Clemente Javier Aguirre-Jarquin v. State of Florida

We have on appeal the judgment of the trial court convicting Clemente

Aguirre-Jarquin (Aguirre) of two counts of first-degree murder and sentencing him

to death on both counts.1



For the following reasons, we affirm the convictions and

sentences.



I. FACTUAL AND PROCEDURAL BACKGROUND



Aguirre was born in Honduras in 1980 and came to the United States in

March of 2003. After arriving in Florida, Aguirre moved to 117 Vagabond Way,



1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Seminole County. He lived there with two roommates until he was arrested for the

murders at issue here.



At the time of the murders, Aguirre worked at a restaurant as a dishwasher

and a prep cook. One of his duties was washing the knives. At one point, all three

of the men who lived at 117 Vagabond Way worked at the same restaurant.

The victims, Cheryl Williams and Carol Bareis, lived next door to Aguirre.

Carol was Cheryl's mother. Cheryl's daughter, Samantha Williams, lived with her

mother and grandmother. Carol was a stroke victim, partially paralyzed, and spent

most of her time in a wheelchair.



Aguirre was an acquaintance of his neighbors and occasionally visited with

them socially. Samantha testified that several months before the murders she

awoke at 2 a.m., and Aguirre was standing over her bed. She screamed at him and

forcefully told him to leave. Samantha escorted Aguirre out the front door and

locked the door behind him. The next day she reiterated that he was not to enter

their residence at night without permission.



On the night of June 16, 2004, Mark Van Sandt, who was in a relationship

with Samantha, went to 121 Vagabond Way to visit Samantha. He arrived at the

residence around 7:30 p.m. and stayed until approximately 11:30 p.m. Samantha

decided to leave with Mark and stay at his parents' house that night. When



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Samantha and Mark left the residence at 121 Vagabond Way, both Cheryl and

Carol were inside and alive.



Samantha was scheduled to work the next day, so Mark agreed to go back to

her house and pick up her work clothes. Mark left his house around 8:45 a.m. on

June 17, 2004, and drove to 121 Vagabond Way. When Mark arrived at 121

Vagabond Way, he went to the front door, which was almost always left unlocked,

and attempted to open the door. However, he was unable to fully open the door

because Cheryl Williams' body was blocking the entryway. Mark squeezed his

way through the door and called 911.



Deputy Pensa of the Seminole County Sheriff's Department was the first law

enforcement officer to arrive. Deputy Pensa forcibly entered through the back

door. Subsequently, two other officers, Bates and Miller, arrived at the scene.

Pensa and Bates noticed blood on the floor. The officers located Cheryl's body,

which blocked the front door. Thereafter, deputy Pensa found Carol lying dead on

the floor in the living room. She was lying face down in a pool of blood next to

her wheelchair.



One of the crime scene analysts found a ten-inch chef's knife while

searching the property. The knife was found between Aguirre's residence and the

victims' residence. The knife was the same make and model used at Aguirre's

place of employment. After speaking with the head chef at the restaurant where



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Aguirre worked, law enforcement officers determined that a ten-inch chef's knife

was missing from the restaurant.2



At approximately 11 a.m. on June 17, deputies knocked on the door of 117

Vagabond Way and asked Aguirre and his two roommates if they knew anything

about what happened next door. Aguirre told the officers he did not know there

was a problem next door. Later that same day, Aguirre approached law

enforcement officers and told them that he had information about what occurred

next door. He told the officers that he went into the home and saw that Cheryl was

dead. However, at this point, Aguirre told them that he only knew of Cheryl's

death. After Aguirre's conversations with police, he was arrested for tampering

with evidence from a crime scene. Subsequently, Aguirre was indicted for murder.

During the course of the trial, various law enforcement personnel,

physicians, and experts testified to the evidence at the crime scene and the victims'

wounds. Cheryl had been stabbed 129 times. She had severe wounds to her lungs

and leg, one of which severed her femoral artery. She also had numerous

defensive wounds on her hands and feet that indicated an extremely violent

struggle for her life. She was stabbed in the arms, legs, back, hands, feet, and

chest. One stab wound to her left lung was considered fatal. There was an



2. Aguirre's roommates also stated that the knife was similar to one that had

been at their residence, which was also missing. Samantha Williams testified that

her family did not own a knife of that type.



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extensive amount of evidence in the area of the house where Cheryl was found,

including a great deal of blood on the floor, walls, and door in the area of Cheryl's

body.



Carol suffered two stab wounds. The fatal stab wound went directly into her

chest and severed her left ventricle, and the other stab wound was to her back.3



The medical examiner testified that the stab wound to the heart would have led to

an instantaneous drop in her blood pressure, which would have caused her to lose

consciousness in no more than twenty seconds. It was the medical examiner's

opinion that the fatal wound to Carol was delivered while she was in the

wheelchair, which caused her to fall out and led to her facial abrasions.



All of the stab wounds sustained by Cheryl and Carol were consistent with

being caused by the chef's knife found between the victims' residence and

Aguirre's residence. The knife contained Cheryl's blood on the handle and Carol's

blood on the blade, indicating that Cheryl was killed first.



A crime scene analyst testified that there were 67 bloody shoe impressions

found inside the victims' residence. Of the 64 impressions that were comparable,

all 64 were consistent with the footwear of Aguirre. The soles of his shoes

contained Cheryl's blood. Law enforcement officers obtained a search warrant for



3. The medical examiner testified that the second wound had all the

indications of being a postmortem wound.



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the property at 117 Vagabond Street and retrieved the bag of clothes. Aguirre's

underwear, socks, T-shirt, and shorts contained Cheryl's blood. Further, Aguirre's

T-shirt, shorts, and underwear contained Carol's blood and DNA.



A Florida Department of Law Enforcement (FDLE) bloodstain pattern

analyst also examined Aguirre's clothing. Aguirre's shorts had contact stains on

both the front and back. The back of his shorts also had bloodstains that were not

contact stains but arrived on his shorts through some type of motion, either impact

spatter or cast off. His socks had contact stains as well as spots that were

"consistent with dropped blood.”



According to Aguirre's testimony during the guilt phase, he had the day

before the murders off from work so he began drinking early. He and his friends

continued to drink throughout the day and night.4 Aguirre returned back to 117

Vagabond Way at approximately 5 a.m. on the morning of the murders.



Aguirre stated that he watched television and then got up to look for beer.

There was no beer in his trailer so he walked next door. He attempted to go inside,

but Cheryl's body was blocking the door. However, he managed to make it inside,

and he lifted Cheryl's body on to his lap and tried to revive her. He realized she



4. Dr. Day, Aguirre's psychologist, testified during the penalty phase that

Aguirre admitted to obtaining and using powder cocaine the day before the

murders.



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was dead so he put her back on the floor where he found her. Aguirre then walked

toward the living room where Carol spent the majority of her time and found her

dead as well. While in the house, Aguirre noticed the murder weapon sitting on a

box near where Cheryl was lying. He stated that he feared the killer was still

inside the house; therefore, he picked up the knife and screamed, "Is anybody

here?” There was no reply. He then walked to Samantha's room. She was not

there, but her room had been ransacked.



Thereafter, Aguirre ran outside towards his residence and tossed the knife

into the grass. He then stripped off all his clothes, placed them in a plastic bag, set

the bag on top of his shed, and bathed. Aguirre initially planned to burn the

clothes. He explained that he did not call police and report the murders because he

was an illegal immigrant and afraid of deportation.



The jury convicted Aguirre on two counts of first-degree murder and one

count of burglary with an assault or battery. Following the penalty phase, the jury

recommended the death sentence for the murder of Cheryl Williams by a vote of

seven to five. The jury recommended the death sentence for the murder of Carol

Bareis by a vote of nine to three. After the Spencer5

hearing, Judge O. H. Eaton,



5. Spencer v. State, 615 So. 2d 688 (Fla. 1993).



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Jr. sentenced Aguirre to two death sentences, finding the aggravators outweighed

the mitigators.6



II. ISSUES RAISED ON APPEAL



Aguirre alleges that (A) the trial court erred in conducting the Faretta7

colloquy and requiring Aguirre to proceed with counsel; (B) the trial court erred in

denying Aguirre's motion for a new trial based on newly discovered evidence; (C)

the trial court abused its discretion in denying Aguirre's for-cause challenge of a

juror; (D) the trial court erred in denying Aguirre's motion for judgment of



6. For the murder of Cheryl Williams, Judge Eaton found the following

aggravators: (1) the defendant was previously convicted of another capital felony

(moderate weight); (2) the capital felony was committed while the defendant was

engaged in the commission of a burglary (moderate, but less than great weight); (3)

the capital felony was especially heinous, atrocious, or cruel (great weight). For

the murder of Carol Bareis, Judge Eaton found the following aggravators: (1) the

defendant was previously convicted of another capital felony (great weight); (2)

the capital felony was committed while the defendant was engaged in the

commission of a burglary (moderate, but less than great weight); (3) the capital

felony was committed for the purpose of avoiding or preventing a lawful arrest

(great weight); (4) the capital felony was especially heinous, atrocious, or cruel

(great weight); (5) the victim of the capital felony was particularly vulnerable due

to advanced age or disability (great weight).



The following mitigating circumstances were found: (1) under the influence

of extreme mental or emotional disturbance (moderate weight); (2) substantially

impaired ability to appreciate the criminality of his conduct (moderate weight); (3)

age (24) (little weight); (4) long term substance abuse problem (moderate weight);

(5) dysfunctional family setting (little weight); (6) childhood abuse (little weight);

(7) poor performance in school (little weight); (8) brain damage from substance

abuse (moderate weight).



7. Faretta v. California, 422 U.S. 806 (1975).



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acquittal on the burglary charge; (E) the trial court erred in allowing Samantha

Williams' testimony regarding Aguirre's prior uninvited entry into the victims'

home; (F) the trial court erred in instructing the jury on the cold, calculated and

premeditated aggravator; (G) the trial court erred in finding that the murder of

Carol Bareis was committed to eliminate her as a witness; (H) the trial court erred

in finding that the murder of Carol Bareis was heinous, atrocious, or cruel.8



None of these claims warrant relief.



A. Whether the Trial Court Erred in Conducting the Faretta Colloquy

Aguirre asserts that the trial court misstated the law when it conducted the

Faretta inquiry and denied his right to self-representation. Prior to the guilt phase,

Aguirre expressed his displeasure with his appointed counsel. His unhappiness



8. Aguirre also argues that Florida's death sentencing scheme is

unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002). Ring does not apply

to this case because the jury's verdict on the burglary charge that was the basis for

the trial court's finding of the "in the course of a felony” aggravator was

unanimous. See Frances v. State, 970 So. 2d 806, 822-23 (Fla. 2007) (rejecting

Ring argument in light of prior violent felony aggravator based on

contemporaneous convictions for murder and robbery), cert. denied, 128 S.Ct.

2441 (2008).



Similarly, Aguirre's allegation that the bare majority vote for death is

unconstitutional is without merit. This Court has repeatedly rejected similar

arguments. See Franklin v. State, 965 So. 2d 79, 101 (Fla. 2007) (citing multiple

cases).



Additionally, Aguirre's claim that the standard jury instructions are

unconstitutional because they place a higher burden on the defendant to obtain a

life sentence is without merit. See Reynolds v. State, 934 So. 2d 1128, 1151 (Fla.

2006) (citing multiple cases).



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with counsel led directly to three Nelson9

hearings. All three Nelson hearings

were triggered by Aguirre's discontent in the length of time to receive discovery

the length of time to go to trial, and his counsel's grim outlook on the chances of

an acquittal at trial.



,

of 10 Aguirre elected to continue with counsel at the conclusion

each hearing.



At the third Nelson hearing, Judge Eaton asked Aguirre to specifically

explain why he wanted to fire his lawyer. Aguirre reiterated the delay in trial as

well as counsel's grim outlook on his success. The trial judge then asked counsel

for further explanation and found that counsel was adequately representing

Aguirre.



Subsequent to the trial judge's finding of adequate representation, Aguirre

stated that he wanted to represent himself and that he could not be represented by

someone who was sure they would lose. After Aguirre's statement, Judge Eaton

conducted a colloquy to determine whether Aguirre was making a knowing waiver

of counsel. The specific exchange of the colloquy that Aguirre alleges is improper

is as follows:



The Court: You understand that you will not be able to have direct

access to the prosecuting attorney in this case for the purpose of



9. Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).



10. The final Nelson hearing was also a product of Aguirre's desire for his

attorneys to file a demand for speedy trial.



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discussing what evidence might be presented or to negotiate a

resolution in this case. It takes a lawyer to do that.



After Judge Eaton completed the colloquy, Aguirre again elected to remain with

his counsel and chose not to represent himself.



It is well settled that the accused has the right to self-representation. Faretta

v. California, 422 U.S. 806 (1975). However, it is also settled that the defendant

must unequivocally elect to represent himself. State v. Craft, 685 So. 2d 1292,

1295 (Fla. 1996). Further, after the defendant elects to represent himself, the court

must conduct a colloquy to ensure the accused is making a knowing waiver.

Hardwick v. State, 521 So. 2d 1071, 1074 (Fla. 1988). This Court approved a

standard colloquy for a trial court to employ in Amendments to Fla. Rules of Crim.

Pro. 3.111(d)(2)-(3), 719 So. 2d 873 (1998). The standard Faretta inquiry requires

the judge to explicitly state the pitfalls of self-representation. The colloquy also

requires the judge to state that the defendant's access to legal resources will be

limited while in custody and that the defendant is not required to possess special

skills in order to represent himself. Amendments, 719 So. 2d at 877.



However, a trial judge is not required to follow the colloquy word for word.

See Smith v. State, 956 So. 2d 1288, 1290 (Fla. 4th DCA 2007). Rather, the

essence of the colloquy is to ensure the defendant makes a knowing and voluntary

waiver of counsel. See Porter v. State, 788 So. 2d 917, 927 (Fla. 2001). In order

to ensure the waiver is knowing and voluntary, the trial court must inquire as to the



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defendant's age, experience, and understanding of the rules of criminal procedure.

Id. When reviewing a trial court's handling of a request for self-representation, the

standard of review is abuse of discretion. Holland v. State, 773 So. 2d 1065, 1069

(2000).



From the record, it is clear that Judge Eaton conducted a proper colloquy.

He stated the advantages in training a lawyer possesses and then moved to the

dangers and disadvantages arising from the waiver of counsel. Judge Eaton then

proceeded to the line of the colloquy concerning access to the prosecutor. The

standard instructions state, "Do you understand that your access to the State

Attorney who is prosecuting you will be severely reduced as compared to a lawyer

who could easily contact the State Attorney?” Amendments, 719 So. 2d at 877. In

comparison, Judge Eaton stated, "You understand that you will not be able to have

direct access to the prosecuting attorney for the purpose of discussing what

evidence might be presented or to negotiate a resolution in this case. It takes a

lawyer to do that.” While the trial court did not follow the standard colloquy word

for word, he correctly conveyed the essence of the standard instructions that, while

incarcerated, a defendant's access to the prosecutor is severely limited as compared

to a lawyer who may contact the prosecutor freely.



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Looking at the totality of the colloquy, we conclude that Judge Eaton did not

abuse his discretion in advising Aguirre of the limitations of self-representation.



B. Newly Discovered Evidence



Next, Aguirre claims that the trial court improperly denied his motion for a

new trial based on newly discovered evidence.11 Aguirre's claim is without merit.

During the guilt phase, the State called a latent print examiner to testify

about prints taken from the murder weapon. The expert testified that a palm print

taken off of the murder weapon matched Aguirre's left palm print. And, as

indicated above, Aguirre also testified that he handled the knife inside the victims'

home and threw it into the grass between the victims' house and his house.



Subsequent to the case arriving at this Court on direct appeal, FDLE notified

the Seminole County Sheriff's Office of inconsistencies in the print work in this

case. Specifically, FDLE found that the print examiner's conclusion was incorrect,

and the palm print attributed to Aguirre was inconclusive.



11. Aguirre also claims that the evidence constitutes a Brady v. Maryland,

373 U.S. 83 (1963), or Giglio v. United States, 405 U.S. 150 (1972), violation.

However, the claims are procedurally barred as Aguirre never presented them to

the court. See Kelley v. State, 974 So. 2d 1047, 1051 (Fla. 2007). Indeed, during

the hearing, Aguirre's counsel stated "Judge, I do not have any intent and my

motion doesn't contain a Brady claim, and my motion doesn't contain a Giglio

claim. I have no intent of bringing either one of those types of claims before this

Court.”



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The prosecutor alerted Aguirre immediately, and Aguirre filed a motion for

a new trial based on newly discovered evidence. This Court relinquished

jurisdiction back to the circuit court in order to consider the claim. At the

evidentiary hearing, two experts testified about the left palm print, and both experts

found the palm print on the murder weapon to be inconclusive.

After the hearing, Judge Eaton denied the motion, concluding that the

evidence presented during the trial was overwhelming, and that "the newly

discovered evidence would probably not produce an acquittal on retrial.”

Furthermore, the evidence would be cumulative due to Aguirre testifying to

handling the knife. Finally, Judge Eaton found that the newly discovered evidence

would not produce a different recommendation in the penalty phase.



In Jones v. State, 709 So. 2d 512 (1998), this Court established a two-prong

standard to use when a newly discovered evidence claim is raised. The first prong

is whether the evidence is in fact newly discovered. The second prong is the

materiality prong, and, in order to be successful in obtaining a new trial, the

evidence must "be of such nature that it would probably produce an acquittal on

retrial.” Jones, 709 So. 2d at 521; see also Woods v. State, 733 So. 2d 980, 989

(Fla. 1999) (stating that a new trial is not required unless the newly discovered

evidence would probably produce an acquittal on retrial). The newly discovered

evidence is to be weighed along with the evidence presented at trial. Jones, 709



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So. 2d at 521. The trial court is also charged with determining if the evidence

would be cumulative in nature with respect to the evidence presented at the trial.

Id. The appropriate standard of review when reviewing a trial court order on a

motion for new trial based on newly discovered evidence is abuse of discretion.

Woods, 733 So. 2d at 988 (Fla. 1999).



Here, the trial court detailed the vast amount of evidence linking Aguirre to

the murders, properly applied the Jones standard, and found the newly discovered

evidence would probably not produce an acquittal. There was extensive evidence

produced at the trial which linked Aguirre to the murders, including his bloody

footprints at the crime scene and blood on his clothes. Moreover, even though the

newly discovered evidence showed that Aguirre's print was not identifiable on the

murder weapon, his print on the weapon was cumulative due to Aguirre's

admission of handling the weapon. Given the above, the trial court did not abuse

its discretion in denying the motion for new trial based on newly discovered

evidence.



C. For-Cause Juror Challenge



Aguirre also claims that his for-cause challenge of juror Morse was

wrongfully denied, which forced him to exhaust his peremptory challenges and

seat an objectionable juror. However, the record is clear that Aguirre did not



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preserve this issue pursuant to the requirements set forth in Trotter v. State, 576 So.

2d 691 (Fla. 1990).



Specifically, in Trotter, this Court stated:



Where a defendant seeks reversal based on a claim that he was

wrongfully forced to exhaust his peremptory challenges, he initially

must identify a specific juror whom he otherwise would have struck

peremptorily. This juror must be an individual who actually sat on the

jury and whom the defendant either challenged for cause or attempted

to challenge peremptorily or otherwise objected to after his

peremptory challenges had been exhausted. The defendant cannot

stand by silently while an objectionable juror is seated and then, if the

verdict is adverse, obtain a new trial.



Trotter, 576 So. 2d at 693 (footnotes omitted). Furthermore, "the failure of a party

to get a timely ruling by a trial court constitutes a waiver of the matter for appellate

purposes.” Rose v. State, 787 So. 2d 786, 797 (Fla. 2001).

Aguirre did not comply with the Trotter requirements. Trotter requires the

defendant to identify a specific juror he would have peremptorily struck, who sat

on the jury, and whom the defendant challenged either for cause or peremptorily or

whom he objected to. Aguirre failed to identify the juror whom he would have

struck.12 Moreover, after initially requesting additional peremptory challenges,

counsel abandoned the issue without giving the court an opportunity to rule on it

by announcing, "Judge, it appears we have no additional challenges.” The failure



12. Aguirre admits in his brief to this Court that "defense counsel did not

expressly state that the additional peremptory would be used on Weinberg,” the

allegedly objectionable juror.



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to secure a ruling on a request constitutes waiver on appeal. Rose, 787 So. 2d at

797. Accordingly, the Trotter preservation requirements were not met, and this

issue was not preserved.



However, even if the issue was preserved, the challenge would not prevail

on the merits. As this Court explained in Busby v. State, 894 So. 2d 88, 95 (Fla.

2004):



"It is within a trial court's province to determine whether a

challenge for cause is proper, and the trial court's determination of

juror competency will not be overturned absent manifest error.”

Fernandez v. State, 730 So. 2d 277, 281 (Fla. 1999). The decision to

deny a challenge for cause will be upheld on appeal if there is support

in the record for the decision. See Gore v. State, 706 So. 2d 1328,

1332 (Fla. 1997); see also Mendoza v. State, 700 So. 2d 670, 675 (Fla.

1997) ("A trial court has latitude in ruling upon a challenge for cause

because the court has a better vantage point from which to evaluate

prospective jurors' answers than does this Court in our review of the

cold record.”); Smith v. State, 699 So. 2d 629, 635-36 (Fla. 1997) ("In

reviewing a claim of error such as this, we have recognized that the

trial court has a unique vantage point in the determination of juror

bias. The trial court is able to see the jurors' voir dire responses and

make observations which simply cannot be discerned from an

appellate record.”).



The test for determining juror competency is whether the juror

can lay aside any bias or prejudice and render a verdict solely on the

evidence presented and the instructions on the law given by the court.

See Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984). A juror must be

excused for cause if any reasonable doubt exists as to whether the

juror possesses an impartial state of mind. See Bryant v. State, 656

So. 2d 426, 428 (Fla. 1995); see also Hill v. State, 477 So. 2d 553, 556

(Fla. 1985) (providing that if "any reasonable doubt exists as to

whether a juror possesses the state of mind necessary to render an

impartial recommendation as to punishment, the juror must be

excused for cause”).



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In this case, juror Morse was asked her view on the death penalty. She

answered that she believed the death penalty is appropriate for all first-degree

murder convictions. When questioned further by defense counsel about the

possibility of returning a sentence of life rather than death, Morse stated that if she

was on the jury she would "have to consider all the possibilities.” Shortly

thereafter, defense counsel challenged Morse for cause and Judge Eaton denied the

challenge, stating, "She didn't say she wasn't going to consider both possible

penalties. So, I'm gonna deny your motion for cause.” The defense then struck

Morse peremptorily.



Here, juror Morse initially expressed strong feelings in support of the death

penalty, but then stated she would consider all the options, which supports the trial

court's denial of the for-cause challenge. Preliminary support for the death penalty

is not enough to justify a successful cause challenge when a juror has subsequently

indicated an ability to follow the court's instruction. See Conde v. State, 860 So.

2d 930, 939 (Fla. 2003) (upholding the denial of a cause challenge of a juror who

initially stated the death penalty should be mandatory in some instances, but later

stated he could follow the court's instruction to weigh the aggravators and

mitigators); Barnhill v. State, 834 So. 2d 836, 845 (Fla. 2002) ("[J]urors who have

expressed strong feelings about the death penalty nevertheless may serve if they

indicate an ability to abide by the trial court's instructions.”) (quoting Johnson v.



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State, 660 So. 2d 637, 644 (Fla. 1995)). Therefore, the trial court did not commit

manifest error in denying the for-cause challenge with respect to juror Morse.

In summary, Aguirre failed to satisfy the Trotter standard and waived the

issue for appeal; thus, it is procedurally barred. However, even if it was not

procedurally barred, no manifest error occurred.



D. Denial of Judgment of Acquittal



Aguirre next alleges that the trial court erred in denying the motion for

judgment of acquittal on the burglary charge. We conclude that the trial court did

not abuse its discretion in denying a judgment of acquittal on the burglary charge.

Section 810.015(3), Florida Statutes (2004), provides, "It is further the intent

of the Legislature that consent remain an affirmative defense to burglary and that

the lack of consent may be proven by circumstantial evidence.” However, in a

circumstantial evidence case, a judgment of acquittal is appropriate when the State

fails to present evidence from which the jury can exclude every reasonable

hypothesis except that of guilt. Atwater v. State, 626 So. 2d 1325, 1328 (Fla.

1993). The trial judge must first determine whether there is competent evidence

from which the jury could infer guilt, which is a question of law. State v. Law, 559

So. 2d 187, 189 (Fla. 1989). The decision of whether "the evidence is inconsistent

with any other reasonable inference is a question of fact for the jury.” Long v.

State, 689 So. 2d 1055, 1058 (Fla. 1997). Moreover, the circumstantial evidence



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standard does not require the jury to believe the defendant's version of the facts if

the State produces conflicting testimony. Peterka v. State, 640 So. 2d 59, 68 (Fla.

1994). In fact, "the State, as appellee, is entitled to a view of any conflicting

evidence in the light most favorable to the jury's verdict.” Id.



This Court has held in circumstantial evidence cases that "where substantial,

competent evidence supports the jury's verdict, that verdict will not be reversed on

appeal.” Peterka, 640 So. 2d at 68.



In this case, there is substantial, competent evidence to support the jury's

verdict on the burglary charge. Specifically, Samantha Williams testified that she

warned Aguirre not to come into their home without an invitation. Similarly,

Aguirre testified that he was told on multiple occasions not to enter the home

without an invitation. Moreover, in his testimony he did not claim that he had an

invitation to enter the victims' home on the morning of the murders. The crime

scene indicates that a violent struggle took place leaving blood on the floor, walls,

and door. Bloody footprints found throughout the house match Aguirre's shoes,

and his shoes contained the victim's blood. The murder weapon was a ten-inch

chef's knife of the same make and model that was missing from Aguirre's place of

employment and residence. Finally, Cheryl Williams had 129 stab wounds, many

of which were defensive, and Carol Bareis had a wound in her chest so deep that it

severed her heart. This circumstantial evidence, including Samantha Williams'



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testimony, clearly supports Aguirre's burglary conviction. See § 810.015(3), Fla.

Stat. (2004) ("[L]ack of consent may be proven by circumstantial evidence.”).13

Aguirre's assertion that the State did not prove lack of consent or produce

evidence that was inconsistent with his hypothesis of innocence is unpersuasive.

Aguirre testified that he went to the victims' home looking for a beer and found

Williams dead, walked around the home, picked up the murder weapon out of fear,

ran back home, threw the knife in the grass, and lied to law enforcement officers

on several occasions because he was afraid of deportation. He did not testify that

he was invited to the house that morning or that he had consent to enter. His

version of events does not have to be believed in light of the conflicting evidence

produced by the State, which clearly shows that a violent struggle took place, that

Aguirre was in the home and touched the murder weapon, and that his clothing

contained the victims' bloodstains, which arrived through motion, not contact. The

evidence is simply inconsistent with every reasonable hypothesis except that of

guilt.



Accordingly, we affirm the trial court's denial of the judgment of acquittal.



13. Moreover, section 810.02(1)(b)2.c., Florida Statutes (2004), provides

that the offense of burglary occurs when, notwithstanding a licensed or invited

entry, one remains in a dwelling to commit or attempt to commit a forcible felony.



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E. Testimony of Aguirre's Prior Uninvited Entry Into the Victims' Home



Aguirre also alleges that the trial court erred in allowing Samantha Williams

to testify about an encounter she had with Aguirre in her home prior to the murders

because the testimony was irrelevant and highly prejudicial. We disagree. We

conclude that the testimony was relevant and did not violate section 90.403,

Florida Statutes (2008).



Relevant evidence is defined in section 90.401, Florida Statutes (2008), as

"evidence tending to prove or disprove a material fact.” Further, "[a]ll relevant

evidence is admissible, except as provided by law.” § 90.402, Fla. Stat. (2008).

Samantha's testimony was relevant to prove that Aguirre did not have consent to

walk into the victims' home whenever he pleased. Further, her testimony rebutted

Aguirre's defense that he walked into the victims' home that fateful morning

looking for a beer and did not need to knock because the door was partially open.

We further find that the testimony's probative value was not substantially

outweighed by its prejudicial effect. See Steverson v. Florida, 695 So. 2d 687,

688-89 (Fla. 1997) (holding that most evidence admitted will prejudice the party it

is offered against, but section 90.403 is "directed at evidence which inflames the

jury or appeals improperly to the jury's emotions” (quoting Charles W. Erhardt,

Florida Evidence § 403.1, at 100-01 (2d ed. 1984))).



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Accordingly, the trial court did not abuse its discretion admitting Samantha

Williams' testimony regarding her encounter with Aguirre several months prior to

the murders.



F. Cold, Calculated, and Premeditated Aggravator



Additionally, Aguirre alleges the trial court erred in instructing the jury on

the cold, calculated, and premeditated (CCP) aggravator with respect to the death

of Carol Bareis. Judge Eaton instructed the jury on that aggravator, but ultimately

he found that the State had not proved the aggravator beyond a reasonable doubt.

This Court has explained that the State must prove the existence of an

aggravator beyond a reasonable doubt. See Parker v. State, 873 So. 2d 270, 286

(Fla. 2004). However, that heightened level of proof is not required in order to

instruct the jury on an aggravator. This Court in Bowden v. State, 588 So. 2d 225,

231 (Fla. 1991), stated that "[w]here, as here, evidence of a mitigating or

aggravating factor has been presented to the jury, an instruction on the factor is

required.”



Similarly, this Court in Hunter v. State, 660 So. 2d 244 (Fla. 1995), held that

the trial court did not err in submitting an aggravator to the jury, even though the

trial court ultimately found that the aggravator was not proven beyond a reasonable

doubt. This Court stated, "A judge should instruct a jury only on those aggravating

circumstances for which credible and competent evidence has been presented.”



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Hunter, 660 So. 2d at 252. Furthermore, "because there was evidence presented

that supported the cold, calculated, and premeditated aggravator, it was not error

for the trial court to have instructed the jury.” Id.; see also Floyd v. State, 850 So.

2d 383, 405 (Fla. 2002) (holding it was not error to instruct a jury on an aggravator

when there was competent evidence to support the aggravator, even though the

trial court ultimately declined to find existence of the aggravator).

Here, competent, substantial evidence was presented that supported the jury

instruction on the cold, calculated, and premeditated factor. Specifically, evidence

was presented to demonstrate that Aguirre procured the weapon beforehand,

brought it with him to the victims' home, and committed a double homicide.

Furthermore, Aguirre had the opportunity to leave without killing Bareis, but

instead walked through the house and killed her with a perfectly placed knife

wound to the heart. Both the procurement of a weapon and the failure to leave

when given the opportunity have been repeatedly found by this Court to be

competent, substantial evidence to support the CCP aggravator. See Buzia v.

State, 926 So. 2d 1203, 1214 (Fla. 2006); Alston v. State, 723 So. 2d 148, 162 (Fla.

1998).



Even though the trial court did not ultimately find the existence of CCP

beyond a reasonable doubt, there was competent, substantial evidence presented to



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give the jury an instruction on the aggravator. Therefore, it was not error to

instruct the jury on the CCP aggravator.



G. Avoid Arrest Aggravator



Aguirre also alleges the trial court erred in finding the aggravating

circumstances that the murders were committed to avoid arrest because it was not

submitted to the jury. Without addressing the trial court's conclusion that the

aggravator of commission to avoid arrest was proven beyond a reasonable doubt,

or whether the aggravator could be found even though it was not submitted to the

jury, we find the trial court's action to be harmless.



Even if the witness elimination aggravator were stricken, there would still be

a nine-to-three jury recommendation for the death penalty along with several other

aggravators, including heinous, atrocious, or cruel (HAC), prior felony, and victim

vulnerability, which were assigned great weight. Accordingly, any possible error

was harmless because there was not a reasonable possibility that Aguirre would

have received a life sentence without the trial court finding of the aggravator. See

Williams v. State, 967 So. 2d 735, 765 (Fla. 2007).



H. Heinous, Atrocious, or Cruel Aggravator



Aguirre further alleges the trial court erred in finding the heinous, atrocious,

or cruel (HAC) aggravator with respect to Carol Bareis because there was



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insufficient evidence of the aggravator and she died quickly, which precludes the

aggravator from applying. We disagree.



With respect to the HAC aggravator, this Court has held that "fear,

emotional strain, and terror of the victim during the events leading up to the

murder may make an otherwise quick death especially heinous, atrocious, or

cruel.” James v. State, 695 So. 2d 1229, 1235 (Fla. 1997). This Court has also

held that "the HAC aggravator focuses on the means and manner in which death is

inflicted and the immediate circumstances surrounding the death.” Brown v. State,

721 So. 2d 274, 277 (Fla. 1998). Furthermore, "the victim's mental state may be

evaluated for purposes of such determination in accordance with a common-sense

inference from the circumstances.” Swafford v. State, 533 So. 2d 270, 277 (Fla.

1988); see also Lynch v. State, 841 So. 2d 362, 369 (Fla. 2003) ("[T]he focus

should be upon the victim's perception of the circumstances. . . .”). And, in Buzia

v. State, 926 So 2d. 1203, 1214 (Fla. 2006), this Court upheld the finding of the

HAC aggravator and stated: "Whether this state of consciousness lasted minutes

or seconds, he was 'acutely aware' of his 'impending death[].' We have upheld

the HAC aggravator where the victim was conscious for merely seconds.”

When reviewing a trial court's finding of an aggravator,

it is not this Court's function to reweigh the evidence to determine

whether the State proved each aggravating circumstance beyond a

reasonable doubt—that is the trial court's job. Rather, our task on

appeal is to review the record to determine whether the trial court



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applied the right rule of law for each aggravating circumstance and, if

so, whether competent substantial evidence supports its finding.



Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997) (footnote omitted).

Here, the trial court found, based on the medical examiner's testimony, that

Cheryl was killed before Carol. It was determined that Aguirre left Cheryl and

walked to Carol's room, where he killed her with a knife wound directly to the

heart.14 Moreover, it was established that Carol had no cognitive or hearing

impairments that would have limited her awareness of her surroundings or would

have prevented Carol from hearing Cheryl's struggle with Aguirre.15 Thus, Carol

would have been able to comprehend the incredibly violent scene taking place just

outside her door. Further, Carol was partially paralyzed and unable to flee the

attacker in her house. Based on the evidence presented that Cheryl was killed first,

Carol was stabbed while in her wheelchair, and Carol did not sleep in her

wheelchair at night, it follows that Carol was aware of her daughter's brutal

murder and her own pending demise.



This Court has specifically stated that it uses a "common-sense inference”

when evaluating the circumstances surrounding the killing and relating to the



14. The medical examiner also determined that Carol was facing the killer

in her wheelchair when she was stabbed through the heart.



15. The medical examiner testified that the struggle between Cheryl and

Aguirre was "more violent than anyone in this room has seen before. It would be

extremely violent.”



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victim's mental state. Lynch, 841 So. 2d at 369 (quoting Swafford, 533 So. 2d at

277). Common sense would indicate that an elderly woman confined to a

wheelchair, who is one room away from a brutal murder, and who witnesses her

attacker walk into the room, face her and stab her through the heart with a ten-inch

chef's knife would be "acutely aware” of her "impending death.” Buzia, 926 So.

2d at 1214.



In light of the above, there is competent substantial evidence to support the

HAC aggravator. Therefore, the trial court did not err in its finding of HAC. See

Francis v. State, 808 So. 2d 110, 135 (Fla. 2001) (upholding the finding of HAC in

stabbing death of elderly twin sisters when it was not established who was killed

first but this Court used common sense inference of second victim's fear and

anguish in witnessing the first attack and being aware of their demise).



I. Sufficiency



This Court reviews "the record of a death penalty case to determine whether

the evidence is sufficient to support the murder conviction.” Winkles v. State, 894

So. 2d 842, 847 (Fla. 2005). Based on either premeditated murder or felony

murder theories, we find that the evidence is sufficient to support the murder

convictions.



Aguirre admitted to going inside the victims' home, and the circumstantial

evidence is clear that he did not have consent to enter. Further, Aguirre admitted



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to being warned on several occasions not to enter the home without an invitation.

He also admitted to handling the murder weapon, which the evidence indicated

was missing from his place of employment. There is also voluminous forensic

evidence linking him to the murders. Aguirre's clothes were found in a bag on the

roof of his home and were covered in the victims' blood. His shorts contained

blood stains that were not contact stains and could have only arrived through

motion. The murder weapon is the same make and model of a knife missing from

his place of employment. Bloody footprints found inside the home match his

shoes, and the blood of one of the victims was found on the soles of his shoes.

Accordingly, there is sufficient evidence to support the murder convictions.



J. Proportionality



"This Court must review the proportionality of a death sentence, even if the

issue has not been raised by the defendant.” Bolin v. State, 869 So. 2d 1196, 1204

(Fla. 2004). Proportionality review "is not a comparison between the number of

aggravating and mitigating circumstances.” Crook v. State, 908 So. 2d 350, 356

(Fla. 2005) (quoting Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990)). Instead,

the Court considers the totality of the circumstances to determine if death is

warranted in comparison to other cases where the death sentence has been upheld.

Davis v. State, 859 So. 2d 465, 480 (Fla. 2003). In addition, the heinous,



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atrocious, or cruel aggravator is one of the "most serious aggravators set out in the

statutory sentencing scheme.” Larkins v. State, 739 So. 2d 90, 95 (Fla. 1999).

Based on the evidence set forth earlier, the aggravators the trial court found,

and the totality of the circumstances, both of Aguirre's death sentences are

proportional compared to other death sentences this Court has upheld. See

Smithers v. State, 826 So. 2d 916 (Fla. 2002) (upholding both death sentences in

double murder where there were three aggravators found for one murder and two

for the other (HAC and prior violent felony for contemporaneous murder found for

both) and where there were two statutory mitigators as well as seven nonstatutory

mitigators); Francis, 808 So. 2d 110 (upholding death penalty for both stabbing

murders of elderly sisters when trial court found four aggravators for each murder

(HAC; victims vulnerable due to age; prior violent felony for contemporaneous

murder; murders committed during the course of a robbery) and two statutory

mitigators along with six nonstatutory mitigators); Morton v. State, 789 So. 2d

324 (Fla. 2001) (upholding both death sentences in double murder by gunshot and

stabbing where trial court found three aggravators with respect to one murder and

five with respect to the other (prior violent felony for contemporaneous murder and

CCP found for both) and found two statutory mitigators and five nonstatutory

mitigators).



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K. Conclusion



For the reasons stated above, we affirm Aguirre's convictions and sentences

of death.



It is so ordered.



QUINCE, C.J., and LEWIS, CANADY, and POLSTON, JJ., concur.

PARIENTE, J., specially concurs with an opinion, in which LABARGA, J.,

concurs.

PERRY, J., did not participate.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND

IF FILED, DETERMINED.



PARIENTE, J., specially concurring.



I agree with the majority's affirmance of the convictions and sentences of

death. I write to address the difficulties created by our failure to allow or mandate

special interrogatories in death penalty cases as more fully explained in my

separate opinions in Lebron v. State, 982 So. 2d 649, 670 (Fla. 2008) (Pariente, J.,

concurring); Franklin v. State, 965 So. 2d 79, 103 (Fla. 2007) (Pariente, J.,

specially concurring); and Coday v. State, 946 So. 2d 988, 1024 (Fla. 2006)

(Pariente, J., concurring in part and dissenting in part). As I stated in Coday and

reiterated in Lebron, the use of special verdict forms would enable this Court "to

tell when a jury has unanimously found a death-qualifying aggravating

circumstance, which would both facilitate our proportionality review and satisfy

the constitutional guarantee of trial by jury even when the recommendation of



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death is less than unanimous.” Lebron, 982 So. 2d at 671 (Pariente, J., concurring)

(quoting Coday, 946 So. 2d at 1024 (Pariente, J., concurring in part and dissenting

in part)). In both Coday and Lebron, the trial judges had in fact utilized a special

verdict form. The majority opinions in Coday and Lebron concluded that,

although the use of the special verdict form was error based on our opinion in State

v. Steele, 921 So. 2d 538 (Fla. 2005), it was harmless.



In Lebron, it was Chief Judge Belvin Perry, one of the most experienced trial

judges in the State, who had utilized a special verdict form because he did not like

"fishing in the dark.” Lebron, 982 So. 2d at 671. The frustration with not being

able to use special verdict forms and the constitutional concerns with the inability

to receive explicit jury findings were also expressed by the trial judge in this case,

Judge O. H. Eaton, Jr., another one of our most experienced trial judges in death

penalty cases, and the judge who teaches the State's judges the death penalty

course mandated by the Rules of Judicial Administration. See Fla. R. Jud. Admin.

2.215(b)(10). As Judge Eaton elaborated in his sentencing order in this case, in

explaining why the jury recommendation of death is "essentially meaningless” to

him without specific findings:



Defense counsel raised several constitutional arguments in his

pretrial motions and in his sentencing memorandum. The court

chooses to discuss some of them because they are issues that are of

concern to the Court in deciding the sentence to be imposed in this

case.



- 32 -



Florida's death penalty scheme places certain duties upon the

trial judge in determining whether to impose the death penalty or a

sentence of life imprisonment without possibility of parole.

One of the duties placed upon the trial judge is to give the

recommendation of the jury "great weight,” unless circumstances not

applicable here allow lesser weight. See Muhammad v. State, 782 So.

2d 343 (Fla. 2001). However, a definition of this subjective term,

"great weight,” is not contained in the statute or the case law. The

most that can be said about the guidance the Supreme Court of Florida

has given to the trial courts in applying this term is that when a jury

returns a life recommendation, "great weight” almost always

precludes the imposition of a death sentence, Smith v. State, 866 So.

2d 650 (Fla. 2004), while "great weight” does not preclude the trial

judge from disagreeing with a death recommendation and imposing a

life sentence. Tompkins v. State, 872 So. 2d 230 (Fla. 2003). How

"great” is the weight when the members of the jury cannot agree

unanimously on the recommended sentence? Should a seven to five

vote for death be given the same weight as a unanimous vote? These

are issues the trial courts deal with in capital cases.

The role of the jury during the penalty phase under the Florida

death penalty scheme has always been confusing. The jury makes no

findings of fact as to the existence of aggravating or mitigating

circumstances, nor what weight should be given to them, when

making its sentencing recommendation. The jury is not required to

unanimously find a particular aggravating circumstance exists beyond

a reasonable doubt. It makes the recommendation by majority vote,

and it is possible that none of the jurors agreed that a particular

aggravating circumstance submitted to them was proven beyond a

reasonable doubt. The jury recommendation does not contain any

interrogatories setting forth which aggravating factors were found,

and by what vote; how the jury weighed the various aggravating and

mitigating circumstances; and, of course, no one will ever know if

one, more than one, any, or all of the jurors agreed on any of the

aggravating and mitigating circumstances. It is possible, in a case

such as this one, where several aggravating circumstances are

submitted, that none of them received a majority vote. This places the

Court in the position of not knowing which aggravating and

mitigating circumstances the jury considered to be proven and



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provides little, if any, guidance in determining a sentence. In fact, the

trial judge is prohibited by law from requiring the jury to make

findings through a verdict containing special interrogatories. State v.

Steele, 921 So. 2d 538 (Fla. 2006). Accordingly, absent a

recommendation for life, the jury recommendation is essentially

meaningless to the trial judge, especially if the parties present

additional aggravating and mitigating circumstances at the Spencer

hearing.



After the jury renders its recommendation, the trial judge is

required by law to independently find the existence of aggravating and

mitigating circumstances. The Statute provides, "[n]otwithstanding

the recommendation of a majority of the jury, the court, after

weighing the aggravating and mitigating circumstances, shall enter a

sentence of life imprisonment or death, but if the court imposes a

sentence of death, it shall set forth in writing its findings upon which

the sentence of death is imposed.” Sec. 921.141, Fla. Stat. (2005).



There is no question about the trial court's duty to make

findings independent from those made by the jury. The Supreme

Court of Florida has made that clear on a number of occasions.

Recently, the Court stated, "[h]owever, we remind judges of their duty

to independently weigh aggravating and mitigating circumstances. A

sentencing order should reflect the trial judge's independent judgment

about the existence of aggravating and mitigating factors and the

weight each should receive.” Blackwater v. State, 851 So. 2d 650,

653 (Fla. 2003).



Since the jury makes no findings whatsoever, and only delivers

a sentence recommendation, the question arises as to what "great

weight” truly means. The Court concludes that when a jury returns a

recommendation for the death penalty, "great weight” simply means

the trial judge is not precluded from considering that option. As has

been observed by the United States Supreme Court, "[a] Florida trial

court no more has the assistance of a jury's findings of fact with

respect to sentencing issues than does a trial judge in Arizona.”

Walton v. Arizona, 497 U.S. 639, 648 (1990).



Florida trial judges are bound to follow the precedent laid down

by the Supreme Court of Florida. That Court has taken the position

that the Florida capital punishment scheme is constitutionally valid



- 34 -



unless and until the United States Supreme Court declares otherwise.

Marshal v. Crosby, 911 So. 2d 1129 (Fla. 2005). Following that

precedent, knowing the obvious due process problems with Florida's

death penalty scheme, certainly tests the resolve of trial judges, who

must decide who will live and who will die. See Ring v. Ariz., 536

U.S. 584 (2002).



That being said, this Court will use the tools available under the

present law in deciding the penalty to be imposed in this case.

My colleagues in Steele and in cases following Steele have concluded that

this Court cannot mandate the use of special interrogatories without a change in the

death penalty legislation. The Court, through Justice Cantero, urged changes to the

death penalty statute to allow for unanimous jury findings of aggravators and the

use of special verdict forms, but there have been no legislative changes. See

Steele, 921 So. 2d at 545-46.



Judge Eaton has eloquently explained why special verdict forms would

assist trial judges in assessing jury recommendations of death. This case is also

another example of how special verdict forms would assist in this Court's review

of death sentences, and in this case our harmless error analysis on the issues of the

effect of the trial court submitting to the jury an aggravator that the trial court

ultimately did not find (CCP) and the trial court's finding of an additional

aggravator that it did not submit to the jury (avoid arrest). See Lebron, 982 So. 2d

at 672 (Pariente, J., concurring) ("[Special verdict forms] would not only clearly

'assist the trial court in determining whether to impose the death penalty,' but also



- 35 -



- 36 -



'facilitate review by the appellate court, especially in a harmless error analysis.'”)

(quoting Franklin, 965 So. 2d at 103 (Pariente, J., specially concurring)).

I continue to believe that this Court has the authority to require special

interrogatories and that in the very least this Court should adopt penalty-phase

instructions that will "clearly explain that the jurors are the finders of fact as to

aggravating circumstances.” Franklin, 965 So. 2d at 103 (Pariente, J., specially

concurring).



LABARGA, J., concurs.



An Appeal from the Circuit Court in and for Seminole County,

O. H. Eaton, Jr., Judge – Case No. 04-2491-CFA

Affirmed