Perez v. State (919 So. 2d 347, 2005)

PER CURIAM.

We have on appeal a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the appellant’s conviction but vacate the death sentence, and remand for a new penalty phase proceeding.

Facts and Procedural History

On October 1, 2004, the grand jury indicted appellant, Daniel Ely Perez, and Calvin Cedric Green for the first-degree murder of Perez’s wife’s aunt, Susan Martin, for burglary of Martin’s home during which an assault or battery upon Martin was committed while the assailant was armed with a dangerous weapon, and for robbery with a deadly weapon. The charges against Perez and Green resulted from the stabbing of Martin and removal of certain property from her residence. On August 29, 2001, Martin’s body was found lying in a large amount of blood in the front entrance of her home in Port St. Lucie. The cases of Green and Perez were severed prior to trial pursuant to a Stipulated Motion for Severance. Perez’s trial began on April 28, 2003, and on May 8, 2003, he was found guilty of all three counts of the indictment as charged.

At trial, Officer James Weinart of the Port St. Lucie Police Department testified that on August 29, 2001, at approximately 1:45 p.m., he responded to a 911 call requesting that a welfare check be conducted at Martin’s residence. Upon arriving at Martin’s residence, Officer Weinart knocked on the front door and rang the doorbell but received no response. After several unsuccessful attempts to make contact with the occupant, the officer opened the front door, which was unlocked, and found Martin lying “on her back with several stab wounds, head trauma and blood all over the floor.” The officer immediately closed the door and notified police headquarters. Subsequently, Detective Anthony Sakala, a police detective who had previously investigated a theft that was reported by Martin in July of 2001, was called to the crime scene to identify the victim.

The lead detective on the case, Michael Beath, requested the phone records for both of the land lines registered to Martin as well as her cell phone. Detective Beath discovered that Martin had called Bell South from her cell phone at 1:07 a.m. on the morning of the crime. Bell South operator Vanlesha Gaskins testified that Martin had called to report that her house phone was not working. Gaskins testified that in response to the call she conducted several tests that led her to conclude that a phone line may have been cut. Gaskins stated that Martin was talking in a low whisper and ended the call in a low tone sounding somewhat scared and simply stating that she “had to go.” David Gose, a service technician for Bell South, was dispatched to Martin’s residence on August 29, 2001, and ascertained that both the phone line going from the street to Martin’s house and the line connecting the phone box on the outside of the house to the inside of the house had been cut.

At trial, several witnesses for the State testified with regard to evidence discovered at the crime scene. Ron Schoener, a crime scene investigator for the Port St. Lucie Police Department, testified that a side entrance door leading into the garage of Martin’s house was ajar and that the screen to a window in the door was cut in two pieces and removed. The investigator further testified that the glass of the window had also been removed and was leaning against some boxes just inside this side entrance door. The molding from a window adjacent to the garage had also been removed and was found lying in the grass, and the light bulbs of two spotlights on the exterior of the house had been disabled.

The interior of the house appeared to have been ransacked because drawers were opened with the contents dumped out and strewn about. Martin’s body was found directly inside the front door of the house, with her head approximately seven feet from the door, and her body was lying on the back with the hands above her head in a large amount of blood. A white sock was on the floor near the head of the body. A shoeprint was discovered in the blood near Martin’s body, and there were several additional shoeprints that led from the body toward the bathroom area. A cane with a large brass duck head was found in the bathroom and a gray or silver sock was recovered from the area between the master bedroom and the bathroom. No fingerprints of any value were found inside the house, which was consistent with the conclusion that any assailant was wearing something over his or her hands and corresponded with the socks found at the scene.

The medical examiner, Dr. Roger Mit-tleman, described Martin’s injuries in detail. Her autopsy revealed that she had suffered a blunt force injury to the left side of the head resulting in bruising and a laceration of the scalp but which did not result in a skull fracture or any damage to her brain. The bruising underlying the laceration indicated that Martin was alive when she was struck, and Mittleman opined that Martin most likely survived the blow. In total, Martin suffered ninety-four stab wounds, which averaged one-half inch in length with a penetration depth from one-half inch to one-and-one-half inches indicating that one weapon made all of the wounds. The wounds included eight stab wounds to the left side of her neck, four striking the jugular vein; twenty-four stab wounds to the right lateral torso, several of which punctured the liver and right lung resulting in hemorrhaging into the right lung cavity, which indicated she was alive at the time these wounds were inflicted; twenty stab wounds on the left side of her body; twenty-four stab wounds to her middle and lower back; and eighteen stab wounds to her abdominal area. Red marks on Martin’s neck indicated that something had been pulled against her neck, such as a thin necklace. There were also defensive wounds to Martin’s hand area indicating that she had been attempting to ward off an attack.

The medical examiner testified that although he could not definitively conclude the exact sequence of the wounds, it was his opinion that the wounds to the abdominal area and back occurred after the wounds to the neck and the right side of the body. Four of the wounds to Martin’s neck were determined to have been of a character to be lethal, as were several to the right side torso, where the weapon entered her liver. Mittleman testified that Martin would have lost consciousness within seconds to a minute or two as a result of the wounds inflicted to her neck, but that she could have survived ten to fifteen minutes from the wounds inflicted to her right torso area. He was unable to determine whether the stabber was right or left-handed.

Detective Beath’s investigation included three separate interviews with Perez. Beath initially interviewed Perez on August 29, 2001, the same day he was called to the scene to investigate the crime. Beath testified that he met with Perez at the police department, where Perez arrived voluntarily upon request. Subsequently, on August 31, 2001, Beath again interviewed Perez on a voluntary basis. At this point, Beath knew through Detective Sakala that Perez had been implicated by Martin in the previous jewelry theft from her residence and that Perez was aware of this fact. During these initial interviews, Perez denied any involvement in the earlier theft. Additionally, when Perez was asked whether he was in the habit of carrying a knife he responded that he carried one while at work. Beath noted that Perez was wearing new shoes during these interviews. Subsequently, it was discovered that Perez had pawned the ring and earrings Martin had previously reported stolen during the prior theft. The police also discovered that Perez had sold some of Martin’s missing coins.

Beath again interviewed Perez at the police department when he arrived looking for his wife, who was being interviewed at the time. During this interview, Beath confronted Perez with the evidence of his possession of the previously stolen jewelry. Perez’s initial story, denying any involvement, changed several times during the interview from stating that a drug addict gave him the jewelry, to stating that he had taken a pill bottle from Martin’s house and gave it to the owner of a pawn shop to sell its contents, to ultimately admitting that he had removed a pill bottle from the home and discovered jewelry inside that he later pawned. After Perez was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he told the police he wanted to continue the interview. Perez was subsequently advised that he was under arrest for the prior jewelry theft.

After further questioning with regard to Martin’s stabbing, Perez revealed a plan that he had with Gary Reed and Calvin Green to steal Martin’s car. Initially, Perez admitted that he provided Reed and Green with directions to Martin’s house to steal the car on the night of the murder but denied that he was ever present at the scene. Perez admitted that he came into possession of the coins taken from the house in return for giving Reed and Green directions to Martin’s house. Thereafter, Perez changed his story, admitting that he actually drove to Martin’s house in his sister’s car and that Reed and Green followed him in another vehicle. Perez told the police that after sitting in his car and waiting for ten to fifteen minutes, he drove by the house and saw the front door wide open. Perez stated that Reed and Green ran out of the front door, that Green was covered in blood, and that all three went their separate ways. Changing his story again, Perez next told the police that he actually opened the front door and saw Green on top of Martin with a six-inch switchblade punching her in the head and then Perez ran away.

When the police confronted Perez with evidence of the shoe prints that were discovered inside the house, Perez again revised his story, telling the police that he actually entered the house to attempt to remove Green off of Martin and then left. Later, Perez changed his story again, telling the police that he actually ran through the house looking for Reed and when he did not see him he fled the scene with Green in his car. Perez stated that when he came upon Green and Martin she was not screaming but that he heard her gargling on blood in her throat. Perez’s final version of the events was that only one car was driven to the scene and that Reed was never actually present at the house. In this final version, Perez admitted that he witnessed Green stabbing Martin and heard her gargling on blood. Perez then ran through the house two steps behind Green while Green was grabbing things and placing them into a bag. Perez also stated that while inside the house, the contents of Martin’s purse were dumped out. The key to her car was located and both he and Green went outside to the car and unlocked the door but fled the scene before actually taking the car. Perez told the police that both he and Green had socks on their hands when entering the house. The police videotaped the interviews conducted on the fifth and the sixth of September during which all of these details were revealed and the tape was played to the jury. No other eyewitness testimony was produced at trial.

During the morning of September 6, 2001, Perez accompanied the police on a drive-around to show them where he and Green disposed of various pieces of evidence from the crime. During this period, the police recovered several items of evidence: a bag that was removed from Martin’s house on the night of the crime; the key to Martin’s car; Martin’s watch; a “doo-rag”; and a pen allegedly belonging to Martin. Perez showed the police the canal where he alleged the murder weapon was thrown, although the weapon was never recovered. Perez directed the police to an area where he alleged that Green had dumped his bloody clothes, but no clothes were ever recovered. Perez also took the police to a dumpster where he allegedly discarded his bloody shoes, but they were never recovered.

Subsequent to the interview of Perez on September 5 and 6, Beath attempted to find a pair of shoes that matched the shoe prints found at the crime scene. Beath found a pair of shoes that appeared to have a similar pattern. Beath testified that Perez’s father-in-law, Joe Burns, went to the store where Beath had found the shoes, and Burns picked out the same pair as resembling sneakers that he had seen Perez wearing around the time of the crime. Later, a forensic firearm and tool mark examiner compared the shoes from the store to the shoeprint found at the crime scene and determined that the patterns of the two matched.

Perez presented no evidence at trial. The jury found Perez guilty of felony murder. The jury’s verdict was entered on a special verdict form that provided space for the jury to indicate whether they had found Perez guilty of first-degree murder as charged. The verdict form also contained a space for the jury to designate whether they found Perez guilty under the theory of premeditated murder, felony murder, or both. As noted, the jury indicated on the verdict form that they found Perez guilty of felony murder but declined to find him guilty of premeditated murder.

During the penalty phase, the State presented four witnesses. State witness Wes Starling, a Lieutenant with the Martin County Sheriffs Office, testified with regard to his investigation of Perez in 1995 for a stabbing incident, which resulted in Perez being convicted of attempted second-degree murder. The State also presented Margie Ann Barnes and Grace Burns, relatives of Martin, who read prepared statements regarding their interactions with Martin. During rebuttal, the State presented Dr. Gregory Landrum to testify with regard to Perez’s mental condition in general and at the time of the crime. Landrum had previously evaluated Perez in relation to his previous second-degree murder charge and had also reviewed various documents relating to the present case, including Perez’s videotaped interview. Landrum essentially agreed with Perez’s mental health expert’s diagnosis, but added that Perez displayed features of antisocial personality disorder.

Perez presented five family members and one mental health expert during the penalty phase. Perez’s sister, wife, mother, father, and grandmother all testified with regard to Perez’s upbringing and past mental health conditions that were present throughout his childhood and teenage years and his history of hospitalization, medication, and treatment. It was revealed that when Perez was nine his mother had left him with a male neighbor, whom she later discovered had sexually molested him. Perez’s father and mother were divorced when Perez was four or five and the father had little contact with him during his younger years.

Dr. Michael Riordan testified on Perez’s behalf regarding his mental condition in general and at the time of the offense. In evaluating Perez, Riordan reviewed Perez’s medical history and school records, interviewed his wife, mother, and sister, and administered a number of tests to Perez. Riordan did not review Perez’s videotaped interview. Riordan noted that Perez became suicidal as a result of the sexual abuse he suffered and had made four suicide attempts. Riordan’s diagnosis was that Perez was suffering from bipolar disorder, attention deficit hyperactivity disorder, and borderline personality disorder. On cross-examination, Riordan noted that Perez had also been diagnosed with oppositional defiant disorder in 1993 accompanied by a history of acting aggressively towards peers and authority figures, having hostile impulses, losing his temper, acting defiantly, and using a weapon against others. Perez declined to testify at his penalty phase.

On May 13, 2003, the jury returned a recommendation of death by a vote of nine to three. During the Spencer hearing, the State presented Martin’s sister, who read a statement expressing the pain caused by her sister’s death but also expressing her family’s distaste for the death penalty. Perez presented additional testimony of his sister, mother, and wife on the issue of mitigation along with letters written to the trial court from Perez’s niece and nephew. On July 21, 2003, the trial judge sentenced Perez to death for the felony murder of Martin and to life imprisonment for both the burglary with an assault or battery while armed conviction and robbery with a deadly weapon conviction. In pronouncing Perez’s sentence, the trial court determined that the State had proven beyond a reasonable doubt the existence of four statutory aggravators: (1) Perez had previously been convicted of another capital felony or a felony involving a threat of violence to the person; (2) Perez committed the murder in this case while he was engaged, or was an accomplice, in the commission of, or an attempt to commit or in flight after committing or attempting to commit a robbery or a burglary of a dwelling; (3) the murder was committed for pecuniary gain; and (4) the murder was committed in an especially heinous, atrocious, or cruel fashion (HAC). The trial court determined that two of the aggravators, pecuniary gain and in the commission of robbery or burglary, merged, resulting in a total of three aggravating circumstances. The trial court further determined that one statutory mitigating circumstance existed, that Perez was under extreme mental or emotional disturbance at the time of the crime, which the court accorded little weight. The trial court found a total of fourteen nonstatuto-ry mitigating circumstances, three of which the trial court assigned moderate weight, two of which the trial court assigned some weight, and nine to which the trial court assigned little weight. This direct appeal followed.

ANALYSIS

GUILT PHASE

I. Juror Disqualification

Perez asserts that he is entitled to a new trial as a result of the trial court denying his motion to disqualify a juror because the juror failed to disclose her relationship with a State witness during voir dire when the State read its witness list to the jury pool. During Perez’s trial, juror Nicosia wrote a note to the trial court explaining that she had knowledge of a witness for the State, Beasely, through having submitted a bid to do paint work for Beasely and an introduction through friends. Perez’s trial counsel immediately requested that Nicosia be discharged, and the trial court initially denied that request, finding that Nicosia’s ability to render a fair and impartial verdict was not impaired by her contact with Beasely. Just prior to closing arguments the trial court addressed the matter again, at which time the State suggested that “if the defense is still asking that she be disqualified, ... we would rather go that route and disqualify her ... so there is no issue on that.” When faced with this opportunity to obtain the relief initially sought by the defense, Perez’s trial counsel affirmatively rejected the opportunity and stated “that if there is no cause challenge then nothing should change,” thereby waiving any objection to Nicosia serving on this jury. Based on the foregoing, we conclude that this issue was waived and is not properly preserved for review by this Court and we therefore decline to address this issue on appeal.

II. Motion to Suppress

Perez asserts the trial court erred when it denied his motion to suppress his statements given to the police on September 5 and 6, thereby entitling him to a new trial in which the statements should be excluded from evidence. In Perez’s motion to suppress, he asserted that his statements were obtained illegally because he was “coerced/forced or under duress at the times of the statements,” and that he made the statements “without a knowing and voluntary waiver of his rights and without the benefit of counsel.” During the hearing on Perez’s motion, his counsel made two specific assertions to the trial court: (1) that the statement “was given through misleading or confusing statements of Perez’s rights” by the police in that he was misled regarding his custody status; and (2) “that the statement was obtained through coercive measures, duress due to the time period involved.”

“For an issue to be preserved for appeal, ... it ‘must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.’ ” Archer v. State, 613 So.2d 446, 448 (Fla.1993) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)); see also Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). We have determined that several points that Perez now presents on appeal before this Court were not properly preserved and, therefore, we decline to address the merits of those claims. Specifically, Perez’s assertion that Detective Beath’s recitation of the Miranda warnings was incomplete because he was not advised of his right to have an attorney present during questioning was never presented to the trial court in Perez’s motion or in the corresponding hearing, and therefore was not properly preserved for appellate review. See Archer, 613 So.2d at 448; Steinhorst, 412 So.2d at 338. Additionally, Perez’s claims — that he was denied a phone call, that he was physically uncomfortable during the interrogation, that the overall tenor of the questioning was inappropriate, and that he was told the police would protect his family if he gave a statement — were also not presented to the trial court below and therefore are not properly before this Court for consideration.

With regard to Perez’s assertions that have been properly preserved for appellate review, we conclude that the trial court’s disposition of these claims is supported by the record and that the trial court appropriately denied the motion to suppress. We reach our conclusion guided by the principle of law in Florida that

[a] trial court’s ruling on a motion to suppress is clothed with a presumption of correctness with regard to the trial court’s determination of historical facts. Appellate courts, however, independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendments.

Davis v. State, 859 So.2d 465, 471 (Fla.2003).

The first properly preserved basis that Perez alleges as grounds for suppression is that Detective Beath improperly implied that he was free to leave when Beath knew that there was an outstanding felony arrest warrant for Perez at the time of the interview and, therefore, under Florida law, Beath had a duty to arrest him. Perez further contends that by implying that he was free to leave, Beath intended to and in fact did mislead him as to his true position during the interview, which tainted any waiver of rights he provided.

In support of this contention, Perez directs our attention to our opinion in Ramirez v. State, 739 So.2d 568 (Fla.1999). In Ramirez, a juvenile offender was implicated in a murder by an associate, Grimshaw. See id. at 572. Grimshaw placed a sheriff-monitored phone call to Ramirez during which items of physical evidence related to the crime were discussed. See id. Subsequently, Ramirez, who was seventeen at the time,'was visited at home by a sheriffs deputy and turned over evidence relating to the crime. See id. Ramirez also took the deputy to retrieve other items and agreed to accompany the deputy to the station for questioning. See id. At the station, Ramirez was interrogated and eventually admitted to breaking into the victim’s house. See id. Subsequent to his admission and prior to any Miranda warning, a detective stated:

Why don’t you let Nate [Ramirez] know about his rights. I mean, he’s already told us about going in the house and whatever. I don’t think that’s going to change Nate’s desire to cooperate with us.

Id. At this point, Ramirez asked if he was being placed under arrest and the detective responded, “No, no, I’m just reading your rights at this time.” Id. Later, Ramirez admitted his involvement in the murder and after he had fully confessed, the detectives obtained a written waiver of his Miranda rights. Id.

In Ramirez, we concluded that the defendant’s statement should have been suppressed. See id. at 578. In so holding, we stressed that Ramirez was never told he was free to leave, that he was a juvenile (just turning seventeen), and that the detectives exploited his prior unwarned statements in an effort to downplay the significance of the Miranda warnings when they suggested that the warnings would not change Ramirez’s desire to cooperate. See id. at 574, 576. Additionally, we noted that when the detectives responded negatively to Ramirez’s question pertaining to whether he was under arrest,

Ramirez had already implicated himself in the crime and the detectives had independent corroboration of his involvement and ample probable cause to arrest him for murderf,] ... [and that] [i]t [was] simply inappropriate for the police to make a representation intended to lull a young defendant into a false sense of security and calculated to delude him as to his true position at the very moment that the Miranda warnings [were] about to be administered.

Id. at 576-77 (emphasis supplied).

Perez’s reliance on Ramirez is misplaced. The defendant in Ramirez was a juvenile, a fact that we stressed throughout our opinion, see id. at 571, 574-78, unlike Perez who was twenty-three at the time of the interview at issue here. Another distinguishing factor is that the defendant in Ramirez was not told he was free to leave, see id. at 574, but in the instant case Perez arrived at the police station of his own accord and was explicitly made aware that he was there on a voluntary basis and was free to leave at any time.

This case more closely resembles the facts of Davis v. State, 698 So.2d 1182 (Fla.1997), than Ramirez. In Davis, the defendant, as did Perez, voluntarily agreed to go to the police station for questioning on three occasions regarding the death of a former girlfriend’s daughter. See id. at 1186. At the time of the third interview the police had a warrant for Davis’s arrest, but he was not informed of this status prior to questioning. See id. In holding that the statements made by Davis during this third interview were admissible, we noted:

[T]he sole fact that police had a warrant for Davis’s arrest at the time he went to the station does not conclusively establish that he was in custody. Rather, there must exist a “restraint on freedom of movement of the degree associated with a formal arrest.” Roman v. State, 475 So.2d 1228, 1231 (Fla.1985). The proper inquiry is not the unarticulated plan of the police, but rather how a reasonable person in the suspect’s position would have perceived the situation. Id.

Davis, 698 So.2d at 1188.

The Third District utilized an approach similar to Davis in State v. Manning, 506 So.2d 1094 (Fla. 3d DCA 1987). There, the defendant had voluntarily submitted to two police interviews after being informed that he was a suspect. See id. at 1095. Subsequently, the police obtained a warrant for his arrest and requested that Manning grant them a third interview without informing him of the existence of the warrant. See id. In concluding that the statements made by Manning at this third interview were admissible, the district court noted:

The fact that Manning was not immediately informed that he was under arrest is insufficient to find that his waiver was not voluntary.... There is no question that Manning was read his rights many times.... Just as an undercover investigation may continue, notwithstanding the fact that a search warrant has been issued, United States v. Alvarez, 812 F.2d 668 (11th Cir.1987), if all other criteria have been satisfied, an interrogation may take place notwithstanding the fact that an arrest warrant has been issued.

Id. at 1096-97. See also State v. Wallace, 673 So.2d 914 (Fla. 2d DCA 1996). The facts of this case, similar to the cases cited above, support the trial court’s determination that any waiver was voluntary and that Perez’s statement to the police was not procured through deception sufficient to preclude its admission at trial. Therefore, we hold that the trial court properly denied this claim.

Perez also asserted below that the length of the interview, approximately twenty-five hours, per se required suppression of his statement by the trial court. In denying this claim, the trial court found that “[Perez] was given opportunities to nap during the interview process,” that “Perez never expressed being tired to the point that he wanted to discontinue the interview process,” and that “[a]t no time did Perez express a desire to stop the interview process.” We conclude that the record supports these findings. The transcript of Perez’s interview, in addition to Beath’s testimony at the hearing on Perez’s motion to suppress, which was not refuted by any testimony offered by the defense, reveals that Perez was given the opportunity to take smoking and restroom breaks during the interview; Perez was given snacks and drinks when requested; Perez left the investigating officer’s custody for approximately two hours to take a voluntary polygraph test; Perez was provided breakfast and lunch on September 6; and Perez was provided the opportunity to sleep for approximately six to eight hours.

In Chavez v. State, 882 So.2d 730 (Fla.2002), this Court determined that a lengthy interrogation period with intermittent breaks alone was “not so coercive as to render Chavez’s confession involuntary.” Id. at 749. In so holding, we noted:

Although Chavez was questioned over the course of several days, he was provided with food, drink, and cigarettes (as requested) at appropriate times, and permitted to have frequent breaks. His interrogation was also interspersed with time away from the police facilities for visits to various properties, a six-hour rest period (where Chavez was offered a blanket and a pillow), and times when he was left alone for quiet reflection. He was repeatedly given Miranda warnings, in Spanish, and indicated each time that he fully understood them.

Id. The circumstances surrounding the interrogation by the police in Chavez are strikingly similar to the facts of the present case. Moreover, the interrogation at issue here was of less duration than that in Chavez. Perez attempts to distinguish Chavez by noting that Chavez was repeatedly read his rights and indicated he fully understood them whereas here, Perez was given only a partial recitation of his rights. However, this issue was not presented to the trial court below and was therefore waived, rendering this attempt at distinguishing Chavez moot.

Given the similarities between the totality of the circumstances surrounding the interrogations in this case and Chavez, along with the time element involved here, we conclude that the length of the officers’ interview of Perez was not so great as to per se render his statements or waiver or both involuntary. See also Conde v. State, 860 So.2d 930, 951-52 (Fla.2003) (holding confession by defendant was not rendered involuntary by separate interrogation periods lasting approximately twelve and thirteen hours each and ending past 2:30 a.m. on each occasion when defendant “was provided food, drink, access to restrooms, the opportunity to place phone calls, and at least eleven hours away from the detectives at a place where he could rest”); Walker v. State, 707 So.2d 300, 311 (Fla.1997) (upholding voluntariness of confession where defendant was questioned for six hours, provided drinks, and allowed use of restroom, and detectives never threatened capital punishment or promised more than to tell prosecutor defendant cooperated).

Based on the foregoing analysis of the issues properly preserved for appellate review in the trial court below, we hold that the trial court properly denied the motion to suppress and correctly admitted Perez’s statements into evidence.

III. Prejudicial Comments at Trial

In its opening statement to the jury, the State made the following comment:

One month later — we go to August 27, 2001. That was a Monday. That Monday night the defendant just after midnight which would be the morning of the 28th, drove up from Martin county where he lived and he went to Ms. Martin’s house. He went there armed with a very small knife that he always carried and he went there, ladies and gentlemen, for two reasons.

Perez’s trial counsel objected to the comment that Perez always carried a knife as irrelevant and moved for a mistrial. In response, the State argued to the judge that Perez had acknowledged that he carried a knife. The trial court overruled the objection and denied the motion, reasoning that the statement was not overly prejudicial and that the information was relevant to the issue of whether the crime was committed with a switchblade, consistent with Perez’s statement, or another type of knife. Perez claims that the trial court erred in denying his motion for a mistrial because he asserts that whether he personally carried a knife was a major issue as to both guilt and penalty. Thus, the prosecutor’s comment with regard to a knife was unduly prejudicial to him. Moreover, Perez contends that the curative instruction given was not likely to clear any confusion caused by that which had transpired.

“[A] trial court’s ruling on a motion for mistrial is subject to an abuse of discretion standard of review.” Goodwin v. State, 751 So.2d 537, 546 (Fla.1999). Moreover, “[w]ide latitude is permitted in arguing to a jury.... The control of comments is within the trial court’s discretion, and an appellate court will not interfere unless an abuse of discretion is shown.” Breedlove v. State, 413 So.2d 1, 8 (Fla.1982) (citations omitted). Under the abuse of discretion standard, a trial court’s ruling will be upheld unless the “judicial action is arbitrary, fanciful, or unreasonable, .... discretion is abused only where no reasonable [person] would take the view adopted by the trial court.” Trease v. State, 768 So.2d 1050, 1053 n. 2 (Fla.2000) (alteration in original) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)).

The comments challenged by Perez were made during opening statements, the purpose of which was for counsel to outline what he in good faith expected to be established by the evidence presented at trial. See Conahan v. State, 844 So.2d 629, 640 (Fla.2003); Occhicone v. State, 570 So.2d 902, 904 (Fla.1990). Perez has failed to demonstrate that the statements at issue here were misleading or made in bad faith. Rather, we conclude that the attorney for the State made the comments in good faith with the expectation that they would be established by evidence he anticipated presenting during trial. Although the transcript of Perez’s interview with the police reveals that Perez did not indicate that he always carried a knife, it was clear that he did admit that he carried a knife. Additionally, although the trial court ruled it inadmissible, the State proffered testimony from Perez’s brother-in-law that he knew Perez to carry knives. Based on the foregoing, Perez’s reliance on Jackson v. State, 818 So.2d 539 (Fla. 2d DCA 2002) (holding that it was error to deny motion for mistrial where prosecutor extensively recited damaging testimony in opening that was never presented at trial), Gore v. State, 719 So.2d 1197 (Fla.1998) (holding that latitude permitted in opening does not extend to permit comment on evidence ruled inadmissible prior to trial), and Mills v. State, 875 So.2d 823 (Fla. 2d DCA 2004) (holding that it was error to deny mistrial where prosecutor improperly suggested the existence of corroborating evidence that was never presented at trial), is misplaced. Additionally, Perez’s objection to the comments as irrelevant was properly rejected by the trial court. The indictment charging Perez indicated that he, “in the course of committing the robbery[,] carried a firearm or other deadly weapon, to wit: a knife.” Therefore, whether Perez owned a knife or carried a knife was relevant at trial, and therefore the relevancy objection was properly denied. Given the evidence that the State anticipated presenting at trial and the overall nature of the single isolated comment made by the prosecutor, we conclude that the trial court properly denied Perez’s motion for a mistrial.

Perez also challenges a statement made by Detective Beath during his testimony at trial, specifically, Beath’s testimony that Perez had indicated to Beath that “[Perez] did carry a knife on a regular basis.” Perez’s trial counsel objected and moved for a mistrial, claiming that a habit had not been established and therefore the testimony was irrelevant. At this point, the State conceded that Beath’s testimony did not reflect precisely what Perez had said with regard to carrying a small blade knife. The trial court overruled the objection and denied the motion for a mistrial but gave the following curative instruction to the jury at the defense’s request:

Members of the jury, the exhibit 52 admitted into evidence is the videotape of portions of the interview with Mr. Perez. It is the best evidence of what Mr. Perez said so you need to rely on your determinations about what is said off that videotape.

(Emphasis supplied.)

The transcript of Perez’s interview with the police, which the jury had while viewing the videotape of the interview, reveals the following exchange between Beath and Perez regarding Perez’s knife:

BEATH: Do you normally carry a poek-etknife or anything like that?

PEREZ: When I’m at work.

BEATH: Okay. Any other times you normally carry knives or anything like that? Do you have collections of knives, or anything?

PEREZ: I have one. Um, as far as carrying it all over the place all the time? No. There’s occasions where I, I have it in my pocket, like after I get off of work or something, I’ll have it in my pocket. But it’s, it’s a little, the, one I have now? It’s a, it’s a little lock blade, it’s like a, not even a, a 3" blade.

BEATH: You have it on you?

PEREZ: No.

BEATH: You use it for work?

PEREZ: Yeah, it’s for cuttin’ open wardrobe boxes.

BEATH: So, it’s pretty sharp to, I mean you could take it and (cutting motion through paper)?

PEREZ: Yeah, when I sharpen it.

BEATH Okay. So, do you keep it, I mean, is it a knife that you keep it, well maintained?

PEREZ: Yeah.

BEATH: Okay. All right. Um, you take it to work with you?

PEREZ: Yeah.

BEATH: You still do?

PEREZ: Yeah.

In light of the curative instruction given by the trial court, we hold that the trial court did not abuse its discretion when it denied Perez’s motion for mistrial based on Beath’s testimony. A motion for mistrial is properly denied where the matter on which the motion is based is rendered harmless by a curative instruction. See Buenoano v. State, 527 So.2d 194, 198 (Fla.1988); Ferguson v. State, 417 So.2d 639 (Fla.1982); Johnsen v. State, 332 So.2d 69 (Fla.1976); Rivera v. State, 745 So.2d 343, 345 (Fla. 2d DCA 1999); see also 55A Fla. Jur.2d Trial § 284 (2000). The comment made by Beath was a short one-sentence statement during a lengthy direct examination. Moreover, when the statement was made, Perez’s trial counsel objected and the trial court immediately gave a curative instruction at the defense’s request in which the jury was instructed that the videotape of Perez’s interview was “the best evidence” of what Mr. Perez had stated and the jury should “rely on your determinations about what is said off that videotape.” Given the above, Perez’s motion for a mistrial was properly denied.

Notwithstanding our conclusion above, we also note that the error, if any, resulting from the prosecutor’s opening statement and the detective’s testimony was harmless because we “can say beyond a reasonable doubt that the error did not affect the verdict.” Mansfield v. State, 758 So.2d 636, 644 (Fla.2000). In relation to the prosecutor’s comments during opening statement, we note that the trial judge specifically instructed the jury on five separate occasions that the comments of the attorneys did not constitute evidence. Just subsequent to empanelling the jury, the trial court properly instructed and cautioned the jury as follows:

[T]he attorneys will have an opportunity to make an opening statement. The opening statement gives the attorneys a chance to tell you what evidence they believe will be presented during the trial. What the lawyers say is not evidence and you’re not to consider it as such.

(Emphasis supplied.) Again, prior to both the opening statement and closing argument, during closing arguments themselves, and again during the trial court’s final instructions, the jury was reminded that the attorneys’ words and arguments did not constitute evidence. Additionally, as we previously stated, any harm resulting from the detective’s comment was rendered harmless by the trial court’s instruction to the jury that the videotape was “the best evidence” of what Mr. Perez said for purposes of jury consideration. Based on the foregoing, we conclude that any error, if any, that resulted from these comments was harmless and therefore Perez’s motion for mistrial was properly denied.

PENALTY PHASE

I. Enmund/Tison

In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the United States Supreme Court overturned Enmund’s death sentence for felony murder because this Court “affirmed the death penalty in th[e] case in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken.” Id. at 801, 102 S.Ct. 3368. The High Court revisited its holding in Enmund in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). In Tison, the High Court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Tison, 481 U.S. at 158, 107 S.Ct. 1676. Although the United States Supreme Court held in Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), overruled in part on other grounds by, Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), that “the Constitution does not require a specific jury finding on the En-mund issue [and that it] requires only that the ‘requisite findings are made in an adequate proceeding before some appropriate tribunal — be it an appellate court, a trial judge, or a jury,’ ” we have determined that the issue should be submitted to the jury. Jackson v. State, 502 So.2d 409 (Fla.1986) (quoting Cabana, 474 U.S. at 392, 106 S.Ct. 689). In Jackson v. State, 502 So.2d 409 (Fla.1986), we announced procedures for trial courts to use to comply with Enmund. The procedures we outlined in Jackson were modified in Diaz v. State, 513 So.2d 1045 (Fla.1987), to reflect the United States Supreme Court’s decision in Tison wherein the High Court expanded upon the criteria which would satisfy the Enmund culpability requirement. Diaz, 513 So.2d at 1048 n. 2. After Jackson and Diaz, trial 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,” Jackson, 502 So.2d at 413, “make findings satisfying Enmund and ... Tison.” Diaz, 513 So.2d at 1048 n. 2. “Further [the Court] reiterate[ed] that the trial courts shall include in their sentencing orders findings supporting the Enmund/Tison culpability requirement.” Id.

The trial court below properly followed the procedures outlined by our opinion in Jackson as modified by Diaz when it instructed the jury at the penalty phase that “in order for you to recommend a sentence of death in this case you must find [Perez] was a major participant in the crime of robbery or burglary and that [Perez’s] state of mind at the time amounted to wreekless [sic] indifference to human life.” Subsequent to being given this instruction, the jury rendered a verdict recommending the death penalty by a vote of nine to three.

Perez contends that the guilty verdict in this case did not encompass the necessary facts to justify a sentence of death because the jury did not make a specific finding that he actually committed the stabbings or that he was a major participant in the felony and acted with a reckless indifference for human life. These claims lack merit. The jury’s verdict finding Perez guilty of felony murder was not required to include a separate and distinct Enmund/Tison determination. The Enmund/Tison finding is to be made during the penalty phase of a murder trial to determine if the sentence of death may be constitutionally imposed. See Jackson, 502 So.2d at 413. During the penalty phase here, the trial court properly instructed the jury with regard to the Enmund/Tison issue. Whether Perez was eligible to be sentenced to death at all was appropriately determined at the guilt phase when the jury unanimously found him guilty of first-degree felony murder, which is classified in Florida as a capital felony with the maximum penalty authorized by statute being death. See Shere v. Moore, 830 So.2d 56 (Fla.2002).

Moreover, there is competent, substantial evidence in the record to support the determination that the jury found Perez to have been a major participant in the felonies committed and that he acted with a reckless indifference to human life. The jury found Perez guilty of the following crimes: first-degree felony murder; burglary of a dwelling in the course of which he made an assault or battery upon a person and was armed or armed himself with a dangerous weapon; and robbery in the course of which he was carrying a deadly weapon, a knife. Additionally, the jury was instructed that if they found that the crimes at issue were the independent acts of another, then Perez should not be found guilty of those crimes. Based on the verdicts, the jury obviously determined that Perez was a major participant in the burglary, during the commission of which he committed an assault or battery while armed, and the robbery, during the course of which he carried a deadly weapon, and that these crimes were not the independent acts of another. By virtue of these verdicts, it is clear that the jury found Perez to have acted with a reckless disregard for human life. See Jackson, 502 So.2d at 412 (“[B]y being a major participant in the armed robbery, appellant, at the very least, contemplated that life would be taken.”).

Perez’s contention that the jury could have found him guilty vicariously through the acts of Green does not vitiate the conclusion that he was a major participant in these crimes. The instruction given by the trial court regarding principal responsibility was as follows:

If the Defendant helped another person or persons commit or attempt to commit a crime, the Defendant as [sic] a principal and must be treated as if he had done all the things the other person or persons did if the Defendant had a conscious intent that the criminal act be done and the Defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime.

(Emphasis supplied.) Satisfaction of these criteria alone would indicate major participation in the commission of a crime. Therefore, the mere fact that the jury may have found Perez guilty as a principal does not, as Perez asserts, prevent a finding that he was a major participant in the crimes.

Perez next asserts that his penalty phase proceeding was unconstitutional because the jury’s determination of the Enmund/Tison issue was not unanimous. We have previously addressed such a claim and denied relief. In James v. State, 453 So.2d 786 (Fla.1984), we denied relief on a claim identical to that which Perez now asserts by noting that “the United States Supreme Court has never held that jury unanimity is a requisite of due process, and in Alvord v. State, 322 So.2d 533 (Fla.1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976), this Court held that the jury in a capital case could recommend an advisory sentence by a simple majority vote. We do not find that unanimity is necessary when the jury considers this issue.” James, 453 So.2d at 792 (footnote omitted) (emphasis supplied). See also Parker v. State, 904 So.2d 370, 383 (Fla.2005) (“This Court has repeatedly held that it is not unconstitutional for a jury to recommend death on a simple majority vote. Moreover, this Court has rejected claims that Ring v. Arizona, requires aggravating circumstances to be individually found by a unanimous jury verdict.”) (citations omitted); Israel v. State, 837 So.2d 381, 392 (Fla.2002) (rejecting appellant’s assertion, post -Ring, that his death sentence was unconstitutional based on the jury recommending death by a split vote).

Perez also alleges infirmity in the penalty phase because the jury was not instructed that it was required to make the Enmund/Tison finding beyond a reasonable doubt. This claim was not preserved at the trial level because Perez did not object to the jury instruction when the language was proposed or object anytime thereafter prior to the jury retiring to deliberate. See Fla. R.Crim. P. 3.390(d) (“No party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.”). In fact, defense counsel expressly agreed to the language of the instruction that the trial court read on this issue:

THE COURT: ... Give me the language you’re proposing.

[THE STATE]: In order to recommend a sentence of death in this ease you must find that the Defendant was a major participant in the crime of burglary or robbery and the Defendant’s state of mind amounted to a reckless indifference to human life.

[THE DEFENSE]: We don’t have an objection to that language.

THE COURT: Defense agrees with that language?

[THE DEFENSE]: No objection to that language.

(Emphasis supplied.) This argument was not preserved for review and is therefore not properly before the Court.

Procedural bar notwithstanding, this claim lacks merit. There is no authority in Florida that requires that the jury again be separately and independently instructed that the Enmund/Tison elements must be established beyond all reasonable doubt. The jury here was properly instructed and, by voting to recommend the death penalty, concluded that the Enmund/Tison culpability requirement was satisfied. Additionally, the trial court provided a detailed analysis of the evidence presented at trial in support of its finding that the requirement had been established beyond a reasonable doubt.

Perez also claims that indications made by the State and the trial court to the jury that their penalty phase verdict was advisory and not binding renders his penalty phase unconstitutional. This Court has addressed claims of this nature and has repeatedly denied relief. See Card v. State, 803 So.2d 613 (Fla.2001) (holding that claim that instructions “that refer to the jury as advisory and that refer to the jury’s verdict as a recommendation violate Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)” was without merit); Brown v. State, 721 So.2d 274, 283 (Fla.1998) (holding that the standard jury instructions fully advise the jury of the importance of its role, correctly state the law, do not denigrate the role of the jury, and do not violate Caldwell); Rose v. State, 617 So.2d 291, 297 (Fla.1993) (same); Robinson v. State, 574 So.2d 108 (Fla.1991) (same); Combs v. State, 525 So.2d 853 (Fla.1988) (same).

Perez’s assertion that his penalty phase proceeding was constitutionally infirm because the trial court allowed the State to admit victim impact evidence was also properly denied by the trial judge. This claim has been denied by both the United States Supreme Court and this Court. See Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (determining that a state may properly decide that a jury should have before it victim impact evidence at sentencing); Windom v. State, 656 So.2d 432, 438 (Fla.1995) (“We do not believe that the procedure for addressing victim impact evidence, as set forth in the statute, impermissibly affects the weighing of the aggravators and mitigators ... or otherwise interferes with the constitutional rights of the defendant. Therefore, we reject the argument which classifies victim impact evidence as a nonstatutory ag-gravator in an attempt to exclude it during the sentencing phase of a capital case.”); Allen v. State, 662 So.2d 323 (Fla.1995) (same). Additionally, Perez’s contention that because the rules of evidence precluding the admissibility of hearsay do not apply to penalty phase proceedings pursuant to section 921.141(1) of the Florida Statutes, those proceeding are constitutionally inadequate also lacks merit. See Mendoza v. State, 700 So.2d 670, 675 (Fla.1997) (“We have recognized that hearsay evidence may be admissible in a penalty-phase proceeding if there is an opportunity to rebut.”); Lawrence v. State, 691 So.2d 1068 (Fla.1997) (same); Chandler v. State, 534 So.2d 701 (Fla.1988) (holding that admission in sentencing proceeding of hearsay testimony did not render subsection (1) of section 921.141 of the Florida Statutes unconstitutional). We do recognize that, pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), out-of-court statements by witnesses that are testimonial in nature are barred under the Confrontation Clause, unless witnesses are unavailable and the defendant had a prior opportunity to cross-examine them. See id. at 1374. However, Perez does not direct our attention to any specific statements in the record that he contends are testimonial in nature and, therefore, the holding in Crawford is inapplicable to Perez’s current claim. Instead, Perez specifically asserts that section 921.141 of the Florida Statutes cannot pass constitutional muster because it allows for the admission of hearsay statements in penalty phase proceedings. As previously noted, we have rejected such a blanket attack on the constitutionality of this statutory provision in the past, and do so again in this case. Moreover, consistent with our pri- or decisions, we note that the United States Supreme Court has also expressed that “[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354.

Based on the foregoing analysis, we conclude that Perez has failed to establish that the death penalty was inappropriate here where the trial court properly instructed the jury that to impose the death penalty they were required to make the Enmund/Tison finding and the trial court performed a detailed analysis of the evidence supporting that finding in its sentencing order.

Perez next alleges that there was insufficient evidence presented at trial to establish that he either killed Martin or was a major participant in the felonies committed and acted with a reckless disregard for human life. Therefore, Perez asserts, the death penalty is disproportionate under the law established in Enmund and Tison. For Perez’s death sentence to stand, the finding required by Enmund and Tison must be established beyond a reasonable doubt. See Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Perez cites to several cases as support for his contention that the facts in the present case do not sustain the trial court’s finding that his conduct satisfied the Enmund/Tison culpability requirement.

Initially, Perez refers to this Court’s decisions in Jackson v. State, 575 So.2d 181 (Fla.1991), and Benedith v. State, 717 So.2d 472 (Fla.1998). These cases are distinguishable from the instant case. In Jackson, there was no evidence presented at trial that placed the defendant, Clinton Jackson, at the scene of the crime. See Jackson, 575 So.2d at 184-86. In Jackson, Clinton “denied any involvement in or knowledge of the shooting.” Id. at 184. No fingerprints of Clinton’s were found at the crime scene and gunpowder residue tests proved inconclusive. See id. at 185. The only evidence presented that connected Clinton with the crime was the testimony of two inmates. One inmate testified that he saw Clinton driving a truck in the vicinity of the crime scene that was identified as a vehicle seen fleeing the crime scene, and that Clinton told him several days before the crime of his intentions to rob the store where the murder took place. The second inmate testified that he overheard Clinton tell his mother: “[W]e had to do it because he had bucked the jack,” and “to tell Nate, [the defendant’s brother,] if they picked up Nate, to tell him that he hadn’t — -he hadn’t been nowhere around the hardware store and get rid of the gun.” Id. at 185. In reversing the death penalty this Court noted:

There was no evidence that [Clinton] carried a weapon or intended to harm anybody when he walked into the store, or that he expected violence to erupt during the robbery. There was no real opportunity for [Clinton] to prevent the murder since the crime took only seconds to occur, and the sudden, single gunshot was a reflexive reaction to the victim’s resistance.

Id. at 192-93.

Here, unlike Jackson, Perez’s own statement directly placed him at the scene of the crime, a bloody shoeprint next to the body was determined to match shoes that Perez was known to be wearing at the time of the crime, and he admitted to disposing of his shoes on the night of the crime because there was blood on them. Also, there was sufficient planning to cut Martin’s phone lines and disable security lights, and there was evidence that Perez was armed with his knife that he carried home from work on occasions. Perez admitted that he helped dispose of the murder weapon and other evidence from the crime and he pawned items taken during the crime. The deadly attack here involved inflicting a blunt force trauma followed by the delivery of ninety-four stab wounds, which is a far cry from the single gunshot resulting from the reflexive reaction that was present in Jackson.

The facts revealed in Jackson v. State, 502 So.2d 409 (Fla.1986), in which we affirmed the death sentence for Clinton Jackson’s brother, Nathaniel, based on the same crime at issue in Clinton’s case is more relevant to our analysis of Perez’s sentence in the instant matter. The significant difference between Clinton Jackson’s case and Nathaniel Jackson’s is found in the facts that Nathaniel’s fingerprints were discovered at the crime scene (similar to Perez’s footprint), and the admission at trial of a statement made by Nathaniel in which he admitted being present at the robbery but alleged that it was his brother, Clinton, who actually shot the victim (similar to Perez’s statement to the police in the instance case). We conclude that Nathaniel Jackson’s case is more analogous to the facts here and provides support for the trial court’s finding that the culpability required by Enmund and Tison was established beyond a reasonable doubt by the evidence presented at trial.

The facts of Benedith v. State, 717 So.2d 472 (Fla.1998), are also distinguishable from the present case. In Benedith, the only eyewitness testimony at trial placed Benedith at the location of the murder four to five minutes prior to the eyewitness hearing gunshots. See id. at 474. The eyewitness further noted that immediately aft