.
Murray returned to Bustamante with the cup of water, and Bustamante sipped from
the cup while awaiting the arrival of emergency personnel. Murray talked with
Bustamante, and Murray described their conversation as follows:
I introduced myself as Fran and she introduced herself as
Yvonne. We sat there talking a minute and she started to say—and I
gave her water. And, um, she said that she didn’t understand how
anybody would rob her, she didn’t have any money. And that her
kids, please pray, I’m not going to make this Fran. And I told her that
I would get to the hospital if I could to see her, if it was allowed and
that I would keep her in my prayers, that with God everything was
possible. She wanted to talk about her children. And I cannot
remember clearly if I asked her who did it, or if she was just talking.
And she said that it was a black gentleman, and that he should be on
video tape. She then started crying again and said she loved her
babies very much, and she doesn’t understand how anybody could do
this to her.
Bustamante also told Murray that she had been bound with tape, doused with
gasoline, pushed into a bathroom, and set on fire.
In the meantime, Luciano escaped the Headley building and ran to the
nearby Havana Nights restaurant. The restaurant’s owner, Jaidy Jiminez, heard a
loud boom, and shortly thereafter, Luciano ran into the restaurant. Although
Luciano was a Havana Nights customer, she was so badly burned that Jiminez did
not recognize her: “I saw a woman that was naked, burned, um, burned from head
to toe, no shoes on, or any clothes on, just underwear. But I couldn’t recognize
her.”
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Luciano asked for help and begged Jiminez to close the door because “he”
was coming. Jiminez helped Luciano, whom she realized was pregnant, sit down.
Additionally, other people inside the restaurant were trying to call 9-1-1 and to
assist Luciano. Luciano asked what was taking so long for help to arrive and
stated that she could not feel her baby moving. Jiminez tried to reassure her. It
was during this time that Murray came into the restaurant asking for water, and
Jiminez provided it to her. Jiminez walked outside the restaurant to get help, and
she saw the severely burned Bustamante. Once the paramedics arrived and began
to assist Bustamante, Jiminez told them that another injured woman, Luciano, was
inside of the restaurant.
Emergency Personnel Response
Emergency dispatches increased in their sense of urgency as the initial report
of a fire gave way to additional reports of injuries and a shooting. Lt. Joe Elrod of
the Lake Wales Police Department first encountered Greisman, who explained that
he was shot while attempting to help a woman whom he heard screaming for help
and soon discovered was on fire.
Lt. Elrod determined that Greisman’s injuries were not life-threatening, and
because emergency medical personnel were on the way to assist Greisman, he
proceeded to the Headley building. When Lt. Elrod arrived at Headley, emergency
medical personnel were already on the scene and were assisting Bustamante in the
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parking lot. Lt. Elrod observed Bustamante’s severe burns, and he estimated that
the burns covered about eighty percent of her body. Lt. Elrod immediately
understood the gravity of Bustamante’s injuries, and he decided not to wait until
later to obtain Bustamante’s statement. Lt. Elrod testified: “I knew she was going
to die, so I tried to get information from her on who did it to her.” “I asked her
who did it to her. And she told me it was Leon Davis. And then I asked her, how
she knew him. And she said that she knows him and that he was [a] prior client of
theirs in the Insurance Company.” Bustamante explained that Davis tried to rob
them, and when they did not give him money, he threw gasoline on them and set
them on fire. When they tried to run, Davis continued to throw gasoline on them.
Lt. Elrod then located Luciano inside of the Havana Nights restaurant.
When he walked inside the restaurant, he saw Luciano, who was “obviously
pregnant,” sitting down. Lt. Elrod characterized Luciano’s burn injuries as even
worse than Bustamante’s. Lt. Elrod went outside and told emergency personnel
that another victim needed help who was in even worse condition than Bustamante.
He then began dispatching the name “Leon Davis” to law enforcement and
conducting routine duties at the crime scene.
Paramedic John “Chip” Johnson and emergency medical technician Ernest
Froehlich were the first emergency medical personnel to arrive on the scene. Upon
arrival, they first saw Bustamante, who was in the parking lot and leaning on
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Anderson’s SUV. Johnson observed: “the skin, everywhere I could see it, it was
peeling back, and she had suffered major burns. Also she had darkened hands, and
a further injury to her left hand, [t]hat was my observations at that time.”
Froehlich testified that Bustamante “looked like she had burns all over her body,
hair singed off, most of her clothing was burned off, skin was hanging off her back
and buttocks.”
Froehlich was present when Lt. Elrod asked Bustamante if she knew who the
perpetrator was, and he overheard Bustamante say “Leon Davis.” Johnson also
heard Bustamante state that Davis was the perpetrator, although he was unable to
clearly hear Bustamante say Davis’s first name. Anderson also heard Bustamante
identify Davis as the perpetrator.
After initially assisting Bustamante, Johnson went to Havana Nights to assist
Luciano. When Johnson entered the restaurant, he noticed water on the floor and
saw Luciano, who was severely burned and “basically naked.” There was a plastic
substance on her wrists, neck area, and feet. Luciano, who was conscious,
breathing, and able to talk clearly, told Johnson that she was pregnant and that
while working in her office, someone poured gasoline on her and set her on fire.
Luciano also told Johnson that her wrists were burning, and Johnson went to the
ambulance to get sterile water to alleviate her pain.
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By this time, additional emergency medical personnel were dispatched to the
scene. Upon arrival, paramedic George Bailey assumed primary responsibility for
Luciano’s care, and Johnson went back to the parking lot to continue assisting
Bustamante. Luciano was conscious and able to respond to questions. She
explained to Bailey “that there had been a robbery, at the business where she was
at, she had been tied up or bound with tape, and had gasoline poured on her and
had been lit on fire.” Bailey did not ask her who harmed her, but Luciano told him
that the person was a man and that she knew who it was. Luciano also told Bailey
that she was twenty-four weeks pregnant. Bailey estimated that eighty percent of
Luciano’s body was burned with second- and third-degree burns.
Both Bustamante and Luciano were airlifted to the Orlando Regional
Medical Center for treatment in the burn unit. Luciano underwent an emergency
caesarean section, during which she gave birth to her son, Michael Bustamante, Jr.2
Although detectives went to the hospital in hopes of interviewing Bustamante and
Luciano, the severity of their injuries prevented the detectives from ever meeting
with them.
2. Yvonne Bustamante’s brother, Michael Bustamante, was in a relationship
with Luciano and was the father of baby Michael.
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Michael lived for three days after his emergency delivery. He died as the
result of extreme prematurity. Bustamante lived for five days, and Luciano lived
for three weeks. Autopsies of both women revealed that they died from
complications of thermal burns due to the fire. According to the medical examiner,
Bustamante suffered burns that covered eighty to ninety percent of her body.
Luciano suffered burns that covered about ninety percent of her body.
Additionally, the autopsy of Bustamante revealed bullet fragments from the
gunshot to her left hand, although the gunshot was not a cause of her death.
Events after the Robbery
After leaving the scene, Davis went to a branch of the Mid Florida Credit
Union, where he was an established customer. At 4:19 p.m., less than forty-five
minutes after the alarm was activated at Headley, Davis walked into the credit
union to make a cash deposit. Jessica Lacy, the teller who assisted Davis, was
familiar with him as a customer and knew Davis by name. Davis deposited $148
in cash into his account that previously had a balance of $5.33. While processing
Davis’s transaction, Lacy observed that Davis’s face was bloody and appeared to
have scratches and marks on the nose, lip, and chin. The credit union branch
manager, Valerie Dollison, was also working that afternoon. She did not
personally know Davis, but she heard someone call him “Leon.”
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Davis also went to the house where his brother, Garrion Davis (Garrion),
and Garrion’s girlfriend, Melissa Sellers, resided.3 Garrion testified that on the
afternoon of December 13, “my brother came to my house. He wanted to—he
needed some soap to wash his face. And he went outside my house and washed his
face. I noticed he had a scratch on his face. He told me he had robbed somebody.”
Garrion testified that Davis also came inside the house and took a shower. Garrion
estimated that Davis was at the house for ten to fifteen minutes.
Sellers, who was at home with Garrion at the time, testified about Davis’s
visit to their house that afternoon. Sellers wished Davis, whose birthday was the
next day, a happy early birthday. She estimated that Davis was at her house for ten
minutes or less, and although she was not certain whether he had taken a shower,
she knew that he had been in their bathroom. When Davis left, Sellers observed
that Garrion’s demeanor had changed. Garrion seemed upset and was teary-eyed.
Later, Davis went to a friend’s home, where he used the cell phone of a
woman named Fonda Roberts. Roberts was unable to hear Davis’s conversation,
which lasted a couple of minutes. When Davis was finished using the phone, he
started to hand the phone to Roberts and then pulled it back from her. Davis then
3. By the time of trial, Sellers and Garrion were married.
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erased the number that he called. Roberts observed that at the time, Davis was
driving a black vehicle.
Davis Turns Himself In
As the afternoon progressed, a massive investigation began. Davis’s
photograph was shown on television as media began to report the events at
Headley, and Davis’s family and friends became increasingly aware of Davis’s
status as a suspect in the day’s events. Davis’s family and friends frantically began
trying to locate him in hopes that they could convince him to turn himself in safely.
That evening, Davis called his sister, Noniece DeCosey, and asked her to
come and pick him up near a McDonald’s. Their mother, Linda Davis,
accompanied DeCosey to meet Davis. DeCosey drove them to a Circle K
convenience store to meet Davis’s and DeCosey’s other sister, India Owens, and
family friend Barry Gaston. Upon arrival, Davis walked up to Gaston, hugged
him, and said: “I hurt someone.” When Gaston asked Davis what he did, Davis
said that he did not know. Davis and his mother got into a car with Owens and
Gaston.
Gaston, a former law enforcement officer, helped facilitate Davis turning
himself in at the Polk County Sheriff’s substation. Gaston testified that on the way
to the substation, Davis laid his head on his mother’s lap in the backseat of the car
and cried and sobbed. Davis again said that he hurt somebody, but Gaston told
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him not to say anything more. Davis was turned over to the Polk County Sheriff’s
Office without incident. Davis was later transported from the Sheriff’s Office
substation to the Bartow Air Base for further processing.
A number of people with whom Davis came into contact later in the day
testified at trial that Davis appeared to have some sort of injury to his nose. The
crime scene technician who photographed Davis after he was taken into custody
and a law enforcement officer who interacted with Davis upon his transfer to the
Bartow Air Base both testified that Davis appeared to have either scratches or a
burn on his nose. Additionally, Davis’s sister, Noniece DeCosey, saw a red mark
on Davis’s nose that could have been a burn.
That night, a black Nissan Altima was found at the Lagoon nightclub in
Winter Haven. Law enforcement officers were dispatched to the location, and the
car was seized pending a warrant to search the car’s interior. Searches conducted
in the vicinity of where the car was located, in particular to look for a firearm, did
not reveal any additional evidence. The following day, after the search warrant
was signed, law enforcement conducted an interior search of the Altima. Davis’s
driver license was found inside the car.
Davis was later tried for three counts of first-degree murder (Bustamante,
Luciano, and baby Michael), one count of attempted first-degree murder
(Greisman), one count of armed robbery, and one count of first-degree arson.
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The Guilt Phase
The State’s theory at trial was that Davis, a man driven by mounting
financial pressures, planned the robbery of Headley, a business with which he was
familiar. Davis’s business relationship with Headley dated back to 2004, and as
reflected in various records, Davis’s insurance needs were primarily handled by
Bustamante. The State introduced evidence that established a timeline of events
leading up to the robbery, including Davis’s actions on the day of the robbery. A
summary of this evidence follows.
In the months leading up to the robbery, Davis experienced increasing
financial difficulty. Davis, who at the time was married to his wife Victoria, was
primarily responsible for the family obligations, including the mortgage payment
on their home. At the time, Davis and his wife had two cars: a blue Nissan
Maxima owned by Davis, and a black Nissan Altima owned by Victoria. Both
vehicles were insured under policies written by Headley. In June 2007, during a
visit to the Mid Florida Credit Union, Davis became aware that the amount of the
automatic debit from his account for his insurance coverage had been increasing
over time. Davis was also informed that his account was overdrawn and became
irate.
Unable to afford insurance for both cars, Davis and Victoria removed the
license plate from the Maxima, canceled the car’s insurance policy, and relied
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solely on the Altima for transportation. The couple was also unable to afford cell
phone service during this time. Victoria had been working, but she became
pregnant and was forced to stop working because of pregnancy complications.
Davis’s Plan to Rob Headley
Davis’s plan to rob Headley began to coalesce in early December. By this
time, the couple had reached the limits on their credit cards, and the mortgage
payment was delinquent. One week before the robbery, Headley customer
Virginia Vazquez saw Davis at Headley. She first saw Davis in the parking lot
looking in the back of a black car. Then, Davis went inside and began talking with
Bustamante. Vazquez and her husband waited inside the insurance agency for
fifteen to twenty minutes before Bustamante finished talking with Davis. Vazquez
later recognized Davis from news coverage as the person she saw during her visit
to Headley.
Davis’s preparation for the robbery also involved acquiring various items
that he would need in order to carry out the robbery, including a gun and
ammunition. On December 7, 2007, six days before the robbery, Davis went to
visit his cousin, Randy Black. Davis told Black that he needed a gun for personal
protection because he was going to travel to Miami. Black owned two guns,
including a recently purchased Dan Wesson .357 magnum revolver. Black showed
Davis both guns, and Davis opted to purchase the .357 magnum for around $200.
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Black also gave Davis .38 caliber bullets which were compatible with the .357
magnum. Davis and Black fired the revolver, which was operating normally.
Later, Davis showed his mother the revolver. Davis told her that he got the
revolver from Black and that he and Black fired it.4
Davis’s Actions on the Day of the Robbery
The evidence introduced at trial also established a detailed timeline of
Davis’s actions on the day of the robbery, which included a visit to Walmart to
purchase supplies that he would use later that day. On the morning of
December 13, Victoria Davis last saw her husband at about 6 a.m. Before 7 a.m.,
Davis took his son, who had spent the previous night with Davis and Victoria,
home to the boy’s mother, Dawn Henry. His son’s birthday was that day.
Davis then went to the Lake Wales Walmart, where surveillance video and
still photographs showed him making three separate purchases around 7 a.m. The
first purchase included a cap, long-sleeved shirt, and soft, orange lunch cooler.
Davis’s second purchase was a pair of gloves, and the third purchase was a Bic
cigarette lighter. All of the purchases were cash transactions.
4. After Black realized that law enforcement was looking for Davis, he
immediately contacted law enforcement to advise that he recently sold Davis a
gun. Black also provided law enforcement with two .38 caliber bullets and the
receipt documenting his original purchase of the gun.
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While at Walmart, Davis spoke with the store manager, Mark Gammons,
and a store employee, Jennifer DeBarros. Gammons testified that Davis
approached him and asked where gloves were located in the store. When
Gammons saw Davis’s picture on the news that evening, he realized that he had
seen Davis in Walmart that morning. Walmart employee Jennifer DeBarros had
known Davis for more than ten years and was a family friend. DeBarros testified
that on the morning of December 13, she talked with Davis during his visit to
Walmart. DeBarros talked with Davis about his son’s birthday.
Some time after leaving Walmart, Davis drove to the home of his sister,
India Owens. Davis then accompanied Owens to take her car for repairs and pick
up a rental car. They later went to pick up some furniture, and they stopped at a
restaurant for lunch. Davis seemed agitated while eating lunch.
Video surveillance showed that Davis left the restaurant at 1:38 p.m. Davis
and Owens then delivered the furniture to Owens’s house. During that time,
Owens noticed that Davis began acting strangely, obsessively locking doors in the
house. Davis also asked for a piece of duct tape but did not say why he needed it.
A short time later, Davis left Owens’s house. Although Davis’s son had a birthday
party at school that afternoon, Davis did not attend. Davis entered the Headley
building sometime around 3 p.m.
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The Investigation
In addition to evidence surrounding the events at Headley, their aftermath,
and Davis’s behavior leading up to and including the day of the robbery, the State
introduced evidence regarding various aspects of the investigation.
The expansive crime scene investigation spanned several days, and the
numerous crime scene photographs entered into evidence depicted a gruesome
series of events that began inside the Headley building and continued outside.
The exterior photographs depict the entrance to Headley, the parking lot,
Anderson’s vehicle, and the trail of bloody footprints and burnt skin that led from
the Headley building to Havana Nights. Anderson’s SUV was smeared with blood
on both sides of the hood and was marked by blood stains on the vehicle doors and
in the passenger side interior.
The interior photographs captured the damage in various areas of the
Headley building, including fire damage in the office area, the storage area, and the
extensively damaged bathroom. Among the widespread fire damage to and debris
in the Headley building, the interior crime scene photographs revealed the presence
of blood, a severely burnt chair, two cigarette lighters (one of which was identified
as a Bic lighter), burnt duct tape, a burnt plastic gasoline can, an open cash box that
contained only coins, an open and empty safe, a bloody alarm key pad, and burnt
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surveillance equipment. The photographs also showed bullet holes in a wall, a
door, and an exterior shed door. A bullet was retrieved from the shed floor.
Detective Jeff Batz, an arson investigator, detected the odor of gasoline
inside the Headley building, and noted that it was particularly strong near the rear
of the building. Batz identified three areas of fire origin inside the Headley
building: a chair located near the front door, the storage room, and the bathroom.
Batz testified as follows: “Three-points of origin, separate in nature[,] neither one
of them had connections with each other, directly through flame impingement.
They all started with an open flame type device and accelerant was used on all
three areas.”
The investigation also included an examination of the seized Nissan Altima.
When the car’s floor mats were analyzed for the presence of an accelerant, a
certified accelerant detection K-9 alerted to the presence of accelerant on the
driver’s floor mat and the passenger rear floor mat.
Several days after the robbery, a search warrant was executed at Davis’s
home. Although trial testimony revealed that Davis was responsible for the yard
work at his home and that he kept a lawn mower and a gasoline can in the garage,
law enforcement located only the lawn mower. No gasoline can was found at
Davis’s home.
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The gun used in the Headley crimes was never recovered. However, the
rifling characteristics of the projectiles retrieved from the crime scene and from
Bustamante’s hand were determined to be consistent with the rifling characteristics
of handgun manufacturer Dan Wesson, the manufacturer of the .357 magnum
revolver that Davis bought several days before the robbery.
The Verdict and the Penalty Phase
On February 15, 2011, the jury convicted Davis of six counts: the
first-degree murders of Bustamante, Luciano, and baby Michael; the attempted
first-degree murder of Greisman; armed robbery; and first-degree arson. The
penalty phase began two days after the jury rendered its guilty verdicts, wherein
the State sought to prove seven aggravating circumstances. In addition to
testimony from Davis’s probation officer and the medical examiner, the State
presented victim impact testimony from Bustamante’s and Luciano’s families.
Angela Bryson, the State’s first witness, was Davis’s felony probation
officer. Bryson testified that Davis was placed on probation for grand theft on
July 6, 2007. Davis was still on probation at the time of the Headley crimes.
Dr. Stephen Nelson, the medical examiner, returned to the stand as the State’s
second witness. Dr. Nelson provided further testimony regarding the injuries
sustained by Bustamante and Luciano:
They would begin to feel pain immediately upon the fire starting to
consume their skin. The burns that are present on these victims is
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approximately 80 to 90% of the body surface area. It is third and
fourth degree burns. First-degree burn is a sunburn, a second-degree
burn is a blistered sunburn, a third-degree would be a full thickness
burn that goes through the full thickness of the skin, involves nerve
endings. And fourth degree burns would largely be charred, burns
where the skin is charred. So, the first-degree and second-degree
burns, I think we have all had sunburns, we know how painful those
are. If we have a sunburn, a second degree burn that has fluid filled
vessel that pops, that’s painful. The third-degree burn, again, it
involves the degree of thickness that is burned through skin. And the
third-degree burns are painful in that they produce the burning
sensation itself, up to a point at which point the nerve endings under
their skin are damaged. And then there is no more pain or nerve
signal that is sent from the fire. However in addition to the burn being
produced by the gasoline, whatever it is that is on their skin that’s
flaming, the subsequent treatment for a burn is also painful.
Dr. Nelson also testified that both women would have been capable of feeling pain
in some areas even if their nerve endings were destroyed in others. Both women,
who were so severely injured that an IV could not be inserted into their veins,
would have experienced pain when intraosseous catheters were inserted into their
leg bones to receive medication. The women would have stopped experiencing
pain once they received the medication or were medically induced into a coma, but
they could have been conscious of what was going on until that point.
After the State’s penalty phase presentation, Davis offered evidence in
mitigation and alleged the existence of two statutory mitigating circumstances and
fifteen non-statutory mitigating circumstances.
Multiple witnesses testified that Davis’s childhood was marked by abuse.
When Davis was eight years old, he was sexually assaulted by another child. The
- 23 -
following year, a woman named Ms. Clark moved into the family home as a
roommate. Sometime later, Davis and his brother Garrion moved out of the family
home and began staying with Clark, who was an alcoholic and was physically and
verbally abusive. Clark routinely beat Davis, and on one occasion, she caused
severe injuries to the back of his body by beating him with an extension cord.
Clark taunted Davis with physical and verbal abuse because he was bullied by
other children, and she also hit him with water hoses and punched him in the chest.
Family members observed physical injuries such as welts, bleeding, and open
scabs and sores on Davis’s body.
Additionally, Davis suffered from ongoing depressive and mood episodes, in
part due to the bullying he suffered from elementary school through high school.
In middle school, Davis began talking about suicide, and his mother encouraged
him not to take his life. Davis received mental health counseling for two to three
months, but his problems continued. After graduating from high school, Davis
joined the United States Marine Corps. However, the following year, Davis was
involved in a vehicle accident and he revealed that he intentionally crashed the
vehicle that he was driving. Pursuant to a recommendation for an administrative
separation, Davis was discharged from military service.
Although Davis was only about one year old when his father moved out of
the family home, his father remained a part of Davis’s life. While growing up,
- 24 -
Davis and his siblings were separated and placed in foster care, but Davis remained
close with his mother and siblings. Davis’s sister, India Owens, described him as
compassionate, loving, and selfless. After Davis’s discharge from the military, he
met a woman named Dawn Henry, with whom he had a son. The child 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 their son
and was consistently present in his life.
Around the time of the robbery, Davis was depressed and upset that he could
not afford to do anything for his son’s birthday. Davis’s mother testified that when
Davis purchased the revolver shortly before the robbery, she was concerned that
Davis might use it to commit suicide.
Jury Recommendations and Spencer Hearing
At the conclusion of the penalty phase, the jury unanimously recommended
that Davis be sentenced to death for the murders of Bustamante and Luciano. By a
vote of eight to four, the jury recommended that Davis be sentenced to death for
the murder of baby Michael. The Court subsequently held a Spencer5 hearing at
which both parties presented additional argument but did not present additional
evidence.
5. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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Sentencing
The trial court sentenced Davis to death for the murders of Bustamante and
Luciano. In its sentencing order, the trial court found the existence of six
aggravating circumstances as to the murders of both women: (1) the capital felony
was committed by a person previously convicted of a felony and on felony
probation (some weight); (2) the capital felony was a homicide and was committed
in a cold, calculated and premeditated manner without any pretense of moral or
legal justification (CCP) (great weight); (3) the defendant was contemporaneously
convicted of another capital felony or a felony involving the use or threat of
violence to the person (very great weight); (4) the capital felony was committed
while the defendant was engaged in the commission of, or attempt to commit, or in
flight after committing or attempting to commit any robbery or arson (moderate
weight); (5) the capital felony was committed for pecuniary gain (little weight);
and (6) the capital felony was especially heinous, atrocious, or cruel (HAC) (great
weight).6 The trial court found a seventh aggravating circumstance as to the
murder of Bustamante; the felony was committed for the purpose of avoiding or
preventing a lawful arrest (some weight). The court also evaluated this
6. The trial court noted that improper doubling did not occur with the trial
court’s finding of both murder in the course of a robbery and pecuniary gain,
because the jury convicted Davis of separate offenses of armed robbery and first-
degree arson.
- 26 -
aggravating circumstance with respect to the murder of Luciano but rejected it as
not proven.
The trial court also considered two statutory mitigating circumstances. Due
to Davis’s prior felony convictions, the trial court rejected as statutory mitigation
his argument that he had no significant prior criminal history. However, the trial
court did find that the crime was committed while Davis was under the influence
of extreme mental or emotional disturbance (little weight). As nonstatutory
mitigating circumstances, the trial court found the following: (1) the defendant was
the victim of bullying throughout his childhood (slight to moderate weight); (2) the
defendant was the victim of sexual assault as a child (slight to moderate weight);
(3) the defendant was the victim of both physical and emotional child abuse by a
caretaker (moderate weight); (4) the defendant was the victim of overall family
dynamics (very little weight); (5) the defendant served in the United States Marine
Corps (very little weight); (6) the defendant had a history of being suicidal, both as
a child and as an adult (slight weight); (7) the defendant was diagnosed with a
personality disorder (slight weight); (8) the defendant had a history of depression
(slight weight); (9) stress the defendant was dealing with at the time of the incident
(little weight); (10) the defendant was a good person in general (very slight
weight); (11) the defendant was a good worker (very slight weight); (12) the
defendant was a good son, good sibling, and good husband (very slight weight);
- 27 -
(13) the defendant was a good father to a child with Down Syndrome (moderate
weight); (14) the defendant exhibited good behavior during the trial and other court
proceedings (very slight weight); and (15) the defendant exhibited good behavior
while in jail (little weight).
The trial court overrode the jury’s recommendation of death and imposed a
sentence of life imprisonment for the murder of Michael. Davis now challenges
his convictions and sentences and raises multiple issues for this Court’s
consideration.
ISSUES ON APPEAL
On appeal, Davis raises four issues, which we address in turn:
(1) whether the trial court erred when it admitted the statements of victim
Bustamante as a dying declaration; (2) whether the photopack identifications of
Davis, made by victim Greisman and eyewitness Ortiz, should have been excluded;
(3) whether photographs of the murder victims were unfairly prejudicial; and
(4) whether the trial court improperly found that Davis committed the murder of
Bustamante in order to avoid arrest. The State also raises two issues on cross-
appeal. However, given our resolution of this direct appeal, we decline to reach
the State’s cross-appeal.
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I. Dying Declaration of Yvonne Bustamante
Davis argues that the trial court erred when it admitted, as a dying
declaration, statements made by Bustamante to Lt. Elrod. While at the scene,
Lt. Elrod questioned Bustamante about the events at Headley. When Lt. Elrod
asked Bustamante whether she knew the perpetrator’s identity, Bustamante
identified Davis. Before trial, Davis filed a motion to exclude Bustamante’s
statements, and the trial court held an extensive evidentiary hearing during which it
received testimony from multiple witnesses.
At the hearing, 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.
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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.
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.
Following the hearing, the trial court determined that Bustamante’s statements
- 30 -
were admissible as a dying declaration. Her statements were admitted at trial
through the testimony of Lt. Elrod and other witnesses.
Davis’s argument as to the admission of Bustamante’s dying declaration is
twofold. First, he encourages this Court to hold that, as a matter of law, the dying
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 (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 to Lt. Elrod 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.7
7. 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 observed that one of the cases it
reviewed while evaluating Davis’s dying declaration arguments contained a
discussion on forfeiture by wrongdoing, but the court in no way suggested that this
doctrine was the basis for its decision. The trial court set forth its conclusions as to
the admissibility of Bustamante’s statements, and it specified the bases under
which it deemed her statements admissible. We therefore reject this argument
without further discussion.
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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
- 32 -
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.
- 33 -
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 U.S. 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.
Following the evidentiary hearing on Davis’s motion to exclude
Bustamante’s statements, the trial court issued a detailed order in which it found
that Bustamante’s statements were admissible as a dying declaration. Further, the
trial court expressly rejected Davis’s argument that Florida’s dying declaration
exception did not survive Crawford: “This Court specifically finds that the dying
declaration has survived Crawford. A dying declaration is an exception to the
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Sixth Amendment’s Confrontation Clause.” The trial court concluded that “the
statements made by Ms. Bustamante to Frances Murray, Vicky Rivera, Evelyn
Anderson, Ashley Smith, Lt. Joe E. Elrod, Jr., other law enforcement personnel, or
medical personnel, that may be considered to be testimonial in nature, would still
be admissible under the hearsay exception for dying declarations, because the
dying declaration rule has remained valid post-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:
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
- 35 -
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.8 Davis now calls upon
8. 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
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.”).
- 36 -
this Court to determine whether Florida’s dying declaration exception remains
viable post-Crawford.
Majority View vs. Minority View
Davis acknowledges that although there is a split of authority on whether the
dying declaration survived Crawford, his position, that the exception is no longer
viable, reflects the minority view. Nonetheless, he asserts two main points in
support of his position. First, 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. Second,
Davis maintains that the dying declaration is not a valid hearsay exception because
dying declarations are inherently unreliable. Today, Davis’s 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.
- 37 -
Historical Grounds
Davis first 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 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
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
- 38 -
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 to a footnote in State v. Hailes, 92 A.3d 544 (Md. Ct. App.
2014), aff’d, 113 A.3d 608 (Md. 2015), a Maryland intermediate appellate court
decision wherein the court suggests that if the United States Supreme Court were
to define “the precise contours of the Dying Declaration that enjoys the exemption
. . . it is overwhelmingly probable that the object of the exemption will be the
common law Dying Declaration as it was understood to be in 1791.” Id. at 567
n.11.9 Davis also cites to U.S. v. Jordan, No. 04-CR-229-B, 2005 WL 513501
(D. Colo. Mar. 3, 2005), an unpublished memorandum and order in which a federal
district court suggests that historical underpinnings do not continue to justify the
dying declaration. The court concludes that “there is no rationale in Crawford or
otherwise under which dying declarations should be treated differently than any
other testimonial statement. This is so especially since the historical underpinnings
of the exception fail to justify it.” Id. at *3.
9. This dicta is consistent with the minority view that Davis urges this Court
to adopt. However, the court ultimately held in Hailes that the dying declaration in
Maryland remains viable post-Crawford: “This juggernaut of persuasive authority
is irresistible. Maryland hereby joins the ranks. We hold that the Dying
Declaration, like Forfeiture by Wrongdoing, is exempted from the coverage of the
Confrontation Clause.” Id. at 567 (footnote omitted).
- 39 -
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 supplied)). “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.
Reliability of the Dying Declaration
Davis also argues that dying declarations are inherently unreliable. He cites
to U.S. v. Mayhew, 380 F. Supp. 2d 961, 966 (S.D. Ohio 2005), where a federal
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district court expressly “reject[ed] the government’s argument that dying
declarations are an exception to the Confrontation Clause.” Id. at 965. The court
stated that it “doubts the inherent reliability of such statements,” and it noted the
incentives that even a dying person might have to offer false dying statements. Id.
at 965 n.5. The court observed:
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.
Id. (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 v. U.S.,
- 41 -
146 U.S. 140, 152 (1892). Consequently, we reject Davis’s challenge to the
reliability of the dying declaration.
Having concluded that both of 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), cert. denied,
546 U.S. 834 (2005). 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 780. The court reasoned: “If we
- 42 -
were to 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.” Id. at 791. 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, affirmed the judgment in Hailes and 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
- 43 -
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.
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 to Lt. Elrod
constituted a dying declaration. Davis argues that her statements did not satisfy the
requirements of a dying declaration, and thus, that the trial court erred in admitting
them. “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
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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 (Fla. 1940)). Based on the totality of the
circumstances, the trial court did not err in admitting Bustamante’s dying
declaration.
Before 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:
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.
The trial court also heard from other witnesses who provided consistent testimony
relating to multiple relevant circumstances: (1) Bustamante received extensive
burns of the second, third, and fourth degree; (2) she was burned over at least
eighty percent of her body; (3) her flesh was falling off of her body; (4) she was in
severe pain; and (5) the severity of her burns was indicative of a high probability of
death.
Following the hearing, in a detailed order, the trial court ruled as follows
regarding the admissibility of Bustamante’s statements:
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The Court finds that any statements made by Ms. Bustamante to
Lt. Joe E. Elrod, Jr., or other law enforcement personnel would be
admissible under one of the following hearsay exceptions; a
spontaneous statement, an excited utterance, or as a dying declaration.
The Court specifically finds that the statements made by Ms.
Bustamante qualify as dying declarations. The evidence shows that
Ms. Bustamante reasonably believed her death from her injuries was
imminent, particularly in light of her statements to Frances Murray
that she was not going to make it, and she should pray for her.
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. In this case, the trial court’s conclusion was ably supported by
testimony of multiple witnesses, who all revealed the dire circumstances that
Bustamante faced after Davis set her body on fire.
Davis argues that the testimony of the medical examiner refutes the trial
court’s conclusion that Bustamante believed that her death was imminent.
The medical examiner, Dr. Nelson, testified that Bustamante’s pain would have
subsided in the areas where she received third- and fourth-degree burns because at
that stage of injury, her nerve endings were destroyed. Thus, Davis argues that
because Bustamante was burned so severely that she could not feel pain in those
areas, she could not have believed that her death was imminent.
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We unequivocally reject Davis’s argument. Although Bustamante was
eventually unable to feel pain in the areas where she sustained third- and fourth-
degree burns, she remained capable of feeling pain in areas where her nerve
endings remained intact. Bustamante, whom medical personnel testified was
oriented and alert at the scene, was aware of her extensively burned body.
Assessing her own deeply grave condition, Bustamante told Fran Murray that she
did not think that was going to survive.
Davis’s assertion that Bustamante’s statements were not properly admitted
as a dying declaration is simply without merit in light of the totality of the
circumstances. The trial court received a substantial amount of witness testimony
about Bustamante’s condition that was consistent from witness to witness and also
consistent with Bustamante’s own observation of her dire circumstances.
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 as a dying declaration.
II. Identifications by Greisman and Ortiz
At separate times within days of the robbery, eyewitnesses 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
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that these identifications were unreliable and should have been excluded as
evidence. As we explain, we find that this argument is without merit. The
circumstances surrounding each witness’s identification are as follows.
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
fire 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
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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
recognized Davis as someone whom he saw at the Florida Natural Growers juice
plant. Ortiz, who previously worked at Florida Natural Growers as a temporary
worker, testified that he saw Davis near a gate where workers enter and exit.
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. 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 on 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 more recent number, 2007, unnecessarily
suggested that his was the suspect’s photograph.
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“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. As we explain, we conclude that the out-of-court
identifications made by Greisman and Ortiz were not unnecessarily suggestive.
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. To that end, he cites three cases that also involved the use of a date in a
photographic lineup: Henderson v. U.S., 527 A.2d 1262 (D.C. App. 1987), State v.
Davis, 504 A.2d 1372 (Conn. 1986), and Brown v. Commonwealth, 564 S.W.2d
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24 (Ky. Ct. App. 1978). However, in each of these cases, the year or the date was
placed on the suspect’s photograph.
One of these cases, Brown, is especially demonstrative of an unnecessarily
suggestive photographic lineup. In Brown, a case involving the appeal of two
defendants’ robbery convictions, the appellate court detailed the following facts:
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 photograph. Davis’s facts fall far short of these.
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. Because the photopacks were not unnecessarily
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suggestive, the trial court did not err in admitting the out-of-court identifications
made by Greisman and Ortiz.
Validity of the In-Court Identifications
Second, Davis argues that the in-court identifications made by Greisman and
Ortiz are invalid. He primarily 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 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’s remaining challenges to Ortiz’s in-court identification similarly do
not warrant relief. First, Davis contends that Ortiz’s identification is unreliable
because of inconsistencies in Ortiz’s various statements regarding whether he saw
Davis in news coverage before viewing the photopack. However, Ortiz had an
independent opportunity to view Davis at the crime scene. Moreover, the defense
had ample opportunity to attack Ortiz’s identification at trial.
Second, Davis contends that Ortiz’s in-court identification was unreliable
because Ortiz insisted that the car he saw near the crime scene was a black Nissan
Maxima, not a Nissan Altima. This discrepancy does not render Ortiz’s
identification of Davis himself unreliable. Just as the trial court did not err when it
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admitted the out-of-court identifications made by Greisman and Ortiz, the court
likewise did not err when it admitted their in-court identifications.
III. Victim Photographs
Davis argues that the trial court erred in admitting nearly four dozen autopsy
and hospital photographs of Bustamante, Luciano, and Michael, and he maintains
that the photographs were irrelevant to any material fact in issue. Davis did not
object to the admission of these photographs at trial. As such, if this Court
concluded that the admission of the photographs was erroneous, Davis would only
be entitled to relief upon a showing of fundamental error. See Harrell v. State, 894
So. 2d 935, 941 (Fla. 2005) (“As we have noted, the sole exception to the
contemporaneous objection requirement is fundamental error.”). However, as we
explain below, we conclude that the trial court did not err in admitting the victims’
photographs. Therefore, Davis is not entitled to relief.
“The test for the admissibility of photographic evidence is relevance, not
necessity.” Mansfield v. State, 758 So. 2d 636, 648 (Fla. 2000). This Court has
explained the following regarding the admissibility of gruesome photographs:
This Court has long followed the rule that photographs are
admissible if they are relevant and not so shocking in nature as to
defeat the value of their relevance. Where photographs are relevant,
“then the trial judge in the first [instance] and this Court on appeal
must determine whether the gruesomeness of the portrayal is so
inflammatory as to create an undue prejudice in the minds of the jury
and [distract] them from a fair and unimpassioned consideration of the
evidence.” We have consistently upheld the admission of allegedly
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gruesome photographs where they were independently relevant or
corroborative of other evidence.
Czubak v. State, 570 So. 2d 925, 928 (Fla. 1990) (citations omitted). For example,
photographs are admissible if “they assist the medical examiner in explaining to
the jury the nature and manner in which the wounds were inflicted.” Bush v. State,
461 So. 2d 936, 939 (Fla. 1984). Moreover, photographs are admissible “to show
the manner of death, location of wounds, and the identity of the victim.” Larkins
v. State, 655 So. 2d 95, 98 (Fla. 1995).
There was no error—fundamental or otherwise—in the admission of the
victims’ photographs. The photographs were relevant to explain the nature of the
victims’ injuries and manner of death. Five color photographs of Michael’s body
were introduced as well as two x-ray photographs. The photographs were relevant
to Dr. Nelson’s testimony regarding Michael’s death from extreme prematurity.
Eighteen autopsy photographs of Bustamante were admitted into evidence.
These photographs assisted the medical examiner in testifying about the degree of
Bustamante’s burns, the percentage of body surface area burned, the incisions that
were necessary to enable blood flow, the swelling caused by extensive fluid loss,
the absence of burns consistent with being bound, and the cause of death from
thermal burns.
Fourteen autopsy photographs and seven hospital photographs of Luciano
were admitted into evidence. The photographs assisted the medical examiner in
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testifying about the percentage of body surface area burned, the degree of burns,
the skin grafts that were done to try to treat her severe burns, the absence of burns
consistent with being bound, and the cause of death from thermal burns.
Davis is correct in that the photographs of the severely burned women and
the deceased infant in this case are gruesome. However, the photographs were
relevant to prove the nature and extent of each victim’s injuries, and their causes of
death, and were not “so inflammatory as to create an undue prejudice in the minds
of the jury and [distract] them from a fair and unimpassioned consideration of the
evidence.” Czubak, 570 So. 2d at 928. What is more, “[t]hose whose work
products are murdered human beings should expect to be confronted by
photographs of their accomplishments.” Arbelaez v. State, 898 So. 2d 25, 44 (Fla.
2005) (quoting Henderson v. State, 463 So. 2d 196, 200 (Fla. 1985)). Thus, there
was no error in admitting the photographs.
IV. Avoid Arrest
Davis also argues that the trial court improperly found that the murder of
Bustamante was committed to avoid arrest. We disagree. “The avoid arrest
aggravating circumstance, which is also referred to as witness elimination, applies
when the capital felony was committed for the purpose of avoiding or preventing a
lawful arrest or to effectuate an escape from custody.” Wright v. State, 19 So. 3d
277, 301 (Fla. 2009). While this aggravating circumstance is usually applied to the
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murder of law enforcement personnel, it has also been applied to the murder of a
witness to a crime. Id. (citing Consalvo v. State, 697 So. 2d 805, 819 (Fla. 1996)).
“Where the victim is not a law enforcement officer, the evidence must demonstrate
beyond a reasonable doubt that ‘the sole or dominant motive for the murder was
the elimination of the witness.’ ” Id. (quoting Preston v. State, 607 So. 2d 404, 409
(Fla. 1992)). The State sought to prove the avoid arrest aggravating circumstance
as to both Bustamante and Luciano. However, the court found “that the State
failed to prove beyond a reasonable doubt that the sole or dominant motive for the
murder of Juanita Luciano was to eliminate a witness.”
“In reviewing the trial court’s finding of an aggravating circumstance, this
Court’s ‘task on appeal is to review the record to determine whether the trial court
applied the right rule of law for each aggravating circumstance and, if so, whether
competent substantial evidence supports its finding.’ ” Russ v. State, 73 So. 3d
178 (Fla. 2011) (quoting McWatters, 36 So. 3d at 642).
While the evidence that Davis’s dominant motive for the murder of
Bustamante was to eliminate her as a witness is circumstantial, this Court has
upheld trial court findings of the avoid arrest aggravating circumstance based on
circumstantial evidence. See Hernandez v. State, 4 So. 3d 642, 667 (Fla. 2009).
“Even without direct evidence of the offender’s thought process, the arrest
avoidance factor can be supported by circumstantial evidence through inference
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from the facts shown.” Swafford v. State, 533 So. 2d 270, 276 n.6 (Fla. 1988).
Such circumstantial evidence includes “whether the victim knew and could
identify the killer.” Hernandez, 4 So. 3d at 667. Other factors include “whether
the defendant used gloves, wore a mask, or made any incriminating statements
about witness elimination; whether the victims offered resistance; and whether the
victims were confined or were in a position to pose a threat to the defendant.”
Farina v. State, 801 So. 2d 44, 54 (Fla. 2001).
The trial court’s finding that Davis murdered Bustamante in order to avoid
arrest is supported by competent, substantial evidence. One, the State presented
evidence that Davis knew Bustamante and had an established business relationship
with her at Headley. The court relied on testimony regarding Bustamante’s long-
term employment at Headley and her specific involvement with Davis’s insurance
matters. Two, when Davis entered the Headley building, he placed duct tape over
the surveillance camera lens. Such conduct, like wearing a mask, is an act of
attempting to hide one’s identity. Three, the trial court concluded that after being
bound with duct tape, Bustamante did not pose a threat to Davis. Four, Davis shot
Bustamante in addition to setting her body on fire. The trial court’s finding that
Davis murdered Bustamante in order to eliminate her as a witness was based on
competent, substantial evidence. Thus, we affirm the trial court’s finding of this
aggravating circumstance.
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V. Sufficiency of the Evidence
Although Davis does not challenge the sufficiency of the evidence on which
the State relied to obtain the convictions, in every death case, this Court must
independently evaluate for the sufficiency of the evidence relied upon to convict
the defendant. See Caylor v. State, 78 So. 3d 482, 500 (Fla. 2011). “In conducting
this review, we view the evidence in the light most favorable to the State to
determine whether a rational trier of fact could have found the existence of the
elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So. 2d
655, 674 (Fla. 2006) (citing Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)). In
this case, there is sufficient evidence to sustain Davis’s convictions.
The facts indicate that Davis, while suffering financial distress, planned the
robbery of the Headley Insurance Agency. Less than one week before the robbery,
he obtained a .357 magnum revolver, and on the morning of the robbery, he
purchased multiple items from Walmart that he used during the commission of his
crimes. These items included a cigarette lighter and a cooler to conceal the
revolver. Two witnesses testified that they spoke with Davis in Walmart that
morning. One of the witnesses, Jennifer DeBarros, had known Davis and his
family for years, and she easily recalled the conversation because she knew that
they talked on Davis’s son’s birthday.
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While being treated at the crime scene, Bustamante identified Davis as the
person who, around 3 p.m., entered Headley and demanded money from her and
from Luciano. Bustamante also stated that when they refused to give him money,
Davis bound them with duct tape, doused them in gasoline, and set them on fire.
Multiple eyewitnesses observed a man fitting Davis’s description leaving
Headley while the building was still on fire. These eyewitnesses saw Davis
placing a gun into a cooler, the description of which was consistent with the one
that Davis purchased at Walmart that morning. Additionally, two eyewitnesses,
Greisman and Ortiz, quickly identified Davis after being shown a photopack that
contained Davis’s photograph.
The description of a car seen near Headley at the time of the robbery was
consistent with that of the black Nissan Altima driven by Davis. That car, which
was later found in the parking lot of a nightclub, was searched. Two floormats
retrieved from the car tested positive for the presence of gasoline. Gasoline was
the accelerant used to ignite the fires at Headley. Davis’s driver license was found
inside of the car.
The projectile retrieved from Bustamante’s hand was consistent with having
been fired from the .357 magnum revolver that Davis purchased just days before
the robbery. Additionally, the projectiles retrieved from the crime scene were also
consistent with having been fired from that weapon.
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Davis’s conduct after the robbery also adds to the competent, substantial
evidence of his guilt. He entered a credit union branch less than forty-five minutes
after the Headley alarm was activated and deposited $148 in his account that
previously had a balance of $5.33. The bank teller, who was familiar with Davis,
observed an injury to his face as did others who observed him after the robbery.
Witnesses, including members of Davis’s family, testified regarding his suspicious
behavior following the robbery. Competent, substantial evidence of guilt supports
Davis’s convictions.
VI. Proportionality of Davis’s Death Sentences
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.
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The trial court found seven aggravating circumstances as to the murder of
Bustamante: (1) committed by a person previously convicted of a felony and on
felony probation (some weight); (2) CCP (great weight); (3) Davis was
contemporaneously convicted of another capital felony or a felony involving the
use or threat of violence to the person (very great weight); (4) committed while
Davis was engaged in the commission of, or attempt to commit, or in flight after
committing or attempting to commit any robbery or arson (moderate weight);
(5) committed for the purpose of avoiding or preventing a lawful arrest (some
weight); (6) capital felony was committed for pecuniary gain (little weight); and
(7) HAC (great weight). The trial court noted that improper doubling did not occur
with the trial court’s finding of both murder in the course of a robbery and
pecuniary gain, because the jury convicted Davis of separate offenses of first-
degree arson and armed robbery. As to the murder of Luciano, the trial court
found all of the same aggravating circumstances except for the avoid arrest
aggravator. The trial court also found as a statutory mitigating circumstance that
Davis was under the influence of extreme mental or emotional disturbance (little
weight); and fifteen nonstatutory mitigating circumstances, which ranged from
very slight weight to moderate weight.
This case is truly among the most aggravated and least mitigated. Two of
the aggravating circumstances found in this case, HAC and CCP, have repeatedly
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been identified by this Court as “two of the most serious aggravators set out in the
statutory sentencing scheme.” Larkins v. State, 739 So. 2d 90, 95 (Fla. 1999). “As
a result, when these two aggravators are present, the mitigating circumstances must
be of considerable weight to overcome them.” Brown v. State, 143 So. 3d 392,
405-06 (Fla.) (citing Abdool v. State, 53 So. 3d 208, 224 (Fla. 2010)), cert. denied,
135 S. Ct. 726 (2014).
This Court has affirmed sentences of death in similar cases. In this Court’s
decision in Brown, the defendant poured gasoline on the victim and used a lighter
to set her on fire. Brown, 143 So. 3d at 396. After sixteen days in a burn unit, the
victim died from her injuries. Id. at 397. As aggravating circumstances, the trial
court found CCP, HAC, and that the murder was committed while Brown was
engaged in the commission of a kidnapping. Id. at 401. Similar to the present
case, the trial court found the existence of one statutory mitigating circumstance
(no significant history of prior criminal activity). Id. The trial court also found
twenty-seven nonstatutory mitigating circumstances. Id.
Brown is both factually comparable and comparable in terms of the weighty
aggravating circumstances found by the trial court. Brown is also similar in terms
of the nature of the mitigating circumstances found by the trial court. Yet, as in
Brown, we conclude here that “[t]he mitigation . . . pales in comparison to the
weighty aggravation.” Id. at 406.
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In another comparable case, during the course of a robbery, the defendant set
two women on fire in a fabric store. Henry, 613 So. 2d at 430. The trial court
found as aggravating circumstances that the murders were “committed during the
commission of robbery and arson, to avoid or prevent arrest, for pecuniary gain,
and in a cold, calculated, and cruel manner and that they were heinous, atrocious,
or cruel.” Id. at 432. The trial court found the existence of one statutory
mitigating circumstance (no prior criminal history) and one nonstatutory mitigating
circumstance (prior military service). This Court upheld Henry’s death sentences
and determined that the aggravating circumstances were “established beyond a
reasonable doubt.” Id. at 433. In the present case, the trial court’s finding of
greater nonstatutory mitigation than in Henry does not render Davis’s death
sentences disproportionate. For just as the trial court found greater nonstatutory
mitigation, it also found significantly greater aggravation.
We agree that the aggravating circumstances found by the trial court in this
case were established beyond a reasonable doubt and that they exceedingly
outweigh Davis’s mitigating circumstances. Thus, Davis’s death sentences satisfy
this Court’s proportionality requirement.
VII. Hurst v. Florida
While Davis’s appeal was pending, the United States Supreme Court issued
Hurst v. Florida, in which it held that Florida’s capital sentencing scheme violated
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the Sixth Amendment. See 136 S. Ct. at 621. 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. A jury’s mere recommendation is not enough.” Id. at
619. Davis’s request to file supplemental briefing to address the impact of Hurst v.
Florida on his sentences was granted. On remand from the Supreme Court, we
held that “in addition to unanimously finding the existence of any aggravating
factor, the jury must also unanimously find that the aggravating factors are
sufficient for the imposition of death and unanimously find that the aggravating
factors outweigh the mitigation before a sentence of death may be considered by
the judge.” Hurst v. State, 41 Fla. L. Weekly S433, S437 (Fla. Oct. 14, 2016)
(Hurst). We further held that a unanimous jury recommendation is required before
a trial court may impose a sentence of death. See id. Finally, we determined that
Hurst v. Florida error is capable of harmless error review. See id. at S442.
Accordingly, at issue is whether any Hurst v. Florida error during Davis’s
penalty phase proceedings was harmless beyond a reasonable doubt. In Hurst, we
explained the standard by which harmless error should be evaluated:
Where the error concerns sentencing, the error is harmless only if
there is no reasonable possibility that the error contributed to the
sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).
Although the harmless error test applies to both constitutional errors
and errors not based on constitutional grounds, “the harmless error
test is to be rigorously applied,” [State v. ]DiGuilio, 491 So. 2d
[1129,] 1137 [Fla. 1986], and the State bears an extremely heavy
burden in cases involving constitutional error. Therefore, in the
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context of a Hurst v. Florida error, the burden is on the State, as the
beneficiary of the error, to prove beyond a reasonable doubt that the
jury’s failure to unanimously find all the facts necessary for
imposition of the death penalty did not contribute to Hurst’s death
sentence in this case. We reiterate:
The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a
device for the appellate court to substitute itself for the
trier-of-fact by simply weighing the evidence. The focus
is on the effect of the error on the trier-of-fact.
DiGuilio, 491 So. 2d at 1139. “The question is whether there is a
reasonable possibility that the error affected the [sentence].” Id.
Id. (alteration in original). As applied to the right to a jury trial with regard to the
facts necessary to impose the death penalty, it must be clear beyond a reasonable
doubt that a rational jury would have unanimously found that there were sufficient
aggravating factors that outweighed the mitigating circumstances.
With regard to Davis’s sentences, we emphasize the unanimous jury
recommendations of death. These recommendations allow us to conclude beyond
a reasonable doubt that a rational jury would have unanimously found that there
were sufficient aggravators to outweigh the mitigating factors. The instructions
that were given informed the jury that it needed to determine whether sufficient
aggravators existed and whether the aggravation outweighed the mitigation before
it could recommend a sentence of death. See Fla. Std. Jury Instr. (Crim.) 7.11 (“If
. . . you determine that no aggravating circumstances are found to exist, or that the
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mitigating circumstances outweigh the aggravating circumstances, or, in the
absence of mitigating factors, that the aggravating factors alone are not sufficient,
you must recommend imposition of a sentence of life in prison without the
possibility of parole rather than a sentence of death.”). The jury was presented
with evidence of mitigating circumstances and was properly informed that it may
consider mitigating circumstances that are proven by the greater weight of the
evidence. See id. (“If you determine by the greater weight of the evidence that a
mitigating circumstance exists, you may consider it established and give that
evidence such weight as you determine it should receive in reaching your
conclusion as to the sentence to be imposed.”).
Even though the jury was not informed that the finding that sufficient
aggravating circumstances outweighed the mitigating circumstances must be
unanimous, and even though it was instructed that it was not required to
recommend death even if the aggravators outweighed the mitigators, the jury did,
in fact, unanimously recommend death. See id. (“If, after weighing the
aggravating and mitigating circumstances, you determine that at least one
aggravating circumstance is found to exist and that the mitigating circumstances do
not outweigh the aggravating circumstances, or, in the absence of mitigating
factors, that the aggravating factors alone are sufficient, you may recommend that
a sentence of death be imposed rather than a sentence of life in prison without the
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possibility of parole. Regardless of your findings in this respect, however, you are
neither compelled nor required to recommend a sentence of death.”). From these
instructions, we can conclude that the jury unanimously made the requisite factual
findings to impose death before it issued the unanimous recommendations. Further
supporting our conclusion that any Hurst v. Florida error here was harmless are the
egregious facts of this case—Davis set two women on fire, one of whom was
pregnant, during an armed robbery, and shot in the face a Good Samaritan who
was responding to the scene. The evidence in support of the six aggravating
circumstances found as to both victims was significant and essentially
uncontroverted.10
We conclude that the State can sustain its burden of demonstrating that any
Hurst v. Florida error was harmless beyond a reasonable doubt. Here, the jury
unanimously found all of the necessary facts for the imposition of death sentences
by virtue of its unanimous recommendations. In fact, although the jury was
informed that it was not required to recommend death unanimously, and despite
the mitigation presented, the jury still unanimously recommended that Davis be
sentenced to death for the murders of Bustamante and Luciano. The unanimous
10. Additionally, as previously discussed, the avoid arrest aggravating
circumstance as to victim Bustamante is supported by competent, substantial
evidence.
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recommendations here are precisely what we determined in Hurst to be
constitutionally necessary to impose a sentence of death. Accordingly, Davis is
not entitled to a new penalty phase.
CONCLUSION
For these reasons, we affirm Davis’s convictions and sentences. It is so
ordered.
LABARGA, C.J., and PARIENTE, and LEWIS, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
PERRY, J., concurs in part with an opinion, in which QUINCE, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
PERRY, J., concurring in part and dissenting in part.
I concur with the majority’s finding that the evidence here is sufficient to
sustain Davis’s convictions; however, I cannot agree with the majority’s finding
that the Hurst v. Florida, 136 S. Ct. 616 (2016), error was harmless beyond a
reasonable doubt simply because the evidence supporting the aggravators was
“significant and essentially uncontroverted.” See majority op. at 67. To the extent
that I would not find the error harmless, I dissent.
In Hurst v. State (Hurst), 41 Fla. L. Weekly S433 (Fla. Oct. 14, 2016), we
declined to speculate why the jurors voted the way they did; yet, because here the
jury vote was unanimous, the majority is comfortable substituting its weighing of
the evidence to determine which aggravators each of the jurors found. Even
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though the jury unanimously recommended the death penalty, whether the jury
unanimously found each aggravating factor remains unknown.
In Hurst, we held that for a defendant to be eligible for a death sentence, a
jury must unanimously find the existence of each aggravating factor, that the
aggravating factors are sufficient, and that the aggravating factors outweigh the
mitigating circumstances. Hurst, 41 Fla. L. Weekly at S442. Additionally, we
held that the jury’s death sentence recommendation must be unanimous. Id. While
I agreed in Hurst that Hurst v. Florida errors are subject to harmless error review,
see Hurst, 41 Fla. L. Weekly at S441-442, I believe the majority’s conclusion that
the error was harmless beyond a reasonable doubt in this case is mistaken.
Davis was convicted for three murders, and despite the same jury hearing the
aggravation and mitigation in all three cases, the jury only voted unanimously to
recommend a death sentence for two of the victims. For the remaining sentence,
the jury vote was eight to four, and the trial judge reduced the sentence to life
imprisonment.
For each of the three murders, the jury was presented with evidence to
support and instructed on eight aggravating circumstances: (1) that Davis was
previously convicted of a felony and on felony probation; (2) that Davis was
contemporaneously convicted of another capital felony or a felony involving the
use or threat of violence; (3) that the capital felony was committed during the
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course of a felony (robbery/arson); (4) that the capital felony was committed for
the purpose of avoiding lawful arrest; (5) that the capital felony was committed for
pecuniary gain; (6) that the capital felony was especially heinous, atrocious, or
cruel; (7) that the capital felony was committed in a cold, calculated, and
premeditated manner; and (8) that the victim of the capital felony was under the
age of twelve. Of these aggravators, three are clearly established by the
evidence—previous felony conviction, contemporaneous felony, and committed
during the course of a robbery. The remaining aggravators for each required
factual finding that under Hurst must now be considered and weighed by a jury.
The majority concludes that the error is harmless because no reasonable jury would
have failed to find the aggravating factors given the evidence. Yet, even with the
additional circumstance of the age of the victim that applied to Michael
Bustamante, Jr., the jury nevertheless did not unanimously recommend a death
sentence as it related to Michael Bustamante. We simply cannot assume that every
juror found every aggravator beyond a reasonable doubt.
The majority’s reweighing of the evidence to support its conclusion is not an
appropriate harmless error review. The harmless error review is not a sufficiency
of the evidence test, and the majority’s analysis should instead focus on the effect
of the error on the trier of fact. State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla.
1986). By ignoring the record and concluding that all aggravators were
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unanimously found by the jury, the majority is engaging in the exact type of
conduct the United States Supreme Court cautioned against in Hurst v. Florida.
See Hurst v. Florida, 136 S. Ct. at 622.
Because the harmless error review is neither a sufficiency of the evidence
review “nor a device for the appellate court to substitute itself for the trier-of-fact
by simply weighing the evidence,” see DiGuilio, 491 So. 2d at 1138, I conclude
that the error here was harmful.
QUINCE, J., concurs.
An Appeal from the Circuit Court in and for Polk County,
J. Michael Hunter, Judge - Case No. 532007CF00938601XXXX
Howard L. Dimmig, II, Public Defender, and Steven L. Bolotin, 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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