Jackson v. State (213 So. 3d 754, 2017)

PER CURIAM.

Appellant Kenneth R. Jackson was convicted of the first-degree murder of Cue Thu Tran, sexual battery with a deadly weapon, second-degree arson, and grand theft of a motor vehicle. Jackson was sentenced to death for the murder conviction. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

FACTS

At approximately 6:30 a.m. on September 13, 2007, an individual who lived at Bullfrog Court in Gibsonton initially heard noises that sounded like gunshots, which he did not originally consider to be unusual. He walked outside to investigate, but returned inside when he did not observe anything out of the ordinary. Approximately twenty or thirty minutes later, he heard further noises that sounded like glass breaking or tires exploding. He again walked outside, this time to the sound of an emergency siren, and he saw fire and smoke rising from a burning vehicle. Firefighters from the Hillsborough County Fire Rescue responded to the fire at approximately 7:03 a.m., and in the process of extinguishing the fire, they discovered a body inside the van. Officers from the Hillsborough County Sheriffs Office (HCSO) arrived shortly thereafter. A lighter was recovered a short distance away from the van. After the fire was extinguished, the van was towed to an HCSO garage for further investigation.

Approximately twelve miles northwest of Gibsonton, in Seffner, seventeen-year-old Truong Tran returned home from school that afternoon and found his father, Banh Tran, very distraught. Cue Tran, Truong’s mother and Banh’s wife, was not home, but her keys, cell phone, and purse were in their mobile home residence. Truong called the police and reported that Cue was missing and had not arrived as scheduled at work that morning. Truong also informed officers that his mother usually jogged to and from a local church every morning before work.

HCSO investigators recovered several pieces of evidence found in front of the St. Francis of Assisi- Church in Seffner, including a pair of black pants, shoes, socks, and a pink hair roller. The items were found near a patch of grass that appeared to be covered in blood, and the hair roller also appeared to be covered in blood.

The investigation further expanded to encompass the van found burning in Gib-sonton. Luis Carrero owned a 1993 midnight blue Dodge Caravan that he hoped to sell; he left the van with a “For Sale” sign in front of his place of employment, an Advanced Auto Parts Store in Seffner. The van was seen in the business parking lot at 9:30 p.m. on September 12, 2007, but was not in the parking lot by 6:30 a.m. on September 13. In the early morning hours of September 13, 2007, one witness observed a blue minivan driving at five or six miles per hour as she turned from Martin Luther King Boulevard onto State Road 679. Another witness reported that he was cut off by a speeding Chrysler minivan that also ran a red light as it headed west on Martin Luther King Boulevard.

During the course of the investigation, Detective Troy Morgan encountered Christina Elhelw, a clerk at a BP gas station at the intersection of State Road 579 and Martin Luther King Boulevard. Elhelw informed Morgan that on September 14, Jackson, who would regularly stop by the BP gas station and talk to her, had asked her and William Driskell, another regular customer, whether they had heard about the crime. Jackson told them that a Vietnamese woman who lived in a nearby trailer park had been found in a burning van in Gibsonton, and the van had been stolen from the nearby Auto Parts Store in Seffner. He also told them that law enforcement recovered some articles of clothing near Clay Pit Road. Further, Jackson told them that he had previously seen the victim jogging in the neighborhood. Jackson explained that he learned this information after he had been riding his bicycle and was stopped by law enforcement officers, who asked him whether he had seen anything unusual on September 13. Elhelw thought Jackson seemed more excited than sympathetic about this information, and Driskell thought Jackson appeared to brag about having more information than either of them.

In September 2007, Jackson lived with Linda and Wallace O’Neal. Wallace had known Jackson as a child because Wallace was the live-in boyfriend of Jackson’s grandmother, who had custody of Jackson when he was a young child. Jackson did not have a car, cell phone, or steady employment when he lived with the O’Neals in September 2007; he spent part of his days at the local Walmart and a local gas station. According to Linda, Jackson was not home on the morning of September 13. Linda had also received several phone calls from Iris Williams, a friend of hers who had encountered Jackson in Gibsonton earlier that morning walking north. Jackson told Williams that he had been locked out of his home and needed a place to stay. Williams thought it was odd to see Jackson in Gibsonton and attempted to contact Linda. Linda testified that Jackson walked into their home in Seffner between 1 and 1:30 p.m. that afternoon. Jackson was sweating, and the bike that he usually rode had remained in the home. Jackson moved out of the O’Neals’ home the following Monday.

After receiving the phone calls from Williams, Linda contacted Margaret Go-finch, a young woman who had knoym Jackson from school. In September 2007, Jackson expressed interest in dating Go-finch and contacted her daily, but she was not interested and was dating someone else. On September 12, 2007, she worked at a McDonald’s Restaurant in Riverview until 10:00 p.m. and received several phone calls from Jackson throughout the night; the phone calls became more frequent as the night progressed. Jackson wanted to see her that night when she finished work, but she declined and went home.

On September 20, Jackson agreed to be interviewed by Detectives Morgan and Bunten. He told the detectives that on the morning of September 13, he stopped at a Walmart and later met law enforcement officers conducting a traffic stop, but denied that he was in Gibsonton or otherwise involved in Tran’s murder. However, when the detectives informed him that Linda O’Neal and Margaret Gofinch had informed them that Jackson was not at home on the night of September 12 or the morning of September 13, Jackson told them that he found himself locked out of the O’Neals’ trailer. Upset, he tried contacting Gofinch for a place to stay for the night, but when she refused, he hiked to Gibson-ton. He also initially denied encountering Iris Williams in Gibsonton, but later admitted that he had seen her that morning and explained that he did not previously mention that fact because he did not want to be associated with her. Jackson also admitted that he had spoken to a woman at a church in Gibsonton to ask for a ride back to Seffner. He also told them that he had ridden his bike home from Gibsonton, but explained that he had taken his time to get home, a trip that ultimately lasted twelve hours. At the end of the interview, Jackson agreed to provide the detectives the shirt and shoes he was wearing, which he told them were what he had worn on September 13.

Bunten and Morgan interviewed Jackson again on September 27. They confronted Jackson with the fact that they did not believe his account of the events of September 13, but Jackson denied that he had seen the victim or stolen the car. Later that day, Jackson was arrested. On October 10, 2007, a grand jury indicted Jackson for the first-degree murder of Tran, sexual battery with a deadly weapon, second-degree arson, and grand theft of a motor vehicle.

The trial court conducted a pretrial Frye hearing to determine whether the defense could present evidence during the penalty phase pertaining to quantitative electroencephalography (qEEG) testing. Both parties produced multiple scientific publications discussing the value of qEEG as a diagnostic tool for neurological and psychiatric conditions. Additionally, both parties presented testimony from psychologists, neurologists, and psychiatrists who debated the relative acceptance of qEEG in their respective fields for the purposes of diagnosing brain injuries. The trial court ruled that the qEEG evidence as used in diagnosing brain injuries or disorders did not satisfy the Frye standard of admissibility.

During trial, the State presented testimony from the emergency responders, crime scene investigators, detectives, and other witnesses who encountered Jackson between September 12 and 14, 2007. A woman who performed community service at First Baptist Church in Gibsonton testified that one morning in September, a man who was on foot approached her and asked for money. She directed him to another individual in the church, who was unable to help him, and he became very upset.

Additionally, the State presented surveillance footage from the Seffner Wal-mart from the night of September 12 until approximately 6:45 a.m., September 13. Jackson was observed at approximately 5:10 a.m. and again at 5:13 a.m. Further, an individual who matched Jackson’s appearance was also visible at approximately 5:40 a.m.

Several forensic investigators also testified on behalf of the State. One detective testified that he observed a notch across the van’s door handle, which he had previously seen in other Chrysler vehicles that had been stolen. Randy St. Clair of the State Fire Marshal’s Office testified that the fire in the van originated in the center of the vehicle, near the driver and front passenger seats, which excluded the possibility that the origin of the fire was in the engine compartment. Further, he explained that there was an unusual and ultimately unidentified sticky substance covering the victim’s hair, skin, and torso that acted as a fire retardant and preserved those parts of the victim. He explained that the fire was ignited by an open flame, such as a match or lighter; the only accelerant present was the upholstery and foam of the van seats. He opined that the apparent motive of the fire was concealment of the victim.

Evelyn Bigford, a forensic analyst for the Florida Department of Law Enforcement, testified that she examined the black pants, pair of shoes, pair of socks, and pink hair roller for the presence of blood, semen, and DNA. The pants testified positive for the presence of blood, but not semen. DNA obtained from the blood on the pants matched Cue Tran to the exclusion of 1 in 15 quadrillion Caucasians, 1 in 2 quintillion African-Americans, and 1 in 6.8 quadrillion Southeastern Hispanics. Bigford did not further analyze the shoes, socks, or hah.- roller. Additionally, Bigford detected sperm cells in Tran’s vagina, as well as a mixed DNA profile from vaginal tissue obtained from Tran. After she eliminated Tran’s DNA profile, the foreign DNA profile matched Jackson to the exclusion of 1 in 34 quadrillion Caucasians, 1 in 750 quadrillion African-Americans, and 1 in 65 quadrillion Southeastern Hispanics. She also compared the foreign DNA profile to that of Tran’s husband, but did not find a match. During cross-examination, Bigford testified that Jackson was a possible donor, and she could not explain how the semen was deposited in Tran.

Dr. Amy Sheil, the assistant medical examiner who responded to the crime scene and performed the autopsy, also testified. She explained that Tran suffered heat amputation of several of her extremities, and it was possible that Tran could have incurred other injuries that were obscured by the thermal injuries. Additionally, Dr. Sheil described how Tran was discovered in a pugilistic stance, another thermal injury that resulted in her fingers being curled into her palms, her elbows flexed, and her left knee slightly bent.

Dr. Sheil explained that Tran was found with four stab wounds and two incised wounds to her neck, although the appearance of some of the wounds had been altered by the thermal injuries. Three of the stab wounds would have been fatal without medical attention, and one of the stab wounds would have made it difficult for Tran to talk or scream. Dr. Sheil opined that the cause of death was stab wounds that penetrated Tran’s jugular vein and carotid artery, which resulted in loss of consciousness and exsanguination. She believed that Tran lost consciousness within seconds to minutes, and death followed within minutes. Additionally, Dr. Sheil examined her larynx and trachea and found no evidence of smoke or soot. Similarly, there was no indication of unusually high levels of carbon monoxide, a byproduct of smoke, in Tran’s blood. Accordingly, Dr. Sheil opined that Tran was dead before the fire started.

The State also presented testimony from Antonio Gonzalez and Michael Kennedy, individuals who were temporarily housed together with Jackson during his pretrial incarceration. Gonzalez testified that Jackson became friendly with him and told him that when Jackson returned home one night, he found himself locked out of his home. Angry, Jackson wandered away from his home and stole a van from a store that sold automobile parts. Jackson told them that he drove the van back to his neighborhood, where he knew that a heavyset Asian woman would go out for her regular early morning jog. Jackson told Gonzalez that he parked the van in the parking lot of a church and raped the woman at knifepoint. Jackson bragged to Kennedy that “he fucked her good.” According to Kennedy, the woman asked Jackson not to hurt her; in response, Jackson told her to shut up or he would kill her. When the woman started screaming, he stabbed her in the throat with a knife. With her clothes and blood evidence remaining on the grass, Jackson placed the woman in the van and drove away from the area where he lived to Gibsonton or Riverview, an area that Jackson was familiar with because some friends lived there, Jackson wanted to find a place to conceal the body, but when the van became stuck, he started a fire in the van with a lighter to dispose of the body. He told Kennedy that he thought the fire would destroy any DNA evidence that could inculpate him.

Additionally, the State presented evidence that would preclude the involvement of another individual. During the initial investigation, HCSO officers recovered a wallet with a driver’s license in a trash can that was near the van. The individual identified by that license testified that his truck had been stolen on September 11, 2007, between 5:00 and 6:30 p.m.; although his vehicle was recovered that evening, his wallet was not. The State presented testimony from that individual, the law enforcement officers who investigated that matter, and one of the perpetrators of that crime.

Defense counsel proceeded under two related theories. Defense counsel suggested that another party was responsible, specifically, Tran’s husband, Banh Tran. During cross-examination, Banh admitted that he did not regularly spend his nights at Cue’s trailer, the title of which was solely in her name.

Alternatively, defense counsel questioned the evidence that connected Jackson to the crime scene. Jackson presented testimony from Anjali Ranadive, a DNA expert. She reviewed the DNA results and testified that although she could not exclude Jackson as a contributor to the DNA recovered from the sperm found in Tran’s vagina, she also could not conclusively identify Jackson as the contributor. Additionally, defense counsel recalled Detective Bunten, who testified that photographs taken of Jackson on September 20, 2007, did not reveal any injuries to his hands or the backs of his legs. Further, during closing statements, defense counsel suggested that the State’s timeline was implausible.

Jackson also presented testimony from three .witnesses who were interviewed by law enforcement in September 2007 during .traffic surveys near the Seffner crime scene. One man who regularly drove a semi-tractor trailer truck through Seffner testified that he saw an older Dodge or Chrysler minivan pull out of the parking lot of a church between Clay Pit Road and Martin Luther King Boulevard. He testified that he saw two Hispanic men in the driver and passenger seats of the van, along with a woman in the back of the van who was moving, but was largely covered by a blanket. Another woman who regularly traveled through Seffner early in the morning testified that she saw an Asian woman jogging along the side of the road in a white shirt and dark pants. She also saw a blue minivan that had been driving erratically pull over to the side of the road where it stopped, and a driver exited the van. Finally, a school bus driver testified that she had observed two young men early one morning in Gibsonton walking away from Bullfrog Creek Road towards Gibsonton Drive, one of whom carried a gas can. However, the bus driver was unable to provide an exact date when she had seen these men.

Jackson was convicted of first-degree murder under theories of both premeditated murder and felony murder, as well as sexual battery with a deadly weapon, second-degree arson, and grand theft of a motor vehicle. During the penalty phase, the State presented a victim impact statement from Ti’an’s oldest son. The State did not present any additional evidence in support of aggravation.

Jackson presented testimony from two of his former teachers and a school psychologist who had evaluated Jackson. Teresa Gribbon, who taught Jackson in a special education class when he lived in Texas, testified that Jackson struggled academically and did not appear to form any attachments. When she taught Jackson, he was eleven years old in fourth grade, but read at a first-grade level. Jackson lived with Wallace O’Neal and his grandmother, whom Gribbon thought lacked parenting skills and failed to set boundaries for Jackson. At one point during the year, Jackson began taking new medication that escalated his physical aggression. His grandmother became concerned about the side effects of the medication and permitted Jackson to sleep in the same bed with her. Gribbon was concerned about that behavior because of Jackson’s age and the fact that Wallace O’Neal lived with Jackson and his grandmother.

Rosemary Borden testified that she taught Jackson in special education classes when he was in fifth grade in Gibsonton, Florida. Jackson was belligerent, defiant, and antagonistic towards other children. He arrived to school dirty and with poorly maintained clothing. She also testified that he had poor attendance. She added that he received Bs and Cs in her class, but he was not instructed at his grade level. Borden further testified that Jackson’s disruptive behavior frequently resulted in his removal from class, and although it was regular practice to contact the parents or guardians of a child who had been removed, she never successfully contacted Jackson’s guardian. Additionally, after the death of his uncle, Jackson drew a picture of himself, dead on a road, and wrote, “Kenny is dead. Kenny will die.” Borden reported this incident to school administrators, and Jackson was detained pursuant to the Baker Act for overnight observation.

Cathy Wetherington, a school psychologist, testified that she evaluated Jackson in April 1995. She conducted a Wechsler Intelligence Scale-Ill test on Jackson, who received a full scale IQ score of 75, with a 75 verbal score and a 79 performance score. He also obtained low academic achievement scores: 53 in broad reading, 68 in broad math, and 32 in writing, which were low compared to the average range of 90 to 110. She considered his score of 54 in processing speed to be very deficient, and his short term memory score of 84 to be below average. Wetherington attempted to arrange a conference with his grandmother, but that conference never occurred. She recommended that Jackson be placed in classes designed for severely emotionally disturbed children, but she did not know if her recommendation was ever followed. Her report also indicated that Jackson appeared to use aggression to cope with stress and that Jackson was worried that he and his siblings might grow up to be “killers.” However, during cross-examination, she admitted that Jackson was also tested with an older version of the Wechsler Intelligence Scale, the WISC-R, when he was in second grade and received a full scale IQ score of 85. Further, there was no indication in her report that Jackson was malnourished, dirty, or unkempt.

Jackson also presented testimony from Dr. Yolanda Leon, a school psychologist, and Dr. Steven Gold, a trauma psychologist. Dr. Leon reviewed Jackson’s school records and interviewed Jackson, his family members, his friends, former teachers, and former school psychologists, but was not asked to conduct neuropsychological testing or provide a diagnosis. Jackson’s biological mother, Patricia Helms, reported that she conceived Jackson when she was fourteen years old and his biological father was twenty-eight years old. When Jackson was six months old, Helms left him in the care of his grandmother, who was thirty years old, and her grandmother’s boyfriend, Wallace O’Neal. Jackson met his biological father only once, when he was six years old.

When Jackson lived with his grandmother and Wallace, he suffered from instability, chaos, and neglect, as evidenced by school reports that he was dirty and suffered from head lice and ringworm. When he was six or seven years old, he was in a car accident and was ejected from the car that was traveling at 30 miles per hour because he was not wearing a seatbelt. Jackson was encouraged to steal food because the household lacked money to purchase enough food. Both his grandmother and Wallace abused drugs and alcohol. Additionally, an uncle who had lived with Jackson when he was a child died of a drug overdose.

Dr. Leon also testified that Jackson was physically and sexually abused. She received reports that Jackson’s stepfather tortured Jackson by placing him in a trailer during the summer and requiring him to repeatedly hit a cemented four-by-four plank with a baseball bat until the plank broke. His stepfather also screwed the windows of the trailer shut and left Jackson inside for several days at a time. Jackson’s mother also reported that Jackson’s stepfather once threatened that if Jackson did not perform oral sex on him, Jackson would be required to walk home. There were also allegations that Wallace O’Neal sexually abused Jackson.

Further, Dr. Leon testified that Jackson had engaged in self-injurious behavior and exhibited suicidal ideation. Her conclusion was based on reports of Jackson’s behavior as a child and as an adult during his incarceration. Dr. Leon opined that an individual who had encountered the traumas that Jackson did would have extremely poor abilities to regulate his emotions and adopt maladaptive behavioral patterns. She testified that Jackson appeared to exhibit a personality disorder, and she would not be surprised if he had an antisocial personality disorder.

Dr. Gold evaluated Jackson with the Adverse Childhood Experiences (ACE) test, which includes a list of ten experiences that are associated with long-term psychological effects if a child encounters one or more of them. The ten experiences reviewed by the ACE include: physical neglect; emotional neglect; physical abuse; sexual abuse; verbal abuse; at least one household member who abused substances; at least one household member who was incarcerated during the subject’s childhood; domestic violence in the household; at least one household member who suffered from severe mental illness, depression, or suicide; and a household without one or both biological parents. Dr. Gold testified that the more factors that a child encounters, the more likely that he or she will have a lower IQ, trouble controlling emotions, poor social and emotional adjustments, depression, disassociative disorders, and a lower life expectancy. He testified that Jackson had experienced all ten ACE factors, which was rare. Dr. Gold also testified that he would not be surprised if a child who encountered all ten ACE factors subsequently developed into a manipulative or violent adult or suffered from a pathological or personality disorder.

In rebuttal, the State presented testimony from Dr. Wade Myers, a forensic psychiatrist. Dr. Myers opined that Jackson has antisocial personality disorder. He also questioned the validity of the sexual abuse allegations because Jackson was the only person who reported those allegations, despite the fact that Jackson was closely monitored by his teachers and school psychologists as a child.

At the conclusion of the penalty phase, the jury recommended the death penalty by a vote of eleven to one. The jury was given instructions on three aggravating circumstances: the murder was committed during the course of a sexual battery; the murder was especially heinous, atrocious, or cruel (HAC); and the murder was cold, calculated, and premeditated (CCP). However, the jury was not instructed to make special findings with respect to aggravation, mitigation, or the relative weight of either.

During the Spencer hearing, Jackson’s mother testified on his behalf. She testified that she was a teenager when Jackson was born; Jackson’s father made arrangements that either he or her mother would receive custody of Jackson. However, she explained that she had a good relationship with her son, who was also close to and protective of his sister. Jackson also renewed the issue of presenting qEEG evidence, but the trial court refused to reconsider its denial of Jackson’s previous motion.

On June 5, 2013, the trial court issued its sentencing order. The court found that the State had proven the following two aggravating circumstances beyond a reasonable doubt: the murder was committed during the commission of a sexual battery and HAC. The court afforded each aggravating circumstance great weight. Although the jury was provided an instruction concerning the CCP aggravating circumstance, the court concluded that the State failed to prove this circumstance beyond a reasonable doubt.

The court also found the following mitigating circumstances: (1) Jackson endured a dysfunctional family background that resulted in an unstable environment (moderate weight); (2) he suffered psychological trauma from the deprivation of parental nurturing when he was an infant and toddler (minimal weight); (3) he was abandoned by his parents (minimal weight); (4) he lacked healthy role models (minimal weight); (5) he was sexually abused by his grandmother’s boyfriend as a teenager “and his life was pre-determined during the years of his early development based on behavior patterns witnessed] by former school personnel” (moderate weight); (6) he developed pathological behaviors due to his history of familial dysfunction, which was evidenced by cutting and self-mutilation (minimal weight); (7) his history of familial dysfunction resulted in an inability .to form attachments or regulate his emotions (moderate weight); (8) he suffers from a personality disorder due to his childhood experiences and genetic traits (moderate weight); (9) he grew up in extreme poverty and was encouraged to steal by his family (minimal weight); (10) he was in the care of neglectful guardians who encouraged criminal conduct at a young age (moderate weight); (11) his caregivers had a history of substance and alcohol abuse (minimal weight); (12) as a young child, he was affected by the suicide of a loved one (minimal weight); and (13) he had positive relationships with his mother, younger sister, and grandmother as a child (minimal weight). The court refused to consider the proffered qEEG evidence in mitigation. The court made an additional finding with respect to mitigation:

The Court, sua sponte, additionally- determines by a preponderance of the evidence that the above circumstances cumulatively diminished Jackson’s capacity or ability to conform his conduct to the requirements of the law, but does not determine that such circumstances diminished his capacity or ability to appreciate the criminality of his conduct. The Court accords this mitigating circumstance moderate weight.

After weighing the aggravating and mitigating circumstances, the court sentenced Jackson to death for the murder of Tran, life imprisonment without the possibility of parole for sexual battery, a term of fifteen years for second-degree arson, and a term of five years for grand theft of a motor vehicle. The court directed that the prison terms would be served concurrently and awarded five years, five months, and three days credit for time served.

Following the filing of Jackson’s appeal before this Court, the United States Supreme Court issued its decision in Hurst v. Florida (Hurst v. Florida), 136 S.Ct. 616, 619 (2016). This Court ordered supplemental briefing to address that decision. This review follows.

ANALYSIS

Guilt Phase

Peremptory Challenges

Jackson alleges that section 913.08, Florida Statutes (2007), which governs peremptory challenges during voir dire, is both facially unconstitutional and unconstitutional as applied to his case. His primary constitutional challenge is that he would have been entitled to a maximum of thirty-two peremptory challenges if he had been charged separately for each count, and therefore his rights under the Equal Protection Clause of the Fourteenth Amendment were violated because differently situated defendants would receive different numbers of peremptory challenges. He also asserts that the trial court erred by denying his request for additional peremptory challenges. We reject both claims.

Constitutional challenges to the validity of a statute raise questions of pure law and are therefore subject to de novo review by this Court. E.g., State v. Catalano, 104 So.3d 1069, 1075 (Fla. 2012). This Court presumes that statutes are constitutional unless and until a party challenging the law proves that the statute is not constitutional under any set of circumstances. See Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla. 2005); Chi. Title Ins. Co. v. Butler, 770 So.2d 1210, 1214 (Fla. 2000).

Both the United States Supreme Court and this Court have recognized that although there is a constitutional right to an impartial jury, there is no constitutional right to peremptory challenges, which are instead considered creatures of statute. United States v. Martinez-Salazar, 528 U.S. 304, 311, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000); Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988); Busby v. State, 894 So.2d 88, 98 (Fla. 2004). Section 913.08 grants ten peremptory challenges to criminal defendants charged with capital crimes, six peremptory challenges to defendants charged with lesser offenses punishable by imprisonment longer than twelve months, and three peremptory challenges to defendants facing all other charges. A trial court, in its discretion, may grant additional peremptory challenges. Fla. R. Crim. P. 3.350(e); Parker v. State, 456 So.2d 436, 442 (Fla. 1984). Thus, there is a right under Florida law to a certain number of peremptory challenges, but there is no right or entitlement to additional peremptory challenges beyond those established in section 913.08.

Statutes that abridge a right that is not fundamental or adversely impact a class that is not considered suspect are only unconstitutional if there is no rational relationship between the statute and a legitimate state interest, E.g., Lite v. State, 617 So.2d 1058, 1060 n.2 (Fla. 1993). Section 913.08 is rationally related to a legitimate interest in providing fair and efficient trials. Further, as there is no right to additional peremptory challenges, Jackson cannot show that any right was violated by the trial court’s discretionary refusal to grant additional challenges. Jackson’s nebulous equal protection challenge similarly fails. Although “death is different,” criminal' defendants are not generally considered a suspect class, not even those sentenced to death. See Crump v. State, 654 So.2d 545, 547 (Fla. 1995); Gov’t of Virgin Islands v. Hodge, 359 F.3d 312, 326 (3d Cir. 2004). Finally, Jackson has insufficiently briefed his claim that section 913.08 violates his right to be free from cruel and unusual punishment under the Eighth Amendment. See Heath v. State, 3 So.3d 1017, 1029 n.8 (Fla. 2009) (“Vague and conclusory allegations on appeal are insufficient to warrant relief.”). Therefore, we reject his facial constitutional challenge to section 913.08.

Jackson also alleges that section 913.08 is unconstitutional as applied to him because the trial court erroneously denied several cause challenges, forcing him to exercise his peremptory challenges, and denied his motion for additional peremptory challenges. A party that seeks relief for the wrongful expenditure of a peremptory challenge must both establish that the trial court’s denial of a cause challenge was erroneous and identify a juror who was actually on the panel whom the party would have removed with a remaining peremptory challenge. Busby, 894 So.2d at 102; Conde v. State, 860 So.2d 930, 941-42 (Fla. 2003); Trotter v. State, 576 So.2d 691, 693 (Fla. 1990). A trial court must excuse a juror where there is reasonable doubt whether the juror is impartial. Banks v. State, 46 So.3d 989, 995 (Fla. 2010) (citing Kopsho v. State, 959 So.2d 168, 170 (Fla. 2007)). To determine whether such reasonable doubt exists, the trial court should consider the context and entirety of the juror’s responses. See Matarranz v. State, 133 So.3d 473, 484 (Fla. 2013); Kopsho, 959 So.2d at 170. A reviewing appellate court should ensure that the record provides support in the form of any findings regarding a juror’s competence. Matarranz, 133 So.3d at 484 (citing Trotter, 576 So.2d at 694; Carratelli v. State, 961 So.2d 312, 319 (Fla. 2007)). Absent manifest error, we defer to the trial court’s determinations on cause challenges to prospective jurors. E.g., Conde, 860 So.2d at 939.

During voir dire, Jackson sought to dismiss five jurors for cause, including Juror 29, Juror 36, Juror 46, Juror 47, and Juror 71. The trial court denied Jackson’s cause challenges to those jurors, and Jackson exercised a peremptory strike on each of those jurors. At the close of jury selection, defense counsel renewed the motion for additional peremptory strikes and identified four additional jurors who were seated that defense counsel would have removed with additional peremptory challenges. The court denied Jackson’s motion. He now asserts that the trial court erroneously denied challenges to Jurors 2,16, 29, 36, 46, 47, and 71. After reviewing the circumstances of each challenge, we find no error by the trial court.

Jurors 2 and 15: The State and defense counsel agreed to strike both Jurors 2 and 15 for cause because they had been observed sleeping during voir dire. Although the trial court denied the cause challenge, the State exercised peremptory challenges to remove both of these jurors. Jackson is not entitled to relief in connection with these challenges because Jackson was not required to expend a peremptory challenge on either of these jurors. See Busby, 894 So.2d at 102; Trotter, 576 So.2d at 693.

Juror 29: Defense counsel moved to strike Juror 29 for cause because she indicated that she had at least two friends or acquaintances who were victims of homicide, and that one of these incidents involved an individual represented by one of the defense attorneys. However, Juror 29 indicated that the incidents occurred five and fourteen years ago; she harbored no resentment toward the perpetrators; and she was unlikely to be shocked by gruesome details presented during trial, having previously encountered similar details in those earlier cases. The trial court found that Juror 29 indicated that she would be impartial and denied the challenge, and defense counsel exercised a peremptory strike to remove her.

The record supports the trial court’s denial of the cause challenge. Each of Juror 29’s affirmative responses indicated that she would be impartial in this,case. See Banks, 46 So.3d at 995 (“[I]t does not appear that the juror’s unequivocal responses provided any reasonable doubt as to whether the juror possessed an impartial state of mind.”). Therefore, we find no merit to Jackson’s claim that the trial court improperly denied his cause challenge to this juror.

Juror 36: Defense counsel moved to strike Juror 36 for cause, who had approached the bench several times to privately explain that her aunt had been the victim of murder and attempted sexual battery, and that the defendant in that case was represented by the Public Defender’s Office. That defendant pled guilty to murder and received a life sentence. Additionally, Juror 36 indicated that her uncle may have pursued civil litigation involving the death of her aunt, but she was unfamiliar with that matter.

When asked, Juror 36 indicated that she could serve impartially, set any feelings about her aunt aside, and that the present case was different from what had occurred with her aunt. The following interaction occurred during a subsequent bench conference:

.[Juror 36]: This morning when you guys approached me about my situation I was totally caught off guard but I believe I’m a fair person and I think I could do a [sic] this job even though my situation’s kind of a little bit—you know.

The Court: Because of the lawsuit thing?

[Juror 36]: Not the lawsuit but what happened with my aunt in that case. I can’t just forget what happened to her and just not give this gentleman a fair chance either. It’s not fair at all.

The Court: We discussed that and we had talked about your aunt’s situation in front of everybody is that why we’re up here?

[Juror 36]: Yeah.

The Court: Based on that do you need to tell us something else about yourself?

[Juror 36]: That I think I could be objective and just concentrate on the evidence and other than that consider all the evidence and not just.

[The State]: Do you think you could give a fair shake to any mitigation they presented would you consider it fairly?

[Juror 36]: Definitely. I would have to that’s the only way to be fair.

[The State]: If you felt that it merited great weight of any kind could you assign that weight to it?

[Juror 36]: Yes. I have to be fair on both sides. My situation it’s totally nothing to do with this case. I can’t just think about that or base my feelings on his situation because it’s [a] totally different situation.

The Court: Any questions?

[Defense counsel]: I believe I asked you this earlier today but do you feel like— the facts of this ease being somewhat similar and you heard the Judge already say what the charges were if the facts of this case end up being somewhat similar to the one involving your aunt would you be placed in a very awkward situation trying to be fair to both sides here?

[Juror 36]: No my feelings have nothing to do with this case. I cannot think about my situation, my family’s situation. I have to be fair and concentrate on the evidence. That’s all.

[The State]: [Juror 36], in the case involving the person who murdered your aunt, there was an agreement whereby he did not receive the death penalty. Were you angry about that?

[Juror 36]: Not at all.

[The State]: You didn’t have any care about that at all?

[Juror 36]: No it’s not something I think about every day I’m not for or against it. It’s not that I’m a cold hearted person but I just have to think about the evidence that’s in front of me. And I just need to see what’s in front of me and my personal feelings have nothing to do with this at all. My family it’s unfortunate what happened to my family but I can’t think about that and not be fair to somebody that would be unfair to think about my feelings and what I would do with my family or what we would do. It has nothing to do with this case even though it could be similar. It can’t—

[The State]: Do you feel like as you’re situated today or this week being here on jury duty and taking a case, the type of case this might be are you saying you want to be on this jury?

[Juror 36]: It’s not that I’m eager to be on the jury it just—it’s I’m given the chance that’s you know I believe I’m meant to be here and that I could do the best job I can for me as a human being I have to have a conscious of what I’m doing and not be guided by my feelings or my situation. It wouldn’t be fair. I can never assume.

[Defense counsel]: Okay. So you feel like you could be fair and impartial to both sides in this situation without any kind of he [sic] reservation whatsoever?

[Juror 36]: I believe so and I want to believe that, that would make me a good human being that I can do that you know just think about my personal feelings and my situation. That’s not—that be fair.

[Defense counsel]: All right.

[The State]: Understand your response and I understand you say you like to believe you could do that. Are you sure you could do that?

[Juror 36]: I’m pretty sure, yeah. I mean it’s going to be hard. I’m not going to sit here and say it’s not going—it’s not easy for anyone being here in this situation to see the evidence and what we might be exposed to it’s totally, I’m a human being of course it’s going to be hard but other than my personal feelings I have to be objective and do a good job you know. That’s fair.

The court later denied Jackson’s cause challenge to Juror 36, and Jackson later exercised a peremptory strike to remove her.

Although Juror 36 was candid about her personal concerns, we conclude that she unequivocally and repeatedly indicated that she would endeavor to be a fair and impartial juror. Her responses are distinguishable from those cases in which this Court has found error in the denial of cause challenges to jurors who repeatedly expressed a lack of impartiality or inability to follow the law. See Matarranz, 133 So.3d at 477-81, 485-88 (juror repeatedly indicated that she harbored a bias against criminal defendants because she,had previously been the victim of a burglary); Kop-sho, 959 So.2d at 170-72 (juror believed that defendant should testify on his own behalf and expressed disagreement with the right to silence); Overton v. State, 801 So.2d 877, 890-93 (Fla. 2001) (finding error in denying cause challenge to one juror who emphatically believed that the defendant’s failure to testify indicated guilt); see also Welch v. State, 189 So.3d 296, 301 (Fla. 2d DCA 2016) (holding that jurors who expressed residual doubt about the defendant’s right to silence should have been dismissed for cause). Unlike the jurors in Matarranz, Kopsho, Overton, and Welch, Juror 36 did not affirmatively express a bias against Jackson or indicate that he should testify on his behalf.

Instead, we consider our previous analysis in Banks more comparable to these facts. There, the juror in question twice stated that he would be impartial, despite the fact that his daughter had; recently been the victim of a robbery. Banks, 46 So.3d at 995. We concluded that there was no reasonable doubt regarding the juror’s impartiality and affirmed the ruling of the trial court. Id. Similarly, the trial court below did not err in denying Jackson’s cause challenge to Juror 36.

Jurors 46 and 47: Defense counsel moved to strike Jurors 46 and 47 for cause because defense counsel were concerned that these jurors lacked neutrality on the death penalty. Juror 46 considered herself “smack in the middle” on the issue of the death penalty, indicating that she thought it may be warranted if the murder was premeditated, but she was also interested in considering any mitigating evidence. Juror 47 indicated that he would be slightly in favor of imposing the death penalty following a conviction of first-degree murder, but said that he would not definitely recommend a sentence of death. The court denied the challenge to Juror 46, finding that she indicated her willingness to be objective, and defense counsel exercised a peremptory strike to remove Juror 46. With respect to Juror 47, the court noted that he was slightly more in favor of a death sentence following a conviction, but found that nothing that Juror 47 said indicated that he would not be fair or impartial and denied the challenge. Defense counsel subsequently exercised a peremptory strike on Juror 47.

When a potential juror is questioned about his or her views on the death penalty, this Court has explained:

The standard for determining whether a potential juror should be excused for cause based on his view with respect to the imposition of the death penalty is “whether the juror’s views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ”

Overton, 801 So.2d at 893 (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985)).

Under this standard, the record supports the trial court’s denial of Jackson’s cause challenges to both Jurors 46 and 47. Juror 46, who identified herself as “smack in the middle,” informed the court and the parties that she would be willing to impose the death penalty under certain circumstances, but she would also consider mitigating evidence. Similarly, although Juror 47 indicated that he held a slightly less neutral position on the death penalty than Juror 46, this Court has found no error when jurors ultimately state that they would consider both life imprisonment and the death penalty. Id. at 894 (juror indicated that he was inclined to impose death sentences for defendants convicted of first-degree murder, but also explained that he would follow the court’s instructions and could entertain a life sentence); Bryant v. State, 656 So.2d 426, 428 (Fla. 1995) (five jurors initially “expressed strong support of the death penalty,” but later indicated that they would follow the instructions and weigh the aggravation and mitigation). Jackson’s challenges to these prospective jurors do not merit relief.

Juror 71: Defense counsel moved to dismiss Juror 71 for cause, who asked if it was common for defendants to sit in the room while potential jurors discussed their thoughts about potentially serving on a jury. The court denied the cause challenge, and defense counsel exercised a peremptory challenge to remove her.

However, we do not believe that there was any reasonable doubt as to the impartiality of Juror 71. Her comments were followed by instructions on the right to silence, and the trial court found her questions were innocuous. After she had asked the question, Juror 71 later indicated that she could not yet decide Jackson’s guilt at that point in the trial because the State had not yet presented any evidence, which indicated that she understood the instructions regarding the right to silence and presumption of innocence. Her remarks are distinguishable from those cases in which jurors repeatedly expressed their views that a defendant should testify to demonstrate his or her innocence. See Kopsho, 959 So.2d at 170-72; Overton, 801 So.2d at 891-92. Therefore, we do not find error in the trial court’s denial of Jackson’s cause challenge to Juror 71.

Accordingly, Jackson has failed to show that the trial court erroneously denied any of the cause challenges to these prospective jurors. See Busby, 894 So.2d at 102; Conde, 860 So.2d at 941-42; Trotter, 576 So.2d at 693. Because we do not believe the trial court erred in any of these denials, we cannot conclude that the trial court abused its discretion when it declined to grant additional peremptory challenges, even acknowledging the difficulties encountered in seating this jury. Therefore, Jackson’s as-applied challenge to the constitutionality of section 913.08 also fails.

Motion for Mistrial

Jackson also asserts that the trial court improperly denied his motion for mistrial raised during the State’s direct examination of Linda O’Neal. During trial, the State presented evidence from Linda, who was the wife of Wallace O’Neal. Wallace was the former boyfriend of Jackson’s grandmother, and Jackson had lived with Wallace and his grandmother from the time that Jackson was three years old until his grandmother passed away. When the State attempted to elicit testimony from Linda regarding the time when Jackson moved in with her and Wallace, the following exchange occurred:

[The State]: And prior to September 13th of 2007, how long approximately did [Jackson] live with you at the Grand View Mobile Home Park with you and Wally?

[O’Neal]: I believe he was released—

At that point, defense counsel objected, and during a subsequent bench conference, defense counsel moved for a mistrial, which the trial court denied. The trial court instructed Linda to provide only “yes” or “no” answers. The State then attempted to ask Linda whether Jackson maintained a steady job, and when Linda began to answer with a more complex answer beyond “yes” or “no,” defense counsel moved for another bench conference, and the court dismissed the jury from the courtroom. The following exchange occurred:

The Court: Ms. O’Neal, you came within a quarter inch of destroying this entire trial.

Weren’t you told not to make any mention of that? Were you told not to make mention of that, yes or no?

[O’Neal]: Of what?

The Court: Of this young man being released from prison.

[The State]: That he was in prison or jail.

[O’Neal]: Yes.

The Court: And why in the world would you mention that or come close to mentioning it?

[O’Neal]: Because I couldn’t figure—I couldn’t remember when he was released. I couldn’t remember when he was released, and that’s when he came to my house. I don’t remember.

Following the end of Linda’s testimony, defense counsel renewed its motion for mistrial, adding that Linda had “burst openly into tears” when she was asked about the death of her husband. The State strongly disagreed with that characterization and argued that her eyes watered up, but she did not lose her composure. The trial court made no factual findings regarding Linda’s emotional state and denied the motion. Jackson now asserts that the denial of his motion for mistrial was erroneous.

A trial court should grant a motion for mistrial only if prejudicial error occurs that vitiates the entire trial. England v. State, 940 So.2d 389, 401-02 (Fla. 2006) (citing Snipes v. State, 733 So.2d 1000, 1005 (Fla. 1999)). We review trial court rulings regarding motions for a mistrial for abuse of discretion. Id. at 402 (citing Perez v. State, 919 So.2d 347 (Fla. 2005)). This standard is satisfied only if no reasonable person would arrive at the same conclusion as that of the trial court. Trease v. State, 768 So.2d 1050, 1053 n.2 (Fla. 2000) (citing Huff v. State, 569 So.2d 1247, 1249 (Fla. 1990)).

Although irrelevant evidence of prior criminal activity is presumptively harmful, see Straight v. State, 397 So.2d 903, 908 (Fla. 1981), an isolated or stray reference to a defendant’s prior incarceration is considered in context of the trial and does not necessarily result in a mistrial. See Fletcher v. State, 168 So.3d 186, 207 (Fla. 2015), cert. denied, — U.S. —, 136 S.Ct. 980, 194 L.Ed.2d 7 (2016). When determining whether such a remark vitiated the defendant’s right to a fair trial, reviewing courts have often considered whether the fact of a prior conviction or incarceration was critical to any facts at issue during the trial. Compare Cox v. State, 819 So.2d 705, 713-14 (Fla. 2002) (finding no abuse of discretion by trial court’s denial of motion for mistrial after witness stated that the defendant already had two sentences of life imprisonment because the jury was aware that the defendant was incarcerated at the time of the events in question) with Brooks v. State, 868 So.2d 643, 644 (Fla. 2d DCA 2004) (holding that witness’s suggestion that the defendant “went back to prison” was harmful in part because it affected the defense’s theory of self-defense, which would have been undermined in light of evidence of a prior conviction); and Henderson v. State, 789 So.2d 1016, 1017-18 (Fla. 2d DCA 2000) (concluding that witness’s statement that the defendant seemed familiar with criminal activity as though he had “done this before” was harmful because the character of the defendant was a central issue in that case); see also Fletcher, 168 So.3d at 208 (rejecting claim that a mistrial was warranted in light of inadvertent references to the defendant’s prior incarceration because the defendant was charged with escape and stipulated to the fact that he was in lawful custody at the time of that escape).

Jackson has not satisfied the heavy burden of proving that the trial court abused its discretion when it denied his motion for mistrial after Linda’s very limited comment. Because she did not indicate where Jackson had been released from, it was plausible that the jury could have inferred that he had been released from a hospital or from military service. The record in this case indicates that Linda was a nonrespon-sive witness who required multiple instructions from the trial court. Contrary to Jackson’s assertions, her limited, stray remark does not rise to the level of the improper admission of Williams rule evidence.

Moreover, the cases upon which Jackson relies for support of his argument are distinguishable. The district court in Brooks held that the remark that the defendant had been “sent back to prison” was harmful because the defendant had been charged with domestic violence and had relied on a theory of self-defense. 868 So.2d at 644-46. That court concluded that the comment would have been understood by the jury as a relevant consideration, would have undermined the defense’s theory of self-defense, and required defense counsel to present the defendant to testify on his own behalf, which exposed him to impeachment. Id.; see also Henderson, 789 So.2d at 1018 (“In this case ... character was a central issue.”). By contrast, Jackson did not assert self-defense, and his character was not an issue in dispute. Likewise, Finklea v. State, 471 So.2d 596, 597 (Fla. 1st DCA 1985), is distinguishable because the witness in that case indicated that the defendant had previously been involved in two robberies. Linda’s limited, vague comment about Jackson having been released was not similar to the affirmative statement regarding the defendant’s prior involvement in two specific crimes in Fink-lea.

Further, we reject Jackson’s various claims that this comment undermined other aspects of his trial. He claims that the comment was exacerbated by the previous testimony of Iris Williams, who thought it was unusual to see Jackson in Gibsonton when she knew he lived with the O’Neals in Seffner. However, Williams testified that although she knew the O’Neals well, she did not know Jackson well and had only met him on two or three occasions. We also do not agree that Linda’s emotional response—the extent of which was disputed—when asked about the death of her husband had any effect on her earlier comment that Jackson had been released.

We also do not find persuasive the suggestion that the comment affected the jury. Jackson claims that the prejudice is obvious given that several jurors were dismissed during trial. One prospective juror was dismissed because he researched Jackson on the Internet during voir dire. However, this juror was dismissed a week before Linda testified, and the trial court inquired whether that juror spoke to any other jurors about his research, which he had not. Additionally, prior to Linda’s testimony, Juror 89 was released by agreement of the parties after he had approached the bench earlier that day and explained that he suffered a severe fear of heights that was exacerbated by the location of the particular courtroom used in this trial. Jackson also asserts prejudice existed when Juror 10 asked to be excused because she was concerned that she would no longer be able to fairly evaluate the evidence. However, Juror 10 was excused during the penalty phase—over a week after Linda testified and after the jury had convicted Jackson. The record also indicates that Juror 10 informed the court that she became emotional after hearing mitigating evidence about Jackson’s difficult childhood in relation to her own young son. In reviewing the effect of the stray remark by Linda O’Neal within the context of this trial, we conclude that the trial court did not abuse its discretion when it denied Jackson’s motion for mistrial.

Admission of Post-Mortem Photographs

Jackson next asserts that the trial court improperly permitted the admission of gruesome post-mortem photographs of Tran that he claims were irrelevant because Tran was dead before the fire started. This Court will not disturb a trial court’s ruling on the admissibility of photographic evidence absent an abuse of discretion. Dennis v. State, 817 So.2d 741, 763 (Fla. 2002), We have held that photographs are admissible if they are relevant and if the shocking nature of the photographs does not outweigh their relevance. Jennings v. State, 123 So.3d 1101, 1126 (Fla. 2013) (citing Hertz v. State, 803 So.2d 629, 641 (Fla. 2001); Czubak v. State, 570 So.2d 925, 928 (Fla. 1990)). We have previously approved the admission of crime scene photographs that were relevant to the manner of the murder or depict the victim as discovered by law enforcement. Douglas v. State, 878 So.2d 1246, 1255-56 (Fla. 2004); see also Hertz, 803 So.2d at 642 n.7 (explaining that crime scene photographs of victims whose bodies were burned were relevant to show, among other matters, how damage from the fire hampered the forensic investigation). When the State seeks to admit autopsy photographs of a victim, the photographs must be relevant to an issue in dispute. Almeida v. State, 748 So.2d 922, 929 (Fla. 1999). Autopsy photographs may also be relevant when they assist the medical examiner in explaining the victim’s injuries or manner of death. Hertz, 803 So.2d at 642 (citing Mansfield v. State, 758 So.2d 636, 648 (Fla. 2000); Pope v. State, 679 So.2d 710, 714 (Fla. 1996)). Nonetheless, we have urged trial courts to proceed with caution to ensure that the photographs are not impermissibly prejudicial or inflammatory. Jennings, 123 So.3d at 1127; Marshall v. State, 604 So.2d 799, 804 (Fla. 1992); see also Larkins v. State, 655 So.2d 95, 98 (Fla. 1995) (“While a trial court should exercise caution in admitting particularly gruesome photographs, and in limiting their numbers, such photographs may still be relevant.”). This Court reviews the erroneous admission of photographs for harmless error. See Hertz, 803 So.2d at 643.

In Hertz, this Court reviewed the relevance of several crime scene and autopsy photographs that had been admitted during trial. 803 So.2d at 641. We concluded that a crime scene photograph that depicted the victims’ charred corpses as discovered by law enforcement was relevant' to explain: (1) the condition in which the bodies were found; (2) that the victims were killed execution-style; (3) how the position of the bodies preserved clothing for testing for accelerants; (4) the manner in which the accelerant was applied; and (5) how the fire itself interfered with the forensic investigation. Id. at 641-42 & n.7. We also independently noted that the photograph was probative of the avoid arrest aggravating circumstance found in that case. Id. at n.7. We ultimately concluded that the erroneous admission of other autopsy photographs was harmless in light of the extensive evidence of Hertz’s guilt. Id. at 643; see also Doorbal v. State, 983 So.2d 464, 498-99 (Fla. 2008) (noting that trial court abused its discretion when it admitted a photograph that was only relevant to show the rate of decomposition of the victim’s body, but finding the error harmless).

During trial, the court conducted a bench conference to permit the State to explain how the medical examiner, Dr. Sheil, expected to rely on photographs Ql-17 during her testimony.