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Everett v. State11/24/2004
either testimonial nor communicative); United States v. Smith, 3 F.3d 1088, 1098 (7th Cir.1993) ("We have held that a consent to search is not a self-incriminating statement and, therefore, a request to search does not amount to interrogation. This view comports with the view taken by every court of appeals to have addressed the issue."); United States v. Rodriguez-Garcia, 983 F.2d 1563, 1568 (10th Cir. 1993) (stating that a request for consent to search is not custodial interrogation and holding that "consent to search is not the type of incriminating statement which the Fifth Amendment was designed to address"); Cody v. Solem, 755 F.2d 1323, 1330 (8th Cir. 1985) (stating that Fifth Amendment right to counsel stems from privilege against self-incrimination and is not an independent right and that consent to search is not an incriminating statement because it is not testimonial, nor is physical evidence obtained pursuant to search); State v. Morato, 619 N.W.2d 655, 662 (S.D. 2000) (stating that " n officer's request that a suspect consent to a search, however, is not an interrogation or its functional equivalent" and "Morato's consent to search does not constitute an incriminating statement"); State v. Crannell, 750 A.2d 1002, 1009 (Vt. 2000) (concluding that the request for consent to search did not violate defendant's Fifth Amendment rights); contra United States v. Yan, 704 F.Supp. 1207, 1211-12 (S.D.N.Y. 1989) (holding that a request for search constitutes an interrogation); State v. Britain, 752 P.2d 37, 39 (Ariz. Ct. App. 1988), ("view a request for consent to search, after the [Fifth Amendment] right to counsel has been invoked, as interrogation and the serving of a search warrant as conduct 'reasonably likely to elicit an incriminating response'").
IV. OTHER ISSUES
This Court has the independent duty to review the record in each death penalty case to determine whether competent, substantial evidence supports the murder conviction, even if the issue is not raised on appeal. See Fla. R. App. P. 9.140(i); Davis v. State, 859 So. 2d 465, 480 (Fla. 2003). Therefore, we have reviewed the evidence in this case and find that it is competent to support the first-degree murder conviction under both the felony murder and premeditation theories charged in the indictment. As to felony murder with a sexual battery or burglary, the evidence showed that Everett's DNA matched the DNA found on the vaginal swabs taken from the victim at all thirteen genetic markers tested and that appellant's DNA profile occurred once in every 15.1 quadrillion Caucasians, once in 1.01 quintillion African-Americans, and once in 11.2 quadrillion Hispanics. Everett admitted that he entered the house without the victim's consent and with the intent to steal. He hit the victim, chased her and knocked her down, and then had nonconsensual, forceful intercourse with her. He admitted that he left his shirt in her home. In the course of committing these crimes, he broke the victim's neck, and she suffocated to death. With regard to the premeditated murder charge, Everett was armed with a wooden club (which later tested positive for blood) when he entered the victim's home. He hit her, chased her down, and brutally beat and sexually assaulted her. He forcefully twisted the victim's neck, breaking it; this could not have occurred from her falling as he grabbed her hair. Everett's DNA matched the vaginal swabs from the victim, and Everett admitted leaving his shirt in the victim's home. Accordingly, competent, substantial evidence supports the verdict.
This Court also has the duty to review the proportionality of a death sentence. Anderson v. State, 841 So. 2d 390, 407 (Fla.), cert. denied, 124 S.Ct. 408 (2003). The jury unan
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