Brooks v. State (918 So. 2d 181, 2005)

PER CURIAM.

We have on appeal a judgment of conviction of two counts of first-degree murder and corresponding sentences of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated herein, we affirm the convictions of Lamar Z. Brooks and his sentences of death.

FACTS AND PROCEDURAL HISTORY

This is the second appearance of Brooks before this Court on appeal of his convictions and sentences of death for the first-degree murders of Rachel Carlson and her infant daughter, Alexis Stuart. On April 5, 2001, this Court reversed Brooks’ initial convictions and sentences for the murders based on the “erroneous admission of extensive hearsay testimony,” and remanded the case for a retrial. See Brooks v. State, 787 So.2d 765, 768 (Fla.2001) (hereinafter “Brooks I ”). The decision in Brooks I set forth the facts giving rise to the charges filed in the instant case as follows:

In the late night hours of April 24, 1996, Rachel Carlson and her three-month-old daughter, Alexis Stuart, were found stabbed to death in Carlson’s running vehicle in Crestview, Florida. Carlson’s paramour, Walker Davis, and Brooks were charged with the murders. Davis was married and had two children, and his wife was pregnant with their third child. However, the victim believed Davis was also the father of her child and demanded support from him. [n.l] Davis became concerned about this pressure. He was convicted of the murders and sentenced to life imprisonment. However, he did not testify at Brooks’ trial.

[n.l.] DNA tests performed after the murders revealed that Davis was not the father.

Brooks lived in Pennsylvania but had traveled to Florida from Atlanta with his cousin Davis and several friends on Sunday, April 21, 1996. Brooks stayed with Davis at Eglin Air Force Base for a few days before returning to Pennsylvania. In interviews with the police, he informed them that on the following Wednesday evening, the night of the murders, he helped Davis set up a waterbed, watched some movies, and walked Davis’s dog.

Contrary to Brooks’ statements, several witnesses placed him and Davis in Crestview on the night of the murders, although no physical or direct evidence linked him to the crimes.

Brooks I, 787 So.2d at 768-69.

Upon retrial, Brooks was again convicted and sentenced to death. The jury recommended the death sentence by a nine-to-three vote for the murder of Carlson, and an eleven-to-one vote for the murder of Stuart. The trial court followed the recommendations, finding the following factors in aggravation for the murders of both Carlson and Stuart: (i) the previous conviction of another capital felony; (ii) the commission of a capital felony in a cold, calculated, and premeditated manner (CCP); (iii) the commission of a capital felony for pecuniary gain; and (iv) that the murder occurred during the commission of the felony of aggravated child abuse. The trial court also found that Carlson’s murder was especially heinous, atrocious, or cruel (HAC). Despite Brooks’ waiver of the right to present mitigating evidence, defense counsel described to the trial court the mitigating evidence he would have presented, and the trial court found several factors in mitigation.

Brooks has appealed his convictions and sentences, raising fourteen issues. These claims are discussed further herein.

LIFE INSURANCE POLICY

Under Florida law, all relevant evidence, defined as that tending to prove or disprove a material fact, is admissible unless otherwise provided by law. See §§ 90.401, 402, Fla. Stat. (2002). Relevant evidence is inadmissible, however, where the probative value is substantially-outweighed by the danger of unfair prejudice. See § 90.403, Fla. Stat. (2002). The admissibility of evidence is within the sound discretion of the trial court, and the trial court’s determination will not be disturbed on appellate review absent a clear abuse of that discretion. See, e.g., Ray v. State, 755 So.2d 604, 610 (Fla.2000); Zack v. State, 753 So.2d 9, 25 (Fla.2000).

In Brooks’ retrial, the trial court permitted, over defense counsel’s objection, insurance salesman Steve Mantheny to testify regarding only the existence of a $100,000 life insurance policy purchased by Davis in February 1996, which named the minor Stuart child as the insured and Davis as the primary beneficiary. The trial court admitted the policy for the limited purpose of establishing the source of the $10,000 which the State’s witness, Mark Gilliam, testified Davis had promised to pay Brooks to murder Carlson. The trial court expressly excluded the policy as evidence of Brooks’ motive for murder. On appeal, Brooks contends that the trial court committed the same error as this Court found during the initial review by admitting evidence beyond the parameters of the conspiracy to prove Brooks’ motive and intent. Brooks notes that the State ignored the trial court’s evidentiary ruling by repeatedly arguing and using the insurance policy as evidence of motive for both Davis and Brooks.

We hold that the trial court did not abuse its discretion in admitting evidence concerning the existence of a $100,000 life insurance policy for the purpose of establishing the source of the funds promised to Brooks for his role in killing Rachel Carlson and Alexis Stuart. At trial, the State established the existence of a conspiracy to kill the victims through the testimony of Mark Gilliam, a fellow member of the military and a friend of Brooks, who accompanied Brooks and Davis to Eglin Air Force Base on April 21, 1996. Gilliam testified that in the early evening hours of Monday, April 22, 1996, Davis expressed his desire to murder a woman who had been pestering him for money. According to Gilliam, the conversation proceeded with the three men each suggesting the best way to murder the woman. Gilliam stated that although he initially thought the discussion was in jest, a murder plan developed pursuant to which Davis would lure the woman, Carlson, to his apartment to pick him up, and Gilliam and Brooks would then follow behind in Gilliam’s vehicle to a predesignated place in Crestview, at which time Brooks would exit the car and shoot the victim, Carlson. Gilliam testified that the three attempted to actually execute the plan that evening and the following evening, but that each attempt ended in failure.

According to Gilliam, Brooks and Davis had each promised to pay him $500 for his role in the execution to act as the driver for the plot. Gilliam also testified that Davis had promised to pay Brooks $10,000 to kill Carlson. This is direct evidence of the plot to murder and the nexus to a large sum of money. The source of payment was connected to the existence of the life insurance policy.

Evidence regarding the payment of these relatively large sums of money was coupled with testimony demonstrating that Davis and Brooks were of limited financial means. Davis’s coworker, Paul Keown, testified that Davis worked in the hospital laboratory at Eglin Air Force base, a position that presumably did not garner a large salary. Friends of Davis testified that, at the time of the crime, he was married with two children and a third on the way. Gilliam testified that neither Brooks nor Davis had access to a car at the time of the murders, and that Davis did not have a telephone at his house. Gilliam also expressed doubt that either Brooks or Davis had the $500 that each had promised to pay him for driving the ear. Through the testimony of Thomas Hardin, a fellow airman and friend of Davis, the jury learned that Brooks had to receive a $244 wire transfer of the funds he needed to purchase an airline ticket to return from Florida to Philadelphia. On the basis of the evidentiary record, the trial court reasonably concluded that the insurance policy was relevant to establish the source of the money Davis promised to pay Brooks for his part in the crimes. See Dyas v. State, 260 Ark. 303, 539 S.W.2d 251, 261 (1976) (deeming testimony regarding life insurance policies relevant to motive underlying conspiracy and murder because it supported the connection between the policies and the co-conspirator wife’s ability to pay the killers a far greater amount than the contract stipulated for her husband’s murder).

Moreover, we resolve that it would not have constituted error for the trial court to admit the life insurance policy as evidence of Brooks’ motive and intent. To the contrary, the source of funding to be utilized to pay Brooks and Brooks’ motive are inextricably intertwined. Given that Davis was a low-ranking member of the military, with a wife and growing family to support, without even access to an automobile, and no telephone in his home, it strains credulity to conclude that Brooks and Davis would not have considered the source from which Davis planned to obtain the $10,000. Indeed, Brooks would have been even more familiar with the precarious state of his cousin’s finances than Gilliam, who was a stranger to Davis, but nonetheless testified that neither man appeared to have the $500 to pay him to drive the car. Also, Brooks acknowledged in his statements that he was aware of Alexis Stuart, and that his cousin had denied paternity of the baby. This evidence amply supports the inference that the insurance proceeds in the plan of Davis and Brooks were essential to the plot and the insurance policy on the infant’s life was inextricably intertwined with the conspiracy. On the basis of this record, it would have been permissible to introduce the insurance policy as evidence of Davis’s intent and ability to pay Brooks to complete the conspiracy to commit the murders and Brooks’ motive and intent to fulfill his commitment to the conspiracy and complete the act.

We recognize that permitting a life insurance policy to be placed into evidence without a proper foundation may result in undue prejudice. For that reason, based on the facts presented in the instant matter, we endorse the rule employed by the Georgia state courts, which requires a nexus between the crime charged and the life insurance policy. See Stoudemire v. State, 261 Ga. 49, 401 S.E.2d 482, 484 (1991) (“[I]n order to admit evidence of an insurance policy there must be some independent evidence of a nexus between the crime charged and the existence of the insurance policy.”); see also Givens v. State, 273 Ga. 818, 546 S.E.2d 509, 513 (2001). In the instant case, we determine that evidence establishing the substantial sum of money Davis promised to pay Brooks to complete the conspiracy to commit murder coupled with evidence of the modest financial means of Davis — a condition that would not have escaped his cousin’s notice under these circumstances— more than satisfies this nexus requirement. Accordingly, Steve Mantheny’s limited testimony establishing that Davis had procured a policy on Alexis Stuart’s life was properly admitted.

We decline to require direct evidence establishing beyond a reasonable doubt that Brooks knew about the existence of the life insurance policy. We recognize that some state courts have conditioned the admissibility of life insurance policies on the defendants’ knowledge. Most notably, in People v. Mitchell, 105 I11.2d 1, 85 Ill.Dec. 465, 473 N.E.2d 1270 (1984), the Illinois Supreme Court reaffirmed its rule that “admission of evidence of a life insurance policy must be predicated upon evidence of the defendant’s knowledge of its existence, its validity, or believed validity, and that he will benefit therefrom.” Id. at 1274 (citing People v. Gougas, 410 Ill. 235, 102 N.E.2d 152 (1951)). The reasoning that compelled the outcome in People v. Mitchell does not, however, apply with equal force in the instant matter.

People v. Mitchell involved a mother’s alleged aggravated battery and attempted murder of her seventeen-month-old daughter. Attempted murder is a specific intent crime, and the court noted that the only evidence of intent introduced by the prosecution was a $10,000 life insurance policy on the baby’s life and the defendant’s own statements, which established that she had intended to strike her child but not that she intended to kill her. See id. at 1274. Indeed, the court specifically determined that the defendant’s actions of placing a cool compress on the child’s forehead and taking her to the emergency room for medical attention were inconsistent with an intent to commit murder. See id. On this basis, the court determined that the trial court had erred in admitting evidence of the life insurance policy where the state had failed to prove that the policy was in force at the time of the offense or that the policy played a role in the defendant’s actions. See id. at 1275.

In contrast to the scenario in People v. Mitchell, the life insurance policy admitted here did not fill a vacuum in the evidentia-ry record on a necessary element of proof. Direct, corroborated evidence conclusively established a plan to murder Rachel Carlson. Direct, corroborated evidence also established that Davis did not have the $10,000 he promised to pay Brooks to complete the plan. The direct and logical inference that arises from this evidence is that Brooks knew that his cousin would be forced to tap into some substantial source to pay him the $10,000. While such evidence stops short of substantiating that Brooks knew of the exact insurance policy, or all the facts surrounding it, it more than amply supports the admission of the policy as evidence of the motive possessed by Brooks to murder both Carlson and Stuart.

The partially dissenting opinion of Chief Justice Pariente cites to a number of other cases in which courts have held that the defendant’s knowledge of a life insurance policy must be laid as a predicate to its admission. These cases are factually distinguishable and do not control the analysis in the instant matter. In most of the cases cited by the dissent, the defendant was the beneficiary under the deceased’s life insurance policy. Under such a scenario, it is only logical to require evidence establishing that the defendant knew of the policy in support of admitting it as evidence of motive. Such a principle does not govern here, where Brooks’ motive, in pertinent part, was to collect $10,000 — a sum that would have been impossible for Davis to marshal in the absence of a large payout from a source such as an insurance policy. Thus, the policy is relevant and highly probative to Brooks’ motive and can be logically and properly established through the inference that Davis informed Brooks of the policy to prove the bona fides of his promise to pay. Even the few conspiracy cases cited by the dissent are likewise distinguishable on the basis that the source of the money for Brooks’ payment was at issue in the instant matter.

Moreover, contrary to Brooks’ contention, Brooks I does not preclude as irrelevant any evidence of Davis’s motive arising outside the time frame of the conspiracy. Evidence of one coconspirator’s motive can indeed illuminate the motive of others. In Strickland v. State, 122 Fla. 384, 165 So. 289 (1936), this Court reviewed the second-degree murder conviction of Coy Strickland who had been hired by Jim McCall to kill the victim, Tom Spear. See id. at 290. Strickland raised four claims of error, the first of which asked this Court to consider whether “[i]n a separate trial of a defendant whose motive for killing the decedent the state purported to prove, is evidence admissible to show the distinct or separate motive of an accomplice not on trial?” Id. at 289. In answering in the affirmative, we stated:

A material fact to the issue in this case was motive, not only motive of the accused which was shown to be that of pecuniary gain, but also in establishing the fact that McCall was the actor in hiring the accused to commit the act which caused the death of Spear it was material to show that there was a motive for McCall to hire Strickland to perform that act. The motive which actuated McCall was material because that motive would show, of tend to show, a reason why he would be willing to pay Strickland to commit the murder.

Id. at 290.

Applying the principle established in Strickland to the instant case, it follows that the insurance policy provided Davis a motive to be part of the plot to kill Alexis Stuart, and the source of the proceeds for the payment to Brooks of $10,000 to murder both the baby and her mother. The $10,000, which the cash-strapped Davis would have been unable to pay but for the insurance proceeds, in turn, provided Brooks with the motive of pecuniary gain to commit the crimes. Ultimately, the admonition articulated in Brooks I, that it was improper to use the statements made by Davis outside the scope of the conspiracy to impute motive to Brooks, cannot be severed from the facts of that case, which involved the admission of numerous hearsay statements allegedly made by Davis that were pertinent only to Davis’s motive and intent. In Brooks I, this Court did not address evidence, such as the insurance policy itself, that is both highly probative and relevant to the motive of both Davis and Brooks.

ADMISSIBILITY OF BILLIE MADEROS TESTIMONY

The trial court admitted, over defense counsel objection, the testimony of Billie Madero, an employee of the Department of Revenue, who testified that she documented a call received from an individual who had identified herself as Rachel Carlson and requested that a case be opened against Walker Davis, Jr., for child support. The information obtained from Carlson during the telephone conversation was recorded on a template sheet of paper containing standard questions to provide the Department of Revenue identical information from every caller. The State attempted to introduce Madero’s summary of the phone conversation under the business record exception to the hearsay rule.

Brooks mounts two challenges to the child support claim record. First, Brooks argues that the record was totally irrelevant with regard to his motive because there was no evidence demonstrating that he even knew of the record. Brooks also asserts that the State failed to establish a proper foundation showing that it was indeed Carlson who placed the call. The State counters that the record was probative of motive for both Davis and Brooks because it illuminated why Davis hired Brooks — namely to kill Carlson and Stuart to avoid child support obligations. We conclude that the trial court abused its discretion in admitting the record.

As previously indicated, the State advanced at trial the theory that Brooks was motivated to kill, at least in part, by the desire to aid his cousin in evading child support payments. There is very little record evidence, however, demonstrating that either Davis or Brooks was aware of Carlson’s desire to obtain child support or any steps taken by Carlson to actually obtain such support. The summary record of the telephone conversation testified to by Madero was not a complaint for child support that Davis would have been served with or would have received a copy of. Davis’s knowledge of Carlson’s support request rests on the sole asserted inference that Carlson would not have paid the $25 fee charged to open a child support case at the Department of Revenue without first seeking a negotiated settlement with Davis, coupled with testimony from Davis’s neighbors and Gilliam that Carlson was seen at Davis’s apartment in the days shortly before the murders crying and agitated.

Brooks did admit in a police statement that he knew of Stuart’s existence and that his cousin had denied paternity of the child. There is no direct evidence, however, that Carlson had demanded child support payments from Davis. To the contrary, Mark Gilliam testified that during the initial stages of his participation in the conspiracy, Davis had only informed Gilliam that he intended to kill the woman who had been pestering him for money for a stereo. No mention was made of child support payments. Without evidence showing that Davis or Brooks knew of Carlson’s support request, the Department of Revenue record is irrelevant to anyone’s intent and motive.

The admission of Madero’s testimony violates the proscription against hearsay evidence. To be admissible as a business record, it must be shown that the record was (1) made at or near the time of the event recorded; (2) by or from information transmitted by a person with knowledge; (3) kept in the course of a regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record. See Quinn v. State, 662 So.2d 947, 953 (Fla. 5th DCA 1995); § 90.803(6)(a), Fla. Stat. (2002). To the extent the individual making the record does not have personal knowledge of the information contained therein, the second prong of the predicate requires the information to have been supplied by an individual who does have personal knowledge of the information and who was acting in the course of a regularly conducted business activity. See Quinn, 662 So.2d at 953; Van Zant v. State, 372 So.2d 502, 503 (Fla. 1st DCA 1979). If this predicate is not satisfied, then the information contained in the record is inadmissible hearsay, unless it falls within another exception to the hearsay rule. See Quinn, 662 So.2d at 953-54; see also Hill v. State, 549 So.2d 179, 181 (Fla.1989); Johnson v. Dep’t of Health & Rehabilitative Servs., 546 So.2d 741, 743 (Fla. 1st DCA 1989); Harris v. Game & Fresh Water Fish Comm’n, 495 So.2d 806, 809 (Fla. 1st DCA 1986) (“The general rule is that a hearsay statement which includes another hearsay statement is admissible only when both statements conform to the requirements of a hearsay exception.”); Van Zant, 372 So.2d at 503.

The business record exception does not permit the admission into evidence of the hearsay statements within the Department of Revenue record. The information in the record regarding the alleged relationships between Carlson, Stuart, and Davis was not within Madero’s personal knowledge, but was supplied by Rachel Carlson, who, obviously, was not acting within the course of a regularly conducted business activity. ' The scenario is similar to that recently faced by the Fifth District in Reichenberg v. Davis, 846 So.2d 1233 (Fla. 5th DCA 2003), in which the district court determined that the information contained within the records of the Department of Children and Families pertaining to the alleged sexual abuse of a seven-year-old boy was not admissible under the business records exception because it was relayed by witnesses, and not “based upon the personal knowledge of an agent of the ‘business.’ ” Id. at 1234; see also Van Zant, 372 So.2d at 503 (determining that the business record exception did not extend to the information contained within a probable cause affidavit and sworn complaint because the source of the information contained within the record was the victim, not the person who prepared the record). Without an alternative exception to cover the hearsay contained in the Department of Revenue record developed from a telephone call, the substance of the record should not have been admitted into evidence here. See Hill, 549 So.2d at 181.

We thus conclude that the trial court erred in admitting Madero’s testimony regarding the substance of the Department of Revenue record. The impact of the trial court’s error in admitting this evidence is subject to evaluation under a harmless error analysis as set forth in State v. DiGuilio, 491 So.2d 1129 (Fla.1986). There, this Court held:

The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.

Id. at 1135 (citation omitted).

Applying the DiGuilio standard, we determine that the State has established beyond a reasonable doubt that the admission of the limited record information did not contribute to the verdict in the instant case. To the extent Brooks’ motive and intent were issues at trial, the State established Brooks’ motive of pecuniary gain with Gilliam’s testimony that Davis promised Brooks $10,000 to commit murder, coupled with the evidence that Davis was a man of modest means who had procured a $100,000 insurance policy on the life of Alexis Stuart. There is no reasonable possibility that the error in admitting the limited Department of Revenue record, which could have only served to provide an alternative theory of Brooks’ motive, contributed to Brooks’ conviction.

There is an overwhelming amount of properly admitted evidence upon which the jury could have legitimately relied in finding Brooks guilty in the instant matter. Importantly, during this trial, Mark Gilliam related detailed, substantiated information regarding the two failed attempts he, Brooks, and Davis had made on Carlson’s life. Gilliam testified that on Monday, April 22, 1996, Davis phoned Carlson from the hospital asking her to meet him at his home where Gilliam and Brooks were secretly waiting in Gilliam’s car. According to Gilliam, he and Brooks followed the vehicle occupied by Davis and Carlson in the direction of the predesignated place in Crestview where, according to plan, Brooks was to shoot Carlson. Gilliam established that Brooks had a pistol-grip shotgun and latex gloves with him in the car. Gilliam’s version of events was partially corroborated by the testimony of a law enforcement officer who performed a consensual search of Davis’s home after the murders and discovered a short-handled shotgun. In addition, the crime scene analyst testified that the smudged hand impressions found at the crime scene were consistent with the perpetrator wearing latex gloves.

■ Gilliam further testified that during the course of the duo following Carlson’s car on the night of the first failed murder attempt, Carlson was stopped by a law enforcement officer for speeding. Gilliam explained that he drove by Carlson’s stopped car, made two u-turns, and pulled up a short distance behind her. This testimony was partially corroborated by that of Florida State Trooper Michael Hulion, who reported that he stopped Carlson for speeding on Monday, April 22, and noted the presence of a baby in the back seat as well as a black male in the passenger seat. Gilliam further described that as this was occurring a second police officer drove to a position behind his vehicle, approached his car, and began questioning the two men as to why they had positioned their vehicle behind Carlson’s stopped vehicle. Testimony at trial confirmed that a sheriffs deputy had in fact run a check on Gilliam’s license plates that evening in the vicinity of Crestview.

Gilliam also described in detail the second attempt to effectuate the murder, which occurred on the following day, Tuesday, April 23, and followed largely the same sequence of events with Carlson picking Davis up at a local shopping center and Gilliam and Brooks following behind. According to Gilliam, the second attempt ended in failure because Gilliam became separated from Carlson’s car at a stop light. Gilliam stated that he and Brooks proceeded to the predesignated location in Crestview and waited for the plan to unfold, but Davis and Carlson did not appear. Gilliam’s testimony was supported by the testimony of the officers who questioned Gilliam after the murders and related that he placed “Xs” on a map of Crestview that corresponded to the area in which the victims’ bodies were found. Finally, Gilliam stated that he backed out of the murder plan and left Eglin the morning of April 24 to return to his base at Fort Benning, Georgia. Gilliam testified that prior to his departure, Davis helped him secure false hospitalization documents to explain his delayed return to his base.

Gilliam’s testimony regarding the failed attempts to proceed with the murder provides compelling and persuasive evidence of Brooks’ involvement in the murders of Rachel Carlson and Alexis Stuart. This testimony was not presented during Brooks’ initial trial. In light of the totality of the evidence, there is no reasonable possibility that the admission of the limited child support record information could have contributed to the jury verdict. See DiGuilio, 491 So.2d at 1135.

Gilliam’s testimony is not, however, the only evidence supporting Brooks’ conviction. Record evidence also firmly establishes Brooks’ presence in Crestview in the vicinity of the crime scene in close proximity to the time of the murders. Witnesses Irving Westbrook and Charles Tucker testified that they saw two men walking in the vicinity of the murder scene, away from where Carlson’s car was later found, around the time of the murder. According to Irving Westbrook, one of the men had a limp. Their testimony was corroborated by witness Kea Bess who had previously been introduced to Davis by a mutual friend on the Sunday prior to the murders. Bess testified that she saw Davis, whom she recognized because of the cast on his leg, and another man walking rapidly in the opposite direction from the crime scene. According to Bess, one of the men was carrying a bag.

Witness Michelle Thomas testified that Davis and Brooks visited her Crestview apartment, located only a few blocks from the scene of the crime, on the night of the murders shortly after 9 p.m. She stated that both men were wearing black nylon pants and that Brooks carried a black backpack. Thomas testified that Brooks used the bathroom, Davis asked for a towel, and both men used the telephone. The presence of Brooks and Davis in Thomas’s apartment that evening was also corroborated by the testimony of Nikki Henry, a Mend of Thomas, who arrived just as the two men were walking away from the location.

The presence of Brooks and Davis in Crestview on the night of the murders was further established and verified by the testimony of Rochelle Jones. Jones stated that she received a call from Davis on the night of the murders requesting that she come to a particular location to provide transportation for the duo. Davis gave Jones directions to drive to a street in Crestview between a credit union and an animal hospital. Jones’s testimony was corroborated by telephone records, and the testimony of a police officer who stopped Jones for speeding as she drove back to Eglin Air Force base, who noted the presence of two black males in her vehicle and requested that Davis assume operation of the vehicle because Jones was operating the vehicle with a suspended license. The testimony of Jones was further corroborated by that of Glenese Rushing, who was using the automatic teller machine at the Crestview credit union on the night of the murders and reported seeing two people across the street at the animal hospital entering a car that subsequently made a u-turn in the credit union parking lot. The testimony of Jones also establishes that whatever transportation Brooks and Davis may have used to travel to Crestview that evening was apparently unavailable for the return trip.

Record evidence also demonstrates the guilty knowledge of Brooks regarding the murders. In contrast to the multitude of witnesses who placed Brooks in Crestview near the crime scene on the night of the murders, Brooks consistently denied being in the community during his police interviews. According to Air Force Office of Special Investigations Agent Karen Garcia, Brooks claimed that he and his cousin remained in Davis’s apartment near Eglin Air Force base assembling a waterbed on the night of the murders, leaving only briefly to walk Davis’s dog. At one point during his interview with Agent Garcia, Brooks stated, “Walker is on his own. If he did something, he’s on his own.” The investigator from the office of the State Attorney, Michael Hollinhead, also interviewed Brooks shortly after the murders. Hollinhead testified that when he attempted to develop information from Brooks regarding the person named “Mark” (subsequently identified as Gilliam), who had accompanied Brooks to Davis’s home on April 21, Brooks became “evasive.”

The identity of Brooks as the individual who killed Carlson and Stuart is also supported by substantial evidence. Forensic evidence established that both Carlson and Stuart were killed by a person seated in the rear driver’s-seat of the vehicle, and that no one occupied the front passenger’s seat at the time of Carlson’s stabbing. Other evidence demonstrated that Brooks was the individual seated in the back seat of Carlson’s vehicle. Importantly, Davis was in a leg cast at the time of the murder. That fact renders it highly unlikely that Davis would have been able to sit in the back seat of a car in a position that would have left him able to muster the leverage utilized to mount this attack from behind. Moreover, a shoe print was found on Carlson’s shoulder. A forensic expert opined that the print was consistent with the killer extricating himself from the vehicle by climbing over the victim’s body, which was found in the front seat, or opening the driver’s-side front door and kicking Carlson over. Either feat would have been almost impossible for a man in a leg cast. Moreover, Davis sat in the front passenger seat during the prior failed murder attempts as established by the trooper who stopped Carlson for speeding and testified to seeing a baby in the back seat and a black man in the right front seat.

On the basis of this record, there is no reasonable possibility that the erroneous admission of the limited testimony of Madero regarding the child support record contributed to Brooks’ conviction. As detailed above, the State introduced extensive, substantial, direct, and corroborated testimony regarding the plan to murder Rachel Carlson and the role of Brooks as killer. The jury also heard a significant amount of direct testimony and other evidence which placed Brooks in the vicinity of the crime scene on the night of the murders without transportation back to Eglin. The forensic evidence demonstrated that the victims were killed by someone occupying the back seat of Carlson’s car, and that no one occupied the passenger seat at the time of the murders. The only reasonable inference to draw from the forensic evidence, coupled with the direct testimony concerning the role of Brooks as the killer, and the fact that Davis was in a leg cast at the time of the murders, is that it was Brooks who inflicted the fatal blows. The State clearly established the motive of pecuniary gain and the guilty knowledge attributable to Brooks through the content of his police statements. All of this evidence was properly admitted before the jury to be utilized by the jury in reaching its verdict. For these reasons, we conclude that the trial court’s error in admitting the limited testimony of Madero and the Department of Revenue record was harmless beyond a reasonable doubt.

AGGRAVATED CHILD ABUSE

Brooks argues on appeal that the trial court erred by finding that he committed the murders during the course of a felony, which was aggravated child abuse as defined by statute, and then applying the aggravated child abuse aggravating circumstance set forth in section 921.141(5)(d), Florida Statutes (2002), during sentencing. He contends that because the single act of stabbing Stuart formed the basis of both the aggravated child abuse aggravating factor under section 921.141(5)(d) of the Florida Statutes and the first-degree felony murder charge, the court should have found that the aggravated child abuse allegation “merged” with the more serious homicide charge. Thus, according to Brooks, the State should have been totally precluded from invoking the felony murder doctrine and should have been limited to proving first-degree murder only on the theory of premeditation for both murders. Brooks does not merely attack the use of the underlying felony as an aggravator; he asserts that the state is prohibited from using aggravated child abuse as the felony crime. We agree.

This Court addressed the same claim in Lukehart v. State, 776 So.2d 906 (Fla.2000), where the defendant shook a baby and the baby thereafter died. The defendant in Lukehart argued that there was no felony separate from the homicide. In making this argument, Lukehart relied on Mills v. State, 476 So.2d 172, 177 (Fla.1985), which addressed the issue of whether convictions of first-degree murder and aggravated battery could both stand when arising out of the same act. This Court found in Mills that the two convictions could not stand and vacated the conviction for aggravated battery. While we rejected the analogy to Mills in Lukehart because the facts were distinguishable, Mills is applicable to the instant matter.

In Mills, the defendant broke into a house in the middle of the night intending to steal something. When the homeowner awoke to investigate, the defendant shot and killed him. The defendant was charged with one count of felony murder, one count of burglary while armed with a firearm, and one count of aggravated battery with a firearm. This Court held that while the defendant could be found guilty of all three charges, it was not proper to convict him for aggravated battery and simultaneously for homicide as a result of one shotgun blast. Mills, 476 So.2d. at 177. In that limited context, we concluded that the felonious conduct merged into one criminal act. Id. As we explained in Mills, ‘We do not believe that the legislature intended dual convictions for both homicide and the lethal act that caused the homicide without causing additional injury to another person or property.” Id.

Thus, Mills clearly bars a conviction of aggravated battery where a single act of aggravated battery also causes a homicide. This determination is based on the fact that the aggravated battery has merged into the homicide. Likewise, had Brooks been charged with aggravated child abuse, he could not have been convicted of that crime. That is because aggravated child abuse is an aggravated battery, the only difference being that the victim is a child. See 827.03(2), Fla. Stat. (2002) (“ ‘Aggravated child abuse’ occurs when a person: (a) commits aggravated battery on a child....”). In light of the fact that Brooks delivered a single stabbing blow that resulted in Alexis Stuart’s death, the act constituting the aggravated child abuse merged into the infant’s homicide.

Generally, aggravated child abuse can be a separate charge and serve as the felony in a felony murder charge. This is the situation that occurred in Mapps v. State, 520 So.2d 92 (Fla. 4th DCA 1988), in which the defendant was convicted of felony murder with the underlying felony being aggravated child abuse. In Mapps, the defendant threw, shook, or struck a ten-month old child causing a skull fracture which killed the child. The defendant argued that the aggravated battery “merged” into the homicide and could not constitute a valid basis for a felony murder charge. The Fourth District disagreed and found that the underlying felony need not always be independent of the killing as a prerequisite for a conviction of felony murder. See id. at 93.

Importantly, however, in Mapps, there were separate acts of striking, shaking, or throwing which led to the killing of the child. In contrast, the instant case involved the single act of stabbing which caused a single injury. In a case such as this where the Mills rule prevents a conviction of aggravated battery because a single act caused both an aggravated battery and a homicide, aggravated battery cannot then serve as the underlying felony of the felony murder charge. It makes no difference that Brooks was not charged or convicted of aggravated child abuse because that crime, under these facts, merges with the homicide itself. In the instant matter, the action underlying the aggravated child abuse factor constituted the fatal stab wound that killed Alexis Stuart. Because there is no separate offense of aggravated child abuse, that crime cannot logically serve as the underlying felony in a felony murder charge.

The trial court’s error in relying on the aggravated child abuse factor in aggravation has no impact on the sentencing determination for either murder. Had the aggravated child abuse factor not been available, the trial court could have properly applied the aggravator that the victim, Alexis Stuart, was less than twelve years of age, resulting in the loss of no aggravation as it pertains to the murder of Alexis Stuart. While elimination of the aggravated child abuse factor results in the loss of one aggravator as applied to the murder of Rachel Carlson, such a loss would not have impacted the determination of sentence in that matter. Four aggravators continue to apply to the murder of Rachel Carlson, including both HAC and CCP. The aggravating factors continue to substantially outweigh any mitigation, which supports application of the death sentence for Rachel Carlson’s murder.

ADDITIONAL ERRORS

We turn now to address three other errors asserted to have been committed by the trial court. The first error we address is the trial court’s decision to admit two notes recovered from Davis’s leg cast when it was removed shortly after the murders, on May 2, 1996. One piece of paper contained the following two written statements, “What time is the first flight and the name,” and “US Air, 545, $244.00, Sgt. Samms.” The second note also contained two written statements, the first being, “Mark would have cracked up” and the second stating, “Events, Home to walk Heavy and then to home.” In response to defense counsel’s objection, the State argued that the notes, written in two different handwriting styles, were relevant to connect the coconspirators through the lies they told law enforcement, to link each of them to the night of the murders, and to show consciousness of guilt. On appeal, the State stresses the fact that the notes capture the lie told by Brooks during his interview with police that he and Davis were at Davis’s apartment on the night of the murders setting up a waterbed and left the apartment only for a brief time to walk Davis’s dog.

The trial court admitted the notes as additional evidence to show an association between Brooks and Davis from which the jury could determine the existence of a conspiracy and as evidence from which the jury could infer Brooks’ consciousness of guilt. Brooks contends on appeal that the trial court abused its discretion in admitting the notes because there is no evidence connecting him to the notes. We agree.

The only person to whom the notes reasonably could be linked was Davis because they were found on his person and bore his fingerprint. The notes were never connected in any form or fashion to Brooks. While the State contends that the notes were jointly authored and constitute a conversation of sorts in which the co-conspirators solidified the lies they would tell police, it offered no evidence that either Davis or Brooks wrote the notes. The State’s argument that the lies of Brooks to law enforcement officers tied him to the notes similarly fails to persuade us that they were admissible, because the State offered no evidence as to when the notes were drafted or when they were placed in Davis’s cast.

We also find error in the trial court’s decision to allow the State to impeach the trial testimony of witness Melissa Thomas with the statement she had previously given police. At trial, Melissa Thomas testified that on the night of the murders, Davis and Brooks came to her Crestview apartment at approximately nine o’clock. In her testimony, she relayed that each man arrived at her apartment clothed in black nylon pants and that Brooks used the bathroom. Thomas further testified that she recalled being interviewed by police shortly after the murders. When the State asked whether she recollected telling Agent Haley during the course of the interview that Brooks came out of the bathroom wearing shorts, Thomas answered, “No, I don’t remember.”

Subsequently, the State called Agent Haley to testify regarding his interview of Thomas, including the portion in which she stated that Brooks changed into shorts in the bathroom. Defense counsel made multiple objections, including that the impeachment was improper because Thomas’s trial testimony did not materially differ from her police statement. The trial judge allowed the impeachment, determining that her trial testimony and previous statement were “contradictory to a degree.”

The trial court erred in permitting this impeachment of Thomas’s testimony. Florida courts have held that a witness’s inability to recall making a prior statement is not synonymous with providing trial testimony that is inconsistent with a prior statement. See James v. State, 765 So.2d 763, 766 (Fla. 1st DCA 2000); Calhoun v. State, 502 So.2d 1364, 1365 (Fla. 2d DCA 1987) (deeming it improper to impeach a witness who testified that she could not recall stating that she had a reputation as an aggressive female police officer with the testimony of another witness who heard her make such a statement). In James, the district court adopted the reasoning employed by the Oregon Court of Appeals in holding:

The controlling issue on appeal is whether it was appropriate to impeach [a witness’] asserted lack of memory by showing substantive statements that she made when her memory was fresh. As a matter of logic, that is not appropriate impeachment by inconsistent statement. The fact that a witness once stated something was true is not logically inconsistent with a subsequent loss of memory. The only thing that is inconsistent with a claimed loss of memory is evidence that suggests that the witness in fact remembers.

James, 765 So.2d at 766 (quoting State v. Staley, 165 Or.App. 395, 995 P.2d 1217, 1220 (2000)).

In support of the contrary position, the State quotes from Morton v. State, 689 So.2d 259 (Fla.1997), where this Court determined that “[i]n a case where a witness gives both favorable and unfavorable testimony, the party calling the witness should usually be permitted to impeach the witness with a prior inconsistent statement.” Id. at 264. However, the State fails to include the very next sentence, where the Morton Court clarified its holding by stating that, “[o]f course, the statement should be truly inconsistent, and caution should be exercised in permitting impeachment of a witness who has given favorable testimony but simply fails to recall every detail unless the witness appears to be fabricating.” Id.

Importantly, the trial judge in the instant case allowed the impeachment of Thomas’s testimony because he found her testimony inconsistent to a degree with her prior statement, not because he determined that she was fabricating her inability to recall the content of her police statement. Given the other detailed evidence provided by Haley and the fact that Brooks’ retrial occurred six years after the murders were committed, there is no basis on which to conclude that Thomas fabricated her lack of recollection. For that reason, the trial court erred in permitting the impeachment of Thomas’s trial testimony with her previous statement. The State compounded the error by impermissibly relying on the impeachment as substantive evidence in closing arguments. See McNeil v. State, 433 So.2d 1294, 1295 (Fla. 1st DCA 1983) (reversing conviction based in large part on impeachment evidence improperly considered as substantive evidence).

Finally, we conclude that the trial court erred in refusing to provide the co-conspirator hearsay instruction requested by defense counsel. Section 90.803(18)(e) of the Florida Statutes provides that “[u]pon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.” § 90.803(18)(e), Fla. Stat. (2002). As characterized by Brooks on appeal, the requirement to give the instruction is mandatory, not permissive, and it is not within the trial court’s discretion to refuse counsel’s request.

Applying the standard articulated in DiGuilio, we determine that each of these errors was harmless beyond a reasonable doubt. See DiGuilio, 491 So.2d at 1135. We note that the substance of the notes retrieved from the leg cast of Davis was established through independent witness testimony. Air Force Special Agent Garcia relayed that Brooks denied being in Crestview the night of the murders, and indicated that he and Davis remained in Davis’s apartment leaving only briefly to walk Davis’s dog, Heavy. Airman Hardin testified that he accompanied Brooks to purchase a plane ticket back to Philadelphia for which Brooks was wired $244. With the information already a part of the record, there is no reasonable possibility that the erroneous admission of the notes themselves contributed to the conviction. The same conclusion can be drawn regarding the improper impeachment of Melissa Thomas. Permitting Agent Haley to testify to the prior statement of Thomas, in which she indicated that Brooks had changed into shorts in her bathroom, did not contribute to his conviction. Neither Thomas nor any of the witnesses who placed Brooks in Crestview on the night of the murders indicated that he or his clothes were covered in blood. The State did not recover or seek to introduce any blood-stained clothing. In the absence of any such evidence, testimony that Brooks changed clothes in Thomas’s bathroom is of no consequence. Finally, given that sufficient evidence existed to establish a conspiracy between Gilliam, Brooks, and Davis beginning Monday, April 22, see Brooks I, 787 So.2d at 778, Brooks was not prejudiced by the trial court’s refusal to give the coconspirator hearsay instruction as requested. See Boyd v. State, 389 So.2d 642, 646 (Fla. 2d DCA 1980).

CUMULATIVE ERROR ANALYSIS

We have determined that five errors of law occurred during the course of Brooks’ retrial, including the erroneous admission of Madero’s testimony regarding the child support record, the erroneous admission of the notes recovered from Davis’s leg cast, the improper impeachment of Melissa Thomas, the trial court’s failure to provide the coconspirator hearsay instruction as requested by defense counsel, and the erroneous reliance in sentencing on the aggravating factor that the murders were committed during the course of an act of aggravated child abuse. Having found multiple harmless errors we must consider whether

even though there was 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 was 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.

Jackson v. State, 575 So.2d 181, 189 (Fla.1991) (quoting Seaboard Air Line R.R. Co. v. Ford, 92 So.2d 160, 165 (Fla.1956) (on rehearing)).

Our decision in Jackson is particularly instructive in this regard. There, we determined that the trial court had committed multiple errors, including the admission of a portion of a state witness’s testimony explaining that members of the defendant’s family had threatened him, permitting the State to tell the jury to draw inferences from the failure of the defendant’s mother to testify, and instructing the jury that they could infer consciousness of guilt from flight. See id. at 187-88. We determined that the cumulative effect of those errors did not warrant reversal of the defendant’s conviction because (1) none of the errors were fundamental; (2) none went to the heart of the state’s case; and (3) the jury would have still heard substantial evidence in support of the defendant’s guilt. See id. at 189. Thus this Court concluded, “Considering the weight of the errors and the magnitude of the totality of the evidence against Jackson, we find there is no reasonable possibility that these three errors contributed to the conviction.” Id.

The errors committed in the instant case are of like kind and quality to those committed in Jackson. As in that case, we determine that none of the errors committed were fundamental, none went to the heart of the State’s case, and, as outlined in the analysis of the admissibility of Madero’s testimony, the jury would have still heard extensive and substantial evidence in support of Brooks’ guilt. On the basis of the record before us, we determine that there is no reasonable possibility that the cumulative effect of the errors in this case contributed to Brooks’ conviction.

BROOKS’ THREAT AGAINST LAW ENFORCEMENT OFFICER

During Gilliam’s testimony regarding the first failed attempt on Carlson’s life, the trial court permitted him to relay that when he and Brooks were approached by the police officer after they had pulled behind Carlson’s car, Brooks proclaimed that “he can’t go back,” and he was “going to have to shoot them,” meaning the officer. Upon having his recollection refreshed with a previous statement, Gilliam testified that Brooks asserted he “can’t go back to jail.” Gilliam stated that he encouraged Brooks to put the shotgun away and that Brooks did so, hiding the shotgun under the seat covers in the back.

Brooks does not challenge on appeal, and indeed this Court perceives no tenable grounds to challenge, the general admission of Gilliam’s testimony regarding the events of April 22, including the circumstances surrounding Carlson’s stop for speeding and law enforcement officers’ subsequent questioning of Gilliam and Brooks. Brooks limits his challenge to the admissibility of his stated desire to shoot the police officer who approached Gilliam’s vehicle rather than return to jail.

Abuse of discretion is the standard of review applicable to the instant claim. See, e.g., Ray, 755 So.2d at 610; Zack, 753 So.2d at 25. Evidence of a defendant’s bad acts is inadmissible if solely relevant to demonstrate the bad character of the accused or the propensity of the accused to engage in criminal conduct. See Williams v. State, 110 So.2d 654, 663 (Fla.1959); see also § 90.404(2)(a), Fla. Stat. (2002). Evidence of bad acts is admissible, however, “if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the offense being tried.” Williams, 110 So.2d at 662.

According to the State, the expressed intent of Brooks to shoot the police officer rather than return to jail was relevant to establish his guilty knowledge regarding his involvement in a criminal enterprise. In support of this contention, the State directs our attention to two cases, Wyatt v. State, 641 So.2d 355 (Fla.1994), and Straight v. State, 397 So.2d 903 (Fla.1981). In Straight, this Court held:

When a suspected person in any manner attempts to escape or evade a threatened prosecution by flight, concealment, resistance to lawful arrest, or other indications after the fact of a desire to evade prosecution, such fact is admissible, being relevant to the consciousness of guilt which may be inferred from such circumstances.

397 So.2d at 908. Applying that principle, the Straight Court deemed relevant and admissible in a murder prosecution evidence of the defendant’s flight and attempt to evade arrest. See id. at 908. In Wyatt, this Court applied the same principle in deeming admissible the defendant’s statements to police officers upon his arrest that he “was glad he did not have a gun when he got stopped, otherwise he would have shot the officer.” Wyatt, 641 So.2d at 358. In 1997, this Court refined the principle articulated in Straight to provide that there “must be evidence which indicates a nexus between the flight, concealment, or resistance to lawful arrest and the crime(s) for which the defendant is being tried in [a] specific case.” Escobar v. State, 699 So.2d 988, 995 (Fla.1997), abrogated on other grounds by Connor v. State, 803 So.2d 598 (Fla.2001).

The principle articulated in Wyatt and Straight and refined in Escobar is equally applicable to the stated intent by Brooks to shoot the police officer to avoid returning to jail. The evidence shows that at the time Brooks uttered the statement, he, Davis, and Gilliam were involved in a conspiracy to commit murder. The statement of Brooks demonstrates that he was aware of the criminality of his actions at the time of the traffic stop and the precarious position he was in with regard to the approaching officer.

The counter-argument, that the threat to shoot the officer has no relevance to the guilty knowledge of Brooks concerning the stabbing death of a mother and daughter committed two days later, misses the fundamental connection between the threat and the crime charged. Brooks did not make the threat in the context of a random traffic stop on any given day. He and Gilliam were following the intended victim, had the murder weapon and a pair of latex gloves in their possession, and, but for the traffic stop, would have proceeded to the predesignated place in Crestview to commit murder. Had the murder plan been foiled because of the police stop, due to the discovery by the police of the gun or some other piece of incriminating evidence, Brooks’ statements certainly would be relevant and admissible under Wyatt and Straight. The relevancy of the threat voiced by Brooks against the law enforcement officer to his guilty knowledge is not diminished merely because his desire to evade prosecution and the successful completion of the planned crime were attenuated in time.

Though relevant, the statement by Brooks still may have been inadmissible if its probative value was outweighed by unfair prejudice. See § 90.403, Fla. Stat. (2002). Brooks argues that this is the case, and exhorts this Court to conduct the section 90.403 balancing test in accordance with the factors articulated in State v. McClain, 525 So.2d 420 (Fla.1988). In that case, this Court applied the principles advanced by Professor Ehrhardt for weighing the probative value of evidence against the threat of unfair prejudice, including the need for the evidence, the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, the chain of inference necessary to establish the material fact, and the efficacy of any limiting instruction. See id. at 422.

According to Brooks, the evidence “fails” the balancing test because the other portions of Gilliam’s testimony amply demonstrated Brooks’ intent, and the threat against the police officer simply portrayed Brooks as an individual determined to kill anyone who might send him back to jail. We disagree. The proffered analysis underestimates the probative value of the evidence. While Gilliam’s testimony tends to establish the existence of a conspiracy, the statements by Brooks more clearly provide the proof of his individual intent to commit murder and acknowledgment of guilt. Moreover, in a case such as this, which involved the stabbing death of a woman and her infant child, introduction of the threat by Brooks against the police officer was unlikely to suggest an improper basis to the jury for resolving the matter.

CHANGE OF VENUE

Brooks also argues that the trial court erred in failing to grant his change of ve