Coday v. State (946 So. 2d 988, 2006)

PER CURIAM.

William Coday appeals his conviction for first-degree murder and a sentence of death imposed in the circuit court for the Seventeenth Judicial Circuit in and for Broward County, Florida. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons which follow, we affirm the judgment but vacate the sentence and remand this ease for a new sentencing proceeding before the trial judge.

FACTUAL AND PROCEDURAL HISTORY

William Coday testified that he had an on again, off again, intimate relationship with the victim, Gloria Gomez, from January 1996 to June 1997. In early June 1997, they had an argument in which he accused her of having an affair with another man. After this argument, she broke off contact with him and moved out of his apartment in Fort Lauderdale and in with some friends in Miami. For over a month, he attempted repeatedly to reconcile with her. Desperate to contact her, he left an urgent message with her family friend stating that he was going to be hospitalized. In response, she called him that evening. During the conversation, he lied to her and told her that he had cancer. She promised to visit him on Friday, July 11,1997, between 10:00 a.m. and 11:00 a.m.

She arrived at his home at or near 1:00 p.m. on July 11, 1997. He was agitated because she was late. They first discussed his medical situation. Coday then shifted the focus of their conversation to his desire to have her back. He led her into his bedroom where the conversation continued. When she told him that she did not love him in the manner that he had thought and that she had to get her things from his apartment, he flew into a rage and punched her. He then picked up a hammer and struck her, causing her to fall. While in the process of striking her again, he lost his balance and fell on top of her. She managed to grab the hammer out of his hand. However, he found another hammer and continued striking her. Coday then went to the kitchen, retrieved a knife, and began stabbing her. Finally, he drove the knife into her throat and held it there until she died. The cause of death was multiple blunt and sharp force trauma injuries.

The trial court found that the murder was especially heinous, atrocious, or cruel and gave this aggravating circumstance great weight. According to Dr. Eroston Price, the Associate Broward County Medical Examiner who performed the autopsy, there were 144 wounds inflicted on her, fifty-seven of which were blunt force trauma injuries consistent with being struck by the flat and claw side of a hammer. The remaining eighty-seven wounds were sharp force wounds consisting of forty-one stab wounds (i.e., the wounds were deeper than they were long) and forty-six incise wounds (i.e., the wounds were longer than they were deep). She had multiple defensive wounds on the palms of her hands and on her arms from blocking the blows and grabbing for a weapon. Dr. Price testified that she was alive for all but one of the 144 stab wounds and hammer blows. The brutality of the attack, coupled with her defensive wounds, bodily movements, and blood spatter, suggested that she knew she was fighting for her life and was aware of her impending death.

The trial court considered the following statutory mitigating circumstances: (1) the defendant has no significant history of criminal activity (no weight); (2) the defendant committed the crime while under the influence of extreme mental or emotional disturbance (moderate weight); and (3) the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired (no weight). In giving extreme mental or emotional disturbance moderate weight, the trial court found that this statutory mitigating factor had been established at the Spencer hearing through the testimony of six mental health experts. Each of the doctors had conducted interviews with Coday and reviewed court documents, previous psychological evaluations, and police reports. Several of the mental health experts had also interviewed his family, friends, and coworkers, and administered psychological testing. Thus, the trial court found that the record established this statutory mitigating circumstance by a preponderance of the evidence.

The trial court also considered the following nonstatutory mitigating circumstances: (1) the crime was committed while Coday was under the influence of a mental or emotional disturbance (moderate weight); (2) his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired (no weight); (3) he exhibited signs of mental or emotional disturbance at a very early age (no weight); (4) while in county jail, he was depressed and suicidal and had willingly taken several prescribed medications which helped him with the stress of incarceration and his mental health issues (minimal weight); (5) he voluntarily returned to the United States and surrendered to law enforcement (minimal weight); (6) he cooperated with the police upon his arrest (minimal weight); (7) he voluntarily confessed to the crime after being warned of his right to remain silent and without asking for, and without assistance of, counsel (minimal weight); (8) he voluntarily consented to a search and confiscation of his belongings (minimal weight); (9) he had a good employment history and record (moderate weight); (10) he was raised in an environment of instability and emotional abuse (no weight); (11) he was severely sick as an elementary school student and missed a great deal of school because of his chronic illnesses, thereby missing out on many crucial socialization and learning experiences as a result (little weight); (12) his parents’ marriage ended in divorce, traumatizing him (no weight); (13) he wrote a novel to tell the world about his despair over his relationship with Gomez and intended to leave it behind when he took his own life out of guilt over what he had done (no weight); (14) it is highly unlikely that he will endanger others while serving a sentence of life in prison (little weight); (15) society would be protected by him serving a life sentence in prison (little weight); (16) he will use his foreign language skills to assist needy individuals 'who seek to learn English or function here, and thus he can still be a productive member of society (little weight); (17) he is a voracious reader, has already caused two former inmates of the Broward County Jail to seek assistance in learning to read once released, and will help other inmates in the future turn their lives around (little weight); and (18) he has expressed sincere regret and remorse for his crimes (little weight).

In sentencing Coday to death, the trial court gave great weight to the jury’s nine-to-three death recommendation. The trial court found that the aggravating factor, heinous, atrocious or cruel, was proven beyond a reasonable doubt and outweighed the mitigating factors found to exist.

Coday now appeals both the judgment and sentence.

DISCUSSION

Proffered Heat of Passion Instruction

Coday argues that the trial court abused its discretion in denying his proffered jury instruction on heat of passion by finding that the standard jury instructions appropriately addressed this subject. He states that this instruction would have resulted in the jury finding him guilty of second-degree murder. Furthermore, he asserts that an accused is entitled to have the jury instructed on this theory of defense and that the trial court effectively denied him this right when it denied the proffered jury instruction. Thus, the issue that we must decide is whether the standard jury instruction on excusable homicide adequately explains heat of passion or whether the trial court should have given Co-day’s proffered special jury instruction on heat of passion.

This Court has held that “[d]eci-sions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error.” Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990). However, “[a] defendant is entitled to an instruction as to any valid defense supported by evidence or testimony in the case.” State v. Weller, 590 So.2d 923, 927-28 (Fla.1991). “The jury and not the trial judge determines whether the evidence supports the defendant’s contention.” Mora v. State, 814 So.2d 322, 330 (Fla. 2002). Nevertheless, “[wjhile a defendant is entitled to have the jury instructed on his theory of defense, the failure to give special jury instructions does not constitute error where the instructions given adequately address the applicable legal standards.” Stephens v. State, 787 So.2d 747, 755 (Fla.2001).

This case is both factually and legally similar to Kilgore v. State, 688 So.2d 895 (Fla.1996), where we affirmed the trial court’s denial of a special instruction on heat of passion. In Kilgore, the appellant was serving a life sentence at the Polk Correctional Institution for first-degree murder and kidnapping when he stabbed his homosexual lover to death outside of his cell with a homemade shank knife. Id. at 896-97. The trial court denied Kil-gore’s requested special jury instruction on heat of passion, which stated that a person acting under the heat of passion is incapable of premeditation in some circumstances'. Id. at 897. The trial judge instead utilized the standard jury instruction of excusable homicide to explain heat of passion. Id. In finding that the trial court did not err, we stated:

This Court has acknowledged that the standard jury instructions are sufficient to explain premeditation. Spencer v. State, 645 So.2d 377, 382 (Fla.1994). We also have ruled that the trial court does not necessarily abuse its discretion in denying a special heat-of-passion instruction. Kramer v. State, 619 So.2d 274, 277 (Fla.1993). After viewing these facts, we conclude that there is no indication that the trial court erred by refusing the requested instruction. The necessary elements of premeditation were presented with the standard instruction and the trial court was well within its prerogative to refuse a separate, and possibly confusing, instruction.

Id. at 898.

In the instant case, the trial court followed this Court’s precedent in Kilgore and found that the standard jury instruction on excusable homicide was sufficient to explain heat of passion in the context of premeditation. Since Kilgore is factually similar to the instant case in that both cases deal with the denial of special jury instructions on heat of passion to negate premeditation, we find that the trial court properly exercised, and did not abuse, its discretion.

Jury Instruction on Premeditation

Coday argues that the trial court erred in giving the standard instruction on premeditation. The State counters that the issue was not preserved ánd that the giving of the instruction was proper. We find no error in giving the standard instruction. Claims not raised at trial are procedurally barred unless they present a question of fundamental error. See Mordenti v. State, 630 So.2d 1080 (Fla.1994). “Issues pertaining to jury instructions are not preserved for appellate review unless a specific objection has been voiced at trial.” Overton v. State, 801 So.2d 877, 901 (Fla. 2001); see also State v. Delva, 575 So.2d 643, 644 (Fla.1991) (holding that instructions are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred).

In the instant case, Coday filed a pretrial motion on July 10, 1998, objecting to the use of the standard premeditation instruction. However, he did not object to the use of the standard instruction on premeditation at either the charge conference on April 8, 2002, or after the trial court had given the standard instruction on premeditation to the jury on April 9, 2002. Hence, this issue is not preserved for appellate review. See Morrison v. State, 818 So.2d 432, 456. n. 16 (Fla.2002) (finding that the defense’s pretrial objection to a jury instruction on the “vulnerable victim” statutory aggravator was not preserved for appellate review since defense counsel did not object to the instruction when it was given at trial); Patton v. State, 878 So.2d 368, 379 (Fla.2004) (finding that although the defense moved to suppress evidence before the trial, the objection was not preserved since the defense failed to object to the admission of the evidence at trial); Maharaj v. State, 597 So.2d 786, 790 (Fla.1992) (stating that admission of certain newspaper articles at trial was not preserved for appellate review where court denied defendant’s pretrial motion in li-mine to exclude the articles and defendant failed to object when the articles were offered at trial).

However, even if we were to entertain Coday’s claim, it is clear that there was no error because the trial court gave the standard jury instruction on premeditation. See Kilgore, 688 So.2d at 898 (holding standard jury instructions are sufficient to explain premeditation); Goldschmidt, 571 So.2d at 425 (finding decisions regarding jury instructions are within the sound discretion of the trial court and should not be disturbed on appeal absent prejudicial error).

Denial of Motion for Judgment of Acquittal/Sufficiency of Evidence

Coday moved for a judgment of acquittal on the ground that the State failed to prove the element of premeditation, and the trial court denied this motion. A motion for judgment of acquittal should not be granted by the trial court unless there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law. See Pearce v. State, 880 So.2d 561, 571 (Fla.2004).

Where there is room for a difference of opinion between reasonable people-as to the proof or facts from which an ultimate fact is to be established, or where there is room for such differences on the inferences to be drawn from conceded facts, the trial court should submit the case to the jury. Id.[Taylor v. State, 583 So.2d 323 (Fla.1991)] Once competent, substantial evidence has been submitted on each element of the crime, it is for the jury to evaluate the evidence and the credibility of the witnesses. Davis v. State, 703 So.2d 1055, 1060 (Fla.1997); see also Hufham v. State, 400 So.2d 133, 135-36 (Fla. 5th DCA 1981).

Id. at 572.

The trial court did not err in denying Coday’s motion for judgment of acquittal since there was an abundance of evidence establishing that the murder was premeditated and not committed in the heat of passion. The evidence demonstrates that at 4:54 p.m. on July 10, 1997, the day before the murder, Coday reserved a flight which was scheduled to depart from John F. Kennedy Airport in New York on July 12, 1997, and scheduled to arrive at Charles DeGaulle Airport in Paris, France. On July 10, he withdrew $6000 from his bank account at City County Credit Union and bought $2000 worth of traveler’s checks. He purposefully lured Gomez to his home by lying to her and stating that he was dying of skin cancer because she had rejected all of his other attempts to meet with her. In his signed, written confession contained in the exhibits, he states that he attacked Gloria Gomez with one hammer. When he slipped, she grabbed that hammer from him. He then retrieved another hammer and continued hitting her. With these two hammers, he hit her fifty-seven times. However, he finished his brutal assault on her with a knife which he obtained by leaving her body in the bedroom and walking into the kitchen. Once he returned to the bedroom with a knife from the kitchen, he began attacking her again, stabbing her eighty-seven times.

Because he had time to consciously reflect upon his actions and realize that he was committing a murder, this murder was premeditated. See Sochor v. State, 619 So.2d 285, 289 (Fla.1993) (holding that defendant’s heat of passion claim was insufficient to preclude a finding of premeditation when the defendant briefly stopped his assault on the victim in order to shout at his codefendant and then resumed the assault). The trial court did not err in denying Coday’s motion for judgment of acquittal on the issue of premeditation.

Denial of Motion to Suppress

Coday next argues that because he was an overnight guest at the residence of his former wife, Tooska Amiri, at the time of his arrest, he had a reasonable expectation of privacy in that residence. He asserts that his arrest was unlawful since the police entered the residence and arrested him without a warrant, without exigent circumstances, and without Amiri’s permission. Therefore, he claims that his arrest was unlawful and the trial court erred in denying his motion to suppress the evidence which was the fruit of his illegal arrest and detention.

In Connor v. State, 803 So.2d 598, 608 (Fla.2001), we indicated that a trial court’s ruling on a motion to suppress is entitled to a presumption of correctness regarding its determination of historical facts. However, appellate courts must review independently mixed questions of law and fact that are determinative of constitutional issues arising under the fourth and fifth amendments to the United States Constitution and article I, Section 9 of the Florida Constitution. A review of the record indicates the trial court did not err in denying Coday’s motion to suppress.

Detective Vincent Greco, a former police officer who worked in the Queens, New York Homicide Squad and who apprehended Coday, testified concerning the events surrounding Coday’s capture. Gre-co testified that at approximately 8:00 a.m. on October 15, 1997, he received a call from a woman who stated that a man who was wanted for a homicide in Florida was staying at her friend’s house located across the street from the McDonald’s on Metropolitan Avenue. Greco asked his immediate supervisor, Sergeant John Russell, to accompany him to the McDonald’s to meet the female informant. When they pulled up to the phone booth outside the McDonald’s, Greco identified himself to the woman who had called him. She stated that her name was Christine Woods and that a man who was wanted for a homicide in Florida and who had also committed another murder years ago was staying at her friend’s apartment across the street. She described him as a large, white male with glasses who had been featured on the television show, America’s Most Wanted.

Detective Greco and Sergeant Russell had Woods call her friend, Coday’s former wife, Tooska Amiri, and lure her out of the apartment by asking her if she wanted some coffee. Five minutes later, Woods met Amiri at the door to her apartment and asked her if there was anyone else in the apartment besides Coday. Amiri stated that there was no one else in the apartment.

Before entering the apartment, Greco and Russell were given the name of the suspect, William Coday, but did not run a National Crime Information Center inquiry on Coday and did not have either an arrest or a search warrant: The only information that Greco and Russell possessed indicating that Coday had committed a crime was Woods’ and Amiri’s statements. Though Amiri never expressly stated that Greco and Russell had her permission to enter her apartment, she pointed upstairs and stated that Co-day was in her apartment. Greco and Russell took this to mean that she had given them permission to enter her apartment. Therefore, they went upstairs where they found the front door to the apartment open and Coday lying on the floor in a back bedroom. Coday identified himself. Greco advised Coday of his rights and escorted him out of the apartment. Russelb followed them out, carrying a bag which Coday said was his.

Once Greco and Russell took Coday to the police station, they brought him into an interrogation room and advised him of his rights for a second time. At that point, the Queens homicide squad received á faxed copy of Coday’s arrest warrant from Fort Lauderdalej Florida. Coday began to talk to Greco about Gomez’s murder in Florida, and he gave a written statement confessing to the murder. Greco had Co-day stop writing this statement when he was advised that Coday’s family had retained counsel, and at that point, Greco, Russell, and Coday all signed the statement. At no time during the interrogation did Coday ask to speak to an attorney or state that he wanted the interrogation to end. He was not threatened, coerced, or tricked into giving the signed, written statement. The interrogation was neither video- nor audio-taped.

Sergeant Russell’s testimony was similar. Russell added that when they arrived at the police station, the contents of Co-day’s bag were removed and inventoried. The only thing that Coday said when his bag was being searched and inventoried was that the wallet they found was Gomez’s wallet and that he did not take it for personal gain. He said that he took it in order to determine the identity of the person Gomez was dating.

Detective Mike Walley of the Fort Lauderdale Police Department, who was assigned to the investigation of Gloria Gomez’s murder, corroborated Greco and Russell’s story. He stated that at 8:38 a.m. on October 15, 1997, he received a phone call from Amiri, who told him that the police and Coday were at. her residence and that Coday had returned to the ’United States in- order to surrender. Walley testified that he spoke with Coday and asked him if he was hurt or injured in any way. Coday said 'that he was unharmed and that he had returned to surrender so that justice could be served. Walley then spoke with Sergeant Russell and informed him that there was an arrest warrant charging Coday with murder in Broward County.

Based upon the testimony of Detective Greco, Sergeant Russell, and Detective Walley, the trial court denied the defense’s motion to suppress. In support of its order, the trial court supplied the following reasons:

The State has shown that, although Detective Greco did not have actual knowledge of the Florida arrest warrant, a valid Florida arrest warrant existed. Probable cause for the arrest existed, he just did not know about it. He was told of the existence of the warrant after he returned to Precinct 112 and before the interview with the Defendant took place. Even if no valid warrant existed, the police had information that a potential fugitive escaping murder charges was in a nearby apartment. When Tooska Akiri [sic] opened the downstairs door and said that the Defendant was upstairs, the officers received the owner’s consent to enter. The upstairs door was open. The Defense provided no contradictory evidence. Christine Woods .told them that she was concerned about the safety of her friend, Tooska Akiri [sic]. Because of Ms. Woods’ concern, an exigent circumstance existed. A potentially dangerous person was alleged to be in the apartment. Because he might be a fugitive, he could potentially flee before a valid warrant was confirmed or backup officers could be called. This Court finds that the officers’ entry of the apartment was lawful. The arrest of the Defendant and subsequent seizure of his effects in the bag that the Defendant claimed was his is also valid. The bag was lawfully searched incident to the lawful arrest or as a post arrest inventory. This Court finds that the incriminating physical evidence is admissible.

Based on the totality of the circumstances, which include, but are not limited to: the evidence presented, the witnesses’ testimony at the hearing, and the Defendant’s written statement, this Court finds that the Defendant’s waiver of his rights, “was voluntary, in the sense that it was the product of free and deliberate choice rather than by intimidation,' coercion or deception.” [Sliney v. State, 699 So.2d 662, 668 (Fla.1997).]

Additionally, this Court finds that the record reflects that the written waiver of the Defendant’s Miranda rights “... was executed with [the Defendant’s] full awareness of the nature of the .rights being abandoned and the consequences of their abandonment.” Id. at 688[668]. The record establishes that the Defendant was advised of his Miranda rights from a card during his arrest and from the Miranda rights waiver form before questioning and the writing out of his statement. The Defendant was aware of the fact that he was implicating himself, and at no time did he request cessation of the questioning, or an attorney. When an attorney hired by the Defendant’s family called the precinct, Detective Greco stopped the statement. The State has shown, by a preponderance of the evidence, that the confession, statements and admissions were freely and voluntarily given.

In Rolling v. State, 695 So.2d 278 (Fla. 1997), this Court explained “exigent circumstances” as follows:

The kinds of exigencies or emergencies that may support a warrantless entry include those related to the safety of persons or property, see Richardson v. State, 247 So.2d 296 (Fla.1971), as well as the safety of police. Jones v. State, 440 So.2d 570 (Fla.1983). Of course, a key ingredient of the exigency requirement is that the police lack time to secure a search warrant. Police may not enter and search for dangerous in-strumentalities or other evidence, even if they have probable cause to believe it is on the premises or otherwise subject to removal or destruction, if they have time to obtain a warrant and then enter under that authority.

Id. at 293.

In the instant case, there were exigent circumstances sufficient to justify this warrantless entry into the apartment and the seizure of the defendant. Woods had informed- Greco and Russell that a man wanted for a murder in Florida was hiding in her friend’s apartment. She expressed concern for her friend’s safety. Therefore, Greco and Russell acted properly by having Woods lure her friend, Ami-ri, out of the apartment and into safety. When Amiri was with Greco and Russell, she confirmed Woods’ story that Coday was in her apartment and that he was wanted for murder in Florida. Greco and Russell were concerned about their safety and the safety of Woods, Amiri, and the neighboring residents. Thus, exigent circumstances existed, and they had to act quickly in order to seize Coday before he either escaped or hurt someone. Because of that exigency, there was no time for them to obtain a warrant. Hence, their warrantless entry was proper.

We also, find that Coday’s signed, written statement was obtained properly. Prior to speaking with Greco and Russell at the police station, Coday was advised of his rights two times, once at Amiri’s apartment and again at the police station prior to interrogation. He told Walley that he had returned to the United States in order to surrender and to see to it that justice was served. At no time during the interrogation was he coerced into making a statement, promised anything in return for making a statement, or forced to proceed without consulting an attorney. ,.He neither requested counsel nor asked , that the interrogation end. When Greco was advised that his family had secured counsel, Greco told him to stop writing and ended the interrogation. Under the totality of the circumstances, the trial court properly denied Coday’s motion to suppress.

Admission of Coday’s Signed, Written Confession into Evidence

Coday objected to the introduction of his signed, written confession on the ground that the State had not laid the foundation that it was authentic. The trial court overruled the objection and admitted the document. Coday asserts that this was error under section 90.901, Florida Statutes (1997), which requires authentication of a document as a condition precedent to its admissibility.

While section 90.901 requires the authentication or identification of a document prior to its admission into evidence, the requirements of this section are satisfied by evidence sufficient to support a finding that the document in question is what its proponent claims. See § 90.901, Fla. Stat. (1997). Authentication or identification of evidence may include examination of its appearance, contents, substance, internal patterns, or other distinctive characteristics in conjunction with the circumstances. See State v. Love, 691 So.2d 620 (Fla. 5th DCA 1997). In this instance, the trial court did not abuse its discretion in finding that Coday’s confession was authentic, for there was an abundance of evidence that supported the trial court’s finding that the signed, written statement was drafted by Coday. Both Detective Greco and Sergeant Russell testified that they witnessed Coday write and sign this statement, and in turn, they both signed the statement after Coday. The details of the attack on Gomez contained within the statement are consistent with the injuries to Gomez’s body as described in the testimony of Dr. Eroston A. Price, the Associate Medical Examiner for the Broward County Medical Examiner’s Office, who performed the autopsy. In the statement, the author wrote that he took Gomez’s wallet for the purpose of trying to identify whom she was dating. This is consistent with Sergeant Russell’s testimony that when the police were removing Gomez’s purse from Coday’s bag, Coday stated that he had taken Gomez’s wallet not for personal gain but for the purpose of trying to identify whom she was dating.

Additionally, in the statement, the author states that he drove Gomez’s car to the Miami airport after the murder, flew to Paris, and had in his possession $5000 to $6000 which he had withdrawn from his bank account two days prior. This is consistent with Coday’s actions as described in the testimony of Detective Carol Coval, a Fort Lauderdale Police Department Crime Scene Investigator; Kirk Demyan, a supervisor at the Delta Airlines’ ticket counter; and Salisha Ramdass, a former customer service representative at the City County Credit Union. Lastly, the handwriting of the 200-page confession, titled “the Crepúsculo,” which was found in Coday’s bag when he was apprehended, matches the handwriting in the signed, written statement.

Thus, there was sufficient evidence in the record to support the trial court’s conclusion that the statement was authentic, and the trial court did not abuse its discretion in admitting this confession into evidence. See, e.g., Hunt v. State, 746 So.2d 559 (Fla. 1st DCA 1999).

Ability to Conform Conduct

Coday argues the trial court erred in failing to find and give any weight to the mitigating factor of lack of ability to conform his conduct to the requirements of the law at the time of the homicide. We begin our discussion of this issue with a review of the basic principles that have evolved over the years on the proper analysis that must be accorded evidence that is offered in mitigation of a possible death sentence. Generally, “the weight assigned to a mitigating circumstance is within the trial court’s discretion and subject to the abuse of discretion standard.” Blanco v. State, 706 So.2d 7, 10 (Fla.1997). However, while the trial court can determine the weight to be given to a particular miti-gator, the trial court must find as a mitigating circumstance any proposed factor that is both reasonably established by the greater weight of the evidence and mitigating in nature. See Campbell v. State, 571 So.2d 415, 419 (Fla.1990). More particularly, in Campbell we said:

The court must find as a mitigating circumstance each proposed factor that is mitigating in nature and has been reasonably established by the greater weight of the evidence: “A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it as established.” Fla. Std. Jury Instr. (Crim.) [7.11 Penalty Proceedings — Capital Cases], The court must next weigh the aggravating circumstances against the mitigating and, in order to facilitate appellate review, must expressly consider in its written order each established mitigating circumstance. Although the relative weight given each mitigating factor is within the province of the sentencing court, a mitigating factor once found cannot be dismissed as having no weight.

Id. at 419-20 (footnotes omitted).

Over the years that followed Campbell, we further defined the parameters of the trial court’s discretion in considering mitigating factors. For example, in Nibert v. State, 574 So.2d 1059, 1062 (Fla. 1990), after citing Campbell with approval, we explained:

Thus, when a reasonable quantum of competent, uncontroverted evidence of a mitigating circumstance is presented, the trial court must find that the mitigating circumstance has been proved. A trial court may reject a defendant’s claim that a mitigating circumstance has been proved, however, provided that the record contains “competent substantial evidence to support the trial court’s rejection of these mitigating circumstances.” Kight v. State, 512 So.2d 922, 938 (Fla.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1100, 99 L.Ed.2d 262 (1988); Cook v. State, 542 So.2d 964, 971 (Fla.1989)....

In Nibert this Court found the trial court improperly rejected statutory and nonstat-utory mitigating circumstances, including the factor of physical and psychological abuse for many years during the defendant’s youth. The trial court rejected the factor because the defendant was twenty-seven years old at the time of the murder and had not lived with his mother since the age of eighteen. This Court said that the fact that the abuse had come to an end did not diminish the fact that the defendant had suffered more than a decade of abuse. We opined that to hold otherwise would mean that a defendant’s history of child abuse would never be accepted as a mitigating factor. Therefore, we concluded that because Nibert had presented a large quantum of uncontroverted mitigating evidence and that there was no competent, substantial evidence in the record refuting the mitigating evidence, the trial court erred in failing to find and weigh a substantial number of statutory and nonstatu-tory mitigating circumstances. See also Mansfield v. State, 758 So.2d 636 (Fla. 2000) (citing with approval Campbell and Nibert); Mahn v. State, 714 So.2d 391, 400-401 (Fla.1998) (citing with approval Nibert and Right). Thus, a trial court can only reject uncontroverted mitigating evidence as being unproven if there is competent, substantial evidence to support that rejection.

We have also addressed the trial court’s discretion when dealing with expert opinion testimony. In Foster v. State, 679 So.2d 747, 755 (Fla.1996), we said that even- uncontroverted expert opinion testimony may be rejected if that testimony cannot be squared with the other evidence in the case. Accord Morton v. State, 789 So.2d 324, 330 (Fla.2001). Recently, we applied these principles in a situation, similar to the one that is now before this Court, where the defendant contended that the trial court erred in failing to find and weigh evidence that he suffered from organic brain damage. See Crook v. State, 813 So.2d 68 (Fla.2002). During the penalty phase in Crook, evidence was presented by three medical experts that Crooks suffered from brain damage which impaired his ability to control his impulses. The experts also stated that Crook’s brain damage was exacerbated by his use of alcohol and drugs at the time of the murder. This brain damage was substantiated by objective testing done by the experts. In reversing the trial court’s rejection of this mitigating evidence, we said:

In contrast to Robinson, the trial court in the present case did not find and weigh Crook’s brain damage as a valid .mitigating circumstance, and rejected its connection to this crime, even though three defense experts, two of whom specialized in brain injuries, presented uneontroverted testimony that Crook suffered from frontal lobe brain damage that established a statutory mental mitigator. Perhaps most significantly, unlike the experts in Robinson, the expert testimony in this case also explained the causes and origins of Crook’s frontal lobe brain damage and established that there was a causal link between Crook’s brain damage and the homicide.

Accordingly, we hold that the trial court erred in rejecting the uncontro-verted evidence of Crook’s brain damage. We conclude that based upon the expert testimony, there was a “reasonable quantum of competent, uncontro-verted evidence” establishing its existence and its connection to the crime in question. Spencer [v. State], 645 So.2d [377, 385 (Fla.1994)]. Certainly, this is not a case where there was little or no evidence presented to support a finding of brain damage, see Shellito v. State, 701 So.2d 837, 844 (Fla.1997), or where the expert testimony pertaining to a mitigating circumstance was equivocal. See Robinson, 761 So.2d at 276-77; see also Franqui v. State, 699 So.2d 1312, 1326 (Fla.1997).... Thus, given the unrefut-ed expert testimony in this case, we conclude that the trial court erred in failing to find and weigh the evidence of Crook’s brain damage in its assessment of statutory mental mitigation.

Id. at 75-76.

Not only have we addressed the issue of when trial courts should consider and find certain mitigating evidence to be established, but we have also addressed the trial court’s discretion in the weighing process. While adhering to the basic premise that the weight to be given a mitigating circumstance is .addressed to the sound discretion of the trial court, we refined that proposition in Precise v. State, 768 So.2d 1050 (Fla.2000), by holding that in some instances a trial court could give no weight to a mitigating circumstance. In Trease, a case involving the question of whether a trial court could give little or no weight to a nonstatutory mitigating circumstance, we receded from Campbell to the extent that Campbell would not have allowed a trial court to give no weight to a mitigating circumstance once that eircum-stance was established. We further explained that a mitigating circumstance may be given no weight based on the unique facts of a particular case, such as when a defendant demonstrates he was a drug addict twenty years prior to the murder and the prior drug addiction has no real bearing on the present crime. Id. at 1055.

In summary, we have established a number of broad principles for the trial courts to use in evaluating the mitigating evidence offered by defendants. A trial court must find as a mitigating circumstance each proposed factor that has been established by the greater weight of the evidence and that is truly mitigating in nature. However, a trial court may reject a proposed mitigator if the mitigator is not proven or if there is competent, substantial evidence to support its rejection. Even expert opinion evidence may. be rejected if that evidence cannot be reconciled with the other evidence in the case. Finally, even where a mitigating circumstance is found a trial court may give it no weight when that circumstance is not mitigating based on the unique facts of the case.

In the case now before us, the trial court stated that the statutory mitigating circumstance of Coday’s inability to conform his conduct to the requirements of the law had not been established. Initially, it appears that the trial court confused the standard for insanity with the mental mitigation in question. The trial court stated that the “testimony of the mental health experts does not convince the Court that the Defendant is relieved of accountability for his conduct, or otherwise, was not aware of the consequences of his actions upon Gloria Gomez.” The trial judge relied on evidence that Coday had conducted himself without incident since his return from Germany and stated that because Coday could conform his conduct for so many years, he must have had- the capacity to follow and abide by the law at the time of the homicide.

However, six defense mental health experts testified that Coday was unable to conform his conduct to the requirements of the law at the time of Gomez’s murder. The Stated presented no expert testimony in rebuttal. Dr. Alan Goldstein, a clinical and forensic psychologist; Dr. David Shapiro, a professor of psychology and forensic psychologist; Dr. William Vieary, a psychiatrist; Dr. M. Ross Seligson, a licensed psychologist; Dr.- Lenore Walker, a clinical and forensic psychologist; and Dr. Martha Jacobson, a clinical and forensic psychologist, testified at the penalty phase or at the Spencer hearing that Coday satisfied this statutory mitigating circumstance. Al the doctors testified concerning their visits with Coday and the various psychological tests that were administered. Al found Coday to be suffering from some form of severe depression with psychotic features or borderline personality disorder or both.

Dr. Goldstein essentially stated that Co-day loses control when he is faced with extreme stress in his personal relationships. His psychosis is triggered when he feels rejected, and Coday felt rejected when the victim in this case told him that she did not love him. At that point Co-day’s emotions of resentment and rage overpowered his ability to reason. Dr. Goldstein stated that Coday was either not engaged in thinking or that thoughts were not registering. Dr. Goldstein opined that Coday went into a dissociative state, described as an out-of-body state, where the defendant was aware of what he was doing but could not control it. The doctor further opined that Coday’s suicide attempt while in jail also occurred during a psychotic episode brought on when he received divorce papers from his wife.

Dr. Shapiro also stated that Coday viewed the victim’s statement that she did not love him as rejection, which brought on active psychosis. Dr. Shapiro opined that Coday was actively psychotic after receiving the divorce papers. In keeping with the other doctors’ testimonies, Dr. Vicary stated that Coday gets into intense emotional situations and when they do not work out he has feelings of abandonment. Dr. Seligson testified that Coday’s relationships are based on fantasy and when the relationships unravel Coday likewise unravels and deteriorates into a dissociative state. Dr. Seligson further stated that when Coday’s relationship with the victim unraveled, his condition deteriorated on the day of the murder.

Despite finding that Coday was highly intelligent, Dr. Walker found the defendant to be mentally ill. She stated that Coday lived a very contained, constrictive life, and when emotions got too high, he could not control them and deteriorated into a psychotic state. Dr. Walker opined that Coday felt rejected by the victim, and that he equated laughing at him with an incident from his childhood where other children laughed at him and locked him in an unused freezer. Because of the situation with the victim, Coday was unable to contain himself andr,an explosion was unleashed, with no cognitive ability to contain it. Dr. Walker believed that this was the same situation that occurred when Coday was served with divorce papers. Coday’s attempted suicide was the same type of violent reaction, but it was released on himself. Lastly, Dr. Jacobson opined that Coday had a fantasy view of his relationship with the victim. When she said she did not love him, it brought on feelings of abandonment that triggered Coday’s disintegration into depression and then psychosis.

As noted above, the State did not offer any expert witnesses to refute this testimony. The evidence relied upon by the State to rebut the testimony of the defense experts was the testimony of lay witnesses who had interacted with Coday prior to Gomez’s murder. The lay witnesses who personally knew Coday testified that from September 12, 1978, when Coday was arrested for the murder of Lisa Hullinger in Germany, until the murder of Gloria Gomez on July 11, 1997, Coday led a lawful existence. These witnesses indicated that Coday had numerous romantic relationships during this time frame and was married twice. The witnesses also said that Coday was well liked and had numerous friends. One of Coday’s coworkers testified that he was meticulously punctual, reliable as an employee, and had attended the University of Michigan where he obtained a degree in order to become a librarian. By all accounts of these lay witnesses, Coday was able to conform his conduct to the requirements of the law.

We conclude, under these circumstances, that it was error for the trial court to find that this statutory mitigator had not been established. As we said in Campbell, “The court must find as a mitigating circumstance each proposed factor that is mitigating in nature and has been reasonably-established by the greater weight of the evidence.” 571 So.2d at 419. Six mental health experts testified that Coday was not able to conform his conduct to the requirements of the law at the time of the offense. Their testimony not only indicated that the mitigating circumstance existed but tied that circumstance to the defendant’s mental illness and the facts of this case. They essentially said that, while the defendant could normally conform his conduct, he goes into a dissociative state where he is unable to conform his conduct when he is faced with rejection in a personal relationship. The evidence offered by the State to counter this mitigation evidence can be squared with the expert testimonies. The lay witnesses believed Coday could conform his conduct because he had lived for a number of years without incident. They related that Coday had several romantic relationships during this twenty-year period, including two marriages. However, none of these witnesses recited any stressful relationship-based incidents where the defendant was able to cope. The mental health experts clearly related Coday’s inability to conform his conduct to situations that occur when he is, or feels that he is, being rejected in relationships involving women.

The expert testimony from the defense could be rejected only if it did not square with other evidence in the case. While we have given trial judges broad discretion in considering unrebutted expert testimony, we have always required that rejection to have a rational basis. For example, the expert testimony could be rejected because of conflict with other evidence, credibility or impeachment of the witness, or other reasons. However, none of those reasons are present here. Instead, the State relies on evidence we find not in conflict with the defense evidence. Under these circumstances, the mitigating factor of inability to conform his conduct to the requirements of the law was reasonably established by the greater weight of the evidence and should have been considered by the trial judge as having been established.

Because we conclude the trial court erred in finding that this mitigating circumstance had not been established, we vacate the death penalty imposed in this case and remand to the trial judge for reevaluation of the mitigation and the sentence.

Constitutionality of Florida’s Death Penalty Statute/ñira<7 Claims

Coday claims Florida’s death penalty statute is unconstitutional because Florida law requires findings of fact (in particular, aggravating circumstances) be made by the trial judge and not the jury. Therefore, he alleges his sentence is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 158 L.Ed.2d 556 (2002). As this Court explained in State v. Steele, 921 So.2d 538 (Fla.2005), the Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona do not require a finding that the Florida capital sentencing scheme is unconstitutional. In Steele, we not only concluded, consistent with prior caselaw, that section 921.141, Florida Statutes, does not require jury findings on aggravating circumstances, we specifically held that it is a departure from the essential requirements of law to use a special verdict form detailing the jury’s determination on the aggravating circumstances. Thus, we have rejected Coday’s argument that the Apprendi and Ring decisions require a different result.

Coday also claims that because the jury’s death sentence recommendation was not unanimous but only by a vote of nine to three, his sentence is unconstitutional under Ring. However, under Florida law, the jury need not be unanimous in its recommendation of a death sentence. This Court has repeatedly held that it is not unconstitutional for a jury to be allowed to recommend death on a simple majority vote. See Whitfield v. State, 706 So.2d 1 (Fla.1997); Thompson v. State, 648 So.2d 692 (Fla.1994); Brown v. State, 565 So.2d 304 (Fla.1990); Alvord v. State, 322 So.2d 533 (Fla.1975). This Court has not receded from this holding that a nonunanimous advisory sentence is constitutional.

Lastly, Coday claims that the failure to allege the aggravating circumstances in the indictment renders his sentence unconstitutional under Ring. This Court has rejected similar claims that Ring requires aggravating circumstances be alleged in the indictment. See Blackwelder v. State, 851 So.2d 650, 654 (Fla.2003) (rejecting Blackwelder’s argument that aggravating circumstances should be alleged in the indictment, submitted to the jury, and individually found by a unanimous jury verdict); Hodges v. State, 885 So.2d 338, 359 (Fla.2004); Porter v. Crosby, 840 So.2d 981 (Fla.2003).

Finding of Heinous, Atrocious, or Cruel (HAC)

Coday asserts that he did not have an intentional design to torture or inflict pain. Therefore, he states that the trial court erred in finding the heinous, atrocious, or cruel aggravating circumstance in this case. “In order for HAC to apply, the murder must be conscienceless or pitiless and unnecessarily torturous to the victim.” Anderson v. State, 841 So.2d 390, 406 (Fla.2003). In this case, Coday brutally beat Gloria Gomez with two hammers a total of fifty-seven times. He then stabbed her eighty-seven times. The medical examiner testified that Gomez was alive for 143 of the 144 wounds, that she was conscious for all of her defensive wounds, and that she may have been conscious for 143 of the wounds. In Coday’s signed, written confession, he wrote that Gomez was alive until the fatal stab wound when he thrust the knife into her neck and held it there until she expired. The facts demonstrate at the very least an utter indifference to the suffering of Gloria Gomez. The trial court did not err in finding the HAC aggravating circumstance in this case.

Cross-Examination on Incident in Germany

The trial court permitted the State to cross-examine Coday’s expert witnesses during the penalty phase on any information which formed the basis for their opinions including a prior murder committed by Coday. This ruling conforms with our decision in Valle v. State, 581 So.2d 40 (Fla.1991). In Valle, we said that section 921.141(1), Florida Statutes, allows for broader admissibility of evidence during the penalty phase of a trial. Id. at 46. We found that it was proper for the State to cross-examine the defense’s expert witnesses about incidents in prison for which the defendant had not been convicted so long as those incidents were used by the experts in formulating their opinions. Id. Similarly, in Parker v. State, 476 So.2d 134 (Fla.1985), we said:

In the instant case, the testimony of the defense expert that he based his opinion regarding appellant’s non-violent nature on the appellant’s past personal and social developmental history, including a prior criminal history, opened the door for this cross-examination by the state. We find that it is proper for a party to fully inquire into the history utilized by the expert to determine whether the expert’s opinion has a proper basis.

Id. at 139. Accordingly, we find that the trial court’s ruling here was proper.

Request for Juror Interviews

During the penalty phase, Coday moved to interview the jurors regarding their exposure to media reports. The trial court denied Coday’s motion, and Coday asserts that this was error because there were a number of media reports about the case after the guilt phase and a number of jurors were excused due to exposure to media reports. We have said that “juror interviews are not permissible unless the moving party has made sworn allegations that, if true, would require the court to order- a new trial because the alleged error was so fundamental and prejudicial as to vitiate the entire proceedings.” Johnson v. State, 804 So.2d 1218, 1225 (Fla.2001). “This standard was formulated ⅛ light of the' strong public policy against allowing litigants either to harass jurors or to upset a verdict by attempting to ascertain some improper motive underlying it.’ ” Id. (quoting Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97,100 (Fla.1991)).

On numerous occasions throughout the penalty phase, the trial court inquired of the jurors, both individually and as a group, whether they had been exposed to outside sources, particularly the media. As a result of this repeated inquiry, the trial court excused three jurors due to their exposure to outside sources. The remainder of the jurors indicated that they had not been exposed to outside influences, and Coday did not provide any information to contradict their assertions. Hence, we find that the trial court properly denied Coday’s motion to interview the jury.

Jury Instructions/Penalty Phase

Lastly, Coday asserts the trial court erred by instructing the jury that it was giving an advisory sentence in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). Coday also asserts that the trial court erred in its instruction to the jury concerning the effect of undecided votes. These claims have no merit.

First, the Caldwell issue was not preserved because Coday did not object to the instructions that were given to the jury prior to their deliberations. See Mordenti v. State, 630 So.2d 1080 (Fla.1994) (stating that absent fundamental error, claims not raised at trial are procedurally barred). Second, the trial court gave the standard jury' instruction. “This Court has repeatedly held that the Florida Standard Jury Instructions are in compliance with Caldwell.” Globe v. State, 877 So.2d 663, 674 (Fla.2004); accord Thomas v. State, 838 So.2d 535, 542 (Fla.2003) (reiterating that the Florida Standard Jury Instructions have been determined to be in compliance with the requirements of Caldwell ).

The jury submitted the following question to the trial court which the trial court read aloud to both the State and the defense: “Does every juror have to have a recorded vote in favor of death or life, as opposed to one or two people voting undecided?” The trial court instructed the State and the defense to think about that question overnight and to present all available case law and arguments on the issue the following morning. The next morning, both the State and the defense conceded that they could not find any case law on the consequence of an undecided vote. The only case that they could find that was moderately close was Phillips v. State, 705 So.2d 1320 (Fla.1997). In Phillips, the jury informed the trial court that two of the jurors were refusing to vote because they did not like the way the majority was leaning. The trial court then instructed the jury to have the remaining ten jurors vote and to have that vote recorded and that any refusal to vote would be considered a vote for life. Id. When the jury returned with its verdict, all twelve members had voted, so the point was moot. Id.

In the instant case, the defense argued that the media and outside influences were pressuring the jury to vote for death and requested that the trial court question each of the jurors again regarding whether they felt pressured by outside influences. As previously discussed, the trial court thoroughly addressed this issue. The trial court then brought out the jury and attempted to resolve the problem by instructing them in accordance with Florida Standard Jury Instruction (Criminal) 7.11.

THE COURT: The advisory verdict need not be unanimous. The recommendation for imposition of the death penalty must be by a majority of the jury. A recommendation of incarceration for life without the possibility of parole may be made either by a majority of you, or an even division of the jury, that is even, a tie vote of 6 to 6 is a life recommendation.

So, what I have explained to you, I think, answers your question from yesterday.

At this time you can retire to the jury room. I see some heads, perhaps, nodding.

If you have any additional questions, as I said before, put them in writing.

At this time you may retire to the jury room and continue with your deliberations.

After returning to the jury room, the jury sent out the following note, “Does an undecided vote count as life?” Once again, the defense stated that the jurors were afraid to attach their name to a life recommendation because of the media publicity. The State argued that an undecided vote could not constitute a vote for either life or death but rather was a nullity. The defense then recommended that the trial court submit a new verdict form to the jury with an additional blank space reading “undecided.” The State countered by proposing that the trial court instruct the jury that seven or more votes in' favor of the death penalty would be deemed as an advisory verdict for the trial court to impose the death penalty and that anything short of seven votes in favor of death would be deemed a life verdict. The trial court did not favor either proposal but decided to provide them with the following instruction.

THE COURT: Welcome back, ladies and gentlemen.

I received your most recent question. I have had an opportunity at some length to review it with the attorneys.

Ladies and gentlemen, whether an undecided vote is deemed a life vote, that is a legal matter for me to decide, and you should not concern yourself with that. It’s simply a question and a legal matter for me to decide and you should not concern yourself with that. I encourage you to vote. I cannot force you to vote. I will not force you to vote:

Your verdict forms should reflect the votes of those of you that you feel that you can vote. Nobody is being forced to vote. We encourage you to vote. Again, the verdict form will reflect the vote of those of you that feel you are capable and in a position to vote. But what the affect of a non vote is,' that’s a legal matter for me to be concerned with.

Don’t concern yourself with that. Okay?

You may now retire back to the jury room.

Five minutes after the jury resumed deliberations, they arrived at their verdict, a nine-to-three death recommendation. All jurors were polled, and each juror confirmed that the advisory verdict accurately reflected the vote of those jurors voting. Clearly, the trial court did not err in providing this instruction which expressly declared that while they were encouraged to vote, they were not forced to vote. It was entirely within the trial court’s discretion to deny the defense’s requested verdict form which allowed for undecided votes; judges in Florida are not required to use special verdict forms. See Turner v. Dugger, 614 So.2d 1075, 1081 (Fla.1992).

CONCLUSION

Based on the foregoing, we affirm William Coday’s conviction for first-degree murder. We vacate the death sentence and remand this case to the trial court to reevaluate the sentence.

It is so ordered.

LEWIS, C.J., and QUINCE and BELL, JJ., concur.

QUINCE, J., specially concurs with an opinion.

BELL, J., concurs with an opinion.

ANSTEAD and PARIENTE, JJ., concur in part and dissent in part with an opinion.

PARIENTE, J., concurs in part and dissents in part with an opinion.

CANTERO, J., concurs in part and dissents in part with an opinion, in which WELLS, J., concurs.

. Also known as William Edward Cod