Middleton v. State (220 So. 3d 1152, 2017)

REVISED OPINION

PER CURIAM.

Middleton’s motion for rehearing is hereby granted. We substitute the following revised opinion for our previous opinion issued October 22,2015.

On August 6, 2012, a jury found Dale Middleton guilty of first-degree premeditated murder for the killing of Roberta Christensen, first-degree felony murder with a weapon, burglary of an occupied dwelling while armed, and dealing in stolen property. The jury voted 12-0 to impose the death penalty. The trial court followed the jury’s recommendation and sentenced Middleton to death. Middleton now appeals his convictions and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth in this opinion, we affirm Middleton’s conviction of first-degree murder and uphold his death sentence.

I. Statement of the Case and Facts

Roberta Christensen, as well as her husband of thirty-one years, lived in a trailer across the street from Middleton. On July 1, 2009, Mr. Christensen went to New Jersey to visit the couple’s son. Before her husband left, they bought mobile phones that allowed them to use a walkie-talkie mechanism to communicate while they were apart.

Middleton lived in a trailer with Garrett Wade Fowler, Kenneth Wade Sullivan and Sullivan’s girlfriend, Haleigh Zinker. On occasion, Middleton would visit the victim at her home and would sometimes borrow money and cigarettes from her. On the morning of July 27, 2009, Middleton went over to the victim’s trailer while she was preparing to go to the bank. After he left, she realized that she had left approximately $400 in tip money out, and suspected that Middleton had seen it. She deposited the money into the bank that afternoon. When the victim returned from the bank she noticed that someone had attempted to remove the screen from the window by her front door.

On the morning of July 28, 2009, Middleton rode around with his girlfriend’s roommate, Steve Britnell, for a period of time looking for drugs. The two eventually found methamphetamine around twelve or one o’clock that afternoon. They returned to Middleton’s trailer and shared the methamphetamine. At this time, Garrett Wade Fowler and his girlfriend were also at the trailer. At approximately 4:30 p.m., Fowler and Britnell decided to go to Wal-mart to “boost.” Middleton declined to go, stating that he had business to take care of, that someone owed him some money, and that he needed to take a shower.

While Britnell and Fowler were gone, Middleton took a knife from the sink of his trailer and went over to the victim’s home. While in the victim’s kitchen, he asked her for money. When she refused and attempted to push him out of the trailer, he attacked her with the knife. Christensen was alive and moving erratically as she was dragged from the kitchen area to the bedroom. Once in the bedroom, Middleton cut Christensen’s throat. Before leaving her home, Middleton stole her flat-screen television and power cord and carried the television across the street to his trailer. There, he washed his hands in the kitchen sink, changed his clothes, but kept his boots on. He placed the bloody clothes in a bag with the murder weapon.

When Fowler and Britnell returned to Middleton’s trailer, Middleton was there with Chris Jenkins, Kenneth Wade Sullivan and Sullivan’s girlfriend. There was a flat screen television in the kitchen with a blanket covering it. At this time, Middleton had already showered and his hair was still wet. He stated that the person that owed him money had given him the television as payment.

After Jenkins and Sullivan left, Fowler was sitting on the porch as Middleton stood at the door. Fowler noticed that Middleton had a red substance on his boots, which Middleton claimed happened because he got something out of the dumpster. Later, Britnell and Middleton drove around in Britnell’s black Pontiac to two different pawn shops trying to sell the victim’s television; both pawn shops were closed. They both then got on the phone and began to call around to see if they could find someone who wanted to purchase the television.

At approximately 5:30 p.m., Middleton called Christopher Jenkins to his home. Middleton asked Jenkins to bring drugs with him. When Jenkins arrived at Middleton’s trailer, Middleton asked Jenkins for assistance in selling the television. After Jenkins took a photo of the television, he and Middleton went into the bedroom where Middleton crushed and consumed two Roxicodone pills, saving one pill for later.

Mrs. Christensen’s husband had last spoken to her on July 28, 2009, around 2:50 p.m. He watched a movie and fell asleep from approximately 4 p.m. to 6:40 p.m. When he woke up he was surprised that his wife had not called him; he repeatedly attempted to contact his wife on the walkie-talkie phone, to no avail. He also left a message on the home’s voice-mail. Mr. Christensen called the couple’s other son who lived near the victim’s home and asked him to check on his mother.

When the Christensen’s son and his wife arrived at his parents’ home, he noticed Mrs. Christensen’s car parked in its usual spot. The trailer door was unlocked and the son went inside. When the son walked into the kitchen, he saw a big puddle of blood on the kitchen floor. Next to the puddle of blood he saw a yellow broom with a sharp edge. He followed the path of blood to a closed bedroom door. He opened the door and saw his mother’s dead body on the floor. He heard his father on the walkie-talkie calling out for him and his mother. He went outside to call the police. He stopped his wife from entering the trailer. While on the phone with the 911 dispatcher, he went back into the trailer to confirm that his mother was not breathing,

Randy Ammons helped Middleton sell the television to his brother,' Rolland Am-mons. When Middleton went to Randy Ammons’ house, he said that he had just taken a shower and did not want the dog to jump on him. A little after 7 p.m„ Middleton, in a vehicle driven by Wade Fowler, followed Randy Ammons to Ronnie Ammons’ house to sell the television, Fowler stayed outside by his ear while Middleton took the television, covered with a comforter, inside and sold it to Rolland for $200. At some point earlier, while riding around trying to sell the television, Middleton placed the bag with the bloody clothes and the murder weapon inside of a dumpster.

After selling the television, Britnell drove Middleton to a gas station, where Middleton purchased cocaine from someone in a truck. They consumed some of the drugs while in the car. Soon thereafter, the serpentine belt on the car broke and Brit-nell drove to a relative’s house to have it fixed. While the car was being fixed, Middleton walked a few hundred yards to a local bar, Brewskis, and called Britnell to pick him up once the car was fixed. When Middleton got back to the car, he was really upset and was crying while he was on the phone with his girlfriend and said, “I’m sorry.” The two drove back to the trailer park where Middleton lived. When they arrived, there were police cars in the area. Not wanting to get too close to the police officers, the two turned off at someone else’s house, where they got out of the car and stood in the yard.

Later that evening, officers found Middleton at the residence of Darrell Dubel. When the officers arrived, Britnell’s car was there. At this time, Middleton was barefoot and had placed his boots and socks in BritnelFs trunk. Officer John Rho-den asked Brandon Jenkins, Britnell and Middleton to come to the Sheriffs Office for questioning. Middleton’s boots were later recovered from the trunk and were found to have the victim’s blood on them. While in custody, Middleton confessed. The bloody clothes and the murder weapon were never discovered.

A. Middleton’s Confession

During the trial, the State played Middleton’s interview videos for the jury, including the fifth and final video where Middleton ultimately confessed to the murder. Detective Faulkner and Assistant State Attorney Ashley Albright were present during Detective Maerki’s questioning of Middleton. The recording of the first interview, which was conducted in Detective Maerki’s office, could not subsequently be retrieved. As a precautionary measure, the second and third interviews were conducted using the computer equipment located in Detective Faulkner’s office. Maerki read Middleton his rights, as detailed on a Miranda card. Maerki detected an odor of alcohol on Middleton, and also noticed that his eyes were bloodshot and watery. He was surprised that Middleton did not have slurred speech and that his coordination was fine. He stated that Middleton seemed to be fully aware of everything that was happening during the interrogation.

Middleton told Maerki that everything happened so fast that he never checked to see if the victim had any money. He stated that he thought that the victim ended up in the hallway, and that he did not remember cutting her throat. He stated that after the murder, he did not bathe, and only washed his hands. He admitted that he acted alone. He told the police the location of the dumpster where he threw the bag with his clothes and the murder weapon. He stated that he kept his boots on and put them in the trunk of Steve Britnell’s small black car. He admitted to selling the television later that night to Rolland Ammons for $200. He additionally admitted that he used the same $200 to purchase more drugs.

B. Forensic Testimony

Crime scene technician Jackie Moore assisted Detective Bradley at the crime scene. She testified that there was no evidence of a struggle in the living room area. She recalled that there was a void in the dust on a television stand in the living room indicating that there was previously a television and remote there. She testified that there were bloodstains on the dining room table and chairs that led toward the master bedroom. The bloodstains on the wall of the bedroom indicated that at some point the victim had been standing and had stepped in blood. On the floor near the wall next to the refrigerator and the dining room table, there was blood with drag marks. and some pooling of blood. The drag marks indicated that the victim was alive and moving erratically as she was dragged from the kitchen area to the bedroom. There was blood with drag marks in the doorway of the master bedroom. There were bloody shoe impressions from the master bedroom to the kitchen. •

The victim had a gaping wound in her throat. The medical examiner testified that there were several passes like a sawing ' motion with a sharp instrument to create the margin of the wound. The blood stains indicated that the victim’s carotid artery was not cut until she got into the bedroom. Her hands and shirt were saturated with blood. She also had blood running down her abdomen that soaked into the waistband of her pants. The amount and pattern of blood on the victim’s waistband indicated that she may have been sitting up slightly or halfway when she received the neck injury. The victim’s shirt was pulled upwards toward her neck, which is consistent with being dragged.

The laceration to the victim’s throat produced significantly more blood than was seen in the blood trail through the kitchen. The victim had a bruise on her cheek that was consistent with the tread and design of Middleton’s boots. The victim had bruises and a cut to her face, a puncture and stab wounds on her chest, neck, ear, .and arms. The bloody shoeprints were well defined closer to the bedroom and became faint as they continued down the hall. The victim’s son’s shoes were tested and eliminated as the shoes that caused the bloody shoe impressions, Moore testified that this indicated that the blood was likely dried by the time the victim’s son found her. There were various items located close to the victim’s body, which indicated that she was grabbing for things during the struggle. The victim had bloody injuries to her arms and wrists. She had defensive wounds that indicated that she was trying to get away from someone who had a knife. None of the injuries to the victim’s extremities would have killed or incapacitated her. The autopsy revealed that the neck injury occurred toward the end of the attack. Following the neck injury, the victim could have been conscious for ten to twenty seconds, and alive for minutes after losing consciousness.

On the kitchen floor of Middleton’s residence, there was a washed-out shoe impression that was similar to those found inside the victim’s residence. This print tested positive for blood, but no DNA profile could be obtained. The medical examiner found blood on the sink of the only bathroom in - Middleton’s trailer, but no DNA profile could be obtained. There was blood beside the dresser in Middleton’s bedroom, but the DNA profile was determined to : be inconclusive. A different bloodstain in Middleton’s room matched the victim’s DNA on four of thirteen points, The probability that a randomly selected Caucasian person could match the same DNA profile at these-four locations is one in 41,680.

Donna Lee and Rolland Ammons’ fingerprints were the only prints found on the victim’s television. Middleton’s fingerprints were not found inside the victim’s residence. There was no evidence that the trailer had been ransacked or that the victim’s things had been rifled through. Moore explained that the vanity in the victim’s bedroom had blood spatter on the outside, but not the inside, indicating that the door to the cabinet of the vanity was closed during the attack. Inside the cabinet, there was a purse that appeared to have been thrown in there. There was evidence of blood spatter on the purse and also blood inside of the purse. The purse was empty, and there were no fingerprints found on the purse.

C. Penalty Phase

During the penalty phase, the defense presented testimony from Dr. .James D. Barnard, and the State presented testimony from Dr. Deborah Leporowski. The defense’s court-appointed mitigation investigator, Joe Parish, also testified, as did Middleton’s sisters.

1. Psychological Witnesses Testimony

.Dr. Barnard assisted the defense in formulating mitigating evidence and conducted a mental health evaluation, of Middleton. His findings indicated that Middleton underreported the type of drugs he abused and the frequency of their use. Dr. Barnard determined that Middleton began abusing painkillers after being prescribed the medications following an accidental fall. He also determined that Middleton began smoking marijuana between the ages of ten and thirteen. He described the onset of cocaine use at age twenty-five, ceasing at age thirty. Additionally, Middleton told Dr. Barnard that he had used methamphetamine once a year since he was twenty-eight years old. This statement conflicted with his assertion during his police interview that the day of the murder was the first time he had ever used methamphetamine. Dr. Barnard testified that Middleton reported briefly being medically treated for attention deficit hyperactivity disorder (ADHD). Dr. Barnard characterized ADHD as symptomatic of difficulty with impulse control, difficulty regulating behavior to standards or norms, high-rate motor activity, and difficulty focusing attention.

Dr. Barnard also found that Middleton was possibly exaggerating his symptoms, which may sometimes be viewed as a cry for help. Dr. Barnard found it quite significant that Middleton’s personality type is known to have problems with repressed anger and hostility and that persons with this condition are .sometimes able to control their anger but sometimes have anger outbursts that are difficult or impossible for them to control. Equally significant, opined ■ Dr. Barnard, is that individuals with this personality type have real problems .responding to authority and taking direction and often accept little or no responsibility for their behavior. Dr. Barnard concluded that Middleton could not conform his conduct to the requirements of the law on the day in question and that his substance abuse on the date of the murder would have likely impaired anyone’s psychological controls, even someone who had no difficulty with impulse control.

-On cross-examination, Dr, Barnard admitted that he did not review all of the records in this case, i.e., the depositions of people close to Middleton, his arrest and jail records, and his confession to the murder, Dr, Barnard conceded that Middleton is not mentally retarded. The' State questioned Dr. Barnard about the report that was conducted by Dr. Landrum in August 2009 which found Middleton’s IQ to be 72. Dr. Barnard testified that Middleton informed him that he did not give ,his best effort on the IQ test conducted by Dr. Landrum. When Dr. Barnard administered the Wechsler Adult Intelligence Scale-IV (WAIS-IV) test in September 2011, he determined that Middleton’s full scale IQ was 83. Dr. Barnard determined that Middleton was not malingering during the exam he administered. He stated that he was aware that Middleton was administered the WAIS-IV test for a third time in this case by Dr. Riordan in March 2012.

Dr. Riordan’s March 2012, evaluation indicated that Middleton’s IQ score was 75. Dr. Barnard would have expected Middleton’s IQ score to be higher if all other factors were stable. This lower score could be an indication of various factors including Middleton being under the weather or malingering. There were no indications that Middleton was ever separated from the general population in prison due to any mental health issues. Dr. Barnard admitted that Middleton slit his wrists in a holding cell and did so in an attempt not to be extradited back to a facility in Georgia.

Dr. Deborah Leporowski testified for the State. She stated that in order to prepare for her testimony, she reviewed the reports, previous testimony, and depositions of Doctors Barnard and Riordan and the report of Dr. Landrum. She also reviewed the police reports in this case, transcripts, witness interviews, letters that Middleton wrote while he was in jail, and Department of Corrections records. She also interviewed Middleton. Dr. Leporow-ski maintained that Middleton’s IQ scores are illogical with an initial score of 72, a score of 83 two years later and then months later receiving a score of 75. Dr. Leporowski opined that a score of 83 is likely Middleton’s actual IQ score. Dr. Le-porowski diagnosed Middleton with antisocial personality disorder, as did Dr. Barnard.

Dr. Leporowski determined that Middleton was malingering “or at least exaggerating” when taking his personality tests. Dr. Leporowski found no history of mental illness in Middleton’s records or in her interview with him. She rejected any assertion that Middleton’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. She opined that Middleton’s upbringing did not in any way lead him to believe that those actions involving this crime were okay or were warranted in any way based on the victim’s behavior. She testified that everything he told her about the day of the crimes was logical, made sense, and indicated that he was able to make decisions and choices. Dr. Leporowski further noted that Middleton appeared to remember what he did throughout the day, where he did drugs and with whom. On cross-examination, she stated that Middleton’s jail records indicated that his detox from drugs while in jail was typical and did not evidence drug dependence, but that he used them intermittently when he had access to them.

2. Family History Testimony

The trial court appointed Joe Parrish, a licensed private investigator, to assist the defense in developing mitigation for the penalty phase. Mr. Parrish determined that Middleton’s mother abused drugs and his older siblings acted as parents to him. Middleton expressed to Parrish some depression concerning the death of his father figure, a former employer, who had died. Mr. Parrish found that Middléton was employed at a welding company for a period of time and was described by the owner as being a hard worker and very dependable. Parrish also found that marijuana use at an early age led Middleton to abuse heavier drugs. Mr. Parrish spoke with Middleton’s eldest daughter, who lived in the same mobile park with her mother and younger sister. She explained that in the days leading up to the murder, she noticed that her father’s physical appearance had changed and that he was abusing drugs. Parrish also described a history of domestic violence between Middleton and his girlfriend, Sabrina Jones.

Devenna Pearson, Middleton’s older sister, testified on his behalf. She described their childhood as physically and emotionally painful. She explained that their mother provided for the necessities of life, such as food, clothing, shelter and basic hygiene through social security benefits that she recéived following the death of her husband. She explained that she and Middleton were never required to go to school. Pearson additionally explained that she was sexually molested by her stepfather for approximately three and a half years, and that her mother was aware of the abuse but did not stop it. Her older sister found out and stopped the abuse by cutting their abusive stepfather. She recalled that she was sent away for a few months and Middleton remained in the house with their mother. She described her brother, as she knew him growing up, as outgoing, fun and someone who always tried to make everyone laugh.

Dewanna Sprowse, Middleton’s eldest sister, also testified on his behalf. She explained that their mother would sell her food stamps for beer and drugs. Sprowse recalled that Middleton did not have clean clothes and fitted shoes, and that if she was not home to get her siblings up and ready for school then their mother would just tell them to go outside and play. She explained that one of her stepfathers was physically abusive to her younger siblings, including Middleton. She testified that their mother had always placed men before her children, and that she did not spend any money on holidays, birthdays, or books. She recalled Middleton being about age twelve or thirteen when he finally quit going to school. She described Middleton, as she remembered him growing up, as a sweetheart, talented, with a good heart.

D. Middleton’s Pretrial Motion to Suppress His Confession

The defense filed a motion to suppress the defendant’s confession, claiming that Middleton was too intoxicated to waive his Miranda rights. The motion additionally alleged'that Middleton did not possess the intellectual ability to comprehend his Miranda rights and that Middleton’s final interview was conducted after Middleton’s attorney provided the Sheriffs Office with a form invoking Middleton’s constitutional right to remain silent. The hearing on the motion took place on April 10, 2012, and Jun¿ 29, 2012.

1. Lay Witnesses

At the hearing on the motion to suppress, Christopher Jenkins testified for the defense. He testified that he was disabled and was prescribed Roxicodone and Xa-nax. He testified that since 2007 he would either sell or give Middleton his prescription medications. On the.day of the murder, he went to Middleton’s trailer to give him some drugs and to look at the television that Middleton wanted to sell. He gave Middleton three Roxicodone pills. Middleton snorted two of the pills while Jenkins was there.

The State called Steve Britnell to testify at the suppression hearing. He testified consistently with his guilt phase testimony. Britnell recalled he and Middleton each taking one Xanax pill on the morning of the murder. He further recalled that in the early afternoon, the two shared $20 worth of methamphetamine, which Britnell - described as “a little bit.” He indicated that immediately following the sale of the television, he drove Middleton to a Circle K to purchase cocaine. They each consumed “a line or two” of cocaine in the Circle K parking lot. Later, Captain John Rhoden and Lieutenant Brad Stark approached them and asked them to come to the police station to give a statement. They drove to the station voluntarily.

Captain Rhoden testified that Middletpn had no trouble standing or keeping his posture, did not appear to be under the influence of drugs or alcohol, spoke clearly, and did not appear to have any problems understanding what was being said to him. Lieutenant Stark testified that none of the men appeared to be off-balance. Nothing indicated that the defendant was under the influence of alcohol. On cross-examination, he stated that it would surprise him to hear that Middleton had done crystal meth, cocaine and Xanax during that day.

Detective Marty Faulkner testified regarding his interviews of Middleton. The first interview occurred on July 28, 2009, at 11:56 p.m., in his'office, with another detective and Assistant State Attorney Ashley Albright present. He read the Miranda card verbatim to Middleton, who signed, dated and time stamped it. Middleton agreed to speak with detectives, but seemed nervous. He stated that Middleton appeared to be coherent and not under the influence of any drugs; Middleton was responsive to questions and his memory appeared to be fine. The interview lasted approximately one hour. Middleton made no admissions during this interview.

Faulkner interviewed Middleton a second time, again in his office, in the early morning hours of July 29, 2009. Middleton made no admissions. The third interview lasted three minutes, and at that time Middleton claimed that Garrett Wade Fowler had committed the murder. Middleton was placed under arrest at the end of the third interview. When Faulkner returned to work, at approximately 11 a.m., Sergeant Coleman informed him that Middleton wanted to speak with him. Coleman testified and corroborated that Middleton made this request and that he relayed the request to Faulkner. This interview lasted for approximately twenty-three minutes before Middleton asked to go back to ,his cell. The officers then immediately concluded the interview and returned Middleton to his cell. .

Faulkner further- testified that on July 30, he felt obligated to check on Middleton, based on Middleton’s State of mind during the interview conducted the previous day. When Faulkner arrived, Middleton was- in segregation and standing, at the gate of his cell. Middleton asked to speak to him, and Faulkner had Middleton escorted to his office, where the final interview took place. During this final interview, after repeatedly being advised of his Miranda rights, Middleton confessed to murdering Roberta Christensen. On cross-examination, Faulkner acknowledged that he informed Middleton that he would have to waive his right to counsel to speak with him, and it was on the final (approximately seventh) time that Faulkner told Middleton what he would have to say in order to waive his rights, which Middleton had in fact done.

Assistant Public Defender Stanley Glenn testified that he was initially appointed to represent Middleton. He stated that on the morning of July 30, 2009, he filed an invocation of rights form with the clerk’s office and that afternoon he personally delivered it to the Sheriffs Office front desk, instructing them that it be given to the lead detective investigating Christensen’s death. Glenn first met with Middleton the next day and reviewed the form with him. Middleton was very depressed at this time. Glenn was concerned that Middleton needed someone to talk to and might make incriminating statements. He repeatedly informed Middleton not to make any statements without him being present. On cross-examination, Glenn acknowledged that unbeknown to him, when he filed the invocation of rights form at 11:28 a.m. and delivered it to the Sheriffs Office that afternoon on July 80, 2009, the defendant had already confessed at approximately 9:24 a.m. that morning.

2. Psychological Testimony

Forensic psychologist Dr. Gregory Landrum testified for the defense at the suppression hearing. He testified that he met with Middleton on two occasions in August 2009. He indicated that Middleton was competent to proceed and assist in his own defense. He determined that Middleton’s IQ was 72, which is in the borderline mental retardation range. He additionally determined that Middleton reads on a fifth-grade level. Dr. Landrum was not asked to do an evaluation regarding Miranda competency.

On cross-examination, Dr. Landrum stated emphatically that Middleton is not mentally retarded. Dr. Landrum stated that it is possible that Middleton was faking when he was examined by Dr. Riordan, who determined that his IQ was 75, months after being examined by Dr. Barnard, who determined that it was 83. According to Dr. Landrum, administering the same tests within a year may result in a false positive.

Dr. James Barnard also testified for the defense. He prepared two reports, one of which was a psychological evaluation and the other an examination of Middleton’s competency to waive his Miranda rights. He determined that Middleton’s full scale IQ was 83. He additionally found that Middleton was not malingering. Dr. Barnard indicated that Middleton’s chronic use of drugs resulted in an increased tolerance for the substances and the need for more of the substances to get high. This factor and other factors indicate dependence on a substance as distinguished from abuse. He reported Middleton’s statement that drugs make him “go, go, go” and less able to control his impulses and that Middleton told him that before he went to jail he had not slept for two nights. Dr. Barnard opined that Middleton should have been placed in a private detox facility when he was arrested. Dr. Barnard determined that at the time of Middléton’s confession, he was likely withdrawing from substances and may have been under the effects of substances, at least during the time of his initial interrogation.

Dr. Barnard administered an instrument entitled “Dr. Thomas Grisso’s Understanding and Appreciating Miranda Rights.” Dr, Barnard testified that Middleton’s total score was 13 out of 30, more than two standard deviations below the mean. He testified that although Middleton could paraphrase portions of Miranda, he “showed a very significant weakness in terms of his ability to intelligently apply knowledge of Miranda, to novel situations.” Dr. Barnard stated that it was difficult to reconcile his findings during the testing with what he saw on the confession video. He explained that there is no correlation between having had Miranda warnings administered in the past and actually understanding them. He also stated that there are no validity scales for Grisso’s Miranda test.

On cross-examination, Dr. Barnard stated that Middleton made general remarks indicating that he may have been malingering during the testing with Dr. Land-rum, but he did not specifically mention whether he was referring to the IQ test. Dr. Barnard’s testing also indicated that Middleton may have exaggerated some of his answers to appear more maladjusted than he actually was on the date of the testing. Dr. Barnard diagnosed Middleton with antisocial personality disorder; he explained that one major feature of this disorder is that the person has a tendency to be untruthful.

Dr. Barnard further testified that before the Grisso test was administered, Middleton stated he had been advised of his rights at least five times. However, after the Grisso test, Middleton claimed that he had never been read Miranda rights, despite his extensive criminal history. After the Grisso test, Middleton told Dr. Barnard that the confession tapes had been altered. Middleton also told the doctor that methamphetamines make him think better. Middleton made comments to Dr. Barnard indicating that the police in Okeechobee violated his rights, which Dr. Barnard opined indicates that he knew what his rights were.

On redirect, Dr. Barnard stated that the conditions that Middleton was under at the time of the interrogation, plus the interrogation procedures themselves, made it more likely that he would acquiesce to the police. He also opined that Middleton did not fully comprehend his Miranda rights when he waived them.

Dr. Michael Riordan testified for the defense. Dr. Riordan was ordered to conduct a neuropsychological evaluation on Middleton. Dr. Riordan prepared a written report, which he subsequently modified or redacted. He modified his original finding that Middleton had brain damage, and in the subsequent report he indicated that Middleton suffers from a cognitive disorder. He explained that “the cognitive disorder was the more appropriate term as a neuropsychologist to report.” Dr. Riordan reviewed the reports prepared by Dr. Barnard. He agreed with Dr. Barnard’s finding that Middleton was incompetent to waive his Miranda rights at the time of his interrogation, based on his borderline intellectual functioning, his cognitive disorder, and his drug use, which would have caused withdrawal at the time of the interrogation. Dr. Riordan also found that Middleton had polysubstance dependence disorder. He indicated that Middleton was not malingering. Dr. Riordan did not have Middleton perform the Grisso test, but did not disagree with Dr. Barnard’s findings.

Dr. Riordan did not diagnose an antisocial personality disorder. His report indicated that Middleton had a tendency to exaggerate his problems. Dr. Riordan had previously indicated in a February 11, 2012, letter to the defense that Middleton was not initially incompetent to waive his Miranda rights, but as the interrogation progressed, he became incompetent to proceed. Dr. Riordan wrote a letter to the defense in April 2012 indicating that Middleton’s drug withdrawal would have furthered his incompetence, but Dr. Riordan did not review jail records to determine whether Middleton was suffering from withdrawal symptoms. And Middleton did not state that he was suffering from withdrawal symptoms during the interrogation. Instead, he told Dr. Riordan that the police harassed him and tampered with the confession tapes. Dr. Riordan was not aware that Middleton signed a Miranda waiver.

Dr. Deborah Leporowski testified for the State. She testified that she reviewed Dr. Landrum’s report, along with the deposition reports and in-court testimony of Dr. Riordan. She also reviewed Dr. Barnard’s raw data and his deposition and was present for his testimony. Additionally, she reviewed Middleton’s videotaped confessions, witness statements, drug treatment records, and Department of Corrections and jail records; she also interviewed Middleton at the county jail on May 10, 2012. She did not administer the WAIS test because it had already been administered three times. She testified that the discrepancy in the scores may be due to poor motivation or deliberately underperform-ing on the test with Dr. Riordan. Dr. Le-porowski reviewed Dr. Riordan’s testing, his raw data, and his report and determined that Middleton performed in the average or above-average range on most instruments. She opined that “[t]he only areas where he demonstrated anything really in an impaired range were instruments that I felt could be accounted for by his lack of education.” She observed that his scores varied on the memory tests, with delayed recall being in the impaired range and stated, “Those are essentially the only two areas where there’s anything that’s not perfectly intact in the overall neuropsychological functioning area.”

Dr. Leporowski stated that she would not diagnose the defendant with brain damage or a cognitive disorder. She stated there was nothing in the testing that would indicate that Middleton had trouble comprehending the Miranda warnings. Additionally, she said Middleton was candid with her about his drug use on the day of the murder and even told her that there was another drug that he used that day that Britnell did not report. He did not have difficulty reporting the information in a logical order.

In addition to not administering another WAIS-IV, Dr. Leporowski did not administer another Grisso test. She explained that one shortcoming of the exam is that it was developed for a certain jurisdiction, in 1980, and the language that the exam tests for has not been updated, despite the change in the administration of the warnings across jurisdictions. Middleton told Dr. Leporowski that he was threatened and that the confession tapes had been altered. She concluded that Middleton had the capacity to knowingly and intelligently waive his Miranda rights.

Dr. Leporowski disagreed with Dr. Rior-dan’s testimony indicating that Middleton was suffering from withdrawal. She opined that withdrawal typically occurs seventy-two hours after consuming drugs and alcohol. She explained that on his jail medical records, he is described as cool, cooperative, coherent, and not agitated. Dr. Lepo-rowski spoke with the jail nurse, who indicated that they never had to use detox protocols for Middleton and that he did not need any medical attention at all. She opined that this is indicative of his intermittent, rather than his continuous, use of the substances. Dr. Leporowski found that Middleton was malingering during her evaluations of him.

On cross-examination, Dr. Leporowski acknowledged that Middleton reported doing methamphetamine before lunch, followed by eighty milligrams of OxyContin, then Roxicodone that afternoon at his trailer, and Xanax and cocaine later that evening. He also indicated that he walked down to Brewskis and consumed a couple of beers and three lines of cocaine.

The trial court denied the defense’s motion to suppress Middleton’s confession.

II. ANALYSIS

A. Avoid Arrest Aggravator

Middleton first argues that the trial court erred in finding the avoid arrest aggravator. We agree that the record does not support this aggravator as Middleton’s sole or dominant motivation for the murder. This Court has consistently held that where the victim is not a law enforcement officer, “the State must show that the sole or dominant motive for the murder was the elimination of the witness” in order to prove this aggravator. Davis v. State, 604 So.2d 794, 798 (Fla. 1992); see also Green v. State, 583 So.2d 647 (Fla. 1991); Perry v. State, 522 So.2d 817 (Fla. 1988). The trial court’s order on this issue lists eight facts that support this aggravator:

(1) the defendant personally knew the victim, and went to her home without any type of disguise; (2) the defendant told Garret Wade Fowler that he was going to rob Roberta Christensen, after seeing a large amount of money inside her home the day before; (3) the defendant walked 130 feet to the victim’s home in broad daylight; (4) the defendant knew that the victim was home because he could see her red car from his own home, and the car was parked directly in front of the entrance to her home; (5) the defendant knew that the victim’s husband was out of town and she was home alone; (6) the victim did not pose any physical threat to the defendant; (7) the defendant armed himself with a knife from his residence, before going over to the victim’s home; and (8) the victim was the defendant’s neighbor, who lived almost directly across the street.

In addition, the trial court indicated that the main object of the criminal endeavor was the tip money, not the television. Finally, the trial judge said that if the victim was left alive the defendant would have been quickly arrested.

Notably, only a few of these factors have a direct bearing on or support the avoid arrest aggravator (i.e., the defendant knew the victim and .did not wear a disguise and the defendant would have been promptly arrested had the victim lived and identified him). Many of the other factors listed by the trial court for this aggravator either supported Middleton’s statement that he went to the victim’s home to borrow money, or that he went there only intending to rob her, before things became “crazy.” This Court has determined that the eighth factor listed is not enough to prove this aggravator. See Foster v. State, 778 So.2d 906 (Fla. 2000); Consalvo v. State, 697 So.2d 805 (Fla. 1996). Additionally, the trial court’s determination that Middleton’s primary objective was to obtain the “easily concealable tip money,” implies that pecuniary gain was a dominant motive for the killing.

In Davis, Green, and Perry, the defendants raised similar issues involving the avoid arrest aggravator. In each of these cases, this Court struck the avoid arrest aggravator even though the defendants were acquainted with the victims. In Davis, the defendant stabbed an elderly female acquaintance inside her home and stole some of the victim’s belongings before exiting the residence. Davis, 604 So.2d at 795. In Green, the defendant and his girlfriend went to the home of their landlords, a married couple, and paid them $250, under the threat of an impending eviction. Green, 583 So.2d at 648. Green went home, changed his shirt, grabbed the largest butcher knife from his kitchen and went back to his landlord’s house. When he arrived at the house, his landlord let him into the house, but was adamant about keeping Green’s check. Green stabbed the husband and wife. Green returned the knife to his home and, later that night, hitched a ride from Hillsborough County to St. Peters-burg and then to Ft. Lauderdale. In Perry, the defendant killed his neighbor during a robbery attempt. 522 So.2d at 819. The fact that the victims could have identified the defendants was not enough to demonstrate beyond a reasonable doubt that the sole or dominant motive for the murders was witness elimination.

Although the trial judge correctly stated that the avoid arrest aggravator can be supported by circumstantial evidence through inferences from the facts in the record, his reliance on cases such as Jennings v. State, 718 So.2d 144 (Fla. 1998), and Riley v. State, 366 So.2d 19, 22 (Fla. 1978), is not well-founded. In Jennings we upheld the finding of this aggravator based on the fact that the defendant knew the victim, used gloves, and stated that if he ever committed a robbery he would not leave any witnesses. And in Riley, we affirmed the finding of this aggravator based on the defendant knowing the victim coupled with the fact that the victim was “executed after one of the perpetrators expressed a concern for subsequent identification.”

Although the trial court infers that Middleton killed the victim because he would have been arrested quickly if he had left her alive, there are no other facts that indicate that this was his sole or dominant reason for killing her, especially in the absence of other evidence indicating that Middleton was specifically concerned about eliminating the victim as a witness. Therefore, we strike this aggravating circumstance.

B. CCP Aggravator

Middleton next- challenges the trial court’s finding of the cold, calculated and premeditated aggravator (CCP). On appeal, it is this Court’s task to review the record to ensure that the trial court applied the correct rule of law for each aggravating circumstance, and if so, determine whether there is competent substantial evidence in the record to support the finding. Willacy v. State, 696 So.2d 693, 695 (Fla. 1997). We agree with Middleton that there was not competent, substantial evidence in the record to support this aggravator.

In order to establish the CCP aggravator, it is the State’s burden to prove beyond a reasonable doubt that: (1) “the killing was the product of cool and calm reflection and not an act prompted'by emotional frenzy, panic, or a fit of rage (cold)”; (2) “the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated)”; (3) “the defendant exhibited heightened premeditation (premeditated)”; and (4) “the defendant had no pretense of moral or legal justification.” Franklin v. State, 965 So.2d 79, 98 (Fla. 2007). “‘CCP involves a much higher degree of premeditation’ than is required to prove first-degree murder.” Deparvine v. State, 995 So.2d 351, 381-82 (Fla. 2008) (quoting Foster v. State, 778 So.2d 906, 921 (Fla. 2000)). “Premeditation can be established by examining the circumstances of the killing- and the conduct of the accused.” Franklin, 965 So.2d at 98. Further, “the evidence must prove beyond a reasonable doubt that the defendant planned or prearranged to commit murder before the crime began,” Thompson v. State, 565 So.2d 1311, 1318 (Fla. 1990). “The CCP aggravator can ‘be indicated by circumstances showing such facts as advance procurement of a weapon, lack of resistance or provocation, and the appearance of a killing carried out as a matter of course.’” Franklin, 965 So.2d at 98 (quoting Swafford v. State, 533 So.2d 270, 277 (Fla. 1988)).

In this ease, the evidence is inconsistent with the murder being a product of cool and calm reflection. Although Middleton procured a knife prior to entering the victim’s residence, there is no evidence that he possessed the weapon for the purpose of attacking the victim. Rather, Middleton planned to commit a robbery. In walking over to the victim’s residence, Middleton did not conceal his identity. The evidence suggests that while inside the victim’s residence, the victim refused Middleton’s request for money. After a struggle ensued, Middleton fatally stabbed the victim. It was during the course of this struggle when Middleton formulated his intent to Mil her. Middleton’s behavior at the time of the murder can be aptly described as murder committed in a frenzied rage or during a heated struggle following the victim’s refusal to give him money. Following this spontaneous murder — which was not carried out as a matter of course — the victim’s body remained in her residence; Middleton left her home with the victim’s property, to wit, her television.

Based on this evidence, we conclude that the State did not prove beyond a reasonable doubt that Middleton had a careful prearranged plan or design to murder the victim before he entered the victim’s residence. Thus, we disagree with the trial court’s finding that the murder was a planned event, not a sudden, impulsive act. Although following the murder Middleton washed his hands in his kitchen sink, changed his clothes, and placed his bloody clothes in a bag with the murder weapon— as noted by the trial court — these actions do not prove that he planned the murder beforehand.

We conclude that the evidence is not indicative of a heightened premeditated intent to murder. The facts in this case are similar to Castro v. State, 644 So.2d 987, 991 (Fla. 1994), which did not involve a careful design and heightened premeditation necessary for CCP when “the record reflect[ed] that Castro planned to rob Scott.” In addition, we did not find the murder in Hansbrough v. State, 509 So.2d 1081, 1086 (Fla. 1987), to show the cold and calculated premeditation necessary for CCP where there “appear[ed] to be a robbery that got out of hand,” resulting in a “frenzied stabbing.” Accordingly, we conclude that there is no competent, substantial evidence to support the finding of the CCP aggravator. Therefore, we strike the finding of this aggravator.

“When this Court strikes an aggravating factor on appeal, ‘the harmless error test is applied to determine whether there is no reasonable possibility that the error affected the sentence.’ ” Williams v. State, 967 So.2d 735, 765 (Fla. 2007) (quoting Jennings v. State, 782 So.2d 853, 863 n.9 (Fla. 2001)); see also Diaz v. State, 860 So.2d 960, 968 (Fla. 2003) (“We find this error harmless, however, after consideration of the two remaining aggravating circumstances and the five mitigating circumstances in this case.”). Despite striking the avoid arrest and CCP aggravators, two valid aggravators remain in this unanimous death-recommendation case. The two aggravators which remain are that the murder was especially heinous, atrocious, or cruel (HAC) and that is was committed during the commission of a burglary and for pecuniary gain, which were each given “great weight” by the trial court. The trial court did not find any statutory mitigation applicable in this case.

In its sentencing order, the trial court expressly stated that any of the considered aggravating circumstances found in this case, standing alone, would be sufficient to outweigh the mitigation in total presented regarding the Christensen murder. In Smith v. State, 28 So.3d 838, 868 (Fla. 2009), this Court held that the trial court’s erroneous finding of the CCP aggravator was harmless because the sentencing order provided that “any one of the aggrava-tors found (except the .felony probation aggravator) was sufficient to outweigh the mitigating circumstances found in this case and due to the other applicable aggravating factors.” Therefore, it is clear that the trial court would have imposed a death sentence ■ for Middleton absent the avoid arrest and CCP aggravators. Because we conclude that there is no reasonable possibility that the erroneous findings of the avoid arrest and CCP aggravators contributed to Middleton’s death sentence, the errors were harmless.

C. Proportionality

Middleton argues that without the avoid arrest and CCP aggravators, his death sentence is disproportionate as compared to cases such as Perry and Davis. After striking the two aggravators in this case, we find that the sentence of death is still proportional to similar cases.

In order to ensure uniformity in death penalty proceedings, this Court undertakes a comprehensive analysis of the aggravating and mitigating circumstances to determine whether the case falls within the category of the most aggravated and least mitigated. See Floyd v. State, 913 So.2d 564, 578 (Fla. 2005) (quoting Anderson v. State, 841 So.2d 390, 407-08 (Fla. 2003)). This analysis involves a thoughtful and deliberate proportionality review considering the totality of circumstances of the case and then comparing it with other capital cases with similar aggravating and mitigating circumstances. It is not a comparison between the number of aggravating and mitigating circumstances. Tillman v. State, 591 So.2d 167, 169 (Fla. 1991) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla. 1990)).

In this case, the jury voted twelve to zero in favor of the death penalty. The trial court weighed four aggravators against eleven nonstatutory mitigators. The aggravators found are: (1) the capital felony was committed while the defendant was engaged in the commission of a burglary or an attempt to commit a burglary and the capital felony was committed for pecuniary gain; (2) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting escape from custody; (3) the capital felony was HAC; and (4) the capital felony was CCP. The court gave all of these aggrava-tors great weight. The eleven nonstatutory mitigators found are: (a) the defendant has below-average or borderline intelligence (little weight); (b) the defendant suffers from attention deficit hyperactivity disorder (ADHD) (little weight); (c) the defendant has a long history of chronic substance abuse (some weight); (d) the defendant had no adult role models to guide him as a child (little weight); (e) the defendant’s mother was not involved in child-rearing or supervision and was unavailable emotionally for her children (little weight); (f) the defendant had a steady history of employment until his chronic substance abuse and incarcerations made it difficult to maintain such employment (little weight); (g) the defendant had little, if any, formal education (little weight); (h) the defendant has two children (little weight); (i) the defendant was subjected to chronic neglect, as well as made aware of sexual abuse that was inflicted by his stepfather upon his sister (little weight); (j) the defendant expressed remorse for his crime (little weight); and (k) the defendant exhibited appropriate courtroom behavior (little weight).

Having stricken two of the aggravators, this Court must analyze the two appropriately found aggravators of HAC and during the commission of a burglary/pecuniary gain with the nonstatutory mitigators outlined above. We begin this analysis with the trial court’s weighing of both the ag-gravators and mitigators. Each of the ag-gravators was given great weight. We have in a long line of cases found the HAC aggravator to be one of the most serious in our limited statutory aggravating circumstances. See, e.g., Larkins v. State, 739 So.2d 90 (Fla. 1999). Significantly, the trial court only gave one of the nonstatutory mitigators “some weight” and the other eleven were given “little weight.” Additionally, because some of the mitigators were similar, the trial court analyzed them together. Namely, the trial court combined the analysis for the defendant’s proposed mitigator of low IQ with his diagnoses of ADHD. The trial court also combined the analysis for the defendant’s proposed miti-gators of no adult role models, his mother being emotionally unavailable, the defendant being chronically neglected, and his sister being molested by his stepfather.

The defense argues that this case is similar to Davis v. State, 604 So.2d 794 (Fla. 1992), and Perry v. State, 522 So.2d 817 (Fla. 1988), However, both are distinguishable from this case. In Davis this Court, after striking two aggravators, did not impose a life sentence. Rather we remanded the matter to the trial judge for reconsideration of the sentence because we could not determine beyond a reasonable doubt that the trial judge would have imposed a death sentence in the absence of the two aggravators that were stricken. The trial judge ultimately determined that the remaining aggravating circumstances outweighed the mitigating circumstances and reimposed a sentence of death. We affirmed. The fact that Davis ultimately received a life sentence was not based on the elimination of aggravating circumstances but was the result of postconviction relief for ineffective assistance of counsel regarding racial comments.

This Court in Perry had to address a situation involving a judge’s override of a jury recommendation of life. In order to uphold the imposition of a death sentence under those circumstances, we must find that no reasonable person could differ with the sentence of death. See Tedder v. State, 322 So.2d 908 (Fla. 1975). While Perry also involved the striking of two aggravating circumstances, that factor was not the basis for the imposition of a sentence of life imprisonment. This Court made it clear that there were mitigating circumstances presented to the jury that the jury could have considered in reaching its determination of a-life sentence. Thus, we said the Tedder standard had not been met, and the case was remanded for imposition of a life sentence.without parole for twenty five years.

This case is, however, more similar to Geralds v. State, 674 So.2d 96 (Fla. 1996), where this Court found the defendant’s death sentence to be proportionate under circumstances much like the ones presented here. In Geralds the jury unanimously voted for a death sentence, the same ag-gravators were proven beyond a reasonable doubt, and the trial court gave minimal weight to the defendant’s mitigation. Geralds was a carpenter'who worked remodeling the victim’s trailer. Knowing that the victim’s husband was out of town, he attacked her, beating her, stabbing her in the neck and stealing various items from the home. At his original sentencing, the trial court found the same four aggrava-tors that were found in this case. We struck the CCP and witness elimination aggravators, and remanded for a new penalty phase. On appeal from the subsequent sentencing, we again struck the CCP ag-gravator, but found there was no reasonable likelihood of a life, sentence under the circumstance of that case. 674 So.2d at 104-05.

In both this case and Geralds, the juries unanimously recommended' sentences of death. Both cases ultimately have the ag-gravators of heinous, atrocious, and cruel murder during the course’of a felony/peeu-niary gain, and the aggravators were given great weight. The mitigators in each case were nonstatutory, with exception of the age mitigator found in Geralds, and in each instance they were given little or very little weight. We conclude here, as we did in Geralds, that even without the aggrava-tors that were stricken, the trial court would have found the aggravating factors substantially outweighed the mitigating evidence. We, therefore, find that Middleton’s death sentence is proportional.

D. Order of Penalty Phase Witnesses/Continuance

Middleton argues that the trial court abused its discretion in denying his motion to continue the penalty phase to allow the family to travel to the trial and present mitigation testimony prior to the expert testimony. The defense argues that this ruling prohibited the defense from setting the predicate for the'expert testimony through the lay witness testimony. The decision of whether to grant a motion for continuance is in the sound discretion of the trial court. In re Gregory, 313 So.2d 735, 737 (Fla. 1975). This Court has made clear that it will cautiously review the trial court’s decision to deny such a motion and will not reverse the decision unless there has been a palpable abuse of this judicial discretion which clearly and affirmatively appears in the record. Magill v. State, 386 So.2d 1188, 1188 (Fla. 1980); Cooper v. State, 336 So.2d 1133, 1138 (Fla. 1976).

To prevail on his motion for continuance, the defendant was required to show: (1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance caused material prejudice. Geralds v. State, 674 So.2d at 99 (citing United States v. O’Neill, 767 F.2d 780, 784 (11th Cir. 1985)).

On the requirement of prior due diligence, the defense admitted that it did not use the proper subpoena to ensure that the witnesses traveled from Georgia to provide testimony on the date scheduled for their testimony. The trial court gave a full day in between the guilt and the penalty phase to allow both sides to resolve any issues with witness availability. Despite this, the defense witnesses were not available to testify. In rejecting the defense’s motion for a continuance, the trial court offered the defense an opportunity to allow its investigator to travel to Georgia to pick up the witnesses and bring them to court or, alternatively, to live stream their testimony from a facility in Georgia. Had the defense done its due diligence, the trial court could have been made aware of the possibility that Middleton’s relatives could not travel, and these same arrangements could have been made a day prior, without the need for a continuance.

As to the second, third, and fourth requirements, the denial of the motion did not prevent the jury from hearing the testimony of the relatives, and there is no indication that the defense was materially prejudiced. It only required the jury to hear this evidence after the expert witness testimony. Additionally, the expert witness essentially provided general details about the defendant’s childhood, which were corroborated by the relatives’ testimony. Although the defense may have been inconvenienced by the denial of the motion because it preferred for the relatives to testify before the experts, the denial of the continuance did not prevent the jury from hearing the testimony. Therefore, the trial court did not abuse its discretion in denying Middleton’s motion for a continuance.

E. Denial of Defense’s Bequest for a Mitigation Specialist

Middleton argues that the trial court abused its discretion in denying the defense funds to