Christian Cruz v. State of Florida

Supreme Court of Florida
____________

No. SC20-60
____________

CHRISTIAN CRUZ,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

July 1, 2021

PER CURIAM.

Christian Cruz appeals his convictions for first-degree murder

and other crimes and sentence of death. 1 For the reasons explained

below, we affirm Cruz’s convictions but reverse and remand for the

limited purpose of resentencing by the trial court and a new

sentencing order.

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
 BACKGROUND

In 2013, Christian Cruz and codefendant Justen Charles were

indicted for the first-degree murder of Christopher Jemery, as well

as burglary while armed, robbery with a firearm, and kidnapping.

Cruz and Charles were tried separately but before the same trial

court. Charles’ trial occurred after Cruz’s trial but before Cruz’s

sentencing. The evidence presented at Cruz’s trial showed that on

April 26, 2013, Jemery was attacked in his Deltona apartment. The

evening before the attack, both Cruz and Charles were together in

an apartment in the vicinity of Jemery’s apartment. Cruz and

Charles were aware that the former resident of the apartment where

Jemery was living sold drugs out of the apartment, and Cruz and

Charles discussed Jemery’s apartment the day before the murder.

The evidence showed that both Cruz and Charles forcefully

entered Jemery’s apartment. The physical evidence obtained from

the apartment showed that there was an assault and attack on

Jemery. Blood throughout the apartment demonstrated that

Jemery was beaten while inside the apartment. Bloody footprints

matching the shoes of Cruz and Charles were found inside the

apartment. One of the bedrooms appeared ransacked and had

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additional blood, the kitchen cabinets had been opened, and a

television was taken from the apartment.

Cruz and Charles then placed Jemery in the trunk of Jemery’s

rental car, drove him to a remote location, and shot him in the

head. Jemery was found near the Sanford airport in Seminole

County, Florida. Workers at an industrial area saw what they

thought was the body of a person lying on the ground in a field

adjacent to their warehouse. Because the body lacked

identification, the person was given the name of John Doe. John

Doe was later identified as Christopher Jemery.

Upon first arrival at the field, emergency personnel made a

notation that Jemery was bound with wire and duct tape on his

arms and mouth, was alive but nonresponsive, and his breathing

was very shallow. Medical examiner testimony would later reveal

that Jemery was shot in the head and also sustained a number of

injuries to his head, face, hands, and torso, including cuts, bruises,

lacerations, and defensive wounds. His wrists showed what

appeared to be tape residue from being bound with duct tape.

Jemery initially survived the attack but succumbed to his injuries

in a hospital within a day.

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 Evidence showed that the duct tape recovered from the area

where Jemery was found matched the leftover roll of duct tape

found in Jemery’s apartment. A live .22 bullet was found on the

floor of Jemery’s apartment, which was the same caliber and

manufacturer as the .22 shell casing found near Jemery’s body.

Cruz’s fingerprint was found on a piece of duct tape recovered from

Jemery’s body. Cruz’s DNA was found on a swab of blood taken

from the front right kick panel and the right front door of Jemery’s

rental car. Cruz’s fingerprint was also found on the Air Jordan

shoe box found at Jemery’s apartment and on Jemery’s cell phone,

which was recovered from his rental car. Jemery’s rental car was

not at his apartment and was later found backed into some bushes

near a grocery store in Deltona. The evidence also showed that the

same night Jemery was taken from his apartment, Cruz was seen

on a bank’s ATM surveillance camera using Jemery’s bank card and

personal identification number (PIN) to withdraw $440 cash from

Jemery’s account.

At the time of his death, Jemery was renting his apartment

from a friend, Mark Walters. Jemery had recently returned to

Florida with his girlfriend and young daughter. Walters had

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previously lived in the apartment in Deltona but had recently

vacated the apartment. Walters allowed Jemery to reside in the

apartment but retained the ability to go into and out of the

apartment. Walters was also a small-time drug dealer who sold

drugs from and around his apartment when he lived there. When

Jemery took residence in Walters’ apartment, he concluded that the

area was not safe. Although he planned to have his girlfriend and

young child move into the apartment with him, he asked his

girlfriend not to do so because he was concerned for their safety.

Instead, his girlfriend moved in with her family who also lived near

the area.

The morning of April 26, 2013, Walters came by the apartment

and noticed that there was a large amount of blood on the floor of

the apartment. He did not see Jemery and assumed that somehow

Jemery had injured himself. Walters did not call the police.

Testimony also established that a prescription bottle belonging to

Walters was later recovered from Charles’ vehicle after Jemery was

killed. Christina Raghonath, Jemery’s girlfriend, also stopped by

Jemery’s apartment that morning and called the police when she

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saw what she described as a “blood bath.” Raghonath later went to

the hospital to identify Jemery when he was found.

On the evening of May 9, 2013, Cruz was arrested on

unrelated charges. Officers Cage and Hilliker of the Orlando Police

Department were on patrol at night in Parramore, a high-crime and

high-drug area. They witnessed a white sedan driving erratically

and making numerous traffic violations, so they tried to initiate a

traffic stop but lost sight of the vehicle. After they conducted an

area search for the vehicle, they found what they thought was the

same white sedan parked nearby. The vehicle was still hot when

they found it, and as they checked the license tag of the vehicle,

they noticed a male peeking around the corner of the surrounding

townhomes several times over a period of 10 to 15 minutes.

Officers Cage and Hilliker went around the corner where the male

was standing and came upon 3 individuals. As they approached,

the officers smelled the odor of burnt cannabis coming from the 3

individuals. Officer Cage asked one of the individuals, who

ultimately went unidentified, if he had anything illegal on him. The

man said he did not and consented to a search, during which

Officer Cage failed to find anything. After searching the first male,

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Officer Cage turned to the next male, later identified as Cruz.

Officer Hilliker observed that Cruz was very nervous. Officer Cage

asked Cruz to stand and come to him and asked him if he had

anything illegal on him. Cruz responded that he did not. After

Cruz took a step or two towards the officers, and while in between

them, Cruz started running.

After both officers ran after Cruz for about 15 feet and

requested him to stop, Officer Cage deployed his taser on Cruz,

resulting in Cruz falling to the ground. Officer Hilliker handcuffed

him but could not cuff the second hand until Officer Cage deployed

a second cycle of the taser. Officer Hilliker immediately stood Cruz

up and searched him. They did not find any drugs, drug

paraphernalia, or vehicle keys. When they walked Cruz back to the

patrol vehicle and sat him on the curb, Cruz said something to the

effect of, “Why don’t you just kill me now,” and “I’m as good as

dead.”

Before the trial, Cruz filed a motion to suppress and motion in

limine regarding the statements Cruz made to the officers upon

arrest. The trial court held an evidentiary hearing on Cruz’s motion

to suppress and heard the testimony of Officers Cage and Hilliker.

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The trial court denied the motion to suppress, finding “that the

officers conducted the stop legally based upon the circumstances.”

The trial court issued a written order finding as follows:

The court finds that the officers, based on the
totality of the circumstances had a basis for conducting
an investigation. In this case, the defendant’s action of:
1. spying around the corner of the building or
otherwise acting in a suspicious manner,
2. acting nervous when approached,
3. being in an area where the odor of cannabis was
prevalent,
4. running after another person had been searched
in his presence,
5. at night,
6. being in a high crime/high drug area,
constitute a sufficient basis and creates a reasonable
articulable suspicion for detention, and subsequent
probable cause for arrest as the concealed firearm was
found on him.

The trial court also denied Cruz’s motion in limine, finding

that the statements were relevant and that “given the nature and

magnitude of the allegations of [the] crime,” the statements were

reasonably related to “flight to avoid prosecution.”

The guilt phase of trial began on February 18, 2019. During

voir dire, a prospective juror asked the trial judge if the jury is

allowed to ask questions of the witnesses during trial. The trial

judge responded that it depends but generally no. The trial court

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explained, “Now, if there’s something that I believe that needs to be

explored, I may let the lawyers know that they need to ask the

witness more questions about it. But the evidence that comes from

the witness stand, that’s the evidence you have to use and apply.”

The trial court further explained that there are rules of evidence

that apply to a witness’ testimony and the lawyers have the burden

of asking the right questions. Defense counsel did not object

during voir dire.

In the State’s opening statement at trial, the prosecutor stated

the following:

This was a violent and senseless crime, and
Christian Cruz has been indicted for the crimes of first
degree murder, burglary while armed, robbery with a
firearm, and kidnapping for his participation in the event
of April 26 that led to the killing of this innocent young
man.
....
Ladies and gentlemen, death is always tragic, but
this case is particularly upsetting. The evidence will
show that Christopher Jemery was nobody. He was a
normal person. He had a normal life. He didn’t bother
anybody. And he was minding his own business when
he was murdered in this violent and senseless crime.
Two unbelievably brutal strangers invaded his home
in the middle of the night and ransacked his apartment,
in search of drugs. The facts will show that he was
beaten and robbed, kidnapped and thrown in the trunk
of his own car, that he was driven to the middle of
nowhere, shot in the head and left to die in a ditch, and

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 that somewhere along this continuum of unspeakable
acts, Cruz was able to get Christopher Jemery’s PIN and
access his accounts. Then the defendants went about
their lives as if it were any other day, and Christopher
Jemery’s family waited at the hospital.

Defense counsel did not object to the prosecutor’s comments.

During the guilt phase of Cruz’s trial, the State presented the

testimony of 17 witnesses. The State did not, however, present at

Cruz’s trial 2 items of evidence that it did introduce at the trial of

Charles: first, the testimony of Charles’ girlfriend that she had seen

Cruz with a .22 caliber firearm, and second, a stipulation between

the State and Charles’ trial counsel that Cruz was the shooter.

Cruz’s defense counsel did not present any witnesses but

introduced a stipulation—that the injury Jemery suffered when he

was shot made him immediately unable to feel pain. Cruz elected

not to testify. Defense counsel renewed its objection to prior rulings

on pretrial motions, including the motion to suppress. The trial

court announced that its ruling would stand. Officer Cage’s

testimony at trial closely resembled his testimony from the motion

to suppress hearing.

On February 28, 2019, the jury found Cruz guilty of first-

degree premeditated and felony murder, burglary while armed,

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robbery with a firearm, and kidnapping. The jury made special

findings on the verdict form that Cruz possessed a firearm during

the commission of the crimes and that Cruz discharged a firearm

causing the death of Jemery.

The penalty phase of trial began on March 4, 2019. The State

presented 5 witnesses, the defense presented 21 witnesses

(including Cruz’s sister, who testified about Cruz’s difficulties as a

young person), and the State called 1 rebuttal expert witness. In

the State’s opening statement during the penalty phase, the

prosecutor stated the following:

And this is the part in the trial where you’re going to
be asked to consider is the death penalty an appropriate
sentencing recommendation for Christian Cruz, given the
facts and circumstances in this case.
As the prosecution, this is not something that we
take lightly because, as we discussed, not every murder
is one that would be considered for the death penalty. So
we take it very seriously when we present this case to
you as one that you should consider the death penalty.

During the penalty phase, the State presented the testimony of

Deandre Perez, a former manager of Hungry Howie’s in Sanford.

Perez was working a shift when two individuals (later identified as

Cruz and Charles) entered through the back door unexpectedly.

One of the men grabbed a female employee by her hair while the

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other walked up to Perez and hit him in the face with a gun. Perez

was hit twice by one of the men holding a gun, once above his

eyebrow and once on the cheek. Perez gave them the money in the

till, and they left. A surveillance video capturing the robbery was

also introduced into evidence, along with Cruz’s judgment and

sentence resulting from the robbery.

The State’s expert, Dr. William Riebsame, testified during the

State’s rebuttal at the penalty phase. Dr. Riebsame testified that

Cruz reported that he committed the crime because he needed the

money for drugs, and Cruz told him that he had previously robbed

a drug dealer in a similar manner. Defense counsel did not object.

In the State’s closing argument during the penalty phase, the

prosecutor made the following statements, relevant to the issues

Cruz raises here:

And there’s at least one other person who grew up
in exactly the same circumstances, had exactly the same
risk and protective factors that we went through ad
nauseum yesterday, except that she was a female, and
she was one or two years older. She turned out fine.
She’s not calling a long list of friends to dig her out of a
hole. She’s not torching their mother in public to
improve her circumstances.
....
Christian Cruz suffered a head injury when he was
a kid. He was struck by a golf club as a preteen. That

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has absolutely no bearing. None. It’s an event that
occurred in his life. Sure. But it was never connected by
any doctors to traumatic brain injury. There’s no
evidence that it bothers him today. In fact, the opposite’s
true. Both of the experts who testified yesterday said
that they were not aware of any medical or psychological
significance for this superficial childhood injury.
That the defendant never received mental health
treatment or counseling prior to his arrest, there’s no
dispute. But how important is that? He had ADHD and
bipolar disorder. Those are not conditions that blur the
line between right and wrong.
When he made the decision to shoot [Jemery] in the
head, he knew that he was committing murder. His
untreated mild to moderate mood disorder is not nearly
as significant as the choices that he made on April 26 of
2013. And the fact that he tried to commit suicide in an
effort to escape the isolation and loneliness of
incarceration, that’s not the kind of mitigation that
should be important—more important or more significant
than the torturous death of another human being.
....
This was a brutal crime. It’s the kind of crime that
frightens you to your core. It’s the reason that children
fear the darkness. It’s why people have locks on their
doors and keep guns for protection. . . .
....
You know they talked about it. [Jemery] laid there
bound and gagged, forced to listen to them. When they
were satisfied that they had taken everything of value
from his home, you know, there was a conversation
about how it was going to end. That poor man had to
listen to it.
Then they took him. He was loaded in the trunk of
his own car. His hands—or his mouth covered, his
hands bound, wrapped, tied with wire and tape behind
his back. The victim controlled by his captor, bound and
gagged, injured and bleeding, [Jemery] was en route to
the scene of his own murder. And there was nothing he

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 could do about it. Eighteen minutes of drive time.
Eighteen minutes is an eternity when all you can do is
contemplate how your life is going to end.

The jury rendered a verdict unanimously recommending a

penalty of death, determined the aggravating factors outweighed the

mitigating circumstances, and found that the State had established

beyond a reasonable doubt the existence of the following

aggravating factors: (1) Cruz was previously convicted of a felony

involving the use or threat of violence to another person; (2) the

first-degree murder was committed while Cruz was engaged in a

robbery, burglary, or kidnapping; (3) the first-degree murder was

committed for the purpose of avoiding arrest; (4) the first-degree

murder was committed for financial gain; (5) the first-degree

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

(6) the first-degree murder was committed in a cold, calculated, and

premeditated manner (CCP).

A Spencer 2 hearing was held on June 5, 2019. The trial court

delayed imposition of Cruz’s sentence until the conclusion of

Charles’ trial. The defense called 3 witnesses, and Cruz gave a

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

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statement expressing his remorse and apologizing to Jemery’s

family. Sentencing occurred on December 18, 2019, and the trial

court followed the jury’s recommendation and sentenced Cruz to

death. The trial court found 5 aggravating factors: (1) Cruz was

previously convicted of a felony involving the use or threat of

violence to another person for the Hungry Howie’s robbery

committed shortly after murdering Jemery (great weight); (2) the

first-degree murder was committed while Cruz was engaged in a

robbery, burglary, or kidnapping, merged with the first-degree

murder was committed for financial gain (great weight); (3) the first-

degree murder was committed for the purpose of avoiding arrest

(great weight); (4) the first-degree murder was especially heinous,

atrocious, or cruel (great weight); and (5) the first-degree murder

was committed in a cold, calculated, and premeditated manner

(great weight). The trial court considered and found as proven all

37 of Cruz’s proffered mitigators, assigning slight weight to 24,

moderate weight to 11, great weight to 1, and extraordinarily great

weight to 1.3

3. The trial court found the following mitigating
circumstances with the respective assigned weights: (1) Cruz’s

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family has a generational history of alcoholism, depression, and
suicide (moderate weight); (2) Cruz was raised in a home
environment that did not express love and affection (slight weight);
(3) Cruz was raised by a mother with poor parenting skills (slight
weight); (4) Cruz had to move frequently throughout his childhood
(moderate weight); (5) Cruz’s mother relied on her religious faith to
his detriment (slight weight); (6) Cruz’s mother struggled financially
throughout his life (slight weight); (7) Cruz was abandoned by his
father when he was 3 years old (moderate weight); (8) Cruz’s mother
lacked any local familial support (slight weight); (9) Cruz was raised
in a Spanish-only speaking home for several years (slight weight);
(10) Cruz’s mother did not encourage assimilation with American
culture when he was young (slight weight); (11) Cruz was socially
isolated as a child (slight weight); (12) Cruz witnessed domestic
violence committed by Charles Garrett for several years while a
young boy (great weight); (13) Cruz and his family lost property and
memorabilia due to evictions (moderate weight); (14) Cruz suffered a
serious head injury when he was 9 years old (slight weight);
(15) Cruz struggled academically due to his limited ability to speak
English (moderate weight); (16) Cruz was bullied in middle school
(slight weight); (17) Cruz was ridiculed for his appearance when he
was a young teenager (slight weight); (18) Cruz began using
marijuana when he was a young teenager (moderate weight);
(19) Cruz suffered from depression and bipolar disorder (moderate
weight); (20) Cruz never received mental health treatment or
counseling before his arrest (moderate weight); (21) Cruz grew up
ashamed of his family’s poverty (slight weight); (22) Cruz shielded
his younger brother from his criminal activities (slight weight);
(23) Cruz was a positive influence on his younger brother (slight
weight); (24) Cruz was a positive influence on his friend, Brandon
(slight weight); (25) Cruz was deeply conflicted about religion (slight
weight); (26) Cruz was misguided by his mother’s religious views
(slight weight); (27) Cruz became employed after moving to New
York (slight weight); (28) Cruz was 19 years old at the time of the
offense (extremely great weight); (29) Cruz has no significant history
of prior criminal activity (moderate weight); (30) Cruz was an
accomplice in the first-degree murder committed by another person
and his participation was relatively minor (slight weight); (31) the

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 In its sentencing order, the trial court conducted an Enmund4-

Tison 5 analysis, finding as follows:

The jury found Mr. Cruz to be the individual who
shot and killed Mr. Jemery. In Mr. Charles’s case, the
State abandoned any efforts to establish Mr. Charles as
the shooter. The jury in Mr. Charles’ case did not have to
make a determination as to who the shooter was because
of the State’s concession. However, the jury in Mr.
Charles’ case did find him guilty of both, premeditated
murder AND felony murder.
Therefore, this court finds that Mr. Cruz in fact
killed Mr. Jemery and no further analysis is needed.

In the sentencing order, the trial court explained that he heard

and considered evidence of the case in Cruz’s and codefendant

Charles’ trials. Further, in addressing the mitigating circumstance

first-degree murder was committed while Cruz was under the
influence of extreme mental or emotional disturbance (slight
weight); (32) the capacity of Cruz to appreciate the criminality of his
conduct or to conform his conduct to the requirements of law was
substantially impaired (moderate weight); (33) Cruz acted under
extreme duress or under the substantial domination of another
person (slight weight); (34) Cruz first received mental health
medication while incarcerated (slight weight); (35) Cruz has
demonstrated remorse (moderate weight); (36) Cruz has suffered
permanent brain damage (slight weight); and (37) Cruz was
negatively influenced by a former gang member during adolescence
(slight weight).

4. Enmund v. Florida, 458 U.S. 782 (1982).

5. Tison v. Arizona, 481 U.S. 137 (1987).

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that Cruz acted under extreme duress or under the substantial

domination of another person, the trial court found that Cruz and

Charles “were equally culpable for the actions of each other.”

This direct appeal followed.

ANALYSIS

Cruz raises the following 14 claims on appeal: (1) the trial

court improperly denied Cruz’s motion to suppress statements he

made to officers upon arrest; (2) the trial court improperly denied

Cruz’s motion in limine to exclude the officer’s testimony regarding

Cruz’s statements made upon arrest; (3) the trial court improperly

informed the jurors during voir dire that they would not be allowed

to ask witnesses questions during trial; (4) the prosecutor made

improper comments during guilt-phase opening statement; (5) there

is insufficient evidence to support the jury’s findings that Cruz

possessed and discharged a firearm; (6) the cumulative effect of the

errors in the guilt-phase claims; (7) the prosecutor made improper

comments during penalty-phase opening statement; (8) the

prosecutor made improper comments during penalty-phase closing

argument; (9) the trial court improperly admitted evidence of Cruz’s

prior robbery conviction; (10) the trial court improperly admitted

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testimony of the State’s expert that Cruz was involved in a prior

robbery of a drug dealer; (11) the trial court failed to instruct the

jury to make an Enmund-Tison finding in the penalty-phase verdict;

(12) the trial court’s sentencing order had individual and

cumulative errors requiring reversal; (13) Florida’s capital

punishment scheme is unconstitutional; and (14) the cumulative

effect of the error as to penalty-phase claims. We also consider

(15) whether there is sufficient evidence to sustain Cruz’s murder

convictions.

We affirm Cruz’s convictions but reverse and remand for the

limited purpose of resentencing by the trial court and a new

sentencing order because the trial court relied on nonrecord

evidence from the trial of the codefendant Charles in finding that

Cruz was the shooter and sentencing Cruz to death.

1. Motion to Suppress

Cruz first argues that the trial court erroneously denied his

motion to suppress his unsolicited statements made to the police

following his arrest on May 9, 2013, when he said something to the

effect of, “why don’t you just kill me now,” and “I’m as good as

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dead.” Cruz argues that his detention was illegal because the police

had no reasonable basis to conduct an investigatory stop.

At the time Cruz made his spontaneous, unsolicited

statements, however, he had been arrested, and prior to his arrest,

he had been lawfully stopped. As the trial court correctly found,

Cruz’s behavior prior to his detention generated in the minds of the

arresting officers a reasonable suspicion that Cruz was engaged in

criminal activity.

This Court has explained the standard for reviewing a trial

court’s ruling on a motion to suppress:

“A trial court’s ruling on a motion to suppress comes to
the appellate court clothed with a presumption of
correctness and the court must interpret the evidence
and reasonable inferences and deductions derived
therefrom in a manner most favorable to sustaining the
trial court’s ruling.” In reviewing a trial court’s ruling on
a suppression motion, this Court conducts a two-step
analysis in which we determine whether (1) competent,
substantial evidence supports the trial court’s findings of
historical fact; and (2) the trial court reached the correct
legal conclusion.

Jackson v. State, 18 So. 3d 1016, 1027 (Fla. 2009) (quoting Rolling

v. State, 695 So. 2d 278, 291 (Fla. 1997)). Further, “[a]s long as the

trial court’s findings are supported by competent substantial

evidence, ‘this Court will not “substitute its judgment for that of the

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trial court on questions of fact, likewise of the credibility of the

witnesses as well as the weight to be given to the evidence by the

trial court.” ’ ” Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997)

(quoting Demps v. State, 462 So. 2d 1074, 1075 (Fla. 1984)).

In denying Cruz’s motion to suppress, the trial court relied on

evidence from the testimony of Officers Cage and Hilliker. The trial

court found as follows:

The court finds that the officers, based on the
totality of the circumstances had a basis for conducting
an investigation. In this case, the defendant’s action of:
1. spying around the corner of the building or
otherwise acting in a suspicious manner,
2. acting nervous when approached,
3. being in an area where the odor of cannabis was
prevalent,
4. running after another person had been searched
in his presence,
5. at night,
6. being in a high crime/high drug area,
constitute a sufficient basis and creates a reasonable
articulable suspicion for detention, and subsequent
probable cause for arrest as the concealed firearm was
found on him.

The trial court’s findings are supported by competent,

substantial evidence in the record. On May 9, 2013, Cruz was

arrested on unrelated charges. Officers Cage and Hilliker were

patrolling at night in Parramore, a high-crime and high-drug area.

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They witnessed a white sedan driving erratically and making

numerous traffic violations. After they conducted an area search

for the vehicle, they found what they thought was the same vehicle,

and they both noticed a male (later determined to be Cruz)

suspiciously peeking around the corner of the surrounding

townhomes while they were near the vehicle. When they

approached Cruz and 2 other individuals, they smelled burnt

cannabis. After searching one of the individuals with consent,

Officer Cage asked Cruz to stand up and approach him and asked

Cruz if he had anything illegal on him. Cruz began running away

and did not heed to Officer Cage’s command to stop. Once he was

detained, Cruz resisted handcuffs, repeatedly reaching toward his

waist area. For this reason, the officers subdued him with a taser

and handcuffed him. A search incident to Cruz’s arrest revealed a

.22 caliber handgun in Cruz’s front left pocket. 6

“[This] Court has identified three levels of police-citizen

encounters: 1) a consensual encounter involving minimal contact

6. Officer Hilliker testified during the hearing on Cruz’s
motion to suppress that he found a .22 caliber handgun with the
serial number filed off in Cruz’s left front pocket. However, this
testimony was not elicited at trial.

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during which the citizen is free to leave; 2) an investigatory stop or

detention which requires a well-founded, articulable suspicion of

criminal activity; and 3) an arrest supported by probable cause that

a crime has been committed, or is being committed.” R.F. v. State,

307 So. 3d 20, 22-23 (Fla. 4th DCA 2020) (citing Taylor v. State,

855 So. 2d 1, 14-15 (Fla. 2003)). In order to justify an investigatory

stop, a police officer must have a well-founded suspicion that the

person detained has committed, is committing, or is about to

commit a crime. See § 901.151(2), Fla. Stat. (2019); see also Terry

v. Ohio, 392 U.S. 1, 21-22 (1968). Reasonable suspicion must be

based on “specific and articulable facts” and not on “inchoate” and

“unparticularized suspicion” or mere “hunch.” Terry, 392 U.S. at

21, 27. “In determining whether a police officer possesses a

reasonable suspicion to justify an investigatory stop, the court must

consider the totality of the circumstances viewed in light of a police

officer’s experience and background.” State v. Lennon, 963 So. 2d

765, 768 (Fla. 3d DCA 2007). “ ‘Reasonable suspicion’ is a less

demanding standard than that for probable cause, and

‘considerably less than proof of wrongdoing by preponderance of the

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evidence.’ ” State v. Gonzalez, 682 So. 2d 1168, 1170 (Fla. 3d DCA

1996) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)).

The evidence supports the conclusion that the officers had

sufficient reasonable articulable suspicion to conduct an

investigatory stop based on the totality of the circumstances,

including Cruz’s suspicious behavior spying around the corner and

acting nervous when approached, the high crime area at night, the

smell of cannabis, and running from the officers after another

person with Cruz was searched. See Illinois v. Wardlow, 528 U.S.

119, 124 (2000) (“In this case, moreover, it was not merely

respondent’s presence in an area of heavy narcotics trafficking that

aroused the officers’ suspicion, but his unprovoked flight upon

noticing the police. Our cases have also recognized that nervous,

evasive behavior is a pertinent factor in determining reasonable

suspicion.”); see also Hernandez v. State, 784 So. 2d 1124, 1126

(Fla. 3d DCA 1999) (“Some of the factors . . . which may be

evaluated by police officers to reasonably suggest a suspect’s

possible commission, the existence, or imminence, of a crime are:

The time; the day of the week; the location; the physical appearance

of the suspect; the behavior of the suspect; the appearance and

- 24 -
manner of operation of any vehicle involved; anything incongruous

or unusual in the situation as interpreted in the light of the officer’s

knowledge. To this list may be added, the factor of flight.” (quoting

State v. Bell, 382 So. 2d 119, 119 (Fla. 3d DCA 1980))).

Because the officers had the necessary reasonable suspicion of

criminal activity to detain Cruz, his later unprovoked utterances to

the police were admissible evidence. Competent, substantial

evidence supports the trial court’s findings of fact, and its

evidentiary ruling was correct as a matter of law. Accordingly, we

affirm the trial court’s denial of Cruz’s motion to suppress.

2. Motion in Limine

Cruz next argues that the trial court erroneously denied Cruz’s

motion in limine to exclude Officer Cage’s testimony about Cruz’s

unsolicited statements upon being arrested, stating something to

the effect of, “why don’t you just kill me now,” and “I’m as good as

dead.” Specifically, Cruz argues that the testimony regarding his

statements was inadmissible because his statements were not

relevant and not related to the homicide.

This Court will not overturn a trial court’s ruling on

admissibility of evidence absent abuse of discretion by the trial

- 25 -
court. Dessaure v. State, 891 So. 2d 455, 466 (Fla. 2004). “The

credibility of the witnesses and the weight of the evidence presented

are matters within the province of the trial judge, whose

determinations of factual questions must be accepted by the

appellate court if the record supports that finding.” State v. Polak,

598 So. 2d 150, 152 (Fla. 1st DCA 1992).

At trial, Officer Cage testified that immediately after Cruz’s

arrest, the officers had Cruz sitting on a curb next to the police car.

Cruz made statements to the officers, including something to the

effect of, “Why don’t you just shoot and kill me now,” and “I’m as

good as dead.” The trial court denied Cruz’s motion in limine to

exclude the testimony of Officer Cage. Specifically, the trial court

found that the testimony was relevant and reasonably related to

flight to avoid prosecution.

Evidence that a suspect “in any manner attempts to evade

prosecution after a crime has been committed” is admissible and

relevant to the consciousness of guilt. Penalver v. State, 926 So. 2d

1118, 1132 (Fla. 2006). “[T]here must be evidence which indicates

a nexus between the flight . . . and the crime(s) for which the

defendant is being tried in that specific case.” Escobar v. State, 699

- 26 -
So. 2d 988, 995 (Fla. 1997), abrogated on other grounds by Connor

v. State, 803 So. 2d 598, 607 (Fla. 2001). Where there are two

conflicting theories as to the meaning of evidence tending to show

consciousness of guilt, the trial court does not abuse its discretion

in admitting such evidence, as “the conflict in the theories goes to

the weight to be accorded this evidence, not its admissibility.”

Penalver, 926 So. 2d at 1133.

Cruz’s unsolicited statements indicate that he was aware of

the criminality of his actions and knew the police had a reason to

arrest him when he was stopped by the officers. His statements

were made after Cruz attempted to flee from officers. See Thomas v.

State, 748 So. 2d 970, 982-83 (Fla. 1999) (upholding the trial

court’s admission of flight evidence because the flight from police

occurred in the same city as the murder and only eleven days after

the murder). Additionally, Cruz’s statements were made on May 10,

2013, just two weeks after the homicide on April 26, 2013. See

Partin v. State, 82 So. 3d 31, 42 (Fla. 2011) (finding a sufficient

nexus even “[t]hough approximately one year had passed since the

time of the crime”). Accordingly, because Officer Cage’s testimony

regarding Cruz’s unsolicited statements subsequent to arrest were

- 27 -
relevant to Cruz’s awareness of criminal conduct and reasonably

related to flight to avoid prosecution, we deny relief on this claim.

3. Juror Questions

Cruz argues that the trial judge erred when he informed

potential jurors during voir dire that they generally would not be

able to ask witnesses questions during trial. Because defense

counsel did not object, we review that claim for fundamental error,

defined as error that reaches down into the validity of the trial itself

to the extent that the jury’s recommendation of death could not

have been obtained without the assistance of the alleged error.

Smiley v. State, 295 So. 3d 156, 172 (Fla. 2020).

Florida Rule of Criminal Procedure 3.371(a) provides, “[a]t the

discretion of the presiding trial judge, jurors may be allowed to

submit questions of witnesses during the trial.” (Emphasis added.)

This Court has explained that the trial judge has discretion in

allowing a juror to ask questions of a witness. See Ferrara v. State,

101 So. 2d 797, 801 (Fla. 1958) (explaining that “upon appropriate

occasion a trier of fact might be completely justified in propounding

a question” when the procedure is “controlled by the discretion of

the trial judge”).

- 28 -
 During voir dire, a prospective juror asked the trial judge if

jurors would be allowed to ask questions of witnesses during trial.

The trial judge responded that “[g]enerally the answer is no.” The

court explained that juror questions could call for hearsay or other

matters not properly to be introduced into evidence. We cannot say

that this answer and explanation constitutes fundamental error.

Cruz has failed to demonstrate how this exercise of the court’s

discretion reached down into the validity of the trial itself to the

extent that the jury’s recommendation of death could not have been

obtained without the assistance of the alleged error. See Fla. R.

Crim. P. 3.371(a).

Cruz also argues that the trial court’s decision was improper

because the trial court did not consult with defense counsel before

making the decision, citing to Mills v. State, 620 So. 2d 1006 (Fla.

1993). This Court’s decision in Mills does not help Cruz. In that

case, we concluded that the trial judge’s failure to give counsel the

opportunity to be heard before answering the jury’s question of law

during jury deliberations was reversible error. Id. at 1007-08. The

case did not address jury questioning of witnesses during trial.

- 29 -
Accordingly, Cruz’s argument is without merit, and we deny relief

on this claim.

4. Prosecutor’s Guilt-Phase Comments

Next, Cruz challenges a number of comments made by the

prosecutor during the State’s guilt-phase opening statement. Cruz

did not object to the prosecutor’s comments; therefore, we review

such claims for fundamental error.

First, Cruz challenges the prosecutor’s comment that Jemery’s

death was “particularly upsetting,” relying on this Court’s decisions

in Heath v. State, 648 So. 2d 660 (Fla. 1994), and Duest v. State,

462 So. 2d 446 (Fla. 1985). In Heath, the prosecutor’s comment to

the jury was, “You’re going to hear testimony, ladies and gentlemen,

from the only person who can tell you about what [the defendant]

did. [The victim] is dead; he can’t tell you what happened. [The

defendant] is going to come before you and tell you how [the victim]

died.” 648 So. 2d at 663. In Duest, the prosecutor insulted defense

counsel during cross-examination of a witness. 462 So. 2d at 448.

However, the language in these cases is materially distinguishable.

In the present case, the prosecutor’s use of the phrase “particularly

upsetting,” when considered against the weight of all of the evidence

- 30 -
presented, “did not go to the heart of the case” and was “not critical

to the jury’s verdict.” Davis v. State, 136 So. 3d 1169, 1204 (Fla.

2014) (quoting Braddy v. State, 111 So. 3d 810, 843-44 (Fla. 2012)).

Cruz fails to show how this alleged error reached down into the

validity of the trial itself to the extent that the jury’s

recommendation of death could not have been obtained without the

assistance of the alleged error.

Next, Cruz challenges the prosecutor’s comments that Cruz’s

actions were “unspeakable acts” and “violent and senseless,” and

the prosecutor’s comment describing Cruz and Charles as “[t]wo

unbelievably brutal strangers.” In Lugo v. State, 845 So. 2d 74 (Fla.

2003), the prosecutor argued “the ‘awful,’ ‘evil,’ ‘horrible,’ and

‘gruesome’ nature of the crimes; that Lugo and other defendants

were ‘preying’ on their victims; that Lugo’s offenses were worse than

‘any war crime’; that the circumstances of Lugo’s case sometimes

resembled an ‘Iranian hostage’ situation; and that Lugo and other

defendants participated in a ‘human barbecue’ of the murder

victims.” Id. at 100 n.51. In light of defense counsel’s failure to

object, this Court concluded that “when viewed in the totality of the

circumstances of [the defendant]’s case, the prosecution’s

- 31 -
comments [did not drift] so far afield from the evidence adduced at

trial as to constitute fundamental error.” Id. at 100 n.51, 101.

Here, the prosecutor’s comments were connected to the

evidence that was adduced at trial. The State presented evidence

that Cruz and Charles broke into Jemery’s apartment, beat him,

tied up and gagged him, drove him to a remote location before

shooting him, left him at that remote location, and used Jemery’s

ATM card to withdraw cash. Accordingly, the prosecutor’s

comments do not amount to fundamental error.

Finally, Cruz argues that the prosecutor stating that Jemery’s

family “waited at the hospital” while Cruz and Charles “went about

their lives as if it were any other day,” improperly appealed to the

sympathy of the jurors. This Court has explained that a prosecutor

“should not attempt to elicit the jury’s sympathy by referring to the

victim’s family.” Johnson v. State, 442 So. 2d 185, 188 (Fla. 1983).

However, Cruz failed to object and failed to explain how the jury’s

verdict was affected by the State’s argument and that such a verdict

would not have been rendered otherwise. Further, the prosecutor’s

comment was consistent with testimony elicited at trial that

Jemery’s girlfriend, Christina Raghonath, went to the hospital to be

- 32 -
with Jemery. See Lugo, 845 So. 2d at 101 (“[W]e cannot say . . . the

prosecution’s comments drifted so far afield from the evidence

adduced at trial as to constitute fundamental error.”). Accordingly,

we deny relief on this claim.

5. Jury Findings that Cruz Possessed and
Discharged a Firearm

The jury found Cruz guilty of first-degree premeditated and

felony-murder, burglary while armed, robbery with a firearm, and

kidnapping. By special verdict in connection with each charged

crime, the jury also found that Cruz possessed a firearm and

discharged a firearm during the commission of the crime causing

the death of Jemery. Cruz argues that there was insufficient

evidence to support the jury’s verdict findings that Cruz possessed

and discharged a firearm. We agree and conclude that there is no

competent, substantial evidence in the record to support the jury’s

findings.

However, as addressed in more detail below, competent,

substantial evidence supports Cruz’s convictions for first-degree

murder. Further, the entire episode was a joint operation by Cruz

and Charles. Evidence presented at trial demonstrated that Cruz

- 33 -
and Charles broke into Jemery’s apartment, that the shoes of both

their feet left prints of Jemery’s blood there, that they were both in

the car in which Jemery was driven into the woods, and that they

were seen together on surveillance video the night Jemery was

killed. It was Cruz’s fingerprint on the duct tape recovered from

Jemery’s body, and Cruz’s DNA was found on a swab of blood in the

car. Cruz’s trial jury thus heard evidence that he was present and

actively participated in the events leading to Jemery’s death. In

similar cases, we have declined to reverse convictions, and indeed

upheld imposition of a sentence of death. See James v. State, 453

So. 2d 786, 792 (Fla. 1984) (“[W]ho is the actual killer is not

determinative because each participant is responsible for the acts of

the other.”); see also Farina v. State, 801 So. 2d 44, 56 (Fla. 2001)

(upholding death sentence of the defendant who was not the

shooter); Ferrell v. State, 686 So. 2d 1324, 1329 (Fla. 1996) (“While

Ferrell may not have actually pulled the trigger, the evidence

establishes that he played an integral part in these crimes and in

actually luring the victim to this death. Thus, at a minimum, he is

guilty as a principal under the statute.”); Hall v. State, 403 So. 2d

1321, 1323 (Fla. 1981) (“These facts support the jury’s conclusion

- 34 -
that, even if [the defendant] did not pull the trigger, he was a

principal to the crime of murder.”). Here, too, we find ample

evidence to support the jury’s conclusion that Cruz was a principal

to Jemery’s murder.

6. Cumulative Effect of Guilt-Phase Errors

In his final guilt-phase claim, Cruz argues that the cumulative

effect of the alleged errors during the guilt phase deprived him of a

fair trial. Where multiple errors are discovered, it is appropriate to

review the cumulative effect of those errors because even with

competent, substantial evidence to support a verdict, “and even

though each of the alleged errors, standing alone, could be

considered harmless, the cumulative effect of such errors [may be]

such as to deny to defendant the fair and impartial trial that is the

inalienable right of all litigants in this state and this nation.”

McDuffie v. State, 970 So. 2d 312, 328 (Fla. 2007) (alterations in

original) (quoting Brooks v. State, 918 So. 2d 181, 202 (Fla. 2005)).

But relief is not warranted if there is “no reasonable probability that

the cumulative effect of these errors affected [the defendant’s] right

to a fair trial.” Floyd v. State, 850 So. 2d 383, 408 (Fla. 2002).

- 35 -
 We concluded above that there is no competent, substantial

evidence to support the jury’s special verdict findings that Cruz

possessed and discharged a firearm; however, as explained, any

error was harmless. We also conclude that this error did not

deprive Cruz of a fair trial, and we find no merit to Cruz’s

cumulative error claim as to the guilt phase in this case.

7. and 8. Prosecutor’s Penalty-Phase Comments

Cruz argues that the prosecutor made inappropriate

comments in its penalty-phase opening statement and closing

argument. Cruz did not object to the prosecutor’s comments, so we

review the statements for fundamental error. See Kilgore v. State,

688 So. 2d 895, 898 (Fla. 1996) (“We have held that allegedly

improper prosecutorial remarks cannot be appealed unless a

contemporaneous objection is recorded.”). “Error during the

penalty phase is fundamental if it is ‘so prejudicial as to taint the

jury’s recommended sentence.’ ” Jones v. State, 949 So. 2d 1021,

1037 (Fla. 2006) (quoting Fennie v. State, 855 So. 2d 597, 609 (Fla.

2003)).

During penalty-phase opening statements, the prosecutor

stated, “As the prosecution, this is not something that we take

- 36 -
lightly because, as we discussed, not every murder is one that

would be considered for the death penalty. So we take it very

seriously when we present this case to you as one that you should

consider the death penalty.”

The trial court did not commit fundamental error when it

allowed the State’s comment during opening statement. In Davis,

this Court analyzed whether the prosecutor made an improper

argument in stating, “As we talked about in jury selection, you

know the State of Florida does not seek the death penalty in every

case, because it’s not just proper in every case. But I submit to

you, in this case, it most certainly is.” 136 So. 3d at 1206. This

Court concluded that this argument was improper, but

cumulatively the comments did “not rise to the level of fundamental

error” because the comments did “not ‘reach[ ] down into the

validity of the trial itself to the extent that a . . . recommendation of

death could not have been obtained without the assistance of the

alleged error[s].’ ” Id. (alterations in original) (quoting Card v. State,

803 So. 2d 613, 622 (Fla. 2001)); see also Braddy, 111 So. 3d at

848 (holding that the prosecutor’s reference to “the

determination . . . that the State has to make in bringing a case like

- 37 -
this to [the jury] as a death penalty case,” while improper, did not

amount to fundamental error).

Even if improper, the prosecutor’s comments do not amount to

fundamental error. The cumulative effect of the prosecutor’s

statements here does not reach down into the validity of Cruz’s trial

itself to the extent that a recommendation of death could not have

been obtained without the assistance of the alleged error.

Next, Cruz argues that the State made several improper

comments during its penalty-phase closing argument that warrant

reversal. Specifically, Cruz contends that the prosecutor made

comments denigrating mitigation, misstating facts in closing

argument, taking aim at frightening the jury, and creating an

imaginary script for the jury.

Cruz contends that the prosecutor’s comments regarding

Cruz’s sister, mother, and friends who testified on his behalf during

the guilt phase, his suicide attempt, and his ADHD and bipolar

disorder diagnoses improperly denigrated mitigation and

constituted fundamental error. However, the prosecutor’s

comments did not denigrate mitigation, because the prosecutor

- 38 -
merely downplayed the significance of the mitigation and did not

label the mitigation as aggravation.

“This Court has long recognized that a prosecutor cannot

improperly denigrate mitigation during a closing argument.”

Williamson v. State, 994 So. 2d 1000, 1014 (Fla. 2008). “Improper

denigration includes comments characterizing mitigation as ‘flimsy,’

‘phantom,’ and ‘excuses.’ ” Carr v. State, 156 So. 3d 1052, 1065

(Fla. 2015). However, this Court has explained that it is not

improper for a prosecutor to “attempt[] to rebut mitigating evidence

argued by the defense.” Poole v. State, 997 So. 2d 382, 395 (Fla.

2008).

During penalty-phase closing argument, the prosecutor said

the following regarding Cruz’s sister:

And there’s at least one other person who grew up in
exactly the same circumstances, had exactly the same
risk and protective factors that we went through ad
nauseum yesterday, except that she was a female, and
she was one or two years older. She turned out fine.
She’s not calling a long list of friends to dig her out of a
hole. She’s not torching their mother in public to
improve her circumstances.

Cruz claims that this statement by the prosecutor denigrated

mitigation. Cruz relies on this Court’s decision in Walker v. State,

- 39 -
707 So. 2d 300 (Fla. 1997). However, Walker is distinguishable

because this Court addressed whether the prosecutor injected

“future dangerousness” into the proceedings as a nonstatutory

aggravating circumstance when the State asked an expert whether

they thought the defendant might kill again. 707 So. 2d at 313-14.

In this case, the prosecutor did not denigrate the testimony of

Cruz’s sister. Indeed, the comments to which Cruz now objects

(significantly, he did not at trial) do not characterize in any way the

testimony of Cruz’s sister. The prosecutor compared Cruz’s life

outcomes to that of his sister. We find that, in light of the entire

record at the penalty phase trial, this comment does not rise to the

level of fundamental error.

Cruz next challenges the following prosecutor statements: (1)

“[Cruz] had ADHD and bipolar disorder. Those are not conditions

that blur the line between right and wrong,” and (2) “And the fact

that he tried to commit suicide . . . that’s not the kind of mitigation

that should be important—more important or more significant than

the torturous death of another human being.”

“A prosecutor may request the jury to accord minimal weight

to a mitigator that the defendant has proven.” Poole v. State, 151

- 40 -
So. 3d 402, 416 (Fla. 2014). Here, the State did not ask the jury to

discard the mitigating evidence but downplayed the significance of

the mitigating evidence. Accordingly, no fundamental error

occurred.

Next, Cruz claims that the prosecutor improperly implied a

nexus requirement to the murder when referencing the injury Cruz

suffered as a kid. Specifically, Cruz challenges the statement, “He

was struck by a golf club as a preteen. That has absolutely no

bearing. None. It’s an event that occurred in his life. Sure. But it

was never connected by any doctors to traumatic brain injury.”

In Cox v. State, 819 So. 2d 705 (Fla. 2002), this Court

analyzed whether the prosecutor improperly addressed the

defendant’s traumatic childhood by stating that it happened more

than 25 years before the murder. Id. at 718. This Court concluded

that the prosecutor’s “comment was designed to convey the concept

that while the mitigator may be valid, perhaps its weight should be

somewhat discounted because of the passage of time and the lack

of an evidentiary nexus to the defendant.” Id.; see also Poole v.

State, 997 So. 2d 382, 395 n.5 (Fla. 2008) (holding that it was not

improper for the prosecutor to suggest that the jury “shouldn’t care

- 41 -
what [the defendant] was doing in the fourth grade” since he was 39

years old when he murdered the victim).

Similarly, in the present case, the prosecutor stated that

Cruz’s injury happened as a preteen, emphasizing the amount of

time between the injury and the murder. Further, the prosecutor’s

comment that the injury has “no bearing” goes to his argument that

the jury should not connect the injury to any alleged brain injury in

weighing mitigation. Accordingly, these comments do not

constitute fundamental error.

Cruz also argues that the prosecutor improperly appealed to

the fears and prejudices of the jury in his closing argument.

Specifically, Cruz challenges the following statement: “This was a

brutal crime. It’s the kind of crime that frightens you to your core.

It’s the reason that children fear the darkness. It’s why people have

locks on their doors and keep guns for protection.”

This Court has consistently held that a prosecutor may not

“impermissibly inflame[] the passions and prejudices of the jury

with elements of emotion and fear.” Brooks v. State, 762 So. 2d

879, 900 (Fla. 2000). Further, when a prosecutor gives “a

dissertation on evil,” effectively cautioning the jurors that they

- 42 -
would be cooperating with evil should they recommended life

imprisonment, the prosecutor “has ventured far outside the scope

of proper argument.” King v. State, 623 So. 2d 486, 488 (Fla. 1993)

(quoting Garron v. State, 528 So. 2d 353, 359 (Fla. 1988)). This

Court has also concluded that a “message to the community”

argument, “urg[ing] the jury to consider the message its verdict

would send to the community at large,” is “an obvious appeal to the

emotions and fears of the jurors,” and therefore, is improper.

Bertolotti v. State, 476 So. 2d 130, 133 (Fla. 1985).

Here, Cruz has failed to show how the prosecutor’s comments

improperly inflamed the passions of the jury and amount to

fundamental error. See Braddy, 111 So. 3d at 855-56 (concluding

that the prosecutor’s comments on the determination that the State

has to make in bringing a death penalty case, the prosecutor’s

depiction of the child victim’s fear using the pronoun “you,” the

prosecutor’s questioning of the defendant’s wife regarding the

defendant’s alleged extramarital affairs, and the prosecutor’s

denigration of defense counsel strategy did not cumulatively deprive

the defendant of a fair trial).

- 43 -
 Cruz contends that the prosecution improperly manufactured

an imaginary script about what the victim was hearing:

You know they talked about it. Christopher Jemery laid
there bound and gagged, forced to listen to them. When
they were satisfied that they had taken everything of
value from his home, you know, there was a conversation
about how it was going to end. That poor man had to
listen to it.

Arguments that are based on facts in evidence and do not

amount to an improper “golden rule” argument are not error. See

Rogers v. State, 957 So. 2d 538, 549 (Fla. 2007). In Rogers, the

prosecutor described the consciousness of the victim, the pain she

felt while being stabbed, and her thoughts in her final twenty

minutes alive. Id. This Court concluded that the prosecutor’s

arguments were based upon facts in evidence and did not place the

jury in the position of the victim. Id.

Here, the prosecutor’s comment was likewise based on facts in

evidence. Cruz and Charles broke into Jemery’s apartment, beat

him, bound and gagged him, and ransacked his apartment. Cruz

and Charles put Jemery in the trunk of his rental car, took Jemery

to a remote location, and shot him. Therefore, the evidence

- 44 -
demonstrated that there were likely times where Jemery had to

listen to discussions between Cruz and Charles.

Further, the cases cited by Cruz are unpersuasive and

distinguishable. See Garron, 528 So. 2d at 358-59 n.6 (concluding

that arguments that invited the jury to feel what the victim felt

when she was shot in the chest and dragged into the bathroom

were “clearly prohibited”); Bertolotti, 476 So. 2d at 133 (concluding

that the prosecution “inviting the jury to imagine the victim’s pain,

terror and defenselessness” was an improper “golden rule”

argument). Accordingly, we deny relief on this basis.

9. Prior Felony Conviction

Cruz argues next that the trial court erred by admitting

evidence of his prior conviction of robbery with a firearm. Cruz

argues that admitting this evidence violated section 90.403, Florida

Statutes (2019) (“Relevant evidence is inadmissible if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of issues, misleading the jury, or needless presentation of

cumulative evidence.”). However, because Cruz did not object to

the conviction’s admissibility, we review only for fundamental error.

- 45 -
 During the penalty phase, the State presented the testimony of

Deandre Perez, a former manager of Hungry Howie’s in Sanford.

Perez was working a shift when two individuals entered through the

back door unexpectedly. One of the men, later identified as Cruz,

walked up to Perez and hit him twice in the face with a gun, once

above his eyebrow and once on the cheek. Perez gave them the

money in the till, and they left. A surveillance video capturing the

robbery was introduced into evidence during the penalty phase,

along with Cruz’s judgment and sentence resulting from the

robbery. The trial court relied on this prior conviction exclusively in

finding the prior violent felony aggravator.

Cruz claims that the introduction of this evidence was far

more prejudicial than probative because it was used in proving the

prior violent felony aggravating factor. However, there was no error,

let alone fundamental error, in the trial court’s admission of the

prior conviction of robbery with a firearm.

“This Court has held that it is appropriate in the penalty

phase of a capital trial to introduce testimony concerning the details

of any prior felony conviction involving the use or threat of violence

to the person rather than the bare admission of the conviction.”

- 46 -
Rhodes v. State, 547 So. 2d 1201, 1204 (Fla. 1989). As this Court

has explained, “[t]estimony concerning the events which resulted in

the conviction assists the jury in evaluating the character of the

defendant and the circumstances of the crime so that the jury can

make an informed recommendation as to the appropriate sentence.”

Id. Such testimony would also be relevant in determining what

weight to give to the prior violent felony aggravator. See Seibert v.

State, 64 So. 3d 67, 79 (Fla. 2010).

Jemery was killed on April 26, 2013, Cruz committed the

robbery at Hungry Howie’s on May 6, 2013, and Cruz was arrested

on May 10, 2013. Cruz’s prior conviction of robbery with a firearm

and the corresponding testimony was relevant to the prior violent

felony aggravating factor. Therefore, we deny relief on this basis.

10. Prior Robbery of Drug Dealer

Cruz also argues that he did not receive a fair penalty phase

because the State’s expert testified that Cruz had been involved in a

prior robbery of a drug dealer. However, because Cruz did not

object to the testimony, we review only for fundamental error. See

Lawrence v. State, 614 So. 2d 1092, 1094 (Fla. 1993) (explaining

- 47 -
that a timely objection must be made to collateral crime evidence or

any error in its admission is waived).

During the State’s rebuttal at the penalty phase, the State’s

expert, Dr. William Riebsame, testified that Cruz told him that he

committed the crime because he needed the money for drugs and

that he had previously robbed a drug dealer in a similar manner.

Dr. Riebsame’s testimony was relevant to this issue of motive.

§ 90.404(2)(a), Fla. Stat. (2019) (“Similar fact evidence of other

crimes, wrongs, or acts is admissible when relevant to prove a

material fact in issue, including, but not limited to, proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident, but it is inadmissible when the

evidence is relevant solely to prove bad character or propensity.”).

Further, even if the admission of the testimony was erroneous, for

an improper statement pertaining to a collateral crime to be

considered fundamental error in a capital trial, the statement must

be so prejudicial as to reach down into the validity of the trial itself

to the extent that a “jury recommendation of death could not have

been obtained without the assistance of the alleged error.” Peterson

v. State, 94 So. 3d 514, 524 (Fla. 2012). Here, the testimony did

- 48 -
not go to the foundation of the case and was not a feature of the

trial. Accordingly, because Cruz fails to establish fundamental

error, we deny relief on this claim.

11. Enmund-Tison Finding

Cruz argues that the trial court erred in failing to instruct the

jury to make an Enmund-Tison determination in its penalty-phase

verdict. As this Court has explained:

[T]he Supreme Court’s decisions in Enmund and Tison
addressed the constitutionality, in multi-participant
felony murder cases, of imposing a death sentence on
someone other than the person who actually killed the
victim. We summarized those cases as standing for the
proposition that “the death penalty may be proportional
punishment if the evidence shows both that the defendant
was a major participant in the crime, and that the
defendant’s state of mind amounted to reckless
indifference to human life.”

Smiley, 295 So. 3d at 175 (quoting Jackson v. State, 575 So. 2d

181, 191 (Fla. 1991)); see also Perez v. State, 919 So. 3d 347, 365

(Fla. 2005) (“[T]rial courts in Florida have been directed to instruct

the jury ‘before its penalty phase deliberations that in order to

recommend a sentence of death, the jury must’ ‘make findings

satisfying Enmund and . . . Tison’ [and] ‘the trial courts shall

include in their sentencing orders findings supporting the

- 49 -
Enmund/Tison culpability requirement.’ ”) (citations omitted) (first

quoting Jackson v. State, 502 So. 2d 409, 413 (Fla. 1986), and then

quoting Diaz v. State, 513 So. 2d 1045, 1048 n.2 (Fla. 1987)).

During the penalty phase, Cruz did not object to the omission of

this direction to the jury, so we review it now for fundamental error.

See State v. Delva, 575 So. 2d 643, 644 (Fla. 1991) (“[Jury]

[i]nstructions . . . are subject to the contemporaneous objection

rule, and, absent an objection at trial, can be raised on appeal only

if fundamental error occurred.”).

In its sentencing order, the trial court conducted an Enmund-

Tison analysis, finding as follows:

The jury found Mr. Cruz to be the individual who
shot and killed Jemery. In Mr. Charles’ case, the State
abandoned any efforts to establish Mr. Charles as the
shooter. The jury in Mr. Charles’ case did not have to
make a determination as to who the shooter was because
of the State’s concession. However, the jury in Mr.
Charles’ case did find him guilty of both, premeditated
murder AND felony murder.
Therefore, this court finds that Mr. Cruz in fact
killed Jemery and no further analysis is needed.

In this case, even without the evidence of his possession and

use of the .22-caliber firearm introduced at Charles’ trial, the jury

found Cruz guilty of first-degree premeditated and felony murder,

- 50 -
burglary while armed, robbery with a firearm, and kidnapping. The

record thus supports the finding that Cruz “was not merely an aider

or abetter in a felony where a murder was committed by others.”

Stephens v. State, 787 So. 2d 747, 760 (Fla. 2001). And the record

also supports the finding of “major participation in the felony

committed, combined with reckless indifference to human life.”

Tison, 481 U.S. at 158; see also Jackson v. State, 502 So. 2d 409,

412 (Fla. 1986) (“[B]y being a major participant in the armed

robbery, [the defendant], at the very least, contemplated that life

would be taken.”). On such a record, we cannot say that the

omission of a specifically labeled Enmund-Tison instruction

constitutes fundamental error. Accordingly, Cruz is not entitled to

relief on this claim.

12. Sentencing Order

Cruz challenges several claims related to the sentencing order,

arguing that the trial court failed in the following four ways in

sentencing him to death: (a) Cruz’s death penalty is

disproportionate in comparison to other death sentences and

Charles’ life sentence; (b) the trial court improperly relied on facts

not found in the record; (c) the trial court gave the aggravating

- 51 -
factors too much weight, or the evidence that the trial court relied

on was not dispositive and purely circumstantial; and (d) the trial

court failed to give the mitigating circumstances sufficient weight.

We address each claim in turn. However, only one issue is

dispositive, and we conclude that the trial court improperly relied

on facts not in the record in sentencing Cruz to death.

A. Proportionality

Cruz first argues that his death sentence is disproportionate in

comparison with other death penalty cases. Given our recent

decision in Lawrence v. State, 308 So. 3d 544 (Fla. 2020) (receding

from the judge-made requirement to review the comparative

proportionality of death sentences as contrary to the conformity

clause of article I, section 17 of the Florida Constitution), we need

not address this claim.

We do not reach the issue of relative culpability and Cruz’s

argument that codefendant Charles’ life sentence should also

provide a life sentence for Cruz because of the need for resentencing

caused by the error of reliance on facts not in evidence.

- 52 -
 B. Reliance on Facts Not in Evidence

Cruz also argues that the trial court improperly sentenced him

to death based on facts that were not admitted during the guilt

phase and facts from codefendant Charles’ subsequent trial. We

agree and reverse and remand for the limited purpose of

resentencing by the trial court and a new sentencing order.

The judge in Cruz’s case also presided over the trial of

codefendant Charles. In the sentencing order, the trial court noted

this fact and explained that he heard and considered evidence of

the case in Cruz’s and Charles’ trials. Specifically, the sentencing

order provides:

Mr. Charles was tried in identical fashion—with the State
seeking a death penalty against him for the same
identical charge as Mr. Cruz. The Charles jury heard
virtually the same case and found him guilty as charged
in the indictment. However, on October 30, 2019, the
jury reached a different conclusion on the sentence Mr.
Charles received. Charles’ sentence verdict was for life in
prison without the possibility of parole for his
participation in the killing of Jemery.
In sum, this court has heard and considered the
evidence of this same case in two occasions. The first
instance being the jury trial of Christian Cruz. The
second instance being the jury trial of Justen Charles. In
both instances the jurors reached exactly the same
verdicts—with the exception of a life sentence
recommendation for Mr. Charles. . . .
....

- 53 -
 In Mr. Charles’ trial, the State and the defense
reached a stipulation which was not made in the Cruz
trial. The stipulation was that Jemery suffered no pain
after he was shot. The court finds that Mr. Cruz should
benefit from the same stipulated finding and finds here
that Jemery suffered no pain after he was shot.
....
. . . [I]t is important to highlight the material
difference between Mr. Cruz’s trial and his co-defendant’s
(Mr. Charles) trial. In Mr. Cruz’s trial the jury made a
specific finding that Mr. Cruz’s was in fact the person
who pulled the trigger and shot Mr. Jemery in the head.
In Mr. Charles’s trial, the State adopted the theory (and
Mr. Charles consented) to the fact that Mr. Charles was
not the person who shot Mr. Jemery. . . .
....
The court (and without objection from the defense)
deferred the imposition of sentence until the time that
Mr. Charles’ case was tried. The trial occurred roughly
six months after the verdict in Mr. Cruz’s trial.
Mr. Charles’ trial went exactly the same way as Mr.
Cruz’s with one exception. One of the jury findings in
Mr. Cruz’s guilt phase was a determination that Mr. Cruz
was the shooter. Satisfied that Mr. Cruz had been
determined to be the actual killer of Mr. Jemery, the
State conceded and stipulated that Mr. Charles was not
the shooter.
Despite the stipulation of the State, the jury in Mr.
Charles’ case found him guilty of both, Premeditated
Murder and Felony Murder—just like Mr. Cruz. The
penalty phase verdict then provided the greatest insight
into the analysis of this case. In the penalty phase
verdict for Mr. Charles, the jury found that:

1. All aggravators were proven beyond a reasonable
doubt.
2. That the aggravators warranted a possible
sentence of death.

- 54 -
 3. That at least one or more mitigating
circumstances had been established.
4. That the aggravators outweighed the mitigating
circumstances.
5. That Mr. Charles should be sentenced to life.

With the exception of their finding of a life sentence
for Mr. Charles, Mr. Cruz’s verdict was identical. That
means that two separate juries of twelve people heard the
same case and reached almost the same exact conclusion
in their verdicts.
This court is convinced that the only thing that
made a difference in Mr. Charles’ case and spared him
the death sentence was the fact that the State stipulated
that he was not the shooter in this case.

In its sentencing order, the trial court also relied on facts not

in evidence in Cruz’s guilt phase:

Justen Charles’ girlfriend testified that while at her
apartment the defendant displayed a firearm. The
firearm was a .22 caliber handgun. Mr. Charles’
girlfriend testified that she wanted Mr. Charles to remain
with her but that Mr. Charles and the defendant left the
apartment claiming that they would come back.
....
. . . She also testified that Mr. Charles carried a
9mm handgun with him as well.
....
. . . The court rejects the testimony of jail house
witnesses who testified in Mr. Charles’ trial and said that:

Mr. Charles told Mr. Cruz not to kill Mr.
Jemery—to let him go. But Mr. Cruz replied
that “he had to be killed because he could
identify them.”

- 55 -
 It is improper for a trial court to consider “evidence from a

different trial that was not introduced in the guilt phase of the

present trial.” Davis v. State, 207 So. 3d 177, 192 (Fla. 2016)

(quoting Dailey v. State, 594 So. 2d 254, 259 (Fla. 1991)).

In sentencing Cruz to death, the trial court relied on evidence

from Charles’ trial, specifically the testimony of Charles’ girlfriend

regarding seeing Cruz with a .22 caliber firearm, as well as the

stipulation in Charles’ trial that Cruz was the shooter. However,

there is no competent, substantial evidence presented in Cruz’s trial

to support the jury’s finding that Cruz was the shooter. We cannot

determine what weight the trial judge gave to the finding that Cruz

was the shooter or what part the nonrecord evidence from

codefendant Charles’ trial played in Cruz’s sentence. Here, this was

error that cannot be considered harmless.

Accordingly, although we affirm Cruz’s convictions, we vacate

his death sentence and remand for resentencing by the trial court

and a new sentencing order. We direct the trial court to reevaluate

and resentence Cruz based solely on the record evidence presented

in Cruz’s trial, not codefendant Charles’ trial. A new penalty phase

is not necessary.

- 56 -
 C. Aggravating Factors

Cruz makes a series of claims related to the trial court’s

findings on the aggravating factors in the sentencing order.

Specifically, Cruz challenges the weight assigned to the prior violent

felony and commission of a felony aggravating factors. Cruz also

contends there is insufficient evidence to support the financial gain,

HAC, avoid arrest, and CCP aggravating factors.

This Court has explained:

“When reviewing a trial court’s finding of an aggravator,
‘it is not this Court’s function to reweigh the evidence to
determine whether the State proved each aggravating
circumstance beyond a reasonable doubt—that is the
trial court’s job.’ ” Rather, it is this Court’s task on
appeal “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.”

Martin v. State, 151 So. 3d 1184, 1192-93 (Fla. 2014) (citation

omitted) (quoting Williams v. State, 37 So. 3d 187, 195 (Fla. 2010)).

i. Prior Violent Felony

First, Cruz challenges the weight the trial court assigned to

the prior violent felony aggravator because the violent felony

occurred after Jemery was killed. However, Cruz fails to identify

any authority in support of this claim. “The weight to be accorded

- 57 -
an aggravator is within the discretion of the trial court and will be

affirmed if based on competent, substantial evidence.” Frances v.

State, 970 So. 2d 806, 816 (Fla. 2007).

The trial court found this aggravator proven beyond a

reasonable doubt and assigned “great weight” to the aggravator.

The trial court relied on the evidence of the robbery Cruz and

Charles committed at a Hungry Howie’s in Sanford, Florida, as well

as the certified judgment and sentence of the conviction resulting

from the robbery. The trial court also relied on the video

surveillance footage of the robbery, finding as follows:

The video graphically demonstrated the brazen and
violent nature of the defendant’s conduct. He seems
awfully comfortable in committing the crime. His
treatment of the victims in the video is shocking and
appalling, demonstrating a total disregard for human
decency. The defendant’s unabashed and bold attitude is
visually clear. While it is fair to say that all robberies are
crimes of violence, the severity of this particular crime
separates it from most in that the treatment of the
victims created sheer terror during the crime. There’s no
doubt in the court’s mind that all who saw the video
agonized with the thought of not knowing whether
someone was about to be killed during the robbery.

Competent, substantial evidence supports the trial court’s

finding of the prior violent felony aggravator. Evidence presented

during the penalty phase included the testimony of Deandre Perez,

- 58 -
as well as the certified judgment and sentence of the conviction

resulting from the robbery and video surveillance footage of the

robbery. The prior violent felony is one of “the weightiest

aggravators in Florida’s statutory scheme.” Gonzalez v. State, 136

So. 3d 1125, 1167 (Fla. 2014). Further, Cruz’s argument

challenging the weight the trial court assigned to the prior violent

felony aggravator because the violent felony occurred after Jemery

was killed is without merit. See Elledge v. State, 346 So. 2d 998,

1001 (Fla. 1977) (establishing that the prior violent felony

aggravator applies even when the aggravating offense was

committed after the charged murder). We deny Cruz’s claim for

relief.

ii. Commission of a Felony

Cruz also argues that the trial court erred in assigning great

weight to the fact that the first-degree murder was committed in the

course of the robbery, burglary, or kidnapping. Specifically, Cruz

alleges that the trial judge should not have assigned great weight

because the State did not present adequate evidence proving that

Cruz was the driving force behind the contemporaneous burglary,

robbery, or kidnapping. This Court reviews a trial court’s

- 59 -
assignment of weight to aggravators for abuse of discretion. See

Gilliam v. State, 582 So. 2d 610, 611-12 (Fla. 1991).

In evaluating the evidence of the burglary, robbery, and

kidnapping, the trial court stated,

The State presented strong circumstantial evidence of
how the killing came about and the events that preceded
the killing. The purpose for the crime was proven by
showing that Mr. Walters was a drug dealer and resided
in the same apartment as Mr. Jemery shortly before the
robbery. Mr. Charles personally knew Mr. Walters and
had purchased and/or used drugs there before.
....
The evidence showed that the commission of the
burglary and robbery took a fair amount of time. The
defendant and the codefendant had to spend time in
both, ransacking the apartment, and forcing Mr. Jemery
to provide them with information, money, or controlled
substances he simply did not have. That is when Mr.
Jemery was kidnapped and placed in the trunk of his
own vehicle.
Proof of blood in the trunk of the vehicle was
circumstantial evidence that after his apartment was
invaded, burglarized and he was robbed, the defendants
placed Mr. Jemery in the trunk of the vehicle and
kidnapped him and transported him to the place of the
shooting. The fact that Mr. Jemery was found miles from
his apartment in an open field in Seminole County
further establishes the kidnapping. The burglary,
robbery and kidnapping ended when Mr. Cruz shot Mr.
Jemery in the head for the express purpose of killing
him.

Competent, substantial evidence supports the trial court’s

finding of the murder committed in the course of a felony

- 60 -
aggravator. The evidence presented established that Cruz and

Charles broke into Jemery’s apartment, beat him, and robbed him.

Cruz and Charles also stole a television and a prescription bottle

from the apartment, and Cruz was seen removing money from

Jemery’s account at an ATM. Further, blood found in the trunk of

Jemery’s car demonstrated that Jemery was placed in the trunk

and driven to the field where he was shot and found miles from his

home. Accordingly, because the trial court did not abuse its

discretion, we deny relief on this claim.

iii. Financial Gain 7

Next, Cruz challenges the trial court’s finding that the murder

was committed for financial gain because the evidence was

circumstantial. This aggravator is applicable in capital cases where

the murder was “motivated, at least in part, by a desire to obtain

money, property, or other financial gain.” Durousseau v. State, 55

7. In the sentencing order, the trial court merged pecuniary
gain and murder in the course of a felony as a single merged
aggravator. However, because the trial court analyzed these two
aggravators separately, and Cruz challenged the findings
separately, we analyze them separately.

- 61 -
So. 3d 543, 558 (Fla. 2010) (quoting Finney v. State, 660 So. 2d

674, 680 (Fla. 1995)).

In assigning great weight to this aggravator, the trial court

stated the following:

The indictment in this case alleged that the robbery
committed by the defendant deprived the victim of “a
television and/or a container of medication or narcotics
and/or U.S. currency of some value . . . .” At trial, the
evidence shows that the defendant’s purpose in coming
to Mr. Jemery’s apartment was to rob Mr. Walters and
obtain something of value. Upon failing to find Mr.
Walters, they did not abandon their efforts but instead
took it upon themselves to forcefully compel and extricate
from Mr. Jemery something of value for their crime.
Although it was proven at trial that in fact the defendant
and the codefendant stole items from Mr. Jemery’s
apartment, the most compelling piece of evidence is the
ATM’s photograph of Mr. Cruz withdrawing money from
Mr. Jemery’s account shortly after the kidnapping. It is
unfathomable to think that Mr. Jemery would have
willingly given his debit card and PIN number to Mr.
Cruz, except under the most compelling of
circumstances. The burglary, robbery and kidnapping
would have left Mr. Jemery with no option but to give
everything he had in order to save his life.

Competent, substantial evidence supports the trial court’s

finding as to the financial gain aggravator. Evidence presented at

trial established that a television was removed from the apartment,

along with a prescription bottle of pills. Further, ATM surveillance

video footage showed Cruz using Jemery’s debit card on the night

- 62 -
he was killed. See Huggins v. State, 889 So. 2d 743, 770 (Fla. 2004)

(concluding there was competent, substantial evidence to support a

trial court’s finding of the pecuniary gain aggravator when the

defendant stole the victim’s car and jewelry). Accordingly, we deny

relief on this claim.

iv. HAC

Cruz also argues that there is insufficient evidence to support

the HAC aggravator. In applying this aggravator, the trial court

found:

The constellation of injuries suffered by Mr. Jemery
during the robbery and kidnapping can be separated into
two events. The court is reasonably certain that the
beating of his body, whether by hand or other objects
occurred while Mr. Jemery was within his own home. It
is unknown whether Mr. Jemery resisted to any degree,
or whether the assault upon his body was gratuitous
violence, but under either scenario the analysis here is
not altered.
....
Again, it is reasonable to conclude that Mr. Jemery
suffered anguish and fear during the burglary, robbery,
and especially after he was kidnapped. There’s no doubt
that Mr. Jemery was alive and conscious when the
robbery was taking place. Furthermore, he must have
been alive and conscious when he was gagged and bound
and kidnapped from the home. Sheer terror must have
filled his mind knowing that he had been taken to a
strange location—in what only can be described as the
killing field. No mercy was shown to Mr. Jemery.

- 63 -
 The HAC aggravator applies to murders that are both

“conscienceless or pitiless and unnecessarily torturous to the

victim.” Francis v. State, 808 So. 2d 110, 134 (Fla. 2001). The

focus is “on the means and manner in which death is inflicted and

the immediate circumstances surrounding the death.” Buzia v.

State, 926 So. 2d 1203, 1211-12 (Fla. 2006) (quoting Barnhill v.

State, 834 So. 2d 836, 850 (Fla. 2002)). Gunshot murders can

qualify as HAC if the events preceding the death “cause the victim

fear, emotional strain, and terror.” Marquardt v. State, 156 So. 3d

464, 488 (Fla. 2015). To support HAC, “the evidence must show

that the victim was conscious and aware of impending death.” King

v. State, 130 So. 3d 676, 684 (Fla. 2013) (quoting Douglas v. State,

878 So. 2d 1246, 1261 (Fla. 2004)). “However, the victim’s

perception of imminent death need only last seconds for this

aggravator to apply.” Gonzales v. State, 136 So. 3d 1125, 1162 (Fla.

2014).

Competent, substantial evidence supports the trial court’s

finding of the HAC aggravator. Jemery’s blood was found

throughout his apartment, indicating that he sustained a beating

before being shot. Jemery sustained numerous injuries to his

- 64 -
head, face, hands and torso, including cuts, bruises, and

lacerations. Further, Jemery was taken from his home and placed

in the trunk of his rental car, as evidenced by his blood found in

the trunk. Jemery was shot in the head and found alive in a field,

and his arms and mouth were bound with wire and duct tape. See

Patrick v. State, 104 So. 3d 1046, 1066-67 (Fla. 2012) (upholding a

finding of the HAC aggravator when the victim was beaten during

the commission of the murder and the sentence of death was

imposed). Accordingly, we deny relief on this claim.

v. Avoid Arrest

Next, Cruz argues that there is insufficient evidence to support

the avoid arrest aggravator. “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). “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

- 65 -
witness.’ ” Id. (quoting Preston v. State, 607 So. 2d 404, 409 (Fla.

1992)).

“Even without direct evidence of the offender’s thought

processes, the arrest avoidance factor can be supported by

circumstantial evidence through inference 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 v. State, 4 So. 3d 642,

667 (Fla. 2009). 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, 801 So. 2d at 54.

Competent, substantial evidence supports the trial court’s

finding that Cruz killed Jemery in order to avoid arrest. First,

although Jemery did not personally know Cruz or Charles, Jemery

had friends who knew Cruz and Charles and would be able to

identify them. Jemery also resisted the attack by Cruz and Charles,

as evidenced by the defensive wounds to Jemery’s right arm. Being

bound, gagged, and placed in the trunk of his car before being

- 66 -
driven to a remote location to be killed also supports the conclusion

that Cruz killed Jemery with the purpose of eliminating him as a

witness and to avoid potential arrest. See Hoskins v. State, 965

So. 2d 1, 19-20 (Fla. 2007) (concluding that the victim’s ability to

identify the defendant, the defendant’s ability to leave with little

resistance due to the victim being bound and gagged, and the

defendant’s act of taking the victim to a remote area to kill the

victim all support the conclusion that the killing was to eliminate

the sole witness to the crimes). Accordingly, we deny relief on this

claim.

vi. CCP

Finally, Cruz argues that the trial court erred in finding that

the CCP aggravator was proven beyond a reasonable doubt. To

prove the CCP aggravator, the court must find that

the killing was the product of cool and calm reflection
and not an act prompted by emotional frenzy, panic, or a
fit of rage (cold); that the defendant had a careful plan or
prearranged design to commit murder before the fatal
incident (calculated); that the defendant exhibited
heightened premeditation (premeditated); and that the
defendant had no pretense of moral or legal justification.

Franklin v. State, 965 So. 2d 79, 98 (Fla. 2007).

- 67 -
 The CCP aggravator may be proven by demonstrating such

facts as (1) “advance procurement of a weapon,” (2) “lack of

resistance or provocation,” (3) “the appearance of a killing carried

out as a matter of course,” id. at 98 (quoting Swafford, 533 So. 2d

at 277), and (4) “[t]aking a victim to an isolated location or choosing

an isolated location to carry out an attack.” Id. at 99.

Here, competent, substantial evidence supports the trial

court’s finding of the CCP aggravator. Jemery was bound by duct

tape, meaning he could no longer resist the attacks by Cruz and

Charles. Also, Cruz and Charles took their time in carrying out

their crimes: they initially broke into his apartment; they beat

Jemery as evidenced by his blood in the apartment; they bound and

gagged him with duct tape and wire; they ransacked the apartment;

and finally, they drove to a remote location in an industrial area

and shot Jemery. Evidence at trial also established that Cruz and

Charles were inquiring about the former resident of Jemery’s

apartment, the apartment, and drugs in the apartment shortly

before Jemery was killed. Accordingly, we deny relief.

- 68 -
 D. Mitigating Circumstances

Last, Cruz argues that the trial judge did not give sufficient

weight to multiple mitigating circumstances. “This Court reviews a

trial court’s assignment of weight to mitigation under an abuse of

discretion standard,” Bevel v. State, 983 So. 2d 505, 521 (Fla.

2008), and “will not disturb the sentencing judge’s determination as

to the ‘relative weight to give each established mitigator’ where that

ruling is ‘supported by competent substantial evidence,’ ” Gill v.

State, 14 So. 3d 946, 964 (Fla. 2009) (quoting Blackwood v. State,

777 So. 2d 399, 412-13 (Fla. 2000)).

First, Cruz argues that the trial court referred to Cruz’s refusal

to accept a plea prior to trial, which amounted to consideration of a

nonstatutory aggravator. However, this argument is without merit.

In the sentencing order, the trial court specifically listed the

aggravators that it considered and assigned weight to each of them,

and this was not one of them. The trial court began the

introduction of mitigation by discussing some procedural history of

the case. There is no other indication in the sentencing order that

Cruz’s refusal to accept a plea prior to trial was considered as a

nonstatutory aggravator in the sentencing.

- 69 -
 Cruz further argues that the trial court improperly gave many

of the mitigating circumstances slight weight. However, this

challenge constitutes nothing more than a disagreement as to the

weight assigned to varying mitigating circumstances. This is not a

basis for relief. See Fletcher v. State, 168 So. 3d 186, 218 (Fla.

2015) (“Simple disagreement with the weight given by the trial court

is not a basis for relief, so we deny these claims.”). Here, the trial

court found all 37 mitigating circumstances as proven and assigned

weight to every mitigating circumstance. 8 Because the trial court

did not abuse its discretion, we deny relief.

13. Constitutionality of Florida’s Death Penalty

Cruz next asserts that Florida’s capital sentencing scheme is

unconstitutional for the following reasons: (1) there are so many

aggravators that almost every murder is death eligible; (2) the

indictment failed to allege any aggravating factors; (3) the jury was

not given proper guidance on determining the existence of the

8. We also reject Cruz’s argument that the trial court
improperly required a nexus between the crime and the mitigating
evidence. See Fletcher, 168 So. 3d at 219 (“Although a trial court
cannot require a nexus between the crime and mitigating evidence,
the court may place mitigating evidence in context.”).

- 70 -
sentencing factors or how to weigh them; (4) the aggravating

circumstance of murder in the commission of a felony amounts to

an automatic aggravating factor in felony murder cases creating a

presumption for a death sentence; (5) the jury was permitted to

consider victim impact evidence, which is not relevant as an

aggravating factor; (6) the prior violent felony aggravating factor is

improperly vague and overbroad, as it does not require the “prior”

conviction used to be final and allows contemporaneous convictions

and even offenses occurring after the charged homicide to be used,

thus impermissibly expanding the word “prior” beyond clear

legislative language; and (7) the HAC factor is vague and overbroad.

However, Cruz’s arguments are ones that this Court has

repeatedly rejected. See Lugo v. State, 845 So. 2d 74, 119 (Fla.

2003) (rejecting as meritless the argument that Florida’s capital

sentencing scheme “fails to limit the class of persons eligible for the

death penalty”); Miller v. State, 42 So. 3d 204, 215 (Fla. 2010)

(rejecting as meritless the argument that “an indictment must allege

the required factual findings in support of a death sentence”

because “Florida’s capital sentencing scheme withstands

constitutional scrutiny because it provides sufficient notice of the

- 71 -
charges against the accused”); Reynolds v. State, 251 So. 3d 811,

823-28 (Fla. 2018) (rejecting argument that Standard Jury

Instruction 7.11 did not give the jury proper guidance); Bush v.

State, 295 So. 3d 179, 213-14 (Fla. 2020) (“The trial court

instructed the jury with the standard jury instruction on victim

impact testimony, including the instruction that victim impact

testimony was not to be used for finding aggravation and was not to

be considered as an aggravating factor.”); Blanco v. State, 706

So. 2d 7, 11 (Fla. 1997) (rejecting the argument that the murder in

the commission of a felony aggravator amounts to an automatic

aggravating factor creating a presumption for a death sentence

because “[t]he list of enumerated felonies in the provision defining

felony murder is larger than the list of enumerated felonies in the

provision defining the aggravating circumstance of commission

during the course of an enumerated felony”); Bonifay v. State, 680

So. 2d 413, 420 (Fla. 1996) (“Family members are unique to each

other by reason of the relationship and the role each has in the

family. A loss to the family is a loss to both the community of the

family and to the larger community outside the family. Therefore,

we find this testimony relevant.”); Knight v. State, 923 So. 2d 387,

- 72 -
411 (Fla. 2005) (rejecting claims that the prior violent felony

aggravating factor is unconstitutionally vague and overbroad);

Gilliam, 582 So. 2d at 612 (rejecting as meritless the argument that

the jury instruction on HAC is unconstitutionally vague). We

decline to revisit these precedents here.

14. Cumulative Effect of Penalty-Phase Errors

Cruz argues that the cumulative effect of the errors in the

penalty phase of his trial deprived him of due process and a reliable

sentencing. As discussed in the analysis of the individual issues

above, because there were no individual errors in the jury portion of

the penalty phase, we conclude that there was no cumulative error

pertaining to the jury portion of the penalty phase. See Fletcher,

168 So. 3d at 216. Therefore, a new penalty phase is not required.

However, because we conclude that the trial court improperly relied

on facts not in the record in sentencing Cruz to death and are

remanding for a new sentencing by the trial court and a new

sentencing order, we do not address the cumulative error pertaining

to the judge portion of the penalty phase.

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 15. Sufficiency of the Evidence

“In appeals where the death penalty has been imposed,”

regardless of whether the defendant raises the sufficiency of the

evidence as an issue on appeal, this Court “independently reviews

the record to confirm that the jury’s verdict is supported by

competent, substantial evidence.” Davis v. State, 2 So. 3d 952,

966-67 (Fla. 2008); see also Fla. R. App. P. 9.142(a)(5).

Cruz was convicted of both first-degree premeditated and

felony murder, and the convictions can be upheld on appeal if the

evidence is sufficient to support either theory. Cruz’s fingerprint

was found on a piece of duct tape recovered from Jemery’s body.

Cruz’s DNA was found on a swab of blood taken from the front right

kick panel and the right front door of Jemery’s car. Cruz’s

fingerprint was also found on the Air Jordan shoe box found at

Jemery’s apartment and on Jemery’s cell phone, which was

recovered from Jemery’s car. Footprints made in blood matching

the shoes of Cruz were found inside the apartment. Further, ATM

surveillance video footage showed Cruz using Jemery’s debit card

on the night he was killed. With regard to premeditation, the State

presented evidence establishing that the day before the murder,

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Cruz and Charles were together in the vicinity of Jemery’s

apartment and asked about the apartment and drugs. Competent,

substantial evidence supports Cruz’s first-degree murder

convictions.

CONCLUSION

We affirm Cruz’s convictions but reverse and remand for the

limited purpose of requiring the trial court to perform a new

sentencing evaluation and provide a new sentencing order.

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
COURIEL, and GROSSHANS, JJ., concur.

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

An Appeal from the Circuit Court in and for Volusia County,
Raul A. Zambrano, Judge – 642013CF102943XXXADL

J. Rafael Rodriguez of Law Offices of J. Rafael Rodriguez, Miami,
Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Patrick
Bobek, Assistant Attorney General, Daytona Beach, Florida,

for Appellee

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