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Everett v. State11/24/2004
We review a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As explained below, we affirm both.
I. THE FACTS AND PROCEDURAL HISTORY
The evidence at trial showed that during the late afternoon or early evening of November 2, 2001, appellant approached Kelly M. Bailey's home, looking for money and carrying a wooden fish bat or billy club. A stranger to the victim, appellant entered her home uninvited. When Ms. Bailey confronted him, appellant beat her, and as she tried to escape, knocked her down and raped her. He also forcefully twisted her neck, breaking a vertebra, which paralyzed her and caused her to suffocate to death. Before leaving, appellant removed his t-shirt, but he took with him some money from the victim's purse, his fish bat, her credit card, and her sweater. Outside the house, he discarded all but the cash. The victim suffered multiple injuries: a knocked-out tooth; a fractured nose; swollen eyelids; lacerations and bruising of her lips; a lacerated lip through which her teeth protruded; abrasions and carpet burns; a broken neck; and vaginal abrasion evidencing the use of force and consistent with nonconsensual sexual intercourse.
Appellant was indicted on charges of first-degree murder, burglary of a dwelling with a battery, and sexual battery involving serious physical force. Among other evidence at trial, the fish bat was traced to the appellant and his DNA matched the vaginal swabs from the victim on all thirteen genetic markers tested. The jury found appellant guilty as charged.
Following the penalty phase, the jury unanimously recommended that appellant be sentenced to death. The trial court followed the jury's recommendation. It found three aggravating factors: (1) appellant was a convicted felon under a sentence of imprisonment at the time of the murder; (2) he committed the murder while engaged in the commission of a sexual battery or a burglary; and (3) the murder was especially heinous, atrocious, or cruel. The court found the following statutory mitigating factors and accorded them the weight indicated: (1) appellant's age (very little weight); (2) the crime "was committed while under the influence of some type of substance" (little weight); (3) lack of significant history of prior criminal activity (little weight); (4) family background (very little weight); and (5) drug use (little weight). The court also found non-statutory mitigating factors, with each given very little weight: (1) appellant's remorse; (2) good conduct in custody; (3) the alternative punishment of life imprisonment without parole; and (4) appellant's confession. After weighing the mitigating and aggravating factors, the court found that each of the aggravators individually outweighed the mitigation and imposed a sentence of death.
II. THE ISSUES PRESENTED
Everett raises five issues on appeal: (1) that the trial court's admission at trial of physical evidence obtained from him and his confession violated his Fifth Amendment right to silence; (2) that the trial court erred in admitting the testimony of the State's DNA expert regarding population frequency; (3) that appellant's death sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002); (4) that the standard penalty phase jury instructions violate Caldwell v. Mississippi, 472 U.S. 320 (1985); and (5) that use of the "under sentence of imprisonment" aggravator is unconstitutional because there is no evidentiary nexus between the factor and the homicide.
We affirm the judgment and sentence. Because appellant's first issue raises a question of first impression in this Court, we fully di
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