Lowe v. State (259 So. 3d 23, 2018)

PER CURIAM.

This case is before the Court on direct appeal from a resentencing of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Rodney Tyrone Lowe appeals his sentence of death for the 1990 first-degree murder of Donna Burnell. The trial judge sentenced Lowe to death after the new penalty phase jury recommended the death penalty by a vote of twelve to zero. We first set forth the factual and procedural background of this case and then address Lowe's claims, including his Hurst v. Florida (Hurst v. Florida ), --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), claim and his claim that his death sentence is disproportionate. For the reasons explained below, we affirm Lowe's sentence of death.

FACTUAL AND PROCEDURAL BACKGROUND

Lowe was convicted by a jury and sentenced to death for the July 1990 first-degree murder of Donna Burnell. The jury also convicted Lowe of attempted robbery. We set forth the following facts in Lowe's first direct appeal:

On the morning of July 3, 1990, Donna Burnell was working as a clerk at the Nu-Pack convenience store in Indian River County when a would-be robber shot her three times with a .32 caliber handgun. Ms. Burnell suffered gunshot wounds to the face, head, and chest and died on the way to the hospital. The killer fled the scene without taking any money from the cash drawer.

During the week following the shooting, investigators received information linking the defendant, Rodney Lowe, to the crime. Lowe was questioned by investigators at the police station and, after speaking to his girlfriend, gave a statement that implicated him in the murder. Following this statement, Lowe was arrested and indicted for first-degree murder and attempted robbery.

At trial, the State presented witnesses who testified that, among other things, Lowe's fingerprint had been found at the scene of the crime, his car was seen leaving the parking lot of the Nu-Pack immediately after the shooting, his gun had been used in the shooting, his time card showed that he was clocked-out from his place of employment at the time of the murder, and Lowe had confessed to a close friend on the day of the shooting. The State also presented, over defense objection, the statement Lowe gave to the police on the day of his arrest. Lowe advanced no witnesses or other evidence in his defense. After closing arguments, the jury returned a verdict finding Lowe guilty of first-degree murder and attempted armed robbery with a firearm as charged.

Lowe v. State , 650 So.2d 969, 971 (Fla. 1994).

At the conclusion of the original penalty phase, the jury, by a vote of nine to three, recommended death. Id. at 972. The trial court followed the jury's recommendation and sentenced Lowe to death, finding two aggravators: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; and (2) the capital felony was committed while the defendant was engaged in or was an accomplice in an attempt to commit robbery. Id. The trial court also found that the mitigators did not outweigh the aggravators. Id. In addition to the sentence of death, the trial court sentenced Lowe to fifteen years' imprisonment for the attempted robbery conviction. Id.

On direct appeal, Lowe raised ten guilt phase issues and seven penalty phase issues. Id. We rejected Lowe's arguments on all claims and affirmed his convictions and sentence of death. 650 So.2d at 971. On October 2, 1995, the United States Supreme Court denied certiorari. Lowe v. Florida , 516 U.S. 887, 116 S.Ct. 230, 133 L.Ed.2d 159 (1995).

Lowe filed an initial motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. Lowe v. State , 2 So.3d 21, 28 (Fla. 2008). Following several amended postconviction motions and amendments to these motions, the trial court held a Huff hearing. 2 So.3d at 28. The trial court summarily denied twelve of the thirty-three claims and held an evidentiary hearing on the remaining twenty-one claims. Id. Lowe filed two supplemental claims after the hearing, and an additional evidentiary hearing was set for the Brady violation claim. 2 So.3d at 28. After the second evidentiary hearing, the trial court issued an order denying all of Lowe's claims. Id.

Lowe then filed a successive postconviction motion based on newly discovered evidence and also filed a motion for rehearing. Id. The trial court held a hearing on the motion for rehearing and the first successive postconviction motion. Id. On March 18, 2005, the trial court issued an order denying a new trial but granting a new penalty phase based on the motion for rehearing and the first successive motion. Id. at 29. Lowe appealed the trial court's denial of part of his postconviction motion, raising five claims. Id. Lowe also petitioned for a writ of habeas corpus, raising three claims. Id. The State cross-appealed. 2 So.3d at 29. This Court affirmed the trial court's denial of relief on all claims raised by Lowe, affirmed the trial court's order granting a new penalty phase, and denied habeas relief. Id. at 46.

The new penalty phase commenced on September 12, 2011. On September 23, 2011, the jury unanimously recommended death. At the Spencer hearing held on October 28, 2011, no additional evidence of aggravation or mitigation was presented. On January 26, 2012, the trial court followed the jury's recommendation and sentenced Lowe to death, finding that five aggravators, merged to four, outweighed one statutory mitigator and various nonstatutory mitigators. This appeal follows.

ISSUES ON APPEAL

Now on appeal from the new penalty phase, Lowe raises the following eighteen claims: (1) the trial court improperly granted the State a cause challenge to a prospective juror; (2) the trial court erred in overruling defense counsel's objection to the State's use of a mannequin; (3) the State's use of a computer-generated diagram of the crime scene as a demonstrative aid was improper; (4) the trial court erred in admitting Officer Ambrum's testimony regarding Lowe's possible sentence for a violation of community control; (5) the trial court erred in restricting mitigating evidence and limiting cross-examination; (6) the trial court erred in excluding the defense expert's testing results due to a discovery violation; (7) comments made by the State during closing amounted to fundamental error; (8) the trial court erred in sending prejudicial evidence not introduced at trial to the jury room for consideration during deliberations; (9) the trial court erred in precluding the jury from considering evidence of Lowe's limited role in the killing, disproportionate treatment compared to others, and a lawful evaluation of the aggravators; (10) the trial court erred in not instructing the jury to make a culpability finding before it considered imposing a death sentence; (11) the jury was misled regarding sentencing options by the trial court and the State; (12) the trial court erred in not independently weighing the aggravating and mitigating circumstances; (13) the aggravators found were not submitted to the jury properly and were not supported by competent, substantial evidence; (14) the trial court did not apply the correct law and its mitigation findings are not supported by record evidence; (15) the trial court erred in denying Lowe's special verdict form and instructions; (16) the incomplete record on appeal requires reversal; (17) death is not a proportionate punishment in this case; and (18) cumulative error. We address each issue in turn.

I. Cause Challenge to Prospective Juror

Based on the responses prospective juror Charles Simard provided on his juror questionnaire regarding the death penalty, the State conducted the following voir dire:

(Prosecutor) Mr. Butler: You indicated also on your questionnaire that you don't believe in the death penalty?

Charles Simard: That's right.

Mr. Butler: Now at first glance it would look then like it might be difficult for you to sit as a juror in a case where the only issue is whether the Defendant receives a death sentence or life without the possibility of parole for twenty-five years; is that fair?

Charles Simard: Yes.

....

Mr. Butler: Given your personal opposition to the death penalty, are you going to be able to engage in that weighing process, or do you think that because of where you stand personally you're always going to tilt those scales towards -- towards a life sentence?

Charles Simard: Yes, I'd probably go for life.

Mr. Butler: And that's even though the Judge would tell you you're supposed to weigh it?

Charles Simard: Yes.

....

(Defense counsel) Mr. Garland: Do you think as you sit here today that you could put aside your personal opinions, and listen to Judge Pegg's instructions and make a decision as to whether or not you could recommend life or death in this case?

Charles Simard: I think so.

Mr. Garland: You think you can follow the law?

Charles Simard: Uh-huh.

Mr. Garland: Is that a yes?

Charles Simard: Yes.

At sidebar, the State moved for a cause challenge, arguing that Mr. Simard told the defense he could follow the law, but told the State otherwise. The State argued that "there's certainly a reasonable doubt as to whether [Simard] can be fair and impartial." Defense counsel objected, arguing that Mr. Simard's responses did not rise to the level of a cause challenge, and suggesting that "if the State wants to use a peremptory that's up to them." The trial court granted the State's challenge, finding that it was "not convinced" by Mr. Simard. The State later withdrew its cause challenge and substituted a peremptory challenge before the jury was sworn in. Defense counsel did not make a specific objection to the substitution.

Lowe argues that Mr. Simard merely voiced a general objection to the death penalty and thus the trial court reversibly erred by granting the State's cause challenge. Lowe further argues that the error was not cured by the trial court's subsequent decision to allow the State to substitute a peremptory strike against Mr. Simard. Lowe relies on this Court's decision in Ault v. State , 866 So.2d 674 (Fla. 2003). The State counters that Mr. Simard's answers were inconsistent and the trial court thus made the proper credibility finding. The State further contends that Ault is distinguishable. We conclude that Ault does not entitle Lowe to relief.

In Ault , we concluded that it was reversible error for the trial court to have dismissed a prospective juror for cause where the juror's responses to questioning indicated "that she could put her personal feelings aside and be fair in the penalty phase and that she could be fair in the guilt and penalty phases even though she opposed the death penalty." Id. at 685-86. We also concluded that the erroneous removal for cause was not subject to a harmless error analysis. Id. at 686. We relied on Gray v. Mississippi , 481 U.S. 648, 664-65, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), and rejected the State's argument that "the error was harmless as the State had two peremptory challenges left at the end of voir dire questioning and could have used one of these to strike" the juror at issue. Ault , 866 So.2d at 686.

At the outset, we note that unlike Ault , Gray , and other cases rejecting the "unexercised peremptory argument," this case involves the trial court permitting the State to substitute a peremptory strike before the jury was sworn, as opposed to the State presenting an argument on appeal regarding what the State would have done at trial. We also note that Lowe did not object to the substitution. Nevertheless, because we conclude that the trial court did not err in granting the initial cause challenge, we need not reach the question of whether such a substitution can cure an erroneous removal for cause.

We review a trial court's ruling on a cause challenge under an abuse of discretion standard. Singleton v. State , 783 So.2d 970, 973 (Fla. 2001). We have held that "[a] juror should be excused for cause if there is any reasonable doubt about the juror's ability to render an impartial verdict." Id. "However, prospective jurors may not be excused for cause simply because they voice general objections to the death penalty." Ault , 866 So.2d at 684 (citing Witherspoon v. Illinois , 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) ). Instead, as it relates to a prospective juror's views on capital punishment, "[t]he relevant inquiry ... is 'whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with [the court's] instructions and [the juror's] oath." ' " Id. (alterations in original) (quoting Gray , 481 U.S. at 658, 107 S.Ct. 2045 (quoting Wainwright v. Witt , 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) ) ). The Supreme Court has recognized that "there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law.... [T]his is why deference must be paid to the trial judge who sees and hears the juror." Witt , 469 U.S. at 425-26, 105 S.Ct. 844.

In Ault , we ordered a new penalty phase after concluding that the trial court erroneously dismissed a potential juror for cause based on the juror's "opposition to the death penalty." Ault , 866 So.2d at 683. But we did so because the trial court's determination was based on an "erroneous recitation of [the prospective juror's] statements." Id. at 685. Among other things, we noted that, despite the State's argument to the contrary, the prospective juror never indicated that she "would not impose death even if the aggravating circumstances outweighed the mitigating." Id. Here, on the other hand, Mr. Simard gave two conflicting responses, one of which specifically informed the prosecutor that he would "probably go for life" irrespective of the trial court's instruction regarding the weighing of the evidence. The statement was more than merely voicing a general objection to the death penalty. Moreover, Mr. Simard then gave an "uh-huh" response when asked by defense counsel whether he could follow the law, before being asked again and stating "yes." The trial judge personally observed Mr. Simard and was "not convinced." On this record, we cannot say that the trial court abused its discretion in concluding that Mr. Simard could not "faithfully and impartially apply the law." Witt , 469 U.S. at 426, 105 S.Ct. 844 ; see also Taylor v. State , 638 So.2d 30, 32 (Fla. 1994) ("The trial judge found [the prospective juror's] answers conflicting and properly exercised the court's discretion in excusing [her]."). Accordingly, Lowe is not entitled to relief as to this claim.

II. The State's Use of a Mannequin

During the State's direct examination of the medical examiner, the State sought to use a mannequin as a demonstrative aid in order to show the position of the gun in relation to Burnell's body. Defense counsel objected to the use of the mannequin, arguing that the anatomical figure had zero probative value "as far as assisting the jury in determining where the bullet came from" and noting that the medical examiner testified that he could not opine as to specific trajectories. The trial court overruled the objection, questioning what the difference was if the medical examiner was "off a few degrees one way or another" and noting that the mannequin was "just a gray faceless body part" and not a gruesome reproduction of the victim. The medical examiner then used the mannequin, which was slightly taller and thinner than Burnell and had dowels inserted into it, to demonstrate the relative trajectories of the three bullets that entered the victim's body. The medical examiner testified that because he could not state what position Burnell was actually in when she was shot, he could only give anatomical, not spatial, trajectories, and that the trajectories had a small degree of error.

"The standard of review for the use of a demonstrative aid at trial is abuse of discretion." Williams v. State , 967 So.2d 735, 752 (Fla. 2007). In State v. Duncan , 894 So.2d 817 (Fla. 2004), we affirmed the standard set out in Brown v. State , 550 So.2d 527, 528 (Fla. 1st DCA 1989), that:

Demonstrative exhibits to aid the jury's understanding may be utilized when relevant to the issues in the case, but only if the exhibits constitute an accurate and reasonable reproduction of the object involved. The determination as to whether to allow the use of a demonstrative exhibit is a matter within the trial court's discretion.

Duncan , 894 So.2d at 829 (quoting Brown , 550 So.2d at 528 ). In Duncan , we concluded that it was within the trial court's discretion to allow an eyewitness to demonstrate the attack by using a dummy in place of the victim. Id. at 829-30. Among other things, we noted that the "dummy was used to aid the jury's understanding of a relevant issue ... and there is no claim that the exhibit was not an accurate and reasonable reproduction of the attack." Id. at 830. We also noted that there was no claim that "the dummy was altered to resemble the victim and thereby evoke a more emotional action from the members of the jury." Id.

Here, the use of the mannequin satisfies Duncan . The mannequin was used to set out the circumstances of the crime and to attempt to establish aggravation. The mannequin was used to demonstrate the location of the gunshot wounds, the angle of impact against the skin, and the incapacitating nature of each gunshot. The jury was advised that the trajectories were anatomical, not spatial, and had a small degree of error. There only were slight differences between Burnell's size and the mannequin's dimensions, and there is nothing to suggest that the mannequin was altered to resemble Burnell. Accordingly, the trial court did not abuse its discretion, and Lowe is not entitled to relief as to this claim.

III. The State's Use of a Computer-Generated Diagram

During opening statements, the State used a computer-generated diagram of the crime scene, that is, the interior of the Nu-Pack convenience store. Defense counsel asked to approach the bench. At sidebar, defense counsel noted that the diagram "appears to be some sort of computer recreation of the event or the store." Defense counsel also noted that they had "never seen" the diagram and that they could not see it from the defense table. Defense counsel then noted that "it's just a diagram, but still." The State explained that "it's just the diagram," that there were no "figures or anything," and that it would not be introduced into evidence. Defense counsel then stated for the record that "it is animated and there's moving along as [the prosecutor] talks." The trial judge overruled defense counsel's objection and concluded that the diagram was a demonstrative aid, it was not a recreation of the crime scene, it was just "a picture," there was no animation of a building, and there were no people. The trial judge then sent out the jury and had the seating rearranged to accommodate defense counsel and Lowe. Lowe now argues that the trial court failed to conduct a proper Richardson inquiry after the defense objected to the State's use of the computer animation.

We review the trial court's decision to allow the use of the computer-generated diagram under an abuse of discretion standard. Williams , 967 So.2d at 752. "It is well settled that the use of 'demonstrative devices to aid the jury's comprehension is well within the court's discretion.' " McCoy v. State , 853 So.2d 396, 405 (Fla. 2003) (quoting United States v. Possick , 849 F.2d 332, 339 (8th Cir. 1988) ). Demonstrative aids may be used when they are "relevant to the issues in the case" and "constitute an accurate and reasonable reproduction of the object involved." Brown , 550 So.2d at 528.

Here, the State used the computer-generated diagram as a demonstrative aid to help the jury visualize where the crime took place. The State used the picture to identify specific locations in the store that would be relevant to the aggravation the State hoped to prove in the case. There is nothing to suggest that the diagram was an inaccurate or unreasonable reproduction of the interior of the Nu-Pack store. Moreover, there is nothing to suggest that the diagram was an animated recreation of the crime or included depictions of the people involved.

Lowe fails to explain how this "diagram" that was "not a recreation situation," that was never admitted into evidence, and that was never used with any witness constitutes a discovery request violation. Even assuming that a Richardson inquiry was required, we see no conceivable prejudice to Lowe. See Smith v. State , 7 So.3d 473, 505-06 (Fla. 2009) (noting that failure to conduct a Richardson hearing is not per se reversible error); State v. Schopp , 653 So.2d 1016, 1020 (Fla. 1995) ("[T]here are cases ... where a reviewing court can say beyond a reasonable doubt that the defense was not prejudiced ...."). Lowe presents no explanation of how the diagram could have "materially hindered the defendant's trial preparation or strategy." Smith , 7 So.3d at 506 (quoting Scipio v. State , 928 So.2d 1138, 1150 (Fla. 2006) ). The only case cited by Lowe, Jones v. State , 32 So.3d 706, 710-11 (Fla. 4th DCA 2010), is wholly distinguishable, as it involved the late disclosure by the State, in the middle of the trial, of a threat allegedly made by the defendant against the victim.

The trial court did not abuse its discretion in allowing the State to use the computer-generated diagram. Consequently, we deny relief as to this claim.

IV. Officer Ambrum's Testimony

Lowe argues that Officer Ambrum, who was Lowe's probation officer at the time of Burnell's murder, erroneously testified regarding the maximum sentence Lowe faced for the violation of community control (VOCC) and that the erroneous testimony was used to mislead the jury regarding the avoid arrest aggravator. Lowe also contends that the State relied on this testimony during its closing to argue for the aggravator. We conclude that these arguments were not preserved at trial and that Lowe cannot demonstrate fundamental error.

During direct examination, after multiple sustained objections caused the State to have to rephrase its question, the State asked Officer Ambrum what "the maximum penalty Mr. Lowe would look at under the law at that time if he was violated under community control." Officer Ambrum testified that he "believe[d] it would be somewhere in the area of thirty years." Defense counsel did not object. On cross-examination, defense counsel asked Officer Ambrum about that testimony given that Lowe had been sentenced as a youthful offender for the previous robbery he committed in 1987. Officer Ambrum was clearly uncertain regarding how the youthful offender statute worked and the impact a new substantive crime would have on Lowe's community control:

Q. Now, certainly your answer would be different if you were told that the person were sentenced as a youthful offender; correct?

A. At that time I'm not sure what they -- I know that there's been some changes with the -- whether or not they were in violation, I'm not sure what the law was on that at that time.

....

Q. Isn't it true that someone sentenced as a youthful offender is looking at a different potential maximum sentence than someone convicted as an adult?

A. Possibly.

Q. Thus the different classifications; correct?

A. But I have seen youthful offenders go back to court on a violation. Are you talking about being out -- sentenced outside of youthful offender, too?

Q. So you're aware of the youthful offender statute; correct?

A. If I understand you correctly you're asking me if -- if he would have only be (sic) able to be sentenced to six years probation?

Q. I'm asking is there a difference between being sentenced as a youthful offender -- your knowledge, is there a difference between being sentenced as a youthful fender (sic) and as an adult?

A. Yes, absolutely.

Q. And the distinction is with regard to potential maximum penalty; correct?

A. To my knowledge it's the initial sentence, not potential.

Despite Officer Ambrum's clearly uncertain testimony, the State in its closing argument did make one mention of Officer Ambrum's testimony that Lowe "could get up to thirty years for violating his community control." The State did so in the overall context of arguing the avoid arrest aggravator and that Lowe "does not like to get caught" and knew he would go back to prison if he were arrested for the Nu-Pack robbery. The State also mentioned that Lowe would get more time for any new offense. Lowe did not object to the State's closing argument.

The State concedes on appeal that Officer Ambrum misstated the law and that in no event would the maximum sentence be more than six years, less credit for time served. However, the State argues that the misstatement does not render the sentence fundamentally unfair and does not detract from the evidence supporting the avoid arrest aggravator, given that Officer Ambrum's testimony was not the thrust of the State's argument for the aggravator. We agree.

Admission of evidence is within the trial court's discretion, and its ruling will be upheld absent an abuse of discretion. Williams v. State , 967 So.2d 735, 747-48 (Fla. 2007). Likewise, control of prosecutorial argument lies with the trial judge and will not be disturbed absent an abuse of discretion. Esty v. State , 642 So.2d 1074, 1079 (Fla. 1994). "To preserve error for appellate review, the general rule is a contemporaneous, specific objection must occur during trial at the time of the alleged error." Gore v. State , 964 So.2d 1257, 1265 (Fla. 2007). When an alleged error is unpreserved-as is the case here-"this alleged error must constitute a fundamental error" in order to be reversible. Doty v. State , 170 So.3d 731, 743 (Fla. 2015). To constitute fundamental error, it must be shown that the error " 'reaches down into the validity of the trial itself' and that a sentence of death 'could not have been obtained without the assistance of the alleged error.' " Id. (quoting Snelgrove v. State , 107 So.3d 242, 257 (Fla. 2012) ).

We conclude that Officer Ambrum's testimony and the State's reliance on that testimony do not rise to the level of fundamental error. During the specific segment of closing argument in which the State argued for the avoid arrest aggravator, the State did not mention Officer Ambrum's testimony and instead largely focused on the fact that when Lowe walked into the Nu-Pack store, he recognized Burnell from another store where he had become friends with her. And the State argued that, unlike the previous robbery Lowe committed in 1987, he did not want to leave behind a witness who could identify him. The State then went through the facts that supported its conclusion that Lowe killed Burnell because he wanted to avoid arrest and not leave a witness. Namely, the State explained that: Lowe spent time in the store getting a soda and putting a hamburger in the microwave and had a chance to reflect before making the conscious choice to kill Burnell; Lowe then shot Burnell three times; common sense dictated that the first gunshot was to the top of Burnell's head as she was bent over tending to her three-year-old nephew ; there were no signs of a struggle; Burnell offered no resistance as she was with her nephew; Lowe did not wear gloves or a mask; and there were numerous pieces of evidence, including the position of Burnell's body, indicating that Burnell was shot before any attempt was made to retrieve the money from the register. The State then summed up its argument for the avoid arrest aggravator:

Why do you do that but to avoid an arrest, avoid being recognized, avoid being apprehended?

Why would you kill the clerk first? Because his motivation changed. He wanted to eliminate Donna Burnell who he knew, and who knew him from six months earlier at Fran's Market.

That's the aggravator of avoiding an arrest.

While the State did later mention Officer Ambrum's testimony, it was not central to the State's argument for the aggravator. Moreover, with respect to the aggravator, the trial court's sentencing order made no mention of the possible sentence Lowe would face for a VOCC and only mentioned that Lowe was on community control and would have returned to prison. The trial court also found that a death sentence was justified even without the avoid arrest aggravator.

Lowe has not shown that the aggravator, much less his death sentence, "could not have been obtained without the assistance of the alleged error." Doty , 170 So.3d at 743. Accordingly, we deny Lowe relief as to this claim.

V. Trial Court's Restriction of Mitigation and Cross-Examination

Lowe argues the trial court erred in sustaining the State's objections to testimony implicating Lorenzo Sailor in the shooting and to the admission of Dwayne Blackmon's sworn affidavit. Testimony was presented that Lowe, Sailor, and Blackmon had twice before gone to the Nu-Pack store together intending to rob the store but left both times without committing the robbery due to the presence of potential witnesses. It was Lowe's position that Sailor and Blackmon were also involved in the third and final attempted robbery that resulted in Burnell's murder. Lowe claims that the trial court's rulings unlawfully restricted his mitigation presentation and limited his cross-examination of Officer Green.

Regarding Sailor, Lowe sought to present bad character testimony that Sailor and another individual, sometime before and unrelated to Burnell's murder, had been seen by Officer Ewert pointing guns at traffic after Officer Ewert responded to reports of shots being fired at an elementary school. Sailor later pointed the gun at Officer Ewert before he (Sailor) and the other individual dropped their guns and ran through the woods. Lowe argued that the testimony was relevant to the defense's theory that Sailor participated in the robbery of the Nu-Pack store and was a potential suspect who was not investigated. The defense further argued that the gun incident with Officer Ewert showed Sailor's "proclivity for pointing guns at law enforcement" and that Sailor was "not afraid to engage in gun play."

Admission of evidence is within the trial court's discretion, and its ruling will be affirmed absent an abuse of discretion. Williams , 967 So.2d at 747-48. Relevant evidence is evidence that "tend[s] to prove or disprove a material fact." § 90.401, Fla. Stat. (2017). In the penalty phase context, the jury may not be barred from considering "any aspect of a defendant's character or record and any of the circumstances of the offense" offered as mitigation. Lockett v. Ohio , 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). "[T]he sentencer may not be precluded from considering ... any constitutionally relevant mitigating evidence." Buchanan v. Angelone , 522 U.S. 269, 276, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998).

We conclude that the trial court properly excluded the testimony regarding Sailor. Even if credible evidence showed Sailor to be involved in Burnell's murder-which the trial court concluded was not shown-Sailor's prior criminal act of pointing a gun at traffic and at Officer Ewert had no relevance to any aspect of Lowe's character or record, or to any circumstances of the murder and attempted robbery. Accordingly, the trial court did not abuse its discretion.

Regarding Blackmon's affidavit, Blackmon, who was deceased at the time of the resentencing trial, had signed an affidavit in October 1990 in which he stated that Officer Green and another officer had made certain promises and threats. During cross-examination of Officer Green, Lowe attempted to impeach Officer Green with Blackmon's affidavit. The State objected to the introduction of the affidavit into evidence as well as to any direct reading from the affidavit. The trial court eventually sustained the objection but ruled that, among other things, defense counsel could directly ask Officer Green "any questions ... about whatever he said to Mr. Blackmon," including whether he intimidated or threatened Blackmon. Defense counsel then asked Officer Green whether he made certain specific promises and threats to Blackmon. Officer Green denied doing so.

"To impeach a witness by use of a prior inconsistent statement pursuant to section 90.608, Florida Statutes (2008), the prior statement must be both (1) inconsistent with the witness's in-court testimony, and (2) the statement of the witness." Wilcox v. State , 143 So.3d 359, 383 (Fla. 2014). The State cites Wilcox for the proposition that a witness may never be impeached with another person's affidavit. The State misreads Wilcox . In Wilcox , this Court concluded that the trial court did not abuse its discretion in sustaining the State's objection to an attempt to impeach a witness with an arrest affidavit. Id. at 384. We approved the trial court's decision not on the basis that the affidavit was an affidavit of another person but rather, in part, on the basis that the statements in the affidavit "were not 'statements of the witness' as contemplated by section 90.608." Id. at 383. Namely, the affidavit only included a summation of statements made by four witnesses and briefly stated that those witnesses "denied any knowledge or involvement" in the crime. Id. Moreover, in Williamson v. State , 961 So.2d 229, 234-35 (Fla. 2007), this Court in a postconviction case theorized that the defendant there could have introduced, under section 90.608, the affidavit of an unavailable (deceased) declarant to impeach one of the State's key witnesses through prior inconsistent statements and to show the witness's bias in favor of the State, assuming the witness first denied the statements. Ultimately, this Court in Williamson concluded that the affidavit was inadmissible as substantive evidence and that even assuming the affidavit was admissible to impeach the witness, the affidavit would not have probably produced an acquittal or conviction of a lesser included offense on retrial. Id. at 235.

Here, even assuming that Lowe should have been permitted to introduce Blackmon's affidavit-but only to the extent that the purported statements could be isolated to Officer Green, and only after the proper foundation had been laid and Officer Green first denied making the statements-any such error was harmless. Prior to the State's objection, defense counsel made the jury aware of Blackmon's affidavit (which defense counsel was holding) and the general accusations against Officer Green. After the objection was sustained, defense counsel directly questioned Officer Green regarding whether he ever threatened Blackmon with the electric chair, whether he mentioned to Blackmon that he could be prosecuted as an accomplice and serve fifty to one hundred years, and whether he told Blackmon that in order for Blackmon to receive reward money he would have to testify that Lowe committed the murder. It is clear from the context that the jury understood that Lowe was questioning Officer Green regarding the specific accusations Blackmon made against Officer Green. Accordingly, we conclude that Lowe is not entitled to relief as to this claim.

VI. Defense Expert's Testing Results

Lowe argues that the trial court, without an adequate Richardson hearing and consideration of alternatives, excluded scientific statistical evidence that would have supported the lack of future violence mitigator.

During the latter portion of defense counsel's direct examination of its medical expert, Dr. Riebsame, defense counsel asked him whether he had enough information to form a risk assessment regarding the likelihood or absence of Lowe's future violence. Dr. Riebsame answered in the affirmative and then discussed how he looks at certain risk factors in coming up with a probability of low, medium, or high risk of reoffending or doing something violent again. Dr. Riebsame went on to note that "we can even do what's known as an actuarial assessment like your insurance agent would do" and testified that "the most widely used actuarial statistical tool" for predicting future violence is called the "violence risk appraisal guide." After explaining that this tool involves looking to the presence or absence of various factors, Dr. Riebsame then briefly discussed those factors. When defense counsel then asked Dr. Riebsame "where does Mr. Lowe fall on that scale," the State objected and asked to approach. At sidebar, the State objected, on the basis of a discovery violation, to Dr. Riebsame discussing the specific test results. The State explained that it had deposed Dr. Riebsame one month earlier and that the statistical tool was neither discussed during the deposition nor listed in Dr. Riebsame's report that was provided to the State prior to the deposition. Defense counsel explained that he had just found out about it in the hall while discussing Dr. Riebsame's testimony with him. The trial court sent the jury out and conducted a Richardson hearing. The State argued that it was "completely prejudiced," given that, based on Dr. Riebsame's deposition, the State chose not to bring its expert, Dr. Rifkin, for rebuttal. The State also argued that the discovery violation was taking place on what was effectively the last day of the new penalty phase and that the State had no ability to cross-examine or even research whether such testing met the Frye standard. The defense countered that they had already gotten "well into" Dr. Riebsame's testimony on the subject before the objection.

The trial court concluded that the discovery violation was not intentional but was also not trivial and impaired the State's ability to cross-examine or to present its own testimony. The trial court noted that the violation was taking place "at the eleventh hour and fifty-ninth minute" and involved a subject with which the State was not familiar. The trial judge ruled that Dr. Riebsame was "not precluded from giving his opinion, he's just precluded from saying I conducted this test and on the basis of this test I'm concluding this." Defense counsel then pointed out that Dr. Riebsame had other bases to talk about his opinion, and the trial court made clear that Dr. Riebsame was free to testify to those things but was simply precluded from discussing the calculations he made after his deposition.

When the jury returned, Dr. Riebsame testified that he was able to render an expert opinion regarding Lowe's likelihood of future violence based on the information he knew about Lowe "and the testing" he carried out. Dr. Riebsame then explained the factors that diminished the risk of Lowe reoffending, as well as the risk factors that increased the likelihood of Lowe reoffending. He also testified that the risk varied based on whether Lowe was in or out of custody, with Lowe presenting "a minimal risk of a violent offense" if in custody. Finally, when asked whether there are "greater factors that lower or increase" the risk, Dr. Riebsame testified that the greater lowering factors were that Lowe was now forty years old as opposed to twenty years old when he carried out the violent offense and violated community control, that Lowe continued to have no history of a substance abuse problem, and that Lowe had no severe mental health disorder. On cross-examination, the State did not attack Dr. Riebsame's conclusions on the basis of a lack of statistical analysis testing. Instead, the State asked Dr. Riebsame whether he would agree that human behavior "is extremely unpredictable," and the doctor answered in the affirmative. The State then asked questions which indicated that Lowe previously behaved well while he was at a juvenile facility and again when he went to the Department of Corrections in 1988 but that each time when he got out he reoffended. And Dr. Riebsame testified "that's true."

When a trial court has notice of a discovery violation, Richardson holds that the trial court's discretion can only be properly exercised once it has determined: (1) whether the violation was willful or inadvertent; (2) whether it was trivial or substantial; and (3) whether it had a prejudicial effect on the opposing party's trial preparation. Richardson , 246 So.2d at 775. This Court will then review the record "to determine if this full inquiry was made and if the trial court's actions pursuant to the inquiry were proper." McDuffie v. State , 970 So.2d 312, 321 (Fla. 2007). This Court will reverse a trial court's decision on a Richardson hearing only upon a showing of abuse of discretion. See Rimmer v. State , 59 So.3d 763, 787 (Fla. 2010). We have previously noted that the exclusion of evidence for a discovery violation "should only be imposed when there is no other adequate remedy." McDuffie , 970 So.2d at 321. Moreover, this "extreme sanction [is] to be employed only as a last resort and only after the court determines no other reasonable alternative exists to overcome the prejudice and allow the witness to testify." Delhall v. State , 95 So.3d 134, 162 (Fla. 2012). That is especially true when there is "a defense discovery violation, because there are few rights more fundamental than the right of an accused to present evidence or witnesses in his own defense." Id. at 162-63 (citing McDuffie , 970 So.2d at 321 ).

Here, it appears the trial court excluded the testimony as a "first resort," id. at 163, as opposed to a last resort. Indeed, the trial court does not appear to have "considered less extreme alternatives before excluding the testimony." Dawson v. State , 20 So.3d 1016, 1018 (Fla. 4th DCA 2009). However, we conclude that any error by the trial court was harmless beyond a reasonable doubt.

Prior to the State's objection, the jury was made aware that Dr. Riebsame conducted a risk assessment using a statistical model for predicting future violence known as the "violence risk appraisal guide." And the jury was made aware of the various factors that are relevant to that risk assessment. Defense counsel himself recognized that the defense had gone "well into" Dr. Riebsame's testimony on the subject before the State objected. After the State's objection, the jury was permitted to hear Dr. Riebsame's expert opinion regarding Lowe's likelihood of future violence, including Riebsame's other bases for his opinion. The full context of the record reveals that Dr. Riebsame's expert opinion was that there was a low risk of Lowe engaging in violence in the future. And Dr. Riebsame testified that he formed his expert opinion based on the information he knew about Lowe as well as "the testing" he "carried out." He further testified that he "appl[ied]

that information to what we know are specific factors associated with reoffending or not reoffending in a violent fashion." The jury was clearly informed that Dr. Riebsame's determination was that Lowe had a low risk of future dangerousness and that the determination was made, in part, by the use of a statistical model. Moreover, the trial court found the mitigator proven. We conclude that "there is no reasonable possibility" that the trial court's failure to consider any alternative remedies contributed to Lowe's death sentence. Delhall , 95 So.3d at 164. Accordingly, we deny relief as to this claim.

VII. State's Comments during Closing Argument

Lowe argues that the State made several improper comments during its closing argument that warrant reversal. Specifically, he claims that the State used victim impact statements to compare the worth of Burnell and Lowe and that the State argued to the jury that Lowe had been sentenced to death before and should be again because nothing had changed since then.

Control of prosecutorial argument lies within the trial court's sound discretion, and will not be disturbed absent an abuse of discretion. Esty , 642 So.2d at 1079. "Wide latitude is permitted in arguing to a jury. Logical inferences may be drawn, and counsel is allowed to advance all legitimate arguments." Breedlove v. State , 413 So.2d 1, 8 (Fla. 1982) (citations omitted). However, prosecutorial argument "must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant rather than the logical analysis of the evidence in light of the applicable law." Bertolotti v. State , 476 So.2d 130, 134 (Fla. 1985). "Any error in prosecutorial comments is harmless, however, if there is no reasonable possibility that those comments affected the verdict." King v. State , 623 So.2d 486, 488 (Fla. 1993).

Lowe points to the following statements made by the State during its closing arguments:

How about the Defendant has changed and grown spiritually since he was convicted of first-degree murder? Well, that's good, that's a good thing. But, really, when you stack it up against Donna Burnell's life, really, is that mitigating? Donna Burnell used her rosary every night. Is that really mitigating compared to what he did on July 3rd of 1990?

....

They [Lowe's family] care about him. They love him. Donna Burnell loved her family. Her family cared about her.

....

He is a caring and loving brother. We love the ones we have in our family. We love our family and we love that part of it. But Donna Burnell cared and loved her family, too.

....

We know he wasn't doing well, we know what he was up to. We know what he was up to. Planning robberies, guns. Murdering innocent store clerks.

Does this outweigh what happened to Donna Burnell? Does it?

Think about what Rodney Lowe did that morning. Think about what he came from, what he was doing, his activities. His behavior prior to that. Does that outweigh what happened to Donna Burnell?

....

Whether or not this Defendant matured over the last twenty years, behaved well in prison doesn't take away what happened to Donna Burnell.

Donna Burnell was a human being who cared about her family. Mr. Lowe should be held accountable for taking away that life.

Lowe did not contemporaneously object to any of these statements. Thus, Lowe is entitled to relief only if the "[u]nobjected-to comments ... rise to the level of fundamental error." Merck v. State , 975 So.2d 1054, 1061 (Fla. 2007). To meet this burden in the sentencing context, Lowe "must demonstrate that the error 'reaches down into the validity of the trial itself' and that a sentence of death 'could not have been obtained without the assistance of the alleged error.' " Hayward v. State , 24 So.3d 17, 42 (Fla. 2009) (quoting Simpson v. State , 3 So.3d 1135, 1146 (Fla. 2009) ).

In Wheeler v. State , 4 So.3d 599, 610-11 (Fla. 2009), we cautioned the State and its prosecutors that it is improper to use victim impact evidence to urge juries "to compare the worth of the life of the victim against that of [the defendant]," but we declined to find fundamental error in that case because the unobjected-to prosecutorial comments were not "shown to have deprived [the defendant] of a fair penalty phase" and were not "shown to be so inflammatory that the jury's advisory verdict could not have been obtained without it." In Hayward , we again voiced our disapproval regarding prosecutorial use of victim impact evidence to "compar[e] the life or choices of the victim with that of the defendant." 24 So.3d at 42-43. But we declined to find fundamental error in that case after viewing the unobjected-to prosecutorial comments "in the context of the entire closing argument and in light of the evidence presented in the penalty phase," namely, "the strength of the evidence against [the defendant] and the gravity of the aggravators." Id. at 42.

In light of Wheeler and Hayward , we conclude that the State's comments comparing Burnell's life and Lowe's life do not rise to the level of fundamental error. The comments at issue represented a very brief portion of the State's entire closing. Moreover, the comments were made in the context of discussing three nonstatutory mitigators-family relationships, religious faith, and maturity-each of which the trial court found and weighed in the sentencing calculus. On this record, including the evidence presented and the fact that the jury was instructed on the proper use of victim impact testimony, it cannot be said that the unobjected-to comments deprived Lowe of a fair penalty phase or were "so inflammatory" that a sentence of death could not have been obtained without it. Wheeler , 4 So.3d at 611.

Lowe also argues that the State impermissibly argued to the jury that he had been sentenced to death before and should be again because nothing had changed since then. Lowe did not make a contemporaneous objection to the State's closing, and we conclude that the State's references to the prior death sentence do not amount to fundamental error. In Teffeteller v. State , 495 So.2d 744, 745-47 (Fla. 1986), we rejected a similar argument from a defendant who claimed that it was reversible error for the jury to have been informed of his prior death sentence that had been vacated by this Court. We did so on two separate grounds. First, we examined the record and concluded "that the prior sentence did not in any way play a significant role in th[e] proceeding and was not prejudicial to the [defendant]." Id. at 747. We also noted that the defendant's own witness, and the defendant himself, provided testimony that alluded to the defendant's prior sentence. Id. at 746. And we noted that none of the witness testimony mentioned "the prior jury's recommendation, only that a death sentence had been imposed by the original trial judge ."

Id. at 747. Second, we concluded that the issue was unpreserved and that any error, including the prosecutor mentioning the prior sentence during closing argument, was not fundamental. Id. In a concurring opinion, Justice Barkett noted that "because the defendant himself advised the jury of his prior status on death row," a new penalty phase was not required. Id. at 748 (Barkett, J., concurring specially).

Here, before the State's closing argument, several of Lowe's own witnesses-through testimony elicited by defense counsel-informed the jury of Lowe's prior status on death row. First, Dale Resinella testified that he was the chaplain on death row and that he had provided counsel to Lowe. Later, Ron McAndrew, a retired warden, was asked by defense counsel if Lowe was "housed on death row" in a cell by himself, to which McAndrew responded in the affirmative. Finally, Lowe's mental health expert, Dr. Riebsame, described Lowe's case as a "postconviction appeal" involving "a person [who] has been on death row for 20 years." Although the State mentioned during closing that Lowe had been on death row for twenty years, it was only after defense counsel elicited testimony from its witnesses of the same fact. Moreover, a review of the record reveals that the State did not make the prior sentence a key feature of the proceedings. Id. at 746. And we do not find that the State's brief comments were "so prejudicial or inflammatory that a new sentencing proceeding is required." Id. at 747 (citing Blair v. State , 406 So.2d 1103 (Fla. 1981) ).

Accordingly, we deny relief as to this claim.

VIII. Evidence in Deliberation Room

Lowe argues that it was fundamental error for the trial court to allow a letter his mother, Sherri Lowe, wrote to him in 1988 to be given to the jury during deliberations, given that the letter was not admitted into evidence in the resentencing proceedings and contained prejudicial information. The letter was part of a box of personal contents that had been admitted into evidence as State's Exhibit 32 during the original trial. We reject Lowe's claim of fundamental error.

On cross-examination, the State presented Sherri with the letter and asked whether she recalled saying that, among other things, she thought the course Lowe was on "was leading to death." After Sherri testified that it "was certainly my handwriting, but I don't remember," defense counsel made a general objection and asked to approach. At sidebar, defense counsel asked if the letter was from the box of contents, and the prosecutor answered in the affirmative. The prosecutor explained that she was going to "admit it into evidence." Defense counsel countered that he did not know it was coming in and had not had a chance to read it. The trial judge then dismissed the jury for lunch, and defense counsel was given a chance to read the letter during the lunch break. After lunch, and before the jury was recalled, the trial judge asked if counsel for both sides had "worked out any problems with [the letter]." Both responded in the affirmative. Without objection, the State then asked more questions of Sherri regarding the letter, while apparently inadvertently failing to have the letter admitted into evidence. Sherri testified that she recognized her handwriting and the letter itself and that she was very concerned about Lowe's behavior. On redirect, defense counsel asked Sherri, "What else is in that letter?" She responded:

I was encouraging him to do what's right. I mean, we've always taught him bible principal, what is right and what is wrong, to obey or disobey. Now, of course I was encouraging him to go forth, to repent and turn around and go forth in a positive manner, according together [sic] scriptures.

Defense counsel then asked Sherri if she included a scripture verse in the letter, and she said "yes."

After closing arguments, the trial judge and counsel for both parties discussed the evidence that was going to be sent back to the jury. The trial judge specifically asked about the box identified as State's 32 and whether there was "a stipulation between the parties as to whether [the box] will go back to the jurors." The State responded that it had "agree[d] with the defense" that the box containing "a lot of personal items and some other stuff" would not be sent back to the jury. But the State specifically noted that the "letter that was used" would indeed be sent back. Defense counsel did not object or suggest that the State's response did not accurately reflect what had been agreed to. The trial court then asked defense counsel if he had agreed not to send the box back, and he responded in the affirmative.

"As a general rule, it is improper to allow materials into the jury's deliberation room that have not been admitted into evidence if the materials are of such character as to influence the jury." Gonzalez v. State , 136 So.3d 1125, 1145 (Fla. 2014). "However, it is not per se reversible error when any unauthorized materials are present in the jury room. Rather, where an objection is raised, Florida courts have applied a harmless error analysis." Id. (citing Keen v. State , 639 So.2d 597, 599 (Fla. 1994) ; State v. Hamilton , 574 So.2d 124, 129-30 (Fla. 1991) ). Given the absence of any specific, contemporaneous objection, either to the examination of Sherri with the letter or to the trial court sending the letter back to the jury room, Lowe is entitled to relief only if the purported error rises to the level of fundamental error. See Merck , 975 So.2d at 1061.

We have recognized that "[a] party may not invite error and then be heard to complain of that error on appeal." Pope v. State , 441 So.2d 1073, 1076 (Fla. 1983) ; see also Tomas v. State , 126 So.3d 1086, 1088 (Fla. 4th DCA 2012) (finding defendant consented to the unauthorized materials being given to the jury and thus any error was invited error). We have also recognized, in the context of certain erroneous jury instructions, a fundamental error analysis exception "where defense counsel affirmatively agreed to or requested the incomplete instruction." State v. Lucas , 645 So.2d 425, 427 (Fla. 1994), receded from on other grounds by State v. Spencer , 216 So.3d 481 (Fla. 2017). However, we also recognized in that context that the exception did not apply "where defense counsel merely acquiesced to [the incomplete] instructions." Spencer , 216 So.3d at 486 ; see, e.g. , Black v. State , 695 So.2d 459, 461 (Fla. 1st DCA 1997) ("[D]efense counsel must be aware that an incorrect instruction is being read and must affirmatively agree to, or request, the incomplete instruction.").

Given this record, defense counsel's conduct goes well beyond mere acquiescence. Moreover, we conclude that any error was not fundamental. We agree with the State that the content of the letter was largely duplicative of Sherri's testimony-both on cross-examination and redirect-as well as certain other testimony, including from Dr. Riebsame. That is, Lowe had gotten into trouble at school and committed other crimes during his teen years, Sherri was concerned with his behavior, the family tried to counsel Lowe, Sherri encouraged Lowe to go forth and repent in accordance with the Bible, Lowe's brother had also been in trouble, and Lowe had been shunned by his family and their church congregation. See Bottoson v. State , 443 So.2d 962, 966 (Fla. 1983) ("There is no prejudice where the information conveyed by the unauthorized materials merely duplicates evidence that had been properly presented to the jury at the trial."). Consequently, we deny relief as to this claim.

IX. Evidence Not Considered by Jury

Lowe argues the jury was precluded from considering evidence of his limited role in the killing, his disproportionate treatment compared to others involved, and a lawful evaluation of the aggravators. In support, Lowe points to the juror questionnaires as well as the instructions given at the outset and conclusion of the penalty phase. The instructions informed the jury that Lowe had been found guilty of first-degree murder and that the jury should only consider the sentence to be imposed, not guilt. Lowe contends that these instructions prevented the jury from considering "substantial" mitigation and accurately assessing aggravation. We find Lowe's argument unavailing.

In this Court's previous decision to uphold the trial court's grant of a new penalty phase, we found ineffective assistance of counsel under Strickland regarding counsel's failure to "discover[ ] evidence to call into question Blackmon's alibi and Blackmon's contention that he did not participate in the crimes." Lowe , 2 So.3d at 40. That evidence included testimony from Lisa Miller and Ben Carter "that Blackmon had confessed to his involvement in the crime during a conversation at Blackmon's grandmother's house." Id. at 41. This Court noted that although "there were some inconsistencies between the testimony of Miller and that of Carter as to the specific details of the crime," "the testimony of both witnesses provided credible support for two of the mitigating circumstances raised by defense counsel" and rejected by the trial court, namely, "the disproportionate punishment mitigator and the relatively minor participation mitigator." Id. And this Court noted that although there was evidence presented "that proved that Lowe was involved in the crime," the evidence did "not conclusively prove Lowe acted alone." Id. at 41-42.

During the new penalty phase, the State's theory continued to be that Lowe acted alone. And the defense's theory was that Lowe was a minor participant. During its opening statement, defense counsel informed the jury that the evidence, including "statements that were made by others after the fact," would show that Lowe did not act alone and was not the shooter. Defense counsel later called Miller and Carter-former girlfriend and boyfriend who had fourteen felony convictions and eleven felony convictions, respectively-who testified about admissions made by Blackmon years later while Blackmon was threatening other people. Miller claimed that Blackmon admitted to being the shooter, and Miller also claimed to have brought Blackmon's confession to the attention of several detectives. Carter similarly claimed that Blackmon