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Lugo v. State2/20/2003
cted. The trial judge overruled the objection, based in large part on the relationship of the prosecutor's argument to the cold, calculated, and premeditated (CCP) nature of the murders of Griga and Furton. At a sidebar immediately after Lugo's objection to the above remarks, the trial judge noted that during the guilt phase the State presented evidence that Lugo and Doorbal had planned not only to kidnap Griga and Furton, but also to kill them and dispose of their bodies. The CCP aggravator was at issue here and we simply note that two of the elements that must be satisfied for the CCP aggravator to apply are the existence of the defendant's cool, calm reflection and that the murder has been the product of a careful plan or prearranged design. See Woods v. State, 733 So. 2d 980 (Fla. 1999). Given the evidence of the meticulous planning of the murders in the instant case, the prosecutor's remarks are not so far afield in relationship to two elements of the CCP aggravator as to constitute reversible error. The trial judge did not abuse his discretion in allowing the prosecutor to make this argument.
Lugo did not contemporaneously object to the remainder of the prosecutor's penalty phase arguments which he now challenges. One set of comments deserves analysis.
With regard to Lugo's sentencing, the prosecutor said the following:
PROSECUTOR: Life in prison is not enough for him because he's different. Life in prison is for every single first degree murderer or those that are different get the death penalty. Though it is reserved for crimes that are different, for when the aggravating factors outweigh anything the defendant can give in mitigation. It's for different cases. It's for this case and it's for this defendant. There is no such thing, as I understand, as a run-of-the-mill first degree murder. It's a lot different.
You go into the 7-Eleven, you shot the clerk in the head, he dies like this. That's not different. The diabolical nature of this crime, the planning, what it took to commit these crimes for financial gain makes this case different. Makes life in prison with the ability to see his family, to see his children, to read newspapers, to go to the yard to workout, to do whatever he wants to do. Same thing he's been doing for three years. He deserves a punishment that's different, that fits the crime.
Lugo primarily relies on Hodges v. State, 595 So. 2d 929 (Fla. 1992), vacated on other grounds, 506 U.S. 803 (1992), for his contention that the above remarks constitute fundamental error. In Hodges, the prosecutor presented an argument similar to the one employed in the instant case, to which no contemporaneous objection was made. See id. at 933-34. We determined in Hodges that under the circumstances of the case the argument constituted harmless error. We do the same in the instant case, given the overwhelming and unrebutted evidence of Lugo's guilt, the existence of several aggravating circumstances, and a relative paucity of mitigating circumstances. The remarks did not taint the jury's verdict to the extent that a new penalty phase is warranted. See McDonald, 743 So. 2d at 505.
We also determine that relief based on fundamental error is not warranted due to the prosecutor's "no mercy" and "religion" arguments. The "no mercy" argument is similar to the one we determined to be harmless error in Kearse v. State, 770 So. 2d 1119, 1129 (Fla. 2000) (determining single comment by prosecutor that jury should not show mercy to defendant convicted of first-degree murder was harmless error), cert. denied, 532 U.S. 945 (2001). Moreover, the prosecutor's allusion to religion in her closing argument was exceedingly brief and any error that may h
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