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,
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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.
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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. . . .
....
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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.
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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.”
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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.
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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
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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.
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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
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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
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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.
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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.
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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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