Leon Davis, Jr. v. State of Florida

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The Events at Headley Insurance

The evidence introduced at Davis’s trial revealed the following. Around

3 p.m. on December 13, 2007, Davis entered the Lake Wales location of the

Headley Insurance Agency (Headley) with the intent to commit robbery. Davis

was armed with a loaded .357 magnum revolver and equipped with duct tape, a

cigarette lighter, gloves, a gasoline can that contained gasoline, and a lunch cooler

to conceal the revolver.

That afternoon, two Headley employees, Yvonne Bustamante (Bustamante)

and Juanita Luciano (Luciano), were working. Bustamante, a licensed customer

service representative, had worked at Headley for nine years. Luciano, a customer

service representative, had worked at Headley for about three years. At the time,

Luciano was twenty-four weeks pregnant. Upon entering the business, Davis

locked the front door to prevent other customers from entering. He also placed

duct tape over the lens of a security camera. Davis demanded money from the

women, who initially refused to comply.

Davis then forced the women to open the company’s safe and cash box,

which contained a combined amount of about $900. During the course of the





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robbery, Davis bound the women with duct tape, poured gasoline on them, and set

them on fire. At 3:35 p.m., one of the women activated the office’s panic alarm,

which sent a signal to the alarm company. The Lake Wales Police Department was

contacted one minute later.

Victims Seek Help; Davis Shoots Bystander

Bustamante and Luciano escaped the burning building and ran in separate

directions seeking help. Bustamante eventually ran to the parking lot of the

Headley building, and Luciano ran to a nearby restaurant, Havana Nights. As

Bustamante tried to escape, Davis shot her in her left hand.

By this time, concerned people who lived nearby had noticed the presence of

smoke and walked to the area to investigate. These people, Fran Murray, Brandon

Greisman, and Carlos Ortiz, were on the scene before emergency personnel arrived

and became eyewitnesses to the aftermath of the robbery. Another eyewitness,

Evelyn Anderson, was a Headley customer who arrived at Headley while the

robbery was in progress. At trial, these eyewitnesses testified about the events at

Headley, including their various encounters with Davis.

Fran Murray (formerly Fran Branch) testified that at the time of the robbery,

she was sitting outside of her apartment and saw smoke nearby. She walked

toward the smoke to investigate its source. Around the same time, her neighbors,





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including Greisman and Ortiz, also noticed the smoke. They all proceeded to walk

toward the smoke to investigate.

As Murray approached the smoke, she realized that it was coming from the

Headley building. She then saw Bustamante, who was yelling for help and whose

body was burning. Murray observed that Bustamante was wriggling her wrists to

free them of a thick gray tape, and that Bustamante’s “skin was falling off of her.”

“And, just, she wasn’t screaming, but she wasn’t talking lightly either. She was

just trying to get away.”

As Greisman approached the building, he saw a woman whose body was

burning, and he went to help her. At the same time, Greisman saw Davis walking

towards them, and he originally thought that Davis was coming to help the

distressed woman. Greisman made eye contact with Davis, who pulled a gun out

of the cooler that he was carrying and pointed it at Greisman. Greisman tried to

get away, but Davis shot him in the face, hitting him in the nose. The gunshot

caused profuse bleeding and removed the tip of Greisman’s nose.

Murray, who was still in the vicinity, heard popping sounds and saw

Greisman fall to the ground and catch himself with his hands. She saw Davis walk

away and place a gun into his lunch cooler. Murray then assisted Greisman, who

was getting up from the ground.





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Carlos Ortiz also heard the popping sounds as he approached the Headley

building. As he got closer to the building, Greisman was walking back toward him

with a bloody face. Greisman told Ortiz that he had been shot, and Ortiz saw

Davis behind Greisman. Ortiz saw a part of the gun that Davis was carrying, and

he saw Davis stick his hand into the lunch cooler. Ortiz made eye contact with

Davis while trying to help Greisman as well as make sure that Davis was not

following them. Greisman walked back to his home, and Ortiz and Murray

assisted him while awaiting the arrival of emergency help.

Evelyn Anderson, a Headley customer, arrived at Headley to pay her

insurance bill during the time that the robbery was taking place. Anderson parked

her sport utility vehicle in front of Headley, and her teenage granddaughter and

infant grandson remained inside the vehicle. When Anderson tried to open the

front door of the Headley building, she discovered that it was locked. Anderson

walked to the side of the building to try and determine why she was unable to enter

the building during normal business hours. While walking, she noticed that smoke

was coming out of the building. Anderson also heard popping sounds, and shortly

thereafter, Davis walked out of the building and placed the cooler under his arm.

Anderson asked Davis what was happening. Davis continued walking away but

responded that there was a fire in the building. Davis then walked to his vehicle, a





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black Nissan Altima, that was parked at a vacant house nearby. Davis got inside of

the vehicle and drove away.1

Shortly thereafter, Anderson came into contact with Bustamante. Anderson

received a minor burn on her hand when she touched Bustamante, who was

screaming for help and was severely burned. Bustamante walked towards

Anderson’s vehicle, and Anderson’s granddaughter, who was seated in the front

seat of the vehicle, ran away from the vehicle after seeing Bustamante’s burning

body. Bustamante walked to the open vehicle door and climbed inside the vehicle.

Anderson encouraged Bustamante to get out of the vehicle because the paramedics

were on the way. Bustamante got out of the vehicle and leaned on the hood.

By this time, Murray had finished attending to Greisman, and she returned to

Headley to see if she could provide further help. Murray saw Bustamante leaning

against Anderson’s SUV. Murray described the scene as follows:

She [Bustamante] was um, screaming she was hot. And that her skin was rolling off of her body at this time. It was disgusting. You could smell the burnt skin and flesh. And she was screaming she was really, really hot and she was thirsty. And so I ran across the street at that time to Havana Nights, which was a restaurant, a Cuban

1. Earlier that afternoon, Murray saw a black car sitting on a back street near a vacant house. After the robbery, she noticed that the car was not there. Additionally, Ortiz saw Davis walk away from the scene and towards the back of the vacant house. Ortiz also noticed a black Nissan that he had not seen parked in that location before. Ortiz saw the Nissan being driven away, but he did not see the driver.







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restaurant, across the street of Headley, off of the other corner of Phillips, and got a cup of ice water in a to go cup.



Murray returned to Bustamante with the cup of water, and Bustamante sipped from

the cup while awaiting the arrival of emergency personnel. Murray talked with

Bustamante, and Murray described their conversation as follows:

I introduced myself as Fran and she introduced herself as Yvonne. We sat there talking a minute and she started to say—and I gave her water. And, um, she said that she didn’t understand how anybody would rob her, she didn’t have any money. And that her kids, please pray, I’m not going to make this Fran. And I told her that I would get to the hospital if I could to see her, if it was allowed and that I would keep her in my prayers, that with God everything was possible. She wanted to talk about her children. And I cannot remember clearly if I asked her who did it, or if she was just talking. And she said that it was a black gentleman, and that he should be on video tape. She then started crying again and said she loved her babies very much, and she doesn’t understand how anybody could do this to her.



Bustamante also told Murray that she had been bound with tape, doused with

gasoline, pushed into a bathroom, and set on fire.

In the meantime, Luciano escaped the Headley building and ran to the

nearby Havana Nights restaurant. The restaurant’s owner, Jaidy Jiminez, heard a

loud boom, and shortly thereafter, Luciano ran into the restaurant. Although

Luciano was a Havana Nights customer, she was so badly burned that Jiminez did

not recognize her: “I saw a woman that was naked, burned, um, burned from head

to toe, no shoes on, or any clothes on, just underwear. But I couldn’t recognize

her.”





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Luciano asked for help and begged Jiminez to close the door because “he”

was coming. Jiminez helped Luciano, whom she realized was pregnant, sit down.

Additionally, other people inside the restaurant were trying to call 9-1-1 and to

assist Luciano. Luciano asked what was taking so long for help to arrive and

stated that she could not feel her baby moving. Jiminez tried to reassure her. It

was during this time that Murray came into the restaurant asking for water, and

Jiminez provided it to her. Jiminez walked outside the restaurant to get help, and

she saw the severely burned Bustamante. Once the paramedics arrived and began

to assist Bustamante, Jiminez told them that another injured woman, Luciano, was

inside of the restaurant.

Emergency Personnel Response

Emergency dispatches increased in their sense of urgency as the initial report

of a fire gave way to additional reports of injuries and a shooting. Lt. Joe Elrod of

the Lake Wales Police Department first encountered Greisman, who explained that

he was shot while attempting to help a woman whom he heard screaming for help

and soon discovered was on fire.

Lt. Elrod determined that Greisman’s injuries were not life-threatening, and

because emergency medical personnel were on the way to assist Greisman, he

proceeded to the Headley building. When Lt. Elrod arrived at Headley, emergency

medical personnel were already on the scene and were assisting Bustamante in the





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parking lot. Lt. Elrod observed Bustamante’s severe burns, and he estimated that

the burns covered about eighty percent of her body. Lt. Elrod immediately

understood the gravity of Bustamante’s injuries, and he decided not to wait until

later to obtain Bustamante’s statement. Lt. Elrod testified: “I knew she was going

to die, so I tried to get information from her on who did it to her.” “I asked her

who did it to her. And she told me it was Leon Davis. And then I asked her, how

she knew him. And she said that she knows him and that he was [a] prior client of

theirs in the Insurance Company.” Bustamante explained that Davis tried to rob

them, and when they did not give him money, he threw gasoline on them and set

them on fire. When they tried to run, Davis continued to throw gasoline on them.

Lt. Elrod then located Luciano inside of the Havana Nights restaurant.

When he walked inside the restaurant, he saw Luciano, who was “obviously

pregnant,” sitting down. Lt. Elrod characterized Luciano’s burn injuries as even

worse than Bustamante’s. Lt. Elrod went outside and told emergency personnel

that another victim needed help who was in even worse condition than Bustamante.

He then began dispatching the name “Leon Davis” to law enforcement and

conducting routine duties at the crime scene.

Paramedic John “Chip” Johnson and emergency medical technician Ernest

Froehlich were the first emergency medical personnel to arrive on the scene. Upon

arrival, they first saw Bustamante, who was in the parking lot and leaning on





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Anderson’s SUV. Johnson observed: “the skin, everywhere I could see it, it was

peeling back, and she had suffered major burns. Also she had darkened hands, and

a further injury to her left hand, [t]hat was my observations at that time.”

Froehlich testified that Bustamante “looked like she had burns all over her body,

hair singed off, most of her clothing was burned off, skin was hanging off her back

and buttocks.”

Froehlich was present when Lt. Elrod asked Bustamante if she knew who the

perpetrator was, and he overheard Bustamante say “Leon Davis.” Johnson also

heard Bustamante state that Davis was the perpetrator, although he was unable to

clearly hear Bustamante say Davis’s first name. Anderson also heard Bustamante

identify Davis as the perpetrator.

After initially assisting Bustamante, Johnson went to Havana Nights to assist

Luciano. When Johnson entered the restaurant, he noticed water on the floor and

saw Luciano, who was severely burned and “basically naked.” There was a plastic

substance on her wrists, neck area, and feet. Luciano, who was conscious,

breathing, and able to talk clearly, told Johnson that she was pregnant and that

while working in her office, someone poured gasoline on her and set her on fire.

Luciano also told Johnson that her wrists were burning, and Johnson went to the

ambulance to get sterile water to alleviate her pain.





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By this time, additional emergency medical personnel were dispatched to the

scene. Upon arrival, paramedic George Bailey assumed primary responsibility for

Luciano’s care, and Johnson went back to the parking lot to continue assisting

Bustamante. Luciano was conscious and able to respond to questions. She

explained to Bailey “that there had been a robbery, at the business where she was

at, she had been tied up or bound with tape, and had gasoline poured on her and

had been lit on fire.” Bailey did not ask her who harmed her, but Luciano told him

that the person was a man and that she knew who it was. Luciano also told Bailey

that she was twenty-four weeks pregnant. Bailey estimated that eighty percent of

Luciano’s body was burned with second- and third-degree burns.

Both Bustamante and Luciano were airlifted to the Orlando Regional

Medical Center for treatment in the burn unit. Luciano underwent an emergency

caesarean section, during which she gave birth to her son, Michael Bustamante, Jr.2

Although detectives went to the hospital in hopes of interviewing Bustamante and

Luciano, the severity of their injuries prevented the detectives from ever meeting

with them.



2. Yvonne Bustamante’s brother, Michael Bustamante, was in a relationship with Luciano and was the father of baby Michael.







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Michael lived for three days after his emergency delivery. He died as the

result of extreme prematurity. Bustamante lived for five days, and Luciano lived

for three weeks. Autopsies of both women revealed that they died from

complications of thermal burns due to the fire. According to the medical examiner,

Bustamante suffered burns that covered eighty to ninety percent of her body.

Luciano suffered burns that covered about ninety percent of her body.

Additionally, the autopsy of Bustamante revealed bullet fragments from the

gunshot to her left hand, although the gunshot was not a cause of her death.

Events after the Robbery

After leaving the scene, Davis went to a branch of the Mid Florida Credit

Union, where he was an established customer. At 4:19 p.m., less than forty-five

minutes after the alarm was activated at Headley, Davis walked into the credit

union to make a cash deposit. Jessica Lacy, the teller who assisted Davis, was

familiar with him as a customer and knew Davis by name. Davis deposited $148

in cash into his account that previously had a balance of $5.33. While processing

Davis’s transaction, Lacy observed that Davis’s face was bloody and appeared to

have scratches and marks on the nose, lip, and chin. The credit union branch

manager, Valerie Dollison, was also working that afternoon. She did not

personally know Davis, but she heard someone call him “Leon.”





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Davis also went to the house where his brother, Garrion Davis (Garrion),

and Garrion’s girlfriend, Melissa Sellers, resided.3 Garrion testified that on the

afternoon of December 13, “my brother came to my house. He wanted to—he

needed some soap to wash his face. And he went outside my house and washed his

face. I noticed he had a scratch on his face. He told me he had robbed somebody.”

Garrion testified that Davis also came inside the house and took a shower. Garrion

estimated that Davis was at the house for ten to fifteen minutes.

Sellers, who was at home with Garrion at the time, testified about Davis’s

visit to their house that afternoon. Sellers wished Davis, whose birthday was the

next day, a happy early birthday. She estimated that Davis was at her house for ten

minutes or less, and although she was not certain whether he had taken a shower,

she knew that he had been in their bathroom. When Davis left, Sellers observed

that Garrion’s demeanor had changed. Garrion seemed upset and was teary-eyed.

Later, Davis went to a friend’s home, where he used the cell phone of a

woman named Fonda Roberts. Roberts was unable to hear Davis’s conversation,

which lasted a couple of minutes. When Davis was finished using the phone, he

started to hand the phone to Roberts and then pulled it back from her. Davis then



3. By the time of trial, Sellers and Garrion were married.





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erased the number that he called. Roberts observed that at the time, Davis was

driving a black vehicle.

Davis Turns Himself In

As the afternoon progressed, a massive investigation began. Davis’s

photograph was shown on television as media began to report the events at

Headley, and Davis’s family and friends became increasingly aware of Davis’s

status as a suspect in the day’s events. Davis’s family and friends frantically began

trying to locate him in hopes that they could convince him to turn himself in safely.

That evening, Davis called his sister, Noniece DeCosey, and asked her to

come and pick him up near a McDonald’s. Their mother, Linda Davis,

accompanied DeCosey to meet Davis. DeCosey drove them to a Circle K

convenience store to meet Davis’s and DeCosey’s other sister, India Owens, and

family friend Barry Gaston. Upon arrival, Davis walked up to Gaston, hugged

him, and said: “I hurt someone.” When Gaston asked Davis what he did, Davis

said that he did not know. Davis and his mother got into a car with Owens and

Gaston.

Gaston, a former law enforcement officer, helped facilitate Davis turning

himself in at the Polk County Sheriff’s substation. Gaston testified that on the way

to the substation, Davis laid his head on his mother’s lap in the backseat of the car

and cried and sobbed. Davis again said that he hurt somebody, but Gaston told





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him not to say anything more. Davis was turned over to the Polk County Sheriff’s

Office without incident. Davis was later transported from the Sheriff’s Office

substation to the Bartow Air Base for further processing.

A number of people with whom Davis came into contact later in the day

testified at trial that Davis appeared to have some sort of injury to his nose. The

crime scene technician who photographed Davis after he was taken into custody

and a law enforcement officer who interacted with Davis upon his transfer to the

Bartow Air Base both testified that Davis appeared to have either scratches or a

burn on his nose. Additionally, Davis’s sister, Noniece DeCosey, saw a red mark

on Davis’s nose that could have been a burn.

That night, a black Nissan Altima was found at the Lagoon nightclub in

Winter Haven. Law enforcement officers were dispatched to the location, and the

car was seized pending a warrant to search the car’s interior. Searches conducted

in the vicinity of where the car was located, in particular to look for a firearm, did

not reveal any additional evidence. The following day, after the search warrant

was signed, law enforcement conducted an interior search of the Altima. Davis’s

driver license was found inside the car.

Davis was later tried for three counts of first-degree murder (Bustamante,

Luciano, and baby Michael), one count of attempted first-degree murder

(Greisman), one count of armed robbery, and one count of first-degree arson.





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The Guilt Phase

The State’s theory at trial was that Davis, a man driven by mounting

financial pressures, planned the robbery of Headley, a business with which he was

familiar. Davis’s business relationship with Headley dated back to 2004, and as

reflected in various records, Davis’s insurance needs were primarily handled by

Bustamante. The State introduced evidence that established a timeline of events

leading up to the robbery, including Davis’s actions on the day of the robbery. A

summary of this evidence follows.

In the months leading up to the robbery, Davis experienced increasing

financial difficulty. Davis, who at the time was married to his wife Victoria, was

primarily responsible for the family obligations, including the mortgage payment

on their home. At the time, Davis and his wife had two cars: a blue Nissan

Maxima owned by Davis, and a black Nissan Altima owned by Victoria. Both

vehicles were insured under policies written by Headley. In June 2007, during a

visit to the Mid Florida Credit Union, Davis became aware that the amount of the

automatic debit from his account for his insurance coverage had been increasing

over time. Davis was also informed that his account was overdrawn and became

irate.

Unable to afford insurance for both cars, Davis and Victoria removed the

license plate from the Maxima, canceled the car’s insurance policy, and relied





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solely on the Altima for transportation. The couple was also unable to afford cell

phone service during this time. Victoria had been working, but she became

pregnant and was forced to stop working because of pregnancy complications.

Davis’s Plan to Rob Headley

Davis’s plan to rob Headley began to coalesce in early December. By this

time, the couple had reached the limits on their credit cards, and the mortgage

payment was delinquent. One week before the robbery, Headley customer

Virginia Vazquez saw Davis at Headley. She first saw Davis in the parking lot

looking in the back of a black car. Then, Davis went inside and began talking with

Bustamante. Vazquez and her husband waited inside the insurance agency for

fifteen to twenty minutes before Bustamante finished talking with Davis. Vazquez

later recognized Davis from news coverage as the person she saw during her visit

to Headley.

Davis’s preparation for the robbery also involved acquiring various items

that he would need in order to carry out the robbery, including a gun and

ammunition. On December 7, 2007, six days before the robbery, Davis went to

visit his cousin, Randy Black. Davis told Black that he needed a gun for personal

protection because he was going to travel to Miami. Black owned two guns,

including a recently purchased Dan Wesson .357 magnum revolver. Black showed

Davis both guns, and Davis opted to purchase the .357 magnum for around $200.





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Black also gave Davis .38 caliber bullets which were compatible with the .357

magnum. Davis and Black fired the revolver, which was operating normally.

Later, Davis showed his mother the revolver. Davis told her that he got the

revolver from Black and that he and Black fired it.4

Davis’s Actions on the Day of the Robbery

The evidence introduced at trial also established a detailed timeline of

Davis’s actions on the day of the robbery, which included a visit to Walmart to

purchase supplies that he would use later that day. On the morning of

December 13, Victoria Davis last saw her husband at about 6 a.m. Before 7 a.m.,

Davis took his son, who had spent the previous night with Davis and Victoria,

home to the boy’s mother, Dawn Henry. His son’s birthday was that day.

Davis then went to the Lake Wales Walmart, where surveillance video and

still photographs showed him making three separate purchases around 7 a.m. The

first purchase included a cap, long-sleeved shirt, and soft, orange lunch cooler.

Davis’s second purchase was a pair of gloves, and the third purchase was a Bic

cigarette lighter. All of the purchases were cash transactions.



4. After Black realized that law enforcement was looking for Davis, he immediately contacted law enforcement to advise that he recently sold Davis a gun. Black also provided law enforcement with two .38 caliber bullets and the receipt documenting his original purchase of the gun.





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While at Walmart, Davis spoke with the store manager, Mark Gammons,

and a store employee, Jennifer DeBarros. Gammons testified that Davis

approached him and asked where gloves were located in the store. When

Gammons saw Davis’s picture on the news that evening, he realized that he had

seen Davis in Walmart that morning. Walmart employee Jennifer DeBarros had

known Davis for more than ten years and was a family friend. DeBarros testified

that on the morning of December 13, she talked with Davis during his visit to

Walmart. DeBarros talked with Davis about his son’s birthday.

Some time after leaving Walmart, Davis drove to the home of his sister,

India Owens. Davis then accompanied Owens to take her car for repairs and pick

up a rental car. They later went to pick up some furniture, and they stopped at a

restaurant for lunch. Davis seemed agitated while eating lunch.

Video surveillance showed that Davis left the restaurant at 1:38 p.m. Davis

and Owens then delivered the furniture to Owens’s house. During that time,

Owens noticed that Davis began acting strangely, obsessively locking doors in the

house. Davis also asked for a piece of duct tape but did not say why he needed it.

A short time later, Davis left Owens’s house. Although Davis’s son had a birthday

party at school that afternoon, Davis did not attend. Davis entered the Headley

building sometime around 3 p.m.





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The Investigation

In addition to evidence surrounding the events at Headley, their aftermath,

and Davis’s behavior leading up to and including the day of the robbery, the State

introduced evidence regarding various aspects of the investigation.

The expansive crime scene investigation spanned several days, and the

numerous crime scene photographs entered into evidence depicted a gruesome

series of events that began inside the Headley building and continued outside.

The exterior photographs depict the entrance to Headley, the parking lot,

Anderson’s vehicle, and the trail of bloody footprints and burnt skin that led from

the Headley building to Havana Nights. Anderson’s SUV was smeared with blood

on both sides of the hood and was marked by blood stains on the vehicle doors and

in the passenger side interior.

The interior photographs captured the damage in various areas of the

Headley building, including fire damage in the office area, the storage area, and the

extensively damaged bathroom. Among the widespread fire damage to and debris

in the Headley building, the interior crime scene photographs revealed the presence

of blood, a severely burnt chair, two cigarette lighters (one of which was identified

as a Bic lighter), burnt duct tape, a burnt plastic gasoline can, an open cash box that

contained only coins, an open and empty safe, a bloody alarm key pad, and burnt





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surveillance equipment. The photographs also showed bullet holes in a wall, a

door, and an exterior shed door. A bullet was retrieved from the shed floor.

Detective Jeff Batz, an arson investigator, detected the odor of gasoline

inside the Headley building, and noted that it was particularly strong near the rear

of the building. Batz identified three areas of fire origin inside the Headley

building: a chair located near the front door, the storage room, and the bathroom.

Batz testified as follows: “Three-points of origin, separate in nature[,] neither one

of them had connections with each other, directly through flame impingement.

They all started with an open flame type device and accelerant was used on all

three areas.”

The investigation also included an examination of the seized Nissan Altima.

When the car’s floor mats were analyzed for the presence of an accelerant, a

certified accelerant detection K-9 alerted to the presence of accelerant on the

driver’s floor mat and the passenger rear floor mat.

Several days after the robbery, a search warrant was executed at Davis’s

home. Although trial testimony revealed that Davis was responsible for the yard

work at his home and that he kept a lawn mower and a gasoline can in the garage,

law enforcement located only the lawn mower. No gasoline can was found at

Davis’s home.





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The gun used in the Headley crimes was never recovered. However, the

rifling characteristics of the projectiles retrieved from the crime scene and from

Bustamante’s hand were determined to be consistent with the rifling characteristics

of handgun manufacturer Dan Wesson, the manufacturer of the .357 magnum

revolver that Davis bought several days before the robbery.

The Verdict and the Penalty Phase

On February 15, 2011, the jury convicted Davis of six counts: the

first-degree murders of Bustamante, Luciano, and baby Michael; the attempted

first-degree murder of Greisman; armed robbery; and first-degree arson. The

penalty phase began two days after the jury rendered its guilty verdicts, wherein

the State sought to prove seven aggravating circumstances. In addition to

testimony from Davis’s probation officer and the medical examiner, the State

presented victim impact testimony from Bustamante’s and Luciano’s families.

Angela Bryson, the State’s first witness, was Davis’s felony probation

officer. Bryson testified that Davis was placed on probation for grand theft on

July 6, 2007. Davis was still on probation at the time of the Headley crimes.

Dr. Stephen Nelson, the medical examiner, returned to the stand as the State’s

second witness. Dr. Nelson provided further testimony regarding the injuries

sustained by Bustamante and Luciano:

They would begin to feel pain immediately upon the fire starting to consume their skin. The burns that are present on these victims is





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approximately 80 to 90% of the body surface area. It is third and fourth degree burns. First-degree burn is a sunburn, a second-degree burn is a blistered sunburn, a third-degree would be a full thickness burn that goes through the full thickness of the skin, involves nerve endings. And fourth degree burns would largely be charred, burns where the skin is charred. So, the first-degree and second-degree burns, I think we have all had sunburns, we know how painful those are. If we have a sunburn, a second degree burn that has fluid filled vessel that pops, that’s painful. The third-degree burn, again, it involves the degree of thickness that is burned through skin. And the third-degree burns are painful in that they produce the burning sensation itself, up to a point at which point the nerve endings under their skin are damaged. And then there is no more pain or nerve signal that is sent from the fire. However in addition to the burn being produced by the gasoline, whatever it is that is on their skin that’s flaming, the subsequent treatment for a burn is also painful.



Dr. Nelson also testified that both women would have been capable of feeling pain

in some areas even if their nerve endings were destroyed in others. Both women,

who were so severely injured that an IV could not be inserted into their veins,

would have experienced pain when intraosseous catheters were inserted into their

leg bones to receive medication. The women would have stopped experiencing

pain once they received the medication or were medically induced into a coma, but

they could have been conscious of what was going on until that point.

After the State’s penalty phase presentation, Davis offered evidence in

mitigation and alleged the existence of two statutory mitigating circumstances and

fifteen non-statutory mitigating circumstances.

Multiple witnesses testified that Davis’s childhood was marked by abuse.

When Davis was eight years old, he was sexually assaulted by another child. The





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following year, a woman named Ms. Clark moved into the family home as a

roommate. Sometime later, Davis and his brother Garrion moved out of the family

home and began staying with Clark, who was an alcoholic and was physically and

verbally abusive. Clark routinely beat Davis, and on one occasion, she caused

severe injuries to the back of his body by beating him with an extension cord.

Clark taunted Davis with physical and verbal abuse because he was bullied by

other children, and she also hit him with water hoses and punched him in the chest.

Family members observed physical injuries such as welts, bleeding, and open

scabs and sores on Davis’s body.

Additionally, Davis suffered from ongoing depressive and mood episodes, in

part due to the bullying he suffered from elementary school through high school.

In middle school, Davis began talking about suicide, and his mother encouraged

him not to take his life. Davis received mental health counseling for two to three

months, but his problems continued. After graduating from high school, Davis

joined the United States Marine Corps. However, the following year, Davis was

involved in a vehicle accident and he revealed that he intentionally crashed the

vehicle that he was driving. Pursuant to a recommendation for an administrative

separation, Davis was discharged from military service.

Although Davis was only about one year old when his father moved out of

the family home, his father remained a part of Davis’s life. While growing up,





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Davis and his siblings were separated and placed in foster care, but Davis remained

close with his mother and siblings. Davis’s sister, India Owens, described him as

compassionate, loving, and selfless. After Davis’s discharge from the military, he

met a woman named Dawn Henry, with whom he had a son. The child was born

with Down Syndrome. Henry testified that while she had trouble adjusting to

being a mother of a child with special needs, Davis immediately accepted their son

and was consistently present in his life.

Around the time of the robbery, Davis was depressed and upset that he could

not afford to do anything for his son’s birthday. Davis’s mother testified that when

Davis purchased the revolver shortly before the robbery, she was concerned that

Davis might use it to commit suicide.

Jury Recommendations and Spencer Hearing

At the conclusion of the penalty phase, the jury unanimously recommended

that Davis be sentenced to death for the murders of Bustamante and Luciano. By a

vote of eight to four, the jury recommended that Davis be sentenced to death for

the murder of baby Michael. The Court subsequently held a Spencer5 hearing at

which both parties presented additional argument but did not present additional

evidence.



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





- 26 -

Sentencing

The trial court sentenced Davis to death for the murders of Bustamante and

Luciano. In its sentencing order, the trial court found the existence of six

aggravating circumstances as to the murders of both women: (1) the capital felony

was committed by a person previously convicted of a felony and on felony

probation (some weight); (2) the capital felony was a homicide and was committed

in a cold, calculated and premeditated manner without any pretense of moral or

legal justification (CCP) (great weight); (3) the defendant was contemporaneously

convicted of another capital felony or a felony involving the use or threat of

violence to the person (very great weight); (4) the capital felony was committed

while the defendant was engaged in the commission of, or attempt to commit, or in

flight after committing or attempting to commit any robbery or arson (moderate

weight); (5) the capital felony was committed for pecuniary gain (little weight);

and (6) the capital felony was especially heinous, atrocious, or cruel (HAC) (great

weight).6 The trial court found a seventh aggravating circumstance as to the

murder of Bustamante; the felony was committed for the purpose of avoiding or

preventing a lawful arrest (some weight). The court also evaluated this



6. The trial court noted that improper doubling did not occur with the trial court’s finding of both murder in the course of a robbery and pecuniary gain, because the jury convicted Davis of separate offenses of armed robbery and firstdegree arson.





- 27 -

aggravating circumstance with respect to the murder of Luciano but rejected it as

not proven.

The trial court also considered two statutory mitigating circumstances. Due

to Davis’s prior felony convictions, the trial court rejected as statutory mitigation

his argument that he had no significant prior criminal history. However, the trial

court did find that the crime was committed while Davis was under the influence

of extreme mental or emotional disturbance (little weight). As nonstatutory

mitigating circumstances, the trial court found the following: (1) the defendant was

the victim of bullying throughout his childhood (slight to moderate weight); (2) the

defendant was the victim of sexual assault as a child (slight to moderate weight);

(3) the defendant was the victim of both physical and emotional child abuse by a

caretaker (moderate weight); (4) the defendant was the victim of overall family

dynamics (very little weight); (5) the defendant served in the United States Marine

Corps (very little weight); (6) the defendant had a history of being suicidal, both as

a child and as an adult (slight weight); (7) the defendant was diagnosed with a

personality disorder (slight weight); (8) the defendant had a history of depression

(slight weight); (9) stress the defendant was dealing with at the time of the incident

(little weight); (10) the defendant was a good person in general (very slight

weight); (11) the defendant was a good worker (very slight weight); (12) the

defendant was a good son, good sibling, and good husband (very slight weight);





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(13) the defendant was a good father to a child with Down Syndrome (moderate

weight); (14) the defendant exhibited good behavior during the trial and other court

proceedings (very slight weight); and (15) the defendant exhibited good behavior

while in jail (little weight).

The trial court overrode the jury’s recommendation of death and imposed a

sentence of life imprisonment for the murder of Michael. Davis now challenges

his convictions and sentences and raises multiple issues for this Court’s

consideration.

ISSUES ON APPEAL

On appeal, Davis raises four issues, which we address in turn:

(1) whether the trial court erred when it admitted the statements of victim

Bustamante as a dying declaration; (2) whether the photopack identifications of

Davis, made by victim Greisman and eyewitness Ortiz, should have been excluded;

(3) whether photographs of the murder victims were unfairly prejudicial; and

(4) whether the trial court improperly found that Davis committed the murder of

Bustamante in order to avoid arrest. The State also raises two issues on cross

appeal. However, given our resolution of this direct appeal, we decline to reach

the State’s cross-appeal.





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I. Dying Declaration of Yvonne Bustamante

Davis argues that the trial court erred when it admitted, as a dying

declaration, statements made by Bustamante to Lt. Elrod. While at the scene,

Lt. Elrod questioned Bustamante about the events at Headley. When Lt. Elrod

asked Bustamante whether she knew the perpetrator’s identity, Bustamante

identified Davis. Before trial, Davis filed a motion to exclude Bustamante’s

statements, and the trial court held an extensive evidentiary hearing during which it

received testimony from multiple witnesses.

At the hearing, Lt. Elrod testified that when he first approached Bustamante,

he observed a badly burned woman lying on a gurney who appeared to be burned

over about eighty percent of her body. Lt. Elrod quickly surmised that Bustamante

would not survive her injuries. As a result, he began to ask Bustamante pointed

questions for the purpose of obtaining her statement. Lt. Elrod testified as follows:

Lt. Elrod: At that point, I knew she wasn’t going to survive the burns.



State: Did that affect the way that you then began to handle your responsibilities as the first Lake Wales officer to have contact with her?



Lt. Elrod: Yes, sir.



State: What—what did you do? Why did you do it?



Lt. Elrod: I wanted to get her statement before it wouldn’t ever be gotten.







- 30 -

State: Now, normally, if you were the first officer on the scene, someone is being treated by medical personnel, would you just go ahead and start asking them questions if you thought they were going to survive and be in the hospital?



Lt. Elrod: No, sir. I would have let the medical people try to take care of them.



State: But in this case, did you go ahead and begin to actually speak with the woman on the gurney and ask her very pointed questions?



Lt. Elrod: Yes, sir.



When Lt. Elrod asked Bustamante what happened, Bustamante explained

that she and Luciano were working when Davis entered their office, demanded

money from them, and tried to rob them. She said that when they did not give

Davis the money that he wanted, he threw gasoline on them and set them on fire.

Lt. Elrod asked her if she knew the perpetrator’s identity. Bustamante told him,

“yes, it was Leon Davis,” and that he was a client of their insurance business.

Bustamante appeared coherent and alert, and she spoke clearly in response to Lt.

Elrod’s questions.

Other witnesses at the evidentiary hearing also testified that they heard

Bustamante describe the events at Headley and identify Davis. Additionally,

medical personnel testified about Bustamante’s grave physical condition, and

eyewitness Fran Murray testified that Bustamante stated that she was going to die.

Following the hearing, the trial court determined that Bustamante’s statements





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were admissible as a dying declaration. Her statements were admitted at trial

through the testimony of Lt. Elrod and other witnesses.

Davis’s argument as to the admission of Bustamante’s dying declaration is

twofold. First, he encourages this Court to hold that, as a matter of law, the dying

declaration is no longer a valid hearsay exception in Florida. Davis argues that the

dying declaration is not an exception to the United States Supreme Court’s holding

in Crawford v. Washington, 541 U.S. 36 (2004) (holding that the admission of a

testimonial statement violates a defendant’s Sixth Amendment right to

confrontation where the declarant is unavailable and the defendant lacked a prior

opportunity to cross-examine the declarant). Second, Davis argues that even if the

dying declaration survived Crawford, Bustamante’s statements to Lt. Elrod did not

constitute a valid dying declaration because Bustamante did not have a fear of

impending death. As we explain below, we reject both arguments.7



7. Davis also contends that the trial court erroneously admitted Bustamante’s statements under the forfeiture by wrongdoing exception. This argument is without merit. The trial court observed that one of the cases it reviewed while evaluating Davis’s dying declaration arguments contained a discussion on forfeiture by wrongdoing, but the court in no way suggested that this doctrine was the basis for its decision. The trial court set forth its conclusions as to the admissibility of Bustamante’s statements, and it specified the bases under which it deemed her statements admissible. We therefore reject this argument without further discussion.





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The Dying Declaration and Crawford

Ratified in 1791, the Sixth Amendment to the United States Constitution

provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to

be confronted with the witnesses against him[.]” U.S. Const. amend. VI. This

protection extends to prosecutions in both federal and state courts. See Pointer v.

Texas, 380 U.S. 400, 406 (1965). “Indeed, [the United States Supreme Court]

ha[s] expressly declared that to deprive an accused of the right to cross-examine

the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of

due process of law.” Id. at 405. However, “the [Confrontation] Clause permits,

where necessary, the admission of certain hearsay statements against a defendant

despite the defendant’s inability to confront the declarant at trial.” Maryland v.

Craig, 497 U.S. 836, 847-48 (1990). One example where such a necessity may

arise is in the context of the admission of a declarant’s dying declaration.

The admissibility of the dying declaration was recognized at common law on

the grounds that such declarations are “made in extremity, when the party is at the

point of death, and when every hope of this world is gone; when every motive to

falsehood is silenced, and the mind is induced by the most powerful considerations

to speak the truth; a situation so solemn and so awful is considered by the law as

creating an obligation equal to that which is imposed by a positive oath

administered in a court of justice.” King v. Woodcock, 1 Leach 500, 502, 168





- 33 -

Eng. Rep. 352, 353 (K.B. 1789). More than a century ago, the United States

Supreme Court recognized that “from time immemorial [dying declarations] have

been treated as competent testimony, and no one would have the hardihood at this

day to question their admissibility. They are admitted, not in conformity with any

general rule regarding the admission of testimony, but as an exception to such

rules, simply from the necessities of the case, and to prevent a manifest failure of

justice.” Mattox v. U.S., 156 U.S. 237, 243-44 (1895). “[The dying declaration]

exception was well established before the adoption of the constitution, and was not

intended to be abrogated. The ground upon which such exception rests is that,

from the circumstances under which dying declarations are made, they are

equivalent to the evidence of a living witness upon oath[.]” Kirby v. U.S., 174

U.S. 47, 61 (1899).

Similarly, Florida has long recognized the dying declaration as a valid

exception to the rule against hearsay:

Dying declarations in cases of homicide form an exception to the rule against the admissibility of hearsay evidence. The law regards the declarant, when in the presence of imminent and inevitable death, as being under as solemn an inspiration to tell the truth as though he were pledged thereto by oath. To render such declaration admissible, however, the court must be satisfied that the deceased declarant, at the time of their utterance, knew that his death was imminent and inevitable, and that he entertained no hope whatever of recovery. This absence of all hope of recovery, and appreciation by the declarant of his speedy and inevitable death, are a preliminary foundation that must always be laid to make such declarations admissible.







- 34 -

Lester v. State, 20 So. 232, 233 (Fla. 1896).

However, Davis argues that in light of the United States Supreme Court’s

2004 decision in Crawford, the admission of a testimonial dying declaration

violates the Sixth Amendment right of confrontation. This Court has previously

recognized that in Crawford the U.S. Supreme Court “held that the introduction of

a hearsay statement will result in a violation of the defendant’s Sixth Amendment

right to confrontation if (1) the statement is testimonial; (2) the declarant is

unavailable; and (3) the defendant lacked a prior opportunity for cross-examination

of the declarant.” Hayward v. State, 24 So. 3d 17, 32 (Fla. 2009). In the present

case, the State introduced, as a dying declaration, out-of-court testimonial

statements of the declarant, Bustamante. Bustamante was unavailable to testify at

trial, and Davis lacked a prior opportunity to cross-examine her. Thus, Davis

argues that Bustamante’s statements were inadmissible under the holding in

Crawford.

Following the evidentiary hearing on Davis’s motion to exclude

Bustamante’s statements, the trial court issued a detailed order in which it found

that Bustamante’s statements were admissible as a dying declaration. Further, the

trial court expressly rejected Davis’s argument that Florida’s dying declaration

exception did not survive Crawford: “This Court specifically finds that the dying

declaration has survived Crawford. A dying declaration is an exception to the





- 35 -

Sixth Amendment’s Confrontation Clause.” The trial court concluded that “the

statements made by Ms. Bustamante to Frances Murray, Vicky Rivera, Evelyn

Anderson, Ashley Smith, Lt. Joe E. Elrod, Jr., other law enforcement personnel, or

medical personnel, that may be considered to be testimonial in nature, would still

be admissible under the hearsay exception for dying declarations, because the

dying declaration rule has remained valid post-Crawford.”

To date, the United States Supreme Court has not answered whether the

dying declaration exception remains viable in light of Crawford. Yet, in dicta, the

Supreme Court has provided some guidance on the matter. Notably, in Crawford,

although the facts of that case did not involve a dying declaration, the Court

observed that dying declarations have been the “one deviation” to the rule

excluding testimonial hearsay in criminal cases:

The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed. . . . Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. . . . We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.



Crawford, 541 U.S. at 56 n.6 (internal citations omitted). Subsequently, in Giles v.

California, 554 U.S. 353, 358 (2008), the Supreme Court stated: “We have

previously acknowledged that two forms of testimonial statements were admitted

at common law even though they were unconfronted. The first of these were





- 36 -

declarations made by a speaker who was both on the brink of death and aware that

he was dying.” Courts that have confronted the post-Crawford viability of the

dying declaration have generally interpreted these statements as strong suggestions

by the United States Supreme Court that the dying declaration exception does not

run afoul of the Sixth Amendment right of confrontation.8 Davis now calls upon



8. See, e.g., People v. Monterroso, 101 P.3d 956, 972 (Cal. 2004) (concluding that “the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment.”); Walton v. State, 603 S.E.2d 263, 265-66 (Ga. 2004) (recognizing that Crawford did not extend its holding to dying declarations); People v. Gilmore, 828 N.E.2d 293, 302 (Ill. App. Ct. 2005) (concluding “that the [United States Supreme] Court does not believe that admitting testimonial dying declarations violates the confrontation clause.”); Wallace v. State, 836 N.E.2d 985, 993-96 (Ind. Ct. App. 2005) (rejecting appellant’s argument that the dying declaration offends an accused’s right to confrontation); State v. Jones, 197 P.3d 815, 821-22 (Kan. 2008) (concluding that “the [United States] Supreme Court would confirm that a dying declaration may be admitted into evidence, even when it is testimonial in nature and is unconfronted.”); Commonwealth v. Nesbitt, 892 N.E.2d 299, 310-11 (Mass. 2008) (recognizing Crawford’s acknowledgment of the dying declaration as an exception under the Sixth Amendment right of confrontation); State v. Martin, 695 N.W.2d 578, 585-86 (Minn. 2005), abrogated on other grounds by State v. Moua Her, 750 N.W.2d 258, 265 n.5 (Minn. 2008) (holding “that the admission into evidence of a dying declaration does not violate a defendant’s Sixth Amendment right to confrontation within the meaning of Crawford because an exception for dying declarations existed at common law and was not repudiated by the Sixth Amendment.”); Harkins v. State, 143 P.3d 706, 710-11 (Nev. 2006) (holding that the dying declaration is an exception to the Confrontation Clause); State v. Calhoun, 657 S.E.2d 424, 426-28 (N.C. 2008) (holding that dying declarations do not violate the Sixth Amendment); State v. Lewis, 235 S.W.3d 136, 147-48 (Tenn. 2007) (holding “that this single hearsay exception survives the mandate of Crawford regardless of its testimonial nature”); State v. Beauchamp, 796 N.W.2d 780, 795 (Wis. 2011) (concluding that “a hearsay exception as long-standing, wellestablished and still necessary as [the dying declaration], . . . cannot lightly be dismissed.”).





- 37 -

this Court to determine whether Florida’s dying declaration exception remains

viable post-Crawford.

Majority View vs. Minority View

Davis acknowledges that although there is a split of authority on whether the

dying declaration survived Crawford, his position, that the exception is no longer

viable, reflects the minority view. Nonetheless, he asserts two main points in

support of his position. First, Davis argues that Florida’s dying declaration

exception is inconsistent with the dying declaration that existed at common law,

and thus, it does not satisfy Crawford’s historical grounds exception. Second,

Davis maintains that the dying declaration is not a valid hearsay exception because

dying declarations are inherently unreliable. Today, Davis’s arguments

notwithstanding, this Court joins the overwhelming majority view that the dying

declaration exception remains viable post-Crawford. The unique nature and

purpose of the dying declaration exception, observed in Crawford and Giles,

justifies its continuing utility and validity as an exception to the rule against

hearsay. We therefore reaffirm the continued use of the dying declaration in this

state in a manner that is consistent with the applicable law that defines the

exception.











- 38 -

Historical Grounds

Davis first argues that Florida’s dying declaration exception is no longer

valid because the modern exception has evolved from that which existed at

common law. Davis asserts that at common law, the justification for admitting a

declarant’s dying declaration was the declarant’s religious belief in the afterlife,

and he maintains that in contrast to a justification based on the declarant’s religious

belief, Florida’s existing dying declaration is secular and nondenominational. See

§ 90.804(2)(b), Fla. Stat. (requiring an unavailable declarant’s reasonable belief

“that his or her death was imminent, concerning the physical cause or

instrumentalities of what the declarant believed to be impending death or the

circumstances surrounding impending death.”). Consequently, Davis argues,

Crawford’s “historical grounds” for Florida’s dying declaration exception can no

longer be used to justify the admission of a dying declaration in Florida’s courts.

See Crawford, 541 U.S. at 56 n.6.

It is true that “[t]he [dying declaration] hearsay exception has sometimes

been justified on the grounds that a dying person was presumed under the common

law to have, due to commonly held religious beliefs concerning the afterlife, such a

fear of dying without the opportunity to expiate a lie that the reliability of any

statement made in those circumstances was deemed equivalent to that of sworn

testimony.” State v. Beauchamp, 796 N.W.2d 780, 794 (Wis. 2011). Thus, Davis





- 39 -

argues that Florida’s dying declaration exception does not fall under the “historical

grounds” suggested in Crawford, because it lacks the religious justification that

existed at common law. See Crawford, 541 U.S. at 56 n.6.

Davis cites to a footnote in State v. Hailes, 92 A.3d 544 (Md. Ct. App.

2014), aff’d, 113 A.3d 608 (Md. 2015), a Maryland intermediate appellate court

decision wherein the court suggests that if the United States Supreme Court were

to define “the precise contours of the Dying Declaration that enjoys the exemption

. . . it is overwhelmingly probable that the object of the exemption will be the

common law Dying Declaration as it was understood to be in 1791.” Id. at 567

n.11.9 Davis also cites to U.S. v. Jordan, No. 04-CR-229-B, 2005 WL 513501

(D. Colo. Mar. 3, 2005), an unpublished memorandum and order in which a federal

district court suggests that historical underpinnings do not continue to justify the

dying declaration. The court concludes that “there is no rationale in Crawford or

otherwise under which dying declarations should be treated differently than any

other testimonial statement. This is so especially since the historical underpinnings

of the exception fail to justify it.” Id. at *3.



9. This dicta is consistent with the minority view that Davis urges this Court to adopt. However, the court ultimately held in Hailes that the dying declaration in Maryland remains viable post-Crawford: “This juggernaut of persuasive authority is irresistible. Maryland hereby joins the ranks. We hold that the Dying Declaration, like Forfeiture by Wrongdoing, is exempted from the coverage of the Confrontation Clause.” Id. at 567 (footnote omitted).





- 40 -

However, the religious justification as the sole or primary justification of the

dying declaration has not been universally accepted. In 1860, Wigmore on

Evidence included the following analysis:

[A dying declaration] is not received upon any other ground than that of necessity, in order to prevent murder going unpunished. What is said in the books about the situation of the declarant, he being virtually under the most solemn sanction to speak the truth, is far from presenting the true ground of the admission. . . . [T]he rule is no doubt based upon the presumption that in the majority of cases there will be no other equally satisfactory proof of the same facts. This presumption and the consequent probability of the crime going unpunished is unquestionably the chief ground of this exception in the law of evidence.



Wigmore on Evidence, § 1431 (quoting 1 Greenleaf, Evidence § 156, editorial note

(1860) (emphasis supplied)). “It is scarcely necessary to say that, to the rule that

an accused is entitled to be confronted with witnesses against him, the admission

of dying declarations is an exception which arises from the necessity of the cause.”

Kirby, 174 U.S. at 61. A declarant’s religious belief notwithstanding, the dying

declaration exception recognizes the extraordinary nature of the dying person’s

ability to speak to the circumstances that placed her in that grave position, and

quite possibly to identify the perpetrator and ensure that the one who commits

murder is held accountable. As such, we reject Davis’s argument.

Reliability of the Dying Declaration

Davis also argues that dying declarations are inherently unreliable. He cites

to U.S. v. Mayhew, 380 F. Supp. 2d 961, 966 (S.D. Ohio 2005), where a federal





- 41 - argument that dying

declarations are an exception to the Confrontation Clause.” Id. at 965. The court

stated that it “doubts the inherent reliability of such statements,” and it noted the

incentives that even a dying person might have to offer false dying statements. Id.

at 965 n.5. The court observed:

For example, the declarant might have been in a revengeful state of mind which would color his dying statements. No longer subject to the fear of retaliation by his enemies, the declarant might falsely incriminate those persons whom he disliked. If the decedent had no religious belief or fear of punishment after death, the statements made while dying would seem to lose much of the trustworthiness traditionally attributed to them. In general, selfserving declarations would be particularly suspect, for the decedent could thereby exculpate himself from questionable association with the circumstances surrounding his death. The declarant’s physical and mental state of mind at the moment of death may weaken the reliability of his statements.



Id. (quoting Note, Affidavits, Depositions, and Prior Testimony, 46 Iowa L. R.

356, 375-76 (1961)).

While not impossible, we do think it improbable that a dying person would

use the fleeting moments of her earthly existence to, rather than place blame at the

feet of her actual murderer, intentionally falsely incriminate someone else. After

all, “[t]he admission of the [dying declaration] is justified upon the ground of

necessity, and in view of the consideration that the certain expectation of almost

immediate death will remove all temptation to falsehood and enforce as strict

adherence to the truth as the obligation of an oath could impose.” Mattox v. U.S.,





- 42 -

146 U.S. 140, 152 (1892). Consequently, we reject Davis’s challenge to the

reliability of the dying declaration.

Having concluded that both of Davis’s arguments are without merit, we

reject his invitation to abrogate Florida’s dying declaration exception. Our

analysis and the conclusion that we reach today are consistent with that of other

jurisdictions that have considered the post-Crawford viability of the dying

declaration. For instance, shortly after Crawford was decided, the California

Supreme Court decided People v. Monterroso, 101 P.3d 956 (2004), cert. denied,

546 U.S. 834 (2005). In Monterroso, the court rejected the defendant’s claim “that

Crawford has abrogated the exception for dying declarations.” Id. at 972.

Concluding that “the holding of Crawford does no such thing,” the court observed:

To exclude such evidence as violative of the right to confrontation would not only be contrary to all the precedents in England and here, acquiesced in long since the adoption of these constitutional provisions, but it would be abhorrent to that sense of justice and regard for individual security and public safety which its exclusion in some cases would inevitably set at naught.



Monterroso, 101 P.3d at 972 (quoting State v. Houser, 26 Mo. 431, 438 (Mo.

1858)). The court concluded: “it follows that the common law pedigree of the

exception for dying declarations poses no conflict with the Sixth Amendment.” Id.

(citations omitted).

The Supreme Court of Wisconsin upheld the post-Crawford viability of the

dying declaration in Beauchamp, 796 N.W.2d 780. The court reasoned: “If we





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were to accept that the Confrontation Clause, as set forth in Crawford’s seemingly

unbending declaration, requires that all testimonial statements be subject to

confrontation to test their reliability, we would exclude dying declarations as, by

definition, unconfrontable, and therefore, statements whose reliability cannot be

tested.” Id. at 791. We agree with the court in Beauchamp that “such a seemingly

rigid approach cannot prevail here.” Id.

Most recently, the highest appellate court in Maryland, the Special Court of

Appeals, affirmed the judgment in Hailes and held that the dying declaration

remains viable in Maryland. The state’s high court explained:

Here, we reach the same conclusion that the Supreme Court has consistently endorsed for more than a century, and hold that the Confrontation Clause does not apply to dying declarations. . . . Although it is accurate that, in Crawford and its progeny, the Supreme Court has not yet held that the Confrontation Clause does not apply to dying declarations, our holding is entirely consistent with Crawford and its progeny.



Hailes v. State, 113 A.3d 608, 611 (Md. 2015).

Although Crawford “deliberately avoided the question of how [the holding

in Crawford] would apply in a dying declaration case,” we are persuaded that the

United States Supreme Court has nonetheless “made clear that notwithstanding the

categorical language employed in Crawford, there remain situations in which a

defendant may not successfully invoke the Confrontation Clause to exclude

testimonial hearsay statements.” Beauchamp, 796 N.W.2d at 791. The





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introduction of a valid dying declaration is such a situation. Thus, we reject

Davis’s urging to abrogate the dying declaration exception, and we join the

majority of courts that have considered the post-Crawford viability of the dying

declaration and have concluded that the dying declaration did survive Crawford.

Whether Bustamante’s Statements Qualify as a Dying Declaration

In light of our holding that Crawford did not abrogate the dying declaration

exception in Florida, we now turn to whether Bustamante’s statements to Lt. Elrod

constituted a dying declaration. Davis argues that her statements did not satisfy the

requirements of a dying declaration, and thus, that the trial court erred in admitting

them. “In considering a trial court’s ruling on admissibility of evidence over an

objection based on the Confrontation Clause, [this Court’s] standard of review is

de novo.” McWatters v. State, 36 So. 3d 613, 637 (Fla. 2010) (quoting Milton v.

State, 993 So. 2d 1047, 1048 (Fla. 1st DCA 2008)).

In order for the dying declaration exception to apply, “the deceased must

have known and ‘appreciated his condition as being that of an approach to certain

and immediate death,’ although it is not necessary that the declarant ‘make express

utterances’ that he would never recover.” Hayward, 24 So. 3d at 30 (quoting

Henry v. State, 613 So. 2d 429, 431 (Fla. 1992)). In determining whether to admit

hearsay as a dying declaration, “ ‘the court should satisfy itself, on the totality of

the circumstances,’ that the deceased knew he was dying.” Id. at 30-31 (quoting





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Henry, 613 So. 2d at 431). The “absence of all hope of recovery, and appreciation

by the declarant of his speedy and inevitable death, are a preliminary foundation

that must always be laid to make such declarations admissible.” Id. at 31 (quoting

McRane v. State, 194 So. 632, 636 (Fla. 1940)). Based on the totality of the

circumstances, the trial court did not err in admitting Bustamante’s dying

declaration.

Before trial, the trial court held an extensive evidentiary hearing during

which the State presented the testimony of witnesses who were in contact with

Bustamante at the scene. One of these witnesses was Fran Murray, who testified

as follows:

She started talking about her kids. And she said she was in so much pain. She kept saying it over and over, and that her body hurt so bad, and that she knew that she wasn’t going to make it. She said, please keep me in your prayers. I’m not going to make it.



The trial court also heard from other witnesses who provided consistent testimony

relating to multiple relevant circumstances: (1) Bustamante received extensive

burns of the second, third, and fourth degree; (2) she was burned over at least

eighty percent of her body; (3) her flesh was falling off of her body; (4) she was in

severe pain; and (5) the severity of her burns was indicative of a high probability of

death.

Following the hearing, in a detailed order, the trial court ruled as follows

regarding the admissibility of Bustamante’s statements:





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The Court finds that any statements made by Ms. Bustamante to Lt. Joe E. Elrod, Jr., or other law enforcement personnel would be admissible under one of the following hearsay exceptions; a spontaneous statement, an excited utterance, or as a dying declaration. The Court specifically finds that the statements made by Ms. Bustamante qualify as dying declarations. The evidence shows that Ms. Bustamante reasonably believed her death from her injuries was imminent, particularly in light of her statements to Frances Murray that she was not going to make it, and she should pray for her.



While Bustamante’s statement that “she wasn’t going to make it” was

certainly an important factor for the trial court’s consideration, as we did in

Hayward, we emphasize that a verbal acknowledgment of impending death is not

required in order to find that a declarant’s statement constitutes a dying

declaration. In this case, the trial court’s conclusion was ably supported by

testimony of multiple witnesses, who all revealed the dire circumstances that

Bustamante faced after Davis set her body on fire.

Davis argues that the testimony of the medical examiner refutes the trial

court’s conclusion that Bustamante believed that her death was imminent.

The medical examiner, Dr. Nelson, testified that Bustamante’s pain would have

subsided in the areas where she received third- and fourth-degree burns because at

that stage of injury, her nerve endings were destroyed. Thus, Davis argues that

because Bustamante was burned so severely that she could not feel pain in those

areas, she could not have believed that her death was imminent.





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We unequivocally reject Davis’s argument. Although Bustamante was

eventually unable to feel pain in the areas where she sustained third- and fourth

degree burns, she remained capable of feeling pain in areas where her nerve

endings remained intact. Bustamante, whom medical personnel testified was

oriented and alert at the scene, was aware of her extensively burned body.

Assessing her own deeply grave condition, Bustamante told Fran Murray that she

did not think that was going to survive.

Davis’s assertion that Bustamante’s statements were not properly admitted

as a dying declaration is simply without merit in light of the totality of the

circumstances. The trial court received a substantial amount of witness testimony

about Bustamante’s condition that was consistent from witness to witness and also

consistent with Bustamante’s own observation of her dire circumstances.

Moreover, Bustamante clearly expressed her belief that she was not going to

survive. Thus, we conclude that the trial court properly admitted Bustamante’s

statements as a dying declaration.

II. Identifications by Greisman and Ortiz

At separate times within days of the robbery, eyewitnesses Greisman

(shooting victim) and Ortiz offered out-of-court identifications of Davis after

viewing his photograph in a photopack (also known as a photographic lineup).

Both men also identified Davis in court during their trial testimony. Davis argues





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that these identifications were unreliable and should have been excluded as

evidence. As we explain, we find that this argument is without merit. The

circumstances surrounding each witness’s identification are as follows.

Greisman testified that upon reaching the vicinity of the Headley building,

he observed Davis walking towards him. Greisman saw Davis’s face clearly and

made eye contact with him. Greisman thought that Davis was responding to the

fire and that he intended to offer assistance. Instead, Davis shot him in the face.

After being transported to the hospital, Greisman underwent surgery and remained

in the hospital overnight. He was not allowed to watch television, and he denied

seeing any newspaper or other media accounts during his hospital stay. When

Greisman was released from the hospital, his mother drove him to the Lake Wales

Police Department to speak to two detectives. While at the police station,

Greisman viewed a photopack containing six photographs, one of which was a

photograph of Davis. When asked if he recognized the person who shot him,

Greisman quickly recognized Davis’s photograph, and he placed his initials next to

it. Greisman identified Davis again from the witness stand at trial.

Similarly, Ortiz identified Davis as the shooter and testified that he saw

Davis’s face clearly. After Greisman was shot, Ortiz looked Davis in the eyes and

maintained his view of Davis because he was concerned that Davis would attack

him. Four days after the events at Headley, Ortiz viewed a photopack containing





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Davis’s photograph. Ortiz easily identified Davis as the perpetrator. In addition to

Ortiz’s observations of Davis at the time of the shooting, Ortiz testified that he

recognized Davis as someone whom he saw at the Florida Natural Growers juice

plant. Ortiz, who previously worked at Florida Natural Growers as a temporary

worker, testified that he saw Davis near a gate where workers enter and exit.

Validity of the Out-of-Court Identifications/Photopacks

First, Davis contends that the photopacks shown to Greisman and Ortiz were

unnecessarily suggestive and that as a result, their out-of-court identifications of

Davis were invalid. Greisman and Ortiz were each shown a photopack that was

printed on a piece of letter-sized paper and contained six photographs. The

photographs were divided into two rows, with three photographs on each row. The

lower left corner of each photograph contained an identifying number ranging from

one through six. Below the bottom row of photographs were six sets of book-in

numbers, each of which corresponded to one of the photographs. Each of the

numbers contained between seven and eleven digits and was printed in small font.

Davis’s book-in number contained the number 2007, and the other photographs

each contained the number 93 or 94, representing the year that the photograph was

taken. As a result, Davis argues that the more recent number, 2007, unnecessarily

suggested that his was the suspect’s photograph.





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“This Court has adopted a two-part test to determine whether an out-of-court

identification may be admitted: First, whether police used an unnecessarily

suggestive procedure to obtain an out-of-court identification, and, second, if so,

considering all the circumstances, whether the suggestive procedure gave rise to a

substantial likelihood of irreparable misidentification.” Green v. State, 641 So. 2d

391, 394 (Fla. 1994) (citing Grant v. State, 390 So. 2d 341, 343 (Fla. 1980)).

When evaluating the likelihood of misidentification, a court should consider:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.



Rimmer v. State, 825 So. 2d 304, 316 (Fla. 2002) (quoting Grant, 390 So. 2d at

343). However, where the procedure used to obtain the out-of-court identification

was not unnecessarily suggestive, the likelihood of irreparable misidentification

need not be explored. See id. As we explain, we conclude that the out-of-court

identifications made by Greisman and Ortiz were not unnecessarily suggestive.

Davis argues that the placement of the number 2007 in his book-in number

distinguished it from the other book-in numbers that contained the numbers 93 and

94. To that end, he cites three cases that also involved the use of a date in a

photographic lineup: Henderson v. U.S., 527 A.2d 1262 (D.C. App. 1987), State v.

Davis, 504 A.2d 1372 (Conn. 1986), and Brown v. Commonwealth, 564 S.W.2d





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24 (Ky. Ct. App. 1978). However, in each of these cases, the year or the date was

placed on the suspect’s photograph.

One of these cases, Brown, is especially demonstrative of an unnecessarily

suggestive photographic lineup. In Brown, a case involving the appeal of two

defendants’ robbery convictions, the appellate court detailed the following facts:

The seven photographs shown Lineberry and Scott were mug shots from the files of the Jefferson County Police Department. In each photograph a board was suspended from around the neck of the individual. Each board contained information for identification purposes. In the case of Brown and Hill [the appellants], each board contained the abbreviation “ROB” and the date “November 17, 1975.” In the other five photographs, the boards did not contain the robbery date of November 17, 1975, nor were any two dates the same. Only one of the other five photographs contained the abbreviation “ROB.”



Id. at 26. These facts, which include the unequivocal use of the date of the crime

and the abbreviation “ROB” within the suspects’ photographs, demonstrate an

unnecessarily suggestive photograph. Davis’s facts fall far short of these.

The photopacks shown to Greisman and Ortiz contained, beneath the entire

set of photographs, six sets of book-in numbers that corresponded to the

photographs above. The numbers were printed in small font and were innocuous.

Both Greisman and Ortiz quickly identified Davis’s photograph. Therefore, we

reject Davis’s argument that the book-in numbers rendered the photopacks

unnecessarily suggestive. Because the photopacks were not unnecessarily





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suggestive, the trial court did not err in admitting the out-of-court identifications

made by Greisman and Ortiz.

Validity of the In-Court Identifications

Second, Davis argues that the in-court identifications made by Greisman and

Ortiz are invalid. He primarily asserts that the in-court identifications were

rendered unreliable by the earlier use of unnecessarily suggestive photopacks.

However, because the photopacks were not unnecessarily suggestive and did not

invalidate Greisman’s and Ortiz’s out-of-court identifications, Davis’s argument

that the photopacks rendered their in-court identifications invalid is without merit.

Davis’s remaining challenges to Ortiz’s in-court identification similarly do

not warrant relief. First, Davis contends that Ortiz’s identification is unreliable

because of inconsistencies in Ortiz’s various statements regarding whether he saw

Davis in news coverage before viewing the photopack. However, Ortiz had an

independent opportunity to view Davis at the crime scene. Moreover, the defense

had ample opportunity to attack Ortiz’s identification at trial.

Second, Davis contends that Ortiz’s in-court identification was unreliable

because Ortiz insisted that the car he saw near the crime scene was a black Nissan

Maxima, not a Nissan Altima. This discrepancy does not render Ortiz’s

identification of Davis himself unreliable. Just as the trial court did not err when it





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admitted the out-of-court identifications made by Greisman and Ortiz, the court

likewise did not err when it admitted their in-court identifications.

III. Victim Photographs

Davis argues that the trial court erred in admitting nearly four dozen autopsy

and hospital photographs of Bustamante, Luciano, and Michael, and he maintains

that the photographs were irrelevant to any material fact in issue. Davis did not

object to the admission of these photographs at trial. As such, if this Court

concluded that the admission of the photographs was erroneous, Davis would only

be entitled to relief upon a showing of fundamental error. See Harrell v. State, 894

So. 2d 935, 941 (Fla. 2005) (“As we have noted, the sole exception to the

contemporaneous objection requirement is fundamental error.”). However, as we

explain below, we conclude that the trial court did not err in admitting the victims’

photographs. Therefore, Davis is not entitled to relief.

“The test for the admissibility of photographic evidence is relevance, not

necessity.” Mansfield v. State, 758 So. 2d 636, 648 (Fla. 2000). This Court has

explained the following regarding the admissibility of gruesome photographs:

This Court has long followed the rule that photographs are admissible if they are relevant and not so shocking in nature as to defeat the value of their relevance. Where photographs are relevant, “then the trial judge in the first [instance] and this Court on appeal must determine whether the gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jury and [distract] them from a fair and unimpassioned consideration of the evidence.” We have consistently upheld the admission of allegedly





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gruesome photographs where they were independently relevant or corroborative of other evidence.



Czubak v. State, 570 So. 2d 925, 928 (Fla. 1990) (citations omitted). For example,

photographs are admissible if “they assist the medical examiner in explaining to

the jury the nature and manner in which the wounds were inflicted.” Bush v. State,

461 So. 2d 936, 939 (Fla. 1984). Moreover, photographs are admissible “to show

the manner of death, location of wounds, and the identity of the victim.” Larkins

v. State, 655 So. 2d 95, 98 (Fla. 1995).

There was no error—fundamental or otherwise—in the admission of the

victims’ photographs. The photographs were relevant to explain the nature of the

victims’ injuries and manner of death. Five color photographs of Michael’s body

were introduced as well as two x-ray photographs. The photographs were relevant

to Dr. Nelson’s testimony regarding Michael’s death from extreme prematurity.

Eighteen autopsy photographs of Bustamante were admitted into evidence.

These photographs assisted the medical examiner in testifying about the degree of

Bustamante’s burns, the percentage of body surface area burned, the incisions that

were necessary to enable blood flow, the swelling caused by extensive fluid loss,

the absence of burns consistent with being bound, and the cause of death from

thermal burns.

Fourteen autopsy photographs and seven hospital photographs of Luciano

were admitted into evidence. The photographs assisted the medical examiner in





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testifying about the percentage of body surface area burned, the degree of burns,

the skin grafts that were done to try to treat her severe burns, the absence of burns

consistent with being bound, and the cause of death from thermal burns.

Davis is correct in that the photographs of the severely burned women and

the deceased infant in this case are gruesome. However, the photographs were

relevant to prove the nature and extent of each victim’s injuries, and their causes of

death, and were not “so inflammatory as to create an undue prejudice in the minds

of the jury and [distract] them from a fair and unimpassioned consideration of the

evidence.” Czubak, 570 So. 2d at 928. What is more, “[t]hose whose work

products are murdered human beings should expect to be confronted by

photographs of their accomplishments.” Arbelaez v. State, 898 So. 2d 25, 44 (Fla.

2005) (quoting Henderson v. State, 463 So. 2d 196, 200 (Fla. 1985)). Thus, there

was no error in admitting the photographs.

IV. Avoid Arrest

Davis also argues that the trial court improperly found that the murder of

Bustamante was committed to avoid arrest. We disagree. “The avoid arrest

aggravating circumstance, which is also referred to as witness elimination, applies

when the capital felony was committed for the purpose of avoiding or preventing a

lawful arrest or to effectuate an escape from custody.” Wright v. State, 19 So. 3d

277, 301 (Fla. 2009). While this aggravating circumstance is usually applied to the





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murder of law enforcement personnel, it has also been applied to the murder of a

witness to a crime. Id. (citing Consalvo v. State, 697 So. 2d 805, 819 (Fla. 1996)).

“Where the victim is not a law enforcement officer, the evidence must demonstrate

beyond a reasonable doubt that ‘the sole or dominant motive for the murder was

the elimination of the witness.’ ” Id. (quoting Preston v. State, 607 So. 2d 404, 409

(Fla. 1992)). The State sought to prove the avoid arrest aggravating circumstance

as to both Bustamante and Luciano. However, the court found “that the State

failed to prove beyond a reasonable doubt that the sole or dominant motive for the

murder of Juanita Luciano was to eliminate a witness.”

“In reviewing the trial court’s finding of an aggravating circumstance, this

Court’s ‘task on appeal is to review the record to determine whether the trial court

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

competent substantial evidence supports its finding.’ ” Russ v. State, 73 So. 3d

178 (Fla. 2011) (quoting McWatters, 36 So. 3d at 642).

While the evidence that Davis’s dominant motive for the murder of

Bustamante was to eliminate her as a witness is circumstantial, this Court has

upheld trial court findings of the avoid arrest aggravating circumstance based on

circumstantial evidence. See Hernandez v. State, 4 So. 3d 642, 667 (Fla. 2009).

“Even without direct evidence of the offender’s thought process, the arrest

avoidance factor can be supported by circumstantial evidence through inference





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from the facts shown.” Swafford v. State, 533 So. 2d 270, 276 n.6 (Fla. 1988).

Such circumstantial evidence includes “whether the victim knew and could

identify the killer.” Hernandez, 4 So. 3d at 667. Other factors include “whether

the defendant used gloves, wore a mask, or made any incriminating statements

about witness elimination; whether the victims offered resistance; and whether the

victims were confined or were in a position to pose a threat to the defendant.”

Farina v. State, 801 So. 2d 44, 54 (Fla. 2001).

The trial court’s finding that Davis murdered Bustamante in order to avoid

arrest is supported by competent, substantial evidence. One, the State presented

evidence that Davis knew Bustamante and had an established business relationship

with her at Headley. The court relied on testimony regarding Bustamante’s long

term employment at Headley and her specific involvement with Davis’s insurance

matters. Two, when Davis entered the Headley building, he placed duct tape over

the surveillance camera lens. Such conduct, like wearing a mask, is an act of

attempting to hide one’s identity. Three, the trial court concluded that after being

bound with duct tape, Bustamante did not pose a threat to Davis. Four, Davis shot

Bustamante in addition to setting her body on fire. The trial court’s finding that

Davis murdered Bustamante in order to eliminate her as a witness was based on

competent, substantial evidence. Thus, we affirm the trial court’s finding of this

aggravating circumstance.





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V. Sufficiency of the Evidence

Although Davis does not challenge the sufficiency of the evidence on which

the State relied to obtain the convictions, in every death case, this Court must

independently evaluate for the sufficiency of the evidence relied upon to convict

the defendant. See Caylor v. State, 78 So. 3d 482, 500 (Fla. 2011). “In conducting

this review, we view the evidence in the light most favorable to the State to

determine whether a rational trier of fact could have found the existence of the

elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So. 2d

655, 674 (Fla. 2006) (citing Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)). In

this case, there is sufficient evidence to sustain Davis’s convictions.

The facts indicate that Davis, while suffering financial distress, planned the

robbery of the Headley Insurance Agency. Less than one week before the robbery,

he obtained a .357 magnum revolver, and on the morning of the robbery, he

purchased multiple items from Walmart that he used during the commission of his

crimes. These items included a cigarette lighter and a cooler to conceal the

revolver. Two witnesses testified that they spoke with Davis in Walmart that

morning. One of the witnesses, Jennifer DeBarros, had known Davis and his

family for years, and she easily recalled the conversation because she knew that

they talked on Davis’s son’s birthday.





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While being treated at the crime scene, Bustamante identified Davis as the

person who, around 3 p.m., entered Headley and demanded money from her and

from Luciano. Bustamante also stated that when they refused to give him money,

Davis bound them with duct tape, doused them in gasoline, and set them on fire.

Multiple eyewitnesses observed a man fitting Davis’s description leaving

Headley while the building was still on fire. These eyewitnesses saw Davis

placing a gun into a cooler, the description of which was consistent with the one

that Davis purchased at Walmart that morning. Additionally, two eyewitnesses,

Greisman and Ortiz, quickly identified Davis after being shown a photopack that

contained Davis’s photograph.

The description of a car seen near Headley at the time of the robbery was

consistent with that of the black Nissan Altima driven by Davis. That car, which

was later found in the parking lot of a nightclub, was searched. Two floormats

retrieved from the car tested positive for the presence of gasoline. Gasoline was

the accelerant used to ignite the fires at Headley. Davis’s driver license was found

inside of the car.

The projectile retrieved from Bustamante’s hand was consistent with having

been fired from the .357 magnum revolver that Davis purchased just days before

the robbery. Additionally, the projectiles retrieved from the crime scene were also

consistent with having been fired from that weapon.





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Davis’s conduct after the robbery also adds to the competent, substantial

evidence of his guilt. He entered a credit union branch less than forty-five minutes

after the Headley alarm was activated and deposited $148 in his account that

previously had a balance of $5.33. The bank teller, who was familiar with Davis,

observed an injury to his face as did others who observed him after the robbery.

Witnesses, including members of Davis’s family district court expressly “reject[ed] the government’s

, testified regarding his suspicious

behavior following the robbery. Competent, substantial evidence of guilt supports

Davis’s convictions.

VI. Proportionality of Davis’s Death Sentences

This Court is required to conduct “a comprehensive analysis in order to

determine whether the crime falls within the category of both the most aggravated

and the least mitigated of murders, thereby assuring uniformity in the application

of the sentence.” Offord v. State, 959 So. 2d 187, 191 (Fla. 2007) (quoting

Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003)). “This entails ‘a qualitative

review . . . of the underlying basis for each aggravator and mitigator rather than a

quantitative analysis.’ ” Id. (quoting Urbin v. State, 714 So. 2d 411, 417 (Fla.

1998)). Thus, in determining whether a death sentence is proportionate, this Court

does not simply compare the number of aggravating circumstances versus the

number of mitigating circumstances. See id.





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The trial court found seven aggravating circumstances as to the murder of

Bustamante: (1) committed by a person previously convicted of a felony and on

felony probation (some weight); (2) CCP (great weight); (3) Davis was

contemporaneously convicted of another capital felony or a felony involving the

use or threat of violence to the person (very great weight); (4) committed while

Davis was engaged in the commission of, or attempt to commit, or in flight after

committing or attempting to commit any robbery or arson (moderate weight);

(5) committed for the purpose of avoiding or preventing a lawful arrest (some

weight); (6) capital felony was committed for pecuniary gain (little weight); and

(7) HAC (great weight). The trial court noted that improper doubling did not occur

with the trial court’s finding of both murder in the course of a robbery and

pecuniary gain, because the jury convicted Davis of separate offenses of first

degree arson and armed robbery. As to the murder of Luciano, the trial court

found all of the same aggravating circumstances except for the avoid arrest

aggravator. The trial court also found as a statutory mitigating circumstance that

Davis was under the influence of extreme mental or emotional disturbance (little

weight); and fifteen nonstatutory mitigating circumstances, which ranged from

very slight weight to moderate weight.

This case is truly among the most aggravated and least mitigated. Two of

the aggravating circumstances found in this case, HAC and CCP, have repeatedly





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been identified by this Court as “two of the most serious aggravators set out in the

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

a result, when these two aggravators are present, the mitigating circumstances must

be of considerable weight to overcome them.” Brown v. State, 143 So. 3d 392,

405-06 (Fla.) (citing Abdool v. State, 53 So. 3d 208, 224 (Fla. 2010)), cert. denied,

135 S. Ct. 726 (2014).

This Court has affirmed sentences of death in similar cases. In this Court’s

decision in Brown, the defendant poured gasoline on the victim and used a lighter

to set her on fire. Brown, 143 So. 3d at 396. After sixteen days in a burn unit, the

victim died from her injuries. Id. at 397. As aggravating circumstances, the trial

court found CCP, HAC, and that the murder was committed while Brown was

engaged in the commission of a kidnapping. Id. at 401. Similar to the present

case, the trial court found the existence of one statutory mitigating circumstance

(no significant history of prior criminal activity). Id. The trial court also found

twenty-seven nonstatutory mitigating circumstances. Id.

Brown is both factually comparable and comparable in terms of the weighty

aggravating circumstances found by the trial court. Brown is also similar in terms

of the nature of the mitigating circumstances found by the trial court. Yet, as in

Brown, we conclude here that “[t]he mitigation . . . pales in comparison to the

weighty aggravation.” Id. at 406.





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In another comparable case, during the course of a robbery, the defendant set

two women on fire in a fabric store. Henry, 613 So. 2d at 430. The trial court

found as aggravating circumstances that the murders were “committed during the

commission of robbery and arson, to avoid or prevent arrest, for pecuniary gain,

and in a cold, calculated, and cruel manner and that they were heinous, atrocious,

or cruel.” Id. at 432. The trial court found the existence of one statutory

mitigating circumstance (no prior criminal history) and one nonstatutory mitigating

circumstance (prior military service). This Court upheld Henry’s death sentences

and determined that the aggravating circumstances were “established beyond a

reasonable doubt.” Id. at 433. In the present case, the trial court’s finding of

greater nonstatutory mitigation than in Henry does not render Davis’s death

sentences disproportionate. For just as the trial court found greater nonstatutory

mitigation, it also found significantly greater aggravation.

We agree that the aggravating circumstances found by the trial court in this

case were established beyond a reasonable doubt and that they exceedingly

outweigh Davis’s mitigating circumstances. Thus, Davis’s death sentences satisfy

this Court’s proportionality requirement.

VII. Hurst v. Florida

While Davis’s appeal was pending, the United States Supreme Court issued

Hurst v. Florida, in which it held that Florida’s capital sentencing scheme violated





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the Sixth Amendment. See 136 S. Ct. at 621. The Supreme Court concluded that

“[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to

impose a sentence of death. A jury’s mere recommendation is not enough.” Id. at

619. Davis’s request to file supplemental briefing to address the impact of Hurst v.

Florida on his sentences was granted. On remand from the Supreme Court, we

held that “in addition to unanimously finding the existence of any aggravating

factor, the jury must also unanimously find that the aggravating factors are

sufficient for the imposition of death and unanimously find that the aggravating

factors outweigh the mitigation before a sentence of death may be considered by

the judge.” Hurst v. State, 41 Fla. L. Weekly S433, S437 (Fla. Oct. 14, 2016)

(Hurst). We further held that a unanimous jury recommendation is required before

a trial court may impose a sentence of death. See id. Finally, we determined that

Hurst v. Florida error is capable of harmless error review. See id. at S442.

Accordingly, at issue is whether any Hurst v. Florida error during Davis’s

penalty phase proceedings was harmless beyond a reasonable doubt. In Hurst, we

explained the standard by which harmless error should be evaluated:

Where the error concerns sentencing, the error is harmless only if there is no reasonable possibility that the error contributed to the sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000). Although the harmless error test applies to both constitutional errors and errors not based on constitutional grounds, “the harmless error test is to be rigorously applied,” [State v. ]DiGuilio, 491 So. 2d [1129,] 1137 [Fla. 1986], and the State bears an extremely heavy burden in cases involving constitutional error. Therefore, in the





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context of a Hurst v. Florida error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury’s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to Hurst’s death sentence in this case. We reiterate:



The test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact.



DiGuilio, 491 So. 2d at 1139. “The question is whether there is a reasonable possibility that the error affected the [sentence].” Id.



Id. (alteration in original). As applied to the right to a jury trial with regard to the

facts necessary to impose the death penalty, it must be clear beyond a reasonable

doubt that a rational jury would have unanimously found that there were sufficient

aggravating factors that outweighed the mitigating circumstances.

With regard to Davis’s sentences, we emphasize the unanimous jury

recommendations of death. These recommendations allow us to conclude beyond

a reasonable doubt that a rational jury would have unanimously found that there

were sufficient aggravators to outweigh the mitigating factors. The instructions

that were given informed the jury that it needed to determine whether sufficient

aggravators existed and whether the aggravation outweighed the mitigation before

it could recommend a sentence of death. See Fla. Std. Jury Instr. (Crim.) 7.11 (“If

. . . you determine that no aggravating circumstances are found to exist, or that the





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mitigating circumstances outweigh the aggravating circumstances, or, in the

absence of mitigating factors, that the aggravating factors alone are not sufficient,

you must recommend imposition of a sentence of life in prison without the

possibility of parole rather than a sentence of death.”). The jury was presented

with evidence of mitigating circumstances and was properly informed that it may

consider mitigating circumstances that are proven by the greater weight of the

evidence. See id. (“If you determine by the greater weight of the evidence that a

mitigating circumstance exists, you may consider it established and give that

evidence such weight as you determine it should receive in reaching your

conclusion as to the sentence to be imposed.”).

Even though the jury was not informed that the finding that sufficient

aggravating circumstances outweighed the mitigating circumstances must be

unanimous, and even though it was instructed that it was not required to

recommend death even if the aggravators outweighed the mitigators, the jury did,

in fact, unanimously recommend death. See id. (“If, after weighing the

aggravating and mitigating circumstances, you determine that at least one

aggravating circumstance is found to exist and that the mitigating circumstances do

not outweigh the aggravating circumstances, or, in the absence of mitigating

factors, that the aggravating factors alone are sufficient, you may recommend that

a sentence of death be imposed rather than a sentence of life in prison without the





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possibility of parole. Regardless of your findings in this respect, however, you are

neither compelled nor required to recommend a sentence of death.”). From these

instructions, we can conclude that the jury unanimously made the requisite factual

findings to impose death before it issued the unanimous recommendations. Further

supporting our conclusion that any Hurst v. Florida error here was harmless are the

egregious facts of this case—Davis set two women on fire, one of whom was

pregnant, during an armed robbery, and shot in the face a Good Samaritan who

was responding to the scene. The evidence in support of the six aggravating

circumstances found as to both victims was significant and essentially

uncontroverted.10

We conclude that the State can sustain its burden of demonstrating that any

Hurst v. Florida error was harmless beyond a reasonable doubt. Here, the jury

unanimously found all of the necessary facts for the imposition of death sentences

by virtue of its unanimous recommendations. In fact, although the jury was

informed that it was not required to recommend death unanimously, and despite

the mitigation presented, the jury still unanimously recommended that Davis be

sentenced to death for the murders of Bustamante and Luciano. The unanimous



10. Additionally, as previously discussed, the avoid arrest aggravating circumstance as to victim Bustamante is supported by competent, substantial evidence.

recommendations here are precisely what we determined in Hurst to be

constitutionally necessary to impose a sentence of death. Accordingly, Davis is

not entitled to a new penalty phase.

Case No. SC13-1

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On the evening of December 7, 2007, Davis drove to the vicinity of a BP gas

station and convenience store (BP) with the intent to commit robbery. The BP was

located near the intersection of Highway 557 and Interstate 4 in Polk County.

Around 8:51 p.m. that evening, BP employee Dashrath Patel (Dashrath) and his

friend Pravinkumar Patel (Pravinkumar) walked out of the convenience store’s

front door and across the parking lot to change the gas price sign.

The BP had closed for the evening, and the convenience store lights were

turned off. While talking on the telephone, another BP employee, Prakashkumar

Patel (Prakashkumar), remotely locked the store’s front door and began to change

the gas prices on the cash register. Seconds later, the surveillance camera captured

a person who appeared to be a black man, about six feet tall, who approached the

front door of the store and pulled on the door. The man, who had a large build,

was dressed in dark clothing and wore a hood and a face mask.

Prakashkumar indicated to the man that the store was closed. The man then

raised a gun to the window and fired one shot into the store towards Prakashkumar.

Suddenly, the shooter’s attention was drawn to Dashrath and Pravinkumar, and he

ran across the parking lot toward them. Surveillance footage showed both men

with their hands in the air, and Prakashkumar reported hearing two gunshots that

occurred about five to ten seconds apart. According to the surveillance footage,





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the gunshots were fired at approximately 8:53 p.m. After firing the gunshots, the

shooter ran back to the store’s locked front door and tried in vain to open it. He

raised his gun again, but he then turned and ran away from the scene.

In the meantime, Prakashkumar had activated the silent alarm, called 9-1-1,

and sheltered in the storeroom. Upon arrival at the scene, the responding deputies

learned that there were two missing people. Following a brief search, the bodies of

Dashrath and Pravinkumar were located. Both victims were shot in the head

execution-style with .38 caliber bullets.

With the assistance of a trained K-9 search dog, law enforcement searched

the immediate area for the scent of a person who may have recently left the scene.

The K-9 detected a scent that tracked about one quarter of a mile to the north of the

gas station. Footprints led in the same direction that the K-9 tracked, up to the

point where a set of tire tracks began. A crime scene technician photographed and

made casts of the tire tracks.

In the days following the murders, law enforcement conducted traffic stops

in the area of the BP to question drivers who may have seen something pertinent

on the evening of the murders. During the course of these stops, four people

provided information regarding a car that was parked that evening in an isolated

area near the gas station. The witnesses described a dark-colored car, possibly a





- 5 -

black Nissan, backed up against a gate. One of the witnesses described the car as

having a distinctive grille on the front end.

Davis was not identified as a suspect in the December 7 BP murders until

after the December 13 robbery, arson, and shootings at the Headley Insurance

Agency in Lake Wales (Headley). Davis was positively identified as the

perpetrator of those crimes. The lead detective in both the BP and the Headley

investigations was Detective Ivan Navarro. Detective Navarro requested an

analysis of the ballistics evidence obtained during the course of the BP and

Headley investigations. The results of the analysis demonstrated that the same gun

was used in the crimes at the BP and at Headley.

During the Headley investigation, a black Nissan Altima with a distinctive

grille was seized from the parking lot of a local nightclub, and during a search of

the car, Davis’s driver license was found inside. Additionally, two dark-colored

jackets were found in the car’s trunk, and a pair of black gloves was found in the

glove compartment. In light of the witness reports that a possibly black Nissan

was parked near the BP on the evening of December 7, Detective Navarro

requested an analysis of the BP tire casts and the tires from the Nissan Altima

linked to Davis to look for similarities. The tires from Davis’s Nissan Altima were

consistent with the BP tire casts.





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A grand jury later indicted Davis for multiple counts stemming from the BP

events: two counts of first-degree murder, one count of attempted first-degree

murder, one count of attempted armed robbery, and one count of possession of a

firearm by a convicted felon.

Guilt Phase

Davis waived a jury trial in favor of a bench trial. The State’s theory was

that Davis was a man burdened by significant financial distress and that he

committed the murders of Dashrath and Pravinkumar during the course of an

attempted armed robbery of the BP.

Evidence admitted at the trial revealed the following. At the time of the

murders, Davis and his wife, Victoria, were in debt and unemployed. Victoria was

pregnant at the time and was on a leave of absence from work due to pregnancy

complications. The mortgage payment for the couple’s home was delinquent, and

the couple had given up driving one of their vehicles and cancelled their cell phone

accounts because of their financial troubles. The couple shared Victoria’s black

Nissan Altima.

On the day of the BP murders, Davis purchased a Dan Wesson .357 magnum

revolver from his cousin, Randy Black. Black also gave Davis .38 caliber bullets

which were compatible with the .357 magnum. Davis returned home after

purchasing the revolver, but he left home again that evening between 6 and 7 p.m.





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Davis was alone when he left, and he was driving the black Nissan Altima. Davis

did not return home until between 9 and 9:30 p.m. Davis’s home was a twenty-two

to twenty-three minute drive from the BP.

Two days after the murders, Davis showed his mother the revolver that he

purchased from Black. The known rifling characteristics of Davis’s revolver, six

lands and six grooves with right twists, were consistent with the characteristics of

the projectiles obtained during the BP investigation, including the projectiles

removed from the heads of the victims. The State’s ballistics expert testified that

.38 caliber projectiles could be fired from a .357 magnum firearm, and that the

projectiles obtained during the BP investigation were consistent with having been

fired from a Dan Wesson .357 magnum revolver.

The State introduced evidence from the Headley trial during the guilt phase

of the BP trial. To prevent the introduction of improper evidence, the trial court

entered a pretrial order that sharply limited the admissibility of Headley evidence.

The limited Headley evidence revealed that on the morning of December 13, 2007,

Davis went to the Lake Wales Walmart to make a purchase. Surveillance video

footage obtained from the store depicted a tall black man entering the store around

7 a.m., and both a store manager and an employee positively identified the man in

the video as Davis. While at Walmart, Davis purchased an orange lunch cooler.





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That afternoon, Davis went to Headley, where he encountered Headley

employee Yvonne Bustamante and shot her in her left hand. Shortly thereafter,

Davis encountered Brandon Greisman near the Headley building. Greisman and

his neighbors, who lived nearby, had walked towards the Headley building upon

noticing the presence of smoke in the area. Greisman, who saw Davis and thought

that he was there to offer help, saw Davis pull a gun out of an orange lunch bag

and point it in his direction. Greisman tried to get away but was unable to do so

before Davis shot him in the nose. Greisman was transported to Lake Wales

Hospital, where he underwent surgery and remained in the hospital overnight.

When Greisman was released, his mother drove him to the Lake Wales

Police Department to speak to detectives. Greisman was shown a photographic

lineup and asked if he recognized the man who shot him the day before. Greisman

recognized Davis’s photograph almost immediately and identified him as the

shooter. At trial, Greisman also identified Davis from the witness stand.

Eyewitness Carlos Ortiz, who saw Davis place the gun into a lunch bag

shortly after Greisman was shot, also identified Davis as the Headley shooter. At

trial, Ortiz testified that in addition to getting an extended look at Davis at the

scene, he recognized Davis because he previously saw Davis at Florida Natural

Growers, where both men used to work. A few days after the Headley incident,





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Ortiz identified Davis’s photograph from a photographic lineup. Ortiz also

identified Davis from the witness stand.

Another Headley eyewitness, Fran Murray, testified that as she approached

the Headley building, she saw a tall black man carrying an orange collapsible

lunch pail, and she saw him place what appeared to be a gun inside of it.

Evelyn Anderson, a Headley customer, saw a tall black man exit the

Headley building with a bag under his arm.

Ortiz and Murray also testified that they saw a black car in the area of the

Headley building around the time of the shooting. The car was parked near a

vacant house. Murray described the car as mid-sized, and Ortiz identified it as a

Nissan.

Davis was also identified by the dying declaration of Yvonne Bustamante.

Upon arriving at the Headley scene, Lt. Joe Elrod asked Bustamante if she knew

the perpetrator’s identity, and she responded, “Leon Davis.” Bustamante told

Lt. Elrod that Davis was a former Headley customer. In addition to Lt. Elrod, two

emergency medical responders and eyewitness Anderson heard Bustamante

identify Davis as the perpetrator.

The State’s ballistics expert testified that the same gun was used in the BP

murders and in the shootings at Headley.







- 10 -

Davis’s Defense

Davis’s defense was misidentification. He offered an alibi for the time of

the murders and attacked the eyewitness identifications made during the course of

the Headley investigation.

Testifying in his own defense, Davis stated that on December 7, 2007, he

brought his son to his home. Around 7:15 p.m., he left home alone to go

Christmas shopping at the mall. Davis admitted that he was driving the black

Nissan Altima at the time. While shopping, Davis did not see anyone that he

recognized. Davis testified that although he spent around $150 in cash on clothing

purchases, he did not have documentation for the purchases. He also testified that

the money that he used to go shopping came from money that he had at home and a

paycheck he had received the day before.

Davis testified that he left the mall around 8:30 p.m. and returned home

around 9 p.m. He stated that he spent the rest of the evening at home with his

family, leaving only briefly with his family between 9 and 10 p.m. to get dinner.

Davis also testified that less than one week later, he left the Nissan Altima

parked at a nightclub, and that the gloves and jacket that the police later found in

the car belonged to his wife, Victoria. Davis testified that he kept an unloaded gun

in a toolbox in the garage that may have been unlocked, and that neither Victoria

nor his son knew about the gun.





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Davis was convicted as charged.

Penalty Phase

Davis’s bench trial proceeded to the penalty phase, where he waived his

right to a penalty phase jury. The State sought to prove four aggravating

circumstances: (1) the capital felony was committed by a person previously

convicted of a felony and on felony probation; (2) the defendant was previously

convicted of another capital felony or a felony involving the use or threat of

violence to the person; (3) the capital felony was committed while the defendant

was engaged in a commission of, or an attempt to commit, or flight after

committing a robbery; and (4) the capital felony was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an escape from custody.1

The parties stipulated to Davis’s July 2007 convictions for grand theft.

Additionally, the State presented three witnesses who testified about the facts of

the Headley murders, which were the basis for the prior capital/violent felony

aggravating circumstance.2 Lt. Elrod, who previously testified that Headley



1. The trial court later rejected the avoid arrest aggravating circumstance as not proven.

2. The trial court’s order limited the scope of the Headley evidence that was admissible during the guilt phase. However, during the penalty phase, the trial court learned that prior to the shootings of Yvonne Bustamante and Brandon Greisman, Davis had robbed the insurance agency and set the building and two employees, Bustamante and Juanita Luciano, on fire. At the time, Luciano was





- 12 -

shooting victim Bustamante identified Davis as the perpetrator and explained that

Davis tried to rob her, testified during the penalty phase that Bustamante explained

how Davis threw gasoline on her and set her on fire when she told him that she did

not have any money.

The medical examiner in the Headley case, Dr. Stephen Nelson, testified

regarding the injuries and causes of death of the three deceased victims,

Bustamante, Juanita Luciano, and Luciano’s newborn son, Michael. Bustamante

and Luciano both died from thermal burns. Bustamante’s burns covered eighty to

ninety percent of her body, and Luciano’s burns covered ninety percent of her

body. Luciano’s son, Michael, was delivered prematurely on the day of the events

at Headley and died from extreme prematurity three days later. Additionally,

crime scene technician Stacy Greatens testified regarding photographs of the

Headley crime scene, including photographs of a cigarette lighter, duct tape, a

burnt gas can, burnt shoes, and a burnt chair.

Davis’s Mitigation

As mitigation, Davis presented evidence of a sexual assault when he was

eight years old, severe physical abuse by a caretaker in the years following the

sexual assault, ongoing depressive and mood episodes, and a suicide attempt while



twenty-four weeks pregnant. Davis shot Bustamante and Greisman during the course of his escape from the building.





- 13 -

he was in the military. Davis submitted for the court’s consideration the testimony

of the three mitigation witnesses from the Headley trial: Dawn Henry, the mother

of Davis’s son; Linda Davis, Davis’s mother; and India Owens, Davis’s sister.

Davis also introduced his medical records from his military service.

Davis’s mother described her relationship with Davis as very close.

Although Davis’s father moved out of the family home when Davis was about one

year old, his father maintained a relationship with Davis.

From elementary through high school, Davis suffered an ongoing pattern of

bullying. When Davis was eight years old, another boy beat and sexually assaulted

him. Although Davis’s family members were aware of the assault, they did not

talk about it.

Additionally, when Davis was around eight or nine years old, a woman

named Ms. Clark came to live in the family home as a roommate. Eventually,

Davis and his brother moved out of the family home and into another home with

Clark. Clark was an alcoholic and was physically and verbally abusive. She

taunted and verbally abused Davis because he was bullied, and she also beat him

with extension cords and water hoses and punched him in the chest in order to try

and make him “be a man.” On one occasion, Clark severely beat Davis with an

extension cord. Davis ran home to his mother, who observed severe injuries to his





- 14 -

back. Family members observed physical injuries such as welts, bleeding, and

scabs and sores on Davis’s body.

In middle school, Davis contemplated suicide, and his mother encouraged

him not to take his life. Davis received mental health counseling for two to three

months. Davis later joined the military and while enlisted, he attempted suicide by

hitting a concrete pole while driving at a high rate of speed. Thereafter, he was

discharged from the military.

After Davis was discharged from the military, he met Dawn Henry. Henry

and Davis eventually had a son who was born with Down Syndrome. Henry

testified that while she had trouble adjusting to being a mother of a child with

special needs, Davis immediately accepted his son and was consistently and

frequently present in his life. Around the time of the Headley robbery, Davis was

depressed and upset that he could not afford to do anything for his son’s

approaching birthday. When Davis purchased the gun shortly before the robbery,

his mother was concerned that he might use the gun to commit suicide.

Spencer Hearing and Sentencing

Prior to sentencing Davis for the BP crimes, the trial court held a Spencer3

hearing. Although no additional evidence was introduced, the defense made



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





- 15 -

additional argument, and Davis made a statement to the Court that he was not near

the BP gas station on December 7. The trial court ultimately sentenced Davis to

death for the murders of Dashrath and Pravinkumar. Each sentence of death was

based on the following aggravating circumstances: (1) the capital felony was

committed by a person previously convicted of a felony and on felony probation

(moderate weight); (2) the defendant was previously convicted of another capital

felony or a felony involving the use or threat of violence to the person (very great

weight); and (3) the capital felony was committed while the defendant was

engaged in the commission of, or an attempt to commit, or flight after committing

a robbery (great weight). The trial court rejected as not proven that either capital

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

effecting an escape from custody.

The trial court also considered statutory and nonstatutory mitigating

circumstances. The trial court found the existence of one statutory mitigating

circumstance: the crime was committed while Davis was under the influence of

extreme mental or emotional disturbance (little weight). Due to Davis’s

convictions for grand theft several months before the BP murders, the trial court

rejected as statutory mitigation that Davis had no significant prior criminal history.

The trial court also considered fifteen nonstatutory mitigating circumstances:

(1) victim of bullying throughout childhood (moderate weight); (2) victim of





- 16 -

sexual assault as a child (moderate weight); (3) victim of child abuse, both physical

and emotional, by a caretaker (moderate weight); (4) overall family dynamics

(little weight); (5) military service in the U.S. Marine Corps (little weight);

(6) history of being suicidal both as a child and as an adult (slight weight);

(7) diagnosed personality disorder (slight weight); (8) history of depression (slight

weight); (9) stressors at the time of the incident (little weight); (10) good person in

general (very slight weight); (11) good worker (little weight); (12) good son, good

sibling, good husband (moderate weight); (13) good father to a child with Down

Syndrome (moderate weight); (14) good behavior during trial as well as other court

proceedings (slight weight); and (15) good behavior while in jail and in prison

(little weight).

In addition to the sentences of death, the court also sentenced Davis to life

imprisonment with a twenty-year minimum mandatory sentence for the attempted

murder of Prakashkumar, twenty years’ imprisonment with a twenty-year

minimum mandatory sentence for attempted armed robbery, and fifteen years’

imprisonment with a three-year minimum mandatory sentence for possession of a

firearm by a convicted felon. Davis now appeals his convictions and sentences,

which are subject to mandatory review by this Court.





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ISSUES ON APPEAL

On direct appeal, Davis raises twelve issues: (1) whether the trial court erred

in admitting evidence of the Headley events during the guilt phase; (2) whether the

trial court relied on facts not in evidence to find Davis guilty; (3) whether the trial

court erred by allowing the impeachment of Victoria Davis; (4) whether the trial

court improperly shifted the burden of proof to Davis; (5) whether the trial court

erroneously used Davis’s prior theft convictions as circumstantial evidence of his

guilt for all charges; (6) whether the trial court erred in denying the motion for

judgment of acquittal; (7) whether the evidence is sufficient to support Davis’s

attempted robbery conviction; (8) whether the trial court erred in admitting the

hearsay statement of Yvonne Bustamante as a dying declaration; (9) whether the

trial court erred in allowing the prosecution to introduce the pretrial and in-court

identifications made by Brandon Greisman and Carlos Ortiz; (10) whether the trial

court abused its discretion and distorted the weighing process by improperly

diminishing the weight assigned to two mitigating factors and attributing a greater

weight to one aggravator than was previously assigned; (11) whether Davis’s death

sentences are proportionate; and (12) whether the Florida death penalty statutory

scheme is facially unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002).





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I. Admission of Headley Facts During the State’s Case

Before trial, the trial court entered a narrow ruling that allowed the State to

introduce a limited amount of evidence from the Headley trial during the guilt

phase of the BP trial. Among this evidence was eyewitness testimony identifying

Davis as the Headley shooter, placing a black Nissan in the vicinity of the Headley

building at the time of the shootings, and establishing that the same gun was used

in both the BP and the Headley shootings. Davis argues that the trial court erred in

admitting this evidence. However, on the distinct facts of this case, we conclude

that this relevant and limited evidence, which did not become a feature of the trial,

was properly admitted to establish the nexus between Davis and the BP crimes.

The trial court’s detailed pretrial order provided that the following evidence

would be admissible during the State’s case:

1. Randy Black, William Wagle, and Linda Davis will be allowed to testify about the gun and the Defendant’s possession of a gun.



2. Brandon Greisman and Carlos Ortiz (along with Detective Townsell who showed them the photo packs) will be allowed to testify as to their identifying Leon Davis as the man with the gun at the “Headley” crime scene but should not testify concerning the condition of the building (burning) or the condition of the victims (Ms. Bustamonte [sic] and Ms. Luciano).



3. Evelyn Anderson, Lt. Joe Elrod, Ernest Froehlich, and John Johnson will be allowed to testify that Ms. Bustamonte [sic] identified Leon Davis as the person who shot her at the “Headley” crime scene but not





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discuss Ms. Bustamonte’s [sic] condition or any of their observations about her injury during direct examination, and should not testify concerning her other statements regarding the incident.



4. Mark Gammons and Jennifer Debarros (both employees of Wal-Mart) will be allowed to testify concerning their observations of the Defendant at the Wal-Mart store and the purchase of a cooler/lunch bag, but should not testify regarding the purchase of a cigarette lighter or other items not related to the BP case.



5. The videos and testimony concerning those videos obtained at Mid-Florida Credit Union, Beef O’Brady’s and Enterprise Leasing will be admissible for comparative purposes in viewing the Wal-Mart video. The McDonald’s video is not to be introduced into evidence until such time as the person depicted in it can be positively identified as Leon Davis, Jr.



6. Jacquelyn Hare and/or Scott Headley will be allowed to testify about the Defendant’s prior business relationship with Headley Insurance Agency to the extent that he was a customer of the agency and had been seen at the agency on prior occasions. Neither of them will be allowed to testify as to the specific business transactions the Defendant had with Headley Insurance Agency.



7. In regard to the black Nissan that was purportedly seen at the “Headley” crime scene, Carlos Ortiz will be allowed to testify as to his observations. Other evidence concerning a black Nissan can be introduced outside of the context of it somehow being involved at the Headley Insurance Agency crime scene.



8. FDLE firearms analyst, James Kwong, will be allowed to testify that he identified the gun used in the “Headley” crimes as the same gun that was used in the BP crimes.







- 20 -

Our meticulous review of the trial transcript reveals that the State’s presentation of

evidence was consistent with the terms of the trial court’s order. As we evaluate

the propriety of the trial court’s decision to admit evidence from the Headley trial,

we consider the substance of the State’s case, which may be summarized as

follows.

On the afternoon of December 7, 2007, Davis purchased a .357 magnum

Dan Wesson revolver from his cousin, Randy Black. That evening, Davis left

home alone driving his wife’s black Nissan Altima. At approximately 8:51 p.m., a

man fitting Davis’s description attempted to enter the BP convenience store and

fired a shot into the store. At approximately 8:53 p.m., the man shot and killed

Dashrath and Pravinkumar outside of the BP and left the scene. Around this time,

four separate witnesses observed a dark-colored car parked in an isolated area in

the vicinity of the BP. This car, definitively identified by one witness as a Nissan,

bore a distinctive front-end grille. The description of this car was consistent with

the black Nissan Altima admittedly driven by Davis that evening, and tire tracks

left in the area of the BP were consistent with tires later removed from that car.

Two days after the BP murders, Davis showed his mother the revolver that

he purchased from Black. Four days later, Davis was positively identified as the

gun-wielding perpetrator of the shootings at Headley. In particular, Davis was

positively identified by the two shooting victims, one of whom knew Davis as a





- 21 -

Headley customer. Multiple witnesses saw Davis conceal his gun in an orange

lunch cooler after the shootings. One of the eyewitnesses who identified Davis as

the Headley shooter also observed a black Nissan parked in the vicinity of

Headley.

Ballistics evidence revealed that the projectiles retrieved from the BP and

Headley crime scenes and from the autopsies of the deceased victims were all fired

from the same gun. The rifling characteristics of the gun used to murder Dashrath

and Pravinkumar at the BP and to shoot Bustamante at Headley were consistent

with those of the .357 magnum Dan Wesson revolver that Davis purchased from

Black mere hours before the BP murders.

Thus, evidence obtained as a part of the Headley investigation established

the nexus between Davis and the BP crimes. Davis argues that the trial court erred

in allowing the State to introduce this evidence as a part of its case against him. As

we explain below, we disagree.

Our analysis begins with the threshold matter of relevance. In order to be

admissible, evidence must be relevant. That is, the evidence must “tend[] to prove

or disprove a material fact.” § 90.401, Fla. Stat. (2012). While relevant evidence

is generally admissible, such evidence “is inadmissible if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of issues,

misleading the jury, or needless presentation of cumulative evidence.” §§ 90.402





- 22 -

403, Fla. Stat. (2012). “A trial court has broad discretion in determining the

relevance of evidence and such a determination will not be disturbed absent an

abuse of discretion.” Jorgenson v. State, 714 So. 2d 423, 427 (Fla. 1998) (citing

Heath v. State, 648 So. 2d 660, 664 (Fla. 1994)).

This Court has observed that relevant evidence of another crime may be

admissible against a defendant at trial. See Steverson v. State, 695 So. 2d 687, 689

(Fla. 1997). In deciding whether to admit such evidence though, the trial court

must be acutely aware of the danger of the unfair prejudice that may result. “Even

when evidence of a collateral crime is properly admissible in a case, we have

cautioned that ‘the prosecution should not go too far in introducing evidence of

other crimes. The state should not be allowed to go so far as to make the collateral

crime a feature instead of an incident.’ ” Id. (quoting Randolph v. State, 463 So.

2d 186, 189 (Fla. 1984)).

In the present case, the trial court did not abuse its discretion in determining

that certain Headley evidence was relevant to prove that Davis committed the BP

crimes. The purpose of admitting this evidence was to prove a material issue at

trial. While the State lacked direct evidence that Davis fired the shots at the BP,

ballistics evidence revealed that the same gun that fired the bullets that killed

Dashrath and Pravinkumar at the BP also fired the bullets at Headley. Thus,

Davis’s possession of a gun at Headley, his firing of the gun, the retrieval of





- 23 -

projectiles fired from the gun, and the comparison of those projectiles with those

obtained during the BP investigation established the nexus between Davis and the

BP crimes.

Further relevant to placing Davis at the BP crime scene—and near an

isolated location where a dark-colored vehicle, likely a black Nissan, was seen by

four people—was the presence of a black Nissan in the vicinity of Headley around

the time of the Headley shootings. Davis admittedly drove his wife’s black Nissan

Altima on the night of the BP murders. Thus, testimony that a black Nissan was

spotted near the Headley crime scene where Davis was positively identified as the

Headley shooter was relevant to place Davis at the BP on the night of the

attempted robbery and murders.

We strongly emphasize that it is the totality of the evidence relating to the

gun and the Nissan Altima that forms a solid evidentiary nexus between the two

cases and leads us to conclude that limited Headley evidence was properly

admitted during the guilt phase of the BP trial. The record reveals that the trial

court closely guarded the admission of Headley evidence so as to allow only

relevant evidence. Moreover, the court was also extremely careful to guard against

the admission of the highly prejudicial details of the events at Headley involving

the arson and Bustamante’s condition. The court’s carefully circumscribed order





- 24 -

prevented the details of the Headley crimes from becoming a feature of the BP

trial.

The admission of limited Headley evidence avoided the error that occurred

in Steverson, 695 So. 2d 687. Steverson was tried for the murder of an

acquaintance, Lucas. Four days after Lucas’s murder, Steverson shot a police

officer who approached him while acting on an informant’s tip. Id. at 689.

Steverson was tried for the shooting of the officer before being tried for Lucas’s

murder, and was convicted. During the trial for the murder of Lucas, the State also

introduced extensive evidence of the shooting of the police officer. Id. at 690.

While we concluded that some limited evidence of the shooting was relevant to the

State’s case, “there was no justification for the admission of extensive details of

[the officer’s shooting] offered by four different witnesses, all of whom focused

most of their testimony on the police officer’s injuries and recovery.” Id. In

reversing and remanding Steverson’s case for a new trial, we instructed that

evidence of the police officer’s shooting be “appropriately limited if it is sought to

be admitted again.” Id. at 691.

In the present case, acutely aware of the highly prejudicial details of the

Headley crimes, the trial court carved out a narrow scope of admissible evidence.

The trial court’s strict order and the subsequent admission of the evidence

described therein carefully avoided the pitfalls of admitting irrelevant or unfairly





- 25 -

prejudicial evidence and prevented the Headley crimes from becoming a feature of

the trial. Therefore, Davis is not entitled to relief.

II. Reliance on Headley Facts in Sentencing Order

Davis also maintains that the trial court improperly determined his guilt in

the BP case based on his convictions in the Headley case and facts about the

Headley events that were not admitted during the guilt phase. In particular, Davis

points to statements in the sentencing order and argues that these statements

demonstrate the trial court’s erroneous consideration of the Headley convictions

when determining his guilt in the BP case. In the sentencing order, the trial court

said the following:

On December 13, 2007, a robbery and two murders occurred at the Headley Insurance Agency in Lake Wales, Florida. . . . . On Thursday, December 13, 2007, the Headley Insurance Agency in Lake Wales was robbed and Yvonne Bustamonte [sic] and Juanita “Jane” Luciano were bound with duct tape, saturated with gasoline, and set on fire. They died as a result of their injuries. . . . . The Jury in case number CF07-009386 found, beyond and to the exclusion of all reasonable doubt that the Defendant, Leon Davis, Jr., was the tall black male involved in the Headley Insurance Agency robbery and murders. He was seen wielding and shooting a firearm during those crimes. The Court finds that the same firearm fired the projectiles that were recovered during the investigation of the crimes occurring at the BP Station. . . . . The circumstantial and non-circumstantial evidence concerning the Headley Insurance Agency crimes proves, beyond a reasonable doubt, that Leon Davis, Jr. robbed the Headley Insurance Agency and





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killed Yvonne Bustamonte [sic] and Juanita “Jane” Luciano as was found by the Jury in that case. . . . . The evidence comes down to this; Leon Davis, Jr. was positively identified as the gun wielding perpetrator of the Headley Insurance Agency crimes and was convicted of those crimes.



(Emphasis added.)



It is improper for a trial court to consider “evidence from a different trial that

was not introduced in the guilt phase of the present trial.” Dailey v. State, 594 So.

2d 254, 259 (Fla. 1991). However, Davis’s argument that such error occurred in

this case is without merit. Our review of the sentencing order reveals that the trial

court was simply setting forth the historical facts of this case. Following an

evidentiary hearing, the court concluded that during the guilt phase, the State

would not be permitted to introduce evidence of the fire and the events inside

Headley. A careful reading of the trial transcript reveals that this order was

assiduously followed. In closely reading the testimony of the guilt phase witnesses

who testified due to their roles in the Headley case, to a person, the testimony of

each of these witnesses carefully avoided any comment on the facts surrounding

what actually happened inside of Headley, the victims’ burn conditions, and events

that occurred later that day. For example, Fran Murray, Evelyn Anderson, Lt.

Elrod, and the medical personnel, who offered graphic testimony about

Bustamante’s condition during the Headley trial, did not refer to this evidence

during the BP trial. However, the entire Headley record was admitted during the





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penalty phase of the BP trial, and evidence that was specifically excluded from the

guilt phase was admitted during the penalty phase.

Davis’s argument that the court relied on facts outside of the guilt phase

record in determining his guilt for the BP crimes is inconsistent with the record

evidence of the court’s caution to avoid the introduction of irrelevant and

prejudicial Headley evidence during the guilt phase. We are convinced that the

trial court did not rely on such facts to establish Davis’s guilt in the BP case and

was merely setting forth the historical context of the case. Thus, we conclude that

Davis is not entitled to relief.

III. Impeachment of Victoria Davis

Davis also argues that the trial court erred when it allowed the State to

impeach his wife, Victoria, during her guilt phase testimony. In 2008, when

Victoria testified before the grand jury, she stated that on the evening of

December 7, Davis arrived home between 9 and 9:30 p.m. However, when she

testified at Davis’s trial, Victoria stated that Davis left home between 6 and 7 p.m.

that night, and he was gone for about one hour. The trial court permitted the State

to impeach Victoria on the grounds that her grand jury testimony was a prior

inconsistent statement. The trial court did not err in doing so.

“The theory of admissibility [of a prior inconsistent statement] is not that the

prior statement is true and the in-court testimony is false, but that because the





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witness has not told the truth in one of the statements, the [finder of fact] should

disbelieve both statements.” Pearce v. State, 880 So. 2d 561, 569 (Fla. 2004). To

be admissible, a prior inconsistent statement must either directly contradict or

materially differ from the expected testimony at trial. Id. Moreover, “the

inconsistency must involve a material, significant fact rather than mere details.”

Id.

In this case, the testimony at issue involved Davis’s whereabouts at the time

of the murders. If, as Victoria stated during her grand jury testimony, Davis did

not come home until between 9 and 9:30 p.m., she could not account for Davis’s

whereabouts at the time of the murders. However, if Davis left home between 6

and 7 p.m. and returned about one hour later as Victoria testified at trial, Davis

could not have been at the BP when the murders occurred shortly before 9 p.m.

Thus, the inconsistency in Victoria’s testimony relates to a “material, significant

fact” and not “mere details.” Id.

Victoria’s grand jury testimony materially differed from her trial testimony

and thus constituted a prior inconsistent statement. The salient portion of her trial

testimony is as follows:

Prosecutor: As you sit here today, do you remember how long he was gone?



Victoria: Exactly?



Prosecutor: No, not exactly.





- 29 -

Victoria: I remember that it wasn’t too long, that it had to be somewhere around an hour, maybe a little more or a little less. I can’t exactly tell you. I just know it wasn’t that long because he knew I was sick.



(Emphasis added.)

Davis argues that Victoria’s trial testimony was not inconsistent with her

grand jury testimony and suggests that Victoria only said that she did not recall

when Davis returned home. However, the salient portion of her answer was that

“it had to be somewhere around an hour, maybe a little more or a little less.” In

contrast to her grand jury testimony where she testified that Davis returned home

between 9 and 9:30 p.m., she testified at trial that Davis was gone for only one

hour after he left home between 6 and 7 p.m. Because of this material

inconsistency, the trial court did not err in allowing the State to impeach her on

these grounds.

IV. Shifting the Burden of Proof

Davis also argues that during the BP trial, the trial court improperly shifted

the burden of proof to the defense. In support of his argument, he points to the

following language in the sentencing order:

On the evening of December 7, 2007, Mr. Davis left his home sometime between 6:00 p.m. and 7:00 p.m. in his wife’s Nissan Altima, allegedly to go shopping. His whereabouts are unknown until he returned sometime after 9:00 p.m. to 9:30 p.m. Mr. Davis claims he was at the Eagle Ridge Mall, but there is no evidence whatsoever to corroborate that claim.







- 30 -

Davis’s burden-shifting argument is without merit.

“The accused is not required to prove an alibi beyond a reasonable doubt but

where the accused attempts to establish an alibi, proof thereof must be sufficient to

raise a reasonable doubt in the mind[s] of the [finder of fact] as to whether or not it

was possible for the accused to have been at the scene of the crime at the time

when the crime is shown to have been committed.” Blakes v. State, 182 So. 447,

448 (Fla. 1938). Davis’s alibi failed to raise a reasonable doubt in the trial court’s

mind as to whether Davis was at the BP at the time of the murders. The trial

court’s comment, therefore, merely reveals the deficiency of Davis’s alibi defense.

Davis is not entitled to relief.

V. Prior Felony Convictions

In the sentencing order, the trial court referred to the fact that at the time that

Davis attempted to rob the BP and murdered Dashrath and Pravinkumar, Davis

was a convicted felon and on felony probation. In July 2007, several months

before the BP crimes, Davis was convicted of felony grand theft and sentenced to

probation. Based on this evidence, Davis was convicted of possession of a firearm

by a convicted felon. Davis, though, argues that the trial court also considered the

felony convictions as proof of his guilt for the murder, attempted murder, and

attempted robbery charges. In the sentencing order, the trial court said the

following:





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The circumstantial and non-circumstantial evidence concerning the Headley Insurance Agency crimes proves, beyond a reasonable doubt, that Leon Davis, Jr. robbed the Headley Insurance Agency and killed Yvonne Bustamonte [sic] and Juanita “Jane” Luciano as was found by the Jury in that case. The gun used in those crimes was also used to murder Pravinkumar C. Patel and Dashrath Patel. Beyond the fact that the Defendant purchased a Dan Wesson .357 revolver from Randy Black and all six projectiles recovered from the two crime scenes are consistent with having been shot from the same type of firearm, there are numerous other circumstantial facts that lead to the conclusion, beyond a reasonable doubt, that Leon Davis, Jr. committed the BP murders. Leon Davis, Jr. was facing some very serious financial setbacks. He did not have a job, and his wife was on leave from her employment due to a problem pregnancy. His credit cards were maxed out, and he only had a few dollars in his accounts at Mid Florida Federal Credit Union. He was behind on his mortgage payments, and he owed money on a loan to the bank. He had even given up his cell phone. Due to an inability to pay his insurance payments, he parked his Nissan Maxima and was using his wife’s car. He was also facing his son’s, Garrion’s, upcoming birthday and the Christmas holidays. In spite of his financial difficulties, Mr. Davis decided to purchase a gun and spent $220.00 on a Dan Wesson .357 revolver. This is a very strange purchase, and an unlawful act, in light of the fact that the Defendant was a convicted felon on felony probation at the time of his acquisition of the firearm.



(Emphasis added.) Davis argues that this language proves that the trial court

considered his felony convictions as proof of his guilt on all of the charged

offenses. Davis’s argument is without merit.

The language emphasized by Davis must be read in context. The trial court

did not conclude that Davis committed the BP crimes because he was a convicted

felon. Rather, the trial court focused on Davis’s purchase of the revolver before





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the BP crimes. The fact that Davis purchased a .357 magnum revolver on the same

day of the BP crimes is circumstantial evidence of his guilt. Davis is not entitled to

relief on this issue.

VI. Denial of Judgment of Acquittal

Davis also argues that the trial court erred when it denied his motion for

judgment of acquittal for the murders of Dashrath and Pravinkumar. “In reviewing

a motion for judgment of acquittal, a de novo standard of review applies.”

Reynolds v. State, 934 So. 2d 1128, 1145 (Fla. 2006) (citing Pagan v. State, 830

So. 2d 792, 803 (Fla. 2002)). “[C]ourts should not grant a motion for judgment of

acquittal unless the evidence is such that no view which the jury may lawfully take

of it favorable to the opposite party can be sustained under the law.” Id. (quoting

Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). “However, ‘where a conviction is

based wholly upon circumstantial evidence, a special standard of review applies.’ ”

Id. (quoting Darling v. State, 808 So. 2d 145, 155 (Fla. 2002)).

“[A] motion for judgment of acquittal should be granted in a case based

wholly upon circumstantial evidence if the [S]tate fails to present evidence from

which the jury could exclude every reasonable hypothesis except that of guilt.”

Id. at 1146. However, “[t]he [S]tate is not required to ‘rebut conclusively every

possible variation’ of events which could be inferred from the evidence, but only to

introduce competent evidence which is inconsistent with the defendant’s theory of





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events.” Darling, 808 So. 2d at 156 (quoting State v. Law, 559 So. 2d 187, 189

(Fla. 1989)). “Once the State meets this threshold burden, it becomes the jury’s

duty to determine ‘whether the evidence fails to exclude all reasonable hypotheses

of innocence . . . , and where there is substantial, competent evidence to support

the jury verdict, [the Court] will not reverse.’ ” Reynolds, 934 So. 2d at 1146

(quoting Law, 559 So. 2d at 188)). In this circumstantial evidence case, Davis’s

hypothesis of innocence was that of misidentification. However, the State

introduced competent evidence that is inconsistent with Davis’s theory.

On December 7, 2007, Leon Davis purchased a .357 magnum Dan Wesson

revolver from his cousin. That evening, Davis left home alone between 6 and 7

p.m., driving a black Nissan Altima. Around 8:51 p.m., a man fitting Davis’s

description attempted to enter the BP convenience store. When he could not gain

entry, he fired a gunshot into the store. The man then ran across the parking lot

and shot Dashrath and Pravinkumar in the head. The man ran back to the front

door of the store, tried again to open it, raised the gun again, and then ran away.

Around the time of the attempted robbery and murders, four witnesses saw a

dark-colored, likely black car parked in a secluded area in the vicinity of the BP.

One of the witnesses definitively identified the car as a Nissan and described the

car’s distinctive grille on the front end. These descriptions are consistent with the

black Nissan Altima that Davis admitted he was driving when he left home on the





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evening of the murders. Testing later revealed that the tire tracks found near the

BP were consistent with the tires on the Altima driven by Davis.

Two days after the murders, Davis remained in possession of the gun he

purchased from his cousin and showed it to his mother. Four days later, Davis

robbed the Headley Insurance Agency. He shot one of the employees, Yvonne

Bustamante, in her left hand, and a concerned neighbor, Brandon Greisman, in the

face. Bustamante identified Davis by name, as she knew Davis as a Headley

customer. Greisman and another neighbor, Carlos Ortiz, identified Davis from

photographic lineups shown shortly after the events at Headley. Ortiz also

observed a black Nissan parked in an area behind a vacant house around the time

of the Headley shootings.

Projectiles retrieved from the Headley crime scene and from Bustamante’s

autopsy were compared with the projectiles retrieved from the BP crime scene and

from the autopsies of Dashrath and Pravinkumar. The projectiles were fired from

the same gun, a gun whose rifling characteristics are consistent with the .357

magnum Dan Wesson revolver purchased by Davis on the same day as the BP

murders. In sum, the same gun was used to murder Dashrath and Pravinkumar on

December 7 as was used to shoot Bustamante and Greisman just days later, and

Bustamante identified Davis as the shooter based on her personal knowledge of

Davis. A car fitting the description of the black Nissan Altima driven by Davis





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was seen near both crime scenes. This evidence is inconsistent with Davis’s

misidentification defense.

Davis’s reliance on this Court’s decision in Dausch v. State, 141 So. 3d 513

(Fla. 2014), is misplaced. Although Dausch was also a case where the defense was

misidentification, there were significant deficiencies in the State’s case in Dausch

that do not exist in Davis’s case. In Dausch, there was no link between Dausch

and a murder weapon. In contrast, Davis purchased a .357 magnum revolver on

the same day as the BP murders. Davis’s revolver is consistent with the type of

gun used to kill Dashrath and Pravinkumar. Moreover, in Dausch, the State was

not able to place Dausch in the county where the crime occurred, let alone at the

crime scene. In contrast, Davis’s own testimony established that he was driving

the black Nissan Altima that night, and four witnesses testified that a car

resembling the one driven by Davis was near the crime scene at the time of the

murders. Moreover, the tires from Davis’s Nissan Altima were consistent with the

tire tracks left near the BP, and his driver license was later found inside that car.

Because the State produced competent evidence that is inconsistent with

Davis’s theory of misidentification, the trial court properly denied Davis’s motion

for judgment of acquittal. Moreover, we conclude that the State introduced

competent, substantial evidence of guilt sufficient to affirm Davis’s convictions.





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VII. Sufficiency of Evidence of Attempted Armed Robbery

Davis contends that the State failed to prove intent to commit robbery of the

BP, and that as such, the trial court should have granted his motion for judgment of

acquittal on the charge of attempted armed robbery. The trial court’s denial of a

motion for judgment of acquittal is subject to de novo review. Pagan, 830 So. 2d

at 803.

“[T]o prove attempted armed robbery, the State must show: (1) the

formation of an intent to commit the crime of robbery; (2) the commission of some

physical act in furtherance of the robbery; and (3) the use of a firearm.” Franqui v.

State, 699 So. 2d 1312, 1317 (Fla. 1997). “The overt act necessary to fulfill the

requirements of attempted robbery . . . must be adapted to effect the intent to

commit the crime; it must be carried beyond mere preparation, but it must fall short

of executing the ultimate design.” Mercer v. State, 347 So. 2d 733, 734 (Fla. 4th

DCA 1977) (citing Gustine v. State, 86 Fla. 24, 97 So. 207 (1923)).

The intent to commit an armed robbery must be supported by “competent,

substantial evidence from which the [finder of fact] could infer the defendant’s

intent to deprive the victim of property.” Grant v. State, 138 So. 3d 1079, 1084

(Fla. 4th DCA 2014) (quoting Fournier v. State, 827 So. 2d 399, 401 (Fla. 2d DCA

2002)). Such intent “may be proved by considering the conduct of the accused . . .

before, during, and after the alleged attempt along with any other relevant





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circumstances.” Franqui, 699 So. 2d at 1317 (citing Cooper v. Wainwright, 308

So. 2d 182, 185 (Fla. 4th DCA 1975)).

Davis’s intent to commit armed robbery is supported by competent,

substantial evidence of his conduct before, during, and after the attempt. Before

the attempted robbery, indeed, on the very same day, Davis purchased a .357

magnum revolver from his cousin. That evening, when he arrived in the vicinity of

the BP, Davis parked his car off site in a secluded area. In doing so, he backed his

car up to a gate and hid the license plate from view. Moreover, to shield his

identity, Davis dressed in dark clothes and donned a hood and a face mask.

Additionally, Davis’s conduct during and immediately after the attempt

indicates his intent to commit armed robbery. Davis approached the convenience

store at night and at closing time. He pulled at the store door attempting to gain

entry. Upon Prakashkumar’s indication that the store was closed, Davis fired a

gunshot through the window. His attempt was somehow distracted by Dashrath

and Pravinkumar, because Davis quickly ran in their direction. However, after

Davis shot both men, he ran back to the store and pulled at the door again. Then,

after unsuccessfully trying again to gain access to the store, Davis ran away and

left the scene.

Additional relevant circumstances are strong indicators of Davis’s motive to

commit robbery. Through multiple witnesses, the State presented evidence that





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Davis was suffering from financial difficulty. Davis was delinquent on his

mortgage, was no longer working, and was supporting his wife, who was on a

leave of absence from work due to pregnancy complications. Davis was no longer

gainfully employed. His car was parked in the garage because he could not afford

the insurance payments, and he and his wife shared the black Nissan Altima. They

also terminated their cell phone service because they could not afford the expense.

Consequently, Davis’s conduct surrounding the attempted armed robbery

and relevant circumstances of his significant financial difficulty constitute

competent, substantial evidence of his intent to commit robbery. We therefore

affirm the trial court’s finding that the murders were committed during the course

of an attempted armed robbery.

VIII. Dying Declaration

Davis argues that the trial court erred in admitting—during the BP trial—the

dying declaration of Headley victim Yvonne Bustamante.4 On the day of the

Headley crimes, responding officer Lt. Elrod questioned Bustamante at the scene.

When asked about what had taken place at Headley, Bustamante made statements

describing the events. Among these statements, she identified Davis as the



4. Davis also raised the issue of Bustamante’s dying declaration in the direct appeal of his Headley convictions. See Davis v. State, No. SC11-1122 (Fla. Nov. 10, 2016). Davis raises similar issues relating to Bustamante’s dying declaration in this case.





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perpetrator and also indicated that Davis was a former Headley customer. Davis

sought to exclude Bustamante’s statements from the Headley trial, and the trial

court held an extensive evidentiary hearing to determine their admissibility.

Following the hearing, the trial court held that Bustamante’s statements were

admissible in their entirety under the dying declaration hearsay exception.

Because the same gun that was used in the BP murders of Dashrath and

Pravinkumar was used to shoot Bustamante during the events at Headley, the State

sought to introduce—during the BP trial—Bustamante’s statements identifying

Davis as the person who shot her. Before the BP trial, the court conducted an

independent review of the evidentiary hearing testimony and concluded that

Bustamante’s statements would be admissible in that trial as a dying declaration.

However, the trial court sharply limited the extent to which her statements would

be admissible. To that end, as discussed in Issue I, Lt. Elrod and other witnesses

testified regarding Bustamante’s identification of Davis as the person who shot her,

and Bustamante’s identification of Davis based on her personal knowledge of him.

We have already concluded that the trial court did not err in admitting

Bustamante’s statements in this limited manner.

In the present issue, Davis maintains that Bustamante’s statements were

improperly admitted under the dying declaration hearsay exception, and he raises

two points. First, he urges this Court to hold that as a matter of law, the dying





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declaration is no longer a valid hearsay exception in Florida. Davis argues that the

dying declaration is not an exception to the United States Supreme Court’s holding

in Crawford v. Washington, 541 U.S. 36, 68 (2004) (holding that the admission of

a testimonial statement violates a defendant’s Sixth Amendment right to

confrontation where the declarant is unavailable and the defendant lacked a prior

opportunity to cross-examine the declarant). Second, Davis argues that even if the

dying declaration survived Crawford, Bustamante’s statements did not constitute a

valid dying declaration because Bustamante did not have a fear of impending

death. As we explain below, we reject both arguments.5

A. Bustamante’s Dying Declaration

We now set forth an overview of the circumstances under which Bustamante

made her statements at the Headley scene. As we discuss this issue, we emphasize

that evidence relating to the Headley robbery and fire and Bustamante’s burn

injuries is only relevant to determine whether Bustamante’s statements constituted

a valid dying declaration. This evidence is necessary to evaluate the totality of the

circumstances under which Bustamante’s statements were made.



5. Davis also contends that the trial court erroneously admitted Bustamante’s statements under the forfeiture by wrongdoing exception. This argument is without merit. The trial court expressly concluded that Bustamante’s statements were admissible as a dying declaration. We therefore reject this argument without further discussion.





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At the evidentiary hearing held before the Headley trial, Lt. Elrod testified

that when he first approached Bustamante, he observed a badly burned woman

lying on a gurney who appeared to be burned over about eighty percent of her

body. Lt. Elrod quickly surmised that Bustamante would not survive her injuries.

As a result, he began to ask Bustamante pointed questions for the purpose of

obtaining her statement. Lt. Elrod testified as follows:

Lt. Elrod: At that point, I knew she wasn’t going to survive the burns.



State: Did that affect the way that you then began to handle your responsibilities as the first Lake Wales officer to have contact with her?



Lt. Elrod: Yes, sir.



State: What—what did you do? Why did you do it?



Lt. Elrod: I wanted to get her statement before it wouldn’t ever be gotten.



State: Now, normally, if you were the first officer on the scene, someone is being treated by medical personnel, would you just go ahead and start asking them questions if you thought they were going to survive and be in the hospital?



Lt. Elrod: No, sir. I would have let the medical people try to take care of them.



State: But in this case, did you go ahead and begin to actually speak with the woman on the gurney and ask her very pointed questions?



Lt. Elrod: Yes, sir.





- 42 -

When Lt. Elrod asked Bustamante what happened, Bustamante explained

that she and Luciano were working when Davis entered their office, demanded

money from them, and tried to rob them. She said that when they did not give

Davis the money that he wanted, he threw gasoline on them and set them on fire.

Lt. Elrod asked her if she knew the perpetrator’s identity. Bustamante told him,

“yes, it was Leon Davis,” and that he was a client of their insurance business.

Bustamante appeared coherent and alert, and she spoke clearly in response to

Lt. Elrod’s questions.

Other witnesses at the evidentiary hearing also testified that they heard

Bustamante describe the events at Headley and identify Davis. Additionally,

medical personnel testified about Bustamante’s grave physical condition, and

eyewitness Fran Murray testified that Bustamante stated that she was going to die.

Based on this testimony, the Headley and BP trial courts concluded that

Bustamante’s statements constituted a dying declaration. We now turn to Davis’s

argument that the trial court erred when it admitted as a dying declaration

Bustamante’s statements during the BP trial. We begin with Davis’s argument that

the dying declaration did not survive the United States Supreme Court’s decision

in Crawford.





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B. The Dying Declaration and Crawford

Ratified in 1791, the Sixth Amendment to the United States Constitution

provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to

be confronted with the witnesses against him[.]” U.S. Const. amend. VI. This

protection extends to prosecutions in both federal and state courts. See Pointer v.

Texas, 380 U.S. 400, 406 (1965). “Indeed, [the United States Supreme Court]

ha[s] expressly declared that to deprive an accused of the right to cross-examine

the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of

due process of law.” Id. at 405. However, “the [Confrontation] Clause permits,

where necessary, the admission of certain hearsay statements against a defendant

despite the defendant’s inability to confront the declarant at trial.” Maryland v.

Craig, 497 U.S. 836, 847-48 (1990). One example where such a necessity may

arise is in the context of the admission of a declarant’s dying declaration.

The admissibility of the dying declaration was recognized at common law on

the grounds that such declarations are “made in extremity, when the party is at the

point of death, and when every hope of this world is gone; when every motive to

falsehood is silenced, and the mind is induced by the most powerful considerations

to speak the truth; a situation so solemn and so awful is considered by the law as

creating an obligation equal to that which is imposed by a positive oath

administered in a court of justice.” King v. Woodcock, 1 Leach 500, 502, 168





- 44 -

Eng. Rep. 352, 353 (K.B. 1789). More than a century ago, the United States

Supreme Court recognized that “from time immemorial [dying declarations] have

been treated as competent testimony, and no one would have the hardihood at this

day to question their admissibility. They are admitted, not in conformity with any

general rule regarding the admission of testimony, but as an exception to such

rules, simply from the necessities of the case, and to prevent a manifest failure of

justice.” Mattox v. U.S., 156 U.S. 237, 243-44 (1895). “[The dying declaration]

exception was well established before the adoption of the constitution, and was not

intended to be abrogated. The ground upon which such exception rests is that,

from the circumstances under which dying declarations are made, they are

equivalent to the evidence of a living witness upon oath[.]” Kirby v. U.S., 174

U.S. 47, 61 (1899).

Similarly, Florida has long recognized the dying declaration as a valid

exception to the rule against hearsay:

Dying declarations in cases of homicide form an exception to the rule against the admissibility of hearsay evidence. The law regards the declarant, when in the presence of imminent and inevitable death, as being under as solemn an inspiration to tell the truth as though he were pledged thereto by oath. To render such declaration admissible, however, the court must be satisfied that the deceased declarant, at the time of their utterance, knew that his death was imminent and inevitable, and that he entertained no hope whatever of recovery. This absence of all hope of recovery, and appreciation by the declarant of his speedy and inevitable death, are a preliminary foundation that must always be laid to make such declarations admissible.







- 45 -

Lester v. State, 20 So. 232, 233 (Fla. 1896).

However, Davis argues that in light of the United States Supreme Court’s

2004 decision in Crawford, the admission of a testimonial dying declaration

violates the Sixth Amendment right of confrontation. This Court has previously

recognized that in Crawford, the Supreme Court “held that the introduction of a

hearsay statement will result in a violation of the defendant’s Sixth Amendment

right to confrontation if (1) the statement is testimonial; (2) the declarant is

unavailable; and (3) the defendant lacked a prior opportunity for cross-examination

of the declarant.” Hayward v. State, 24 So. 3d 17, 32 (Fla. 2009). In the present

case, the State introduced, as a dying declaration, out-of-court testimonial

statements of the declarant, Bustamante. Bustamante was unavailable to testify at

trial, and Davis lacked a prior opportunity to cross-examine her. Thus, Davis

argues that Bustamante’s statements were inadmissible under the holding in

Crawford.

To date, the United States Supreme Court has not answered whether the

dying declaration exception remains viable in light of Crawford. Yet, in dicta, the

Supreme Court has provided some guidance on the matter. Notably, in Crawford,

although the facts of that case did not involve a dying declaration, the Court

observed that dying declarations have been the “one deviation” to the rule

excluding testimonial hearsay in criminal cases:





- 46 -

The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed. . . . Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. . . . We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.



Crawford, 541 U.S. at 56 n.6 (internal citations omitted). Subsequently, in Giles v.

California, 554 U.S. 353, 358 (2008), the Supreme Court stated: “We have

previously acknowledged that two forms of testimonial statements were admitted

at common law even though they were unconfronted. The first of these were

declarations made by a speaker who was both on the brink of death and aware that

he was dying.” Courts that have confronted the post-Crawford viability of the

dying declaration have generally interpreted these statements as strong suggestions

by the United States Supreme Court that the dying declaration exception does not

run afoul of the Sixth Amendment right of confrontation.6 Davis now calls upon



6. See, e.g., People v. Monterroso, 101 P.3d 956, 972 (Cal. 2004) (concluding that “the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment.”); Walton v. State, 603 S.E.2d 263, 265-66 (Ga. 2004) (recognizing that Crawford did not extend its holding to dying declarations); People v. Gilmore, 828 N.E.2d 293, 302 (Ill. App. Ct. 2005) (concluding “that the [United States Supreme] Court does not believe that admitting testimonial dying declarations violates the confrontation clause.”); Wallace v. State, 836 N.E.2d 985, 993-96 (Ind. Ct. App. 2005) (rejecting appellant’s argument that the dying declaration offends an accused’s right to confrontation); State v. Jones, 197 P.3d 815, 821-22 (Kan. 2008) (concluding that “the [United States] Supreme Court would confirm that a dying declaration may be admitted into evidence, even when it is testimonial in nature and is





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this Court to determine whether Florida’s dying declaration exception remains

viable post-Crawford.

Majority View vs. Minority View

Davis acknowledges that there is a split of authority on whether the dying

declaration survived Crawford. However, Davis’s position, that the exception is

no longer viable, falls clearly within the minority. Nonetheless, Davis argues that

Florida’s dying declaration exception is inconsistent with the dying declaration that

existed at common law, and thus, it does not satisfy Crawford’s historical grounds

exception. Davis also contends that the dying declaration is not a valid hearsay

exception because dying declarations are inherently unreliable. Today, Davis’s



unconfronted.”); Commonwealth v. Nesbitt, 892 N.E.2d 299, 310-11 (Mass. 2008) (recognizing Crawford’s acknowledgment of the dying declaration as an exception under the Sixth Amendment right of confrontation); State v. Martin, 695 N.W.2d 578, 585-86 (Minn. 2005), abrogated on other grounds by State v. Moua Her, 750 N.W.2d 258, 265 n.5 (Minn. 2008) (holding “that the admission into evidence of a dying declaration does not violate a defendant’s Sixth Amendment right to confrontation within the meaning of Crawford because an exception for dying declarations existed at common law and was not repudiated by the Sixth Amendment.”); Harkins v. State, 143 P.3d 706, 710-11 (Nev. 2006) (holding that the dying declaration is an exception to the Confrontation Clause); State v. Calhoun, 657 S.E.2d 424, 426-28 (N.C. 2008) (holding that dying declarations do not violate the Sixth Amendment); State v. Lewis, 235 S.W.3d 136, 147-48 (Tenn. 2007) (holding “that this single hearsay exception survives the mandate of Crawford regardless of its testimonial nature”); State v. Beauchamp, 796 N.W.2d 780, 795 (Wis. 2011) (concluding that “a hearsay exception as long-standing, wellestablished and still necessary as [the dying declaration], . . . cannot lightly be dismissed.”).







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arguments notwithstanding, this Court joins the overwhelming majority view that

the dying declaration exception remains viable post-Crawford. The unique nature

and purpose of the dying declaration exception, observed in Crawford and Giles,

justifies its continuing utility and validity as an exception to the rule against

hearsay. We therefore reaffirm the continued use of the dying declaration in this

state in a manner that is consistent with the applicable law that defines the

exception.

Historical Grounds

Davis argues that Florida’s dying declaration exception is no longer valid

because the modern exception has evolved from that which existed at common

law. Davis asserts that at common law, the justification for admitting a declarant’s

dying declaration was the declarant’s religious belief in the afterlife, and he

maintains that in contrast to a justification based on the declarant’s religious belief,

Florida’s existing dying declaration exception is secular and nondenominational.

See § 90.804(2)(b), Fla. Stat. (requiring an unavailable declarant’s reasonable

belief “that his or her death was imminent, concerning the physical cause or

instrumentalities of what the declarant believed to be impending death or the

circumstances surrounding impending death.”). Consequently, Davis argues,

Crawford’s “historical grounds” for Florida’s dying declaration exception can no





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longer be used to justify the admission of a dying declaration in Florida’s courts.

See Crawford, 541 U.S. at 56 n.6.

It is true that “[t]he [dying declaration] hearsay exception has sometimes

been justified on the grounds that a dying person was presumed under the common

law to have, due to commonly held religious beliefs concerning the afterlife, such a

fear of dying without the opportunity to expiate a lie that the reliability of any

statement made in those circumstances was deemed equivalent to that of sworn

testimony.” State v. Beauchamp, 796 N.W.2d 780, 794 (Wis. 2011). Thus, Davis

argues that Florida’s dying declaration exception does not fall under the “historical

grounds” suggested in Crawford, because it lacks the religious justification that

existed at common law. See Crawford, 541 U.S. at 56 n.6.

Davis cites two federal district court opinions which concluded that dying

declarations are not an exception to the confrontation clause. In U.S. v. Mayhew,

380 F. Supp. 2d 961, 966 (S.D. Ohio 2005), a federal district court expressly

“reject[ed] the government’s argument that dying declarations are an exception to

the Confrontation Clause.” Id. at 965. In U.S. v. Jordan, No. 04-CR-229-B, 2005

WL 513501 (D. Colo. Mar. 3, 2005), an unpublished memorandum and order, the

federal district court suggested that historical underpinnings do not continue to

justify the dying declaration. The court concluded that “there is no rationale in

Crawford or otherwise under which dying declarations should be treated





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differently than any other testimonial statement. This is so especially since the

historical underpinnings of the exception fail to justify it.” Id. at *3.

However, the religious justification as the sole or primary justification of the

dying declaration has not been universally accepted. In 1860, Wigmore on

Evidence included the following analysis:

[A dying declaration] is not received upon any other ground than that of necessity, in order to prevent murder going unpunished. What is said in the books about the situation of the declarant, he being virtually under the most solemn sanction to speak the truth, is far from presenting the true ground of the admission. . . . [T]he rule is no doubt based upon the presumption that in the majority of cases there will be no other equally satisfactory proof of the same facts. This presumption and the consequent probability of the crime going unpunished is unquestionably the chief ground of this exception in the law of evidence.



Wigmore on Evidence, § 1431 (quoting 1 Greenleaf, Evidence § 156, editorial note

(1860) (emphasis added)). “It is scarcely necessary to say that, to the rule that an

accused is entitled to be confronted with witnesses against him, the admission of

dying declarations is an exception which arises from the necessity of the cause.”

Kirby, 174 U.S. at 61. A declarant’s religious belief notwithstanding, the dying

declaration exception recognizes the extraordinary nature of the dying person’s

ability to speak to the circumstances that placed her in that grave position, and

quite possibly to identify the perpetrator and ensure that the one who commits

murder is held accountable. As such, we reject Davis’s argument.





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Reliability of the Dying Declaration

Davis also suggests that dying declarations are inherently unreliable. In

Mayhew, the court suggested that a dying person might have an incentive to offer

false dying statements:

For example, the declarant might have been in a revengeful state of mind which would color his dying statements. No longer subject to the fear of retaliation by his enemies, the declarant might falsely incriminate those persons whom he disliked. If the decedent had no religious belief or fear of punishment after death, the statements made while dying would seem to lose much of the trustworthiness traditionally attributed to them. In general, selfserving declarations would be particularly suspect, for the decedent could thereby exculpate himself from questionable association with the circumstances surrounding his death. The declarant’s physical and mental state of mind at the moment of death may weaken the reliability of his statements.



380 F. Supp. 2d at 965 n.5 (quoting Note, Affidavits, Depositions, and Prior

Testimony, 46 Iowa L. R. 356, 375-76 (1961)).

While not impossible, we do think it improbable that a dying person would

use the fleeting moments of her earthly existence to, rather than place blame at the

feet of her actual murderer, intentionally falsely incriminate someone else. After

all, “[t]he admission of the [dying declaration] is justified upon the ground of

necessity, and in view of the consideration that the certain expectation of almost

immediate death will remove all temptation to falsehood and enforce as strict

adherence to the truth as the obligation of an oath could impose.” Mattox, 146





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U.S. at 152. Consequently, we reject Davis’s challenge to the reliability of the

dying declaration.

Having concluded that Davis’s arguments are without merit, we reject his

invitation to abrogate Florida’s dying declaration exception. Our analysis and the

conclusion that we reach today are consistent with that of other jurisdictions that

have considered the post-Crawford viability of the dying declaration. For instance,

shortly after Crawford was decided, the California Supreme Court decided People

v. Monterroso, 101 P.3d 956 (2004). In Monterroso, the court rejected the

defendant’s claim “that Crawford has abrogated the exception for dying

declarations.” Id. at 972. Concluding that “the holding of Crawford does no such

thing,” the court observed:

To exclude such evidence as violative of the right to confrontation “would not only be contrary to all the precedents in England and here, acquiesced in long since the adoption of these constitutional provisions, but it would be abhorrent to that sense of justice and regard for individual security and public safety which its exclusion in some cases would inevitably set at naught.”



Monterroso, 101 P.3d at 972 (quoting State v. Houser, 26 Mo. 431, 438 (Mo.

1858)). The court concluded: “it follows that the common law pedigree of the

exception for dying declarations poses no conflict with the Sixth Amendment.” Id.

(citations omitted).

The Supreme Court of Wisconsin upheld the post-Crawford viability of the

dying declaration in Beauchamp, 796 N.W.2d at 791, reasoning: “If we were to





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accept that the Confrontation Clause, as set forth in Crawford’s seemingly

unbending declaration, requires that all testimonial statements be subject to

confrontation to test their reliability, we would exclude dying declarations as, by

definition, unconfrontable, and therefore, statements whose reliability cannot be

tested.” We agree with the court in Beauchamp that “such a seemingly rigid

approach cannot prevail here.” Id.

Most recently, the highest appellate court in Maryland, the Special Court of

Appeals, held that the dying declaration remains viable in Maryland. The state’s

high court explained:

Here, we reach the same conclusion that the Supreme Court has consistently endorsed for more than a century, and hold that the Confrontation Clause does not apply to dying declarations. . . . Although it is accurate that, in Crawford and its progeny, the Supreme Court has not yet held that the Confrontation Clause does not apply to dying declarations, our holding is entirely consistent with Crawford and its progeny.



Hailes v. State, 113 A.3d 608, 611 (Md. 2015).

Although Crawford “deliberately avoided the question of how [the holding

in Crawford] would apply in a dying declaration case,” we are persuaded that the

United States Supreme Court has nonetheless “made clear that notwithstanding the

categorical language employed in Crawford, there remain situations in which a

defendant may not successfully invoke the Confrontation Clause to exclude

testimonial hearsay statements.” Beauchamp, 796 N.W.2d at 791. The





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introduction of a valid dying declaration is such a situation. Thus, we reject

Davis’s urging to abrogate the dying declaration exception, and we join the

majority of courts that have considered the post-Crawford viability of the dying

declaration and have concluded that the dying declaration did survive Crawford.

C. Whether Bustamante’s Statements Qualify as a Dying Declaration

In light of our holding that Crawford did not abrogate the dying declaration

exception in Florida, we now turn to whether Bustamante’s statements constituted

a dying declaration. Davis argues that Bustamante did not believe that her death

was imminent, and thus, her statements were inadmissible as a dying declaration.

As we have already observed, the trial court properly limited the scope of

the Headley evidence that was admissible during the guilt phase of the BP trial.

Evidence relating to the Headley robbery and fire and the victims being set on fire

was properly excluded during the guilt phase. However, this excluded evidence is

relevant to a determination of whether Bustamante’s statements constituted a dying

declaration. We reiterate that while such evidence was relevant to the admissibility

of Bustamante’s statements under the dying declaration exception, it was not

introduced during the guilt phase of the BP trial. We review such evidence here

for the sole purpose of evaluating the totality of the circumstances surrounding

Bustamante’s statements and the propriety of the trial court’s decision to admit

even a limited scope of her statements as a dying declaration.





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“In considering a trial court’s ruling on admissibility of evidence over an

objection based on the Confrontation Clause, [this Court’s] standard of review is

de novo.” McWatters v. State, 36 So. 3d 613, 637 (Fla. 2010) (quoting Milton v.

State, 993 So. 2d 1047, 1048 (Fla. 1st DCA 2008)). In order for the dying

declaration exception to apply, “the deceased must have known and ‘appreciated

his condition as being that of an approach to certain and immediate death,’

although it is not necessary that the declarant ‘make express utterances’ that he

would never recover.” Hayward, 24 So. 3d at 30 (quoting Henry v. State, 613 So.

2d 429, 431 (Fla. 1992)). In determining whether to admit hearsay as a dying

declaration, “ ‘the court should satisfy itself, on the totality of the circumstances,’

that the deceased knew he was dying.” Id. at 30-31 (quoting Henry, 613 So. 2d at

431). The “absence of all hope of recovery, and appreciation by the declarant of

his speedy and inevitable death, are a preliminary foundation that must always be

laid to make such declarations admissible.” Id. at 31 (quoting McRane v. State,

194 So. 632, 636 (1940)). Based on the totality of the circumstances, the trial court

did not err in admitting Bustamante’s dying declaration.

Before the Headley trial, the trial court held an extensive evidentiary hearing

during which the State presented the testimony of witnesses who were in contact

with Bustamante at the scene. One of these witnesses was Fran Murray, who

testified as follows:





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She started talking about her kids. And she said she was in so much pain. She kept saying it over and over, and that her body hurt so bad, and that she knew that she wasn’t going to make it. She said, please keep me in your prayers. I’m not going to make it.



Bustamante, who was oriented and alert at the scene, was aware of her extensively

burned body. Witnesses testified that Bustamante received extensive burns of the

second, third, and fourth degree, she was burned over at least eighty percent of her

body, her flesh was falling off of her body, she was in severe pain, and the severity

of her burns was indicative of a high probability of death.

While Bustamante’s statement that “she wasn’t going to make it” was

certainly an important factor for the trial court’s consideration, as we did in

Hayward, we emphasize that a verbal acknowledgment of impending death is not

required in order to find that a declarant’s statement constitutes a dying

declaration. The testimony of multiple witnesses revealed the dire circumstances

that Bustamante faced after Davis set her body on fire.

Given the totality of the circumstances, Davis’s assertion that Bustamante’s

statements were not properly admitted as a dying declaration is without merit. The

trial court received a substantial amount of consistent witness testimony about

Bustamante’s condition. Moreover, Bustamante clearly expressed her belief that

she was not going to survive. Thus, we conclude that the trial court properly

admitted Bustamante’s statements under the dying declaration exception, which

remains a valid hearsay exception in this state.





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IX. Identifications by Greisman and Ortiz

Davis also argues that the pretrial and in-court identifications made by

Headley eyewitnesses Greisman and Ortiz should not have been admitted during

the BP trial. At separate times within days of the Headley shootings, Greisman

(shooting victim) and Ortiz offered out-of-court identifications of Davis after

viewing his photograph in a photopack (also known as a photographic lineup).

Both men also identified Davis in court during their trial testimony. Davis argues

that these identifications were unreliable and should have been excluded as

evidence. Similar to Davis’s claims relating to the admission of Bustamante’s

dying declaration, Davis also challenged the admissibility of Greisman’s and

Ortiz’s identifications in the direct appeal of his convictions stemming from the

events at Headley. See Davis v. State, No. SC11-1122 (Fla. Nov. 10, 2016). In

Issue I in the present opinion, we concluded that the trial court did not err in

admitting Greisman’s and Ortiz’s identifications during the guilt phase of the BP

trial to the extent that they identified Davis as the Headley shooter. Thus, we now

address Davis’s claims that (1) the pretrial identifications of Davis were

unnecessarily suggestive, and (2) the pretrial identifications rendered the in-court

identifications inadmissible. As we explain below, we reject both claims. The

circumstances surrounding each witness’s identification are as follows.





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Greisman testified that upon reaching the vicinity of the Headley building,

he observed Davis walking towards him. Greisman saw Davis’s face clearly and

made eye contact with him. Greisman thought that Davis was responding to the

events at Headley and that he intended to offer assistance. Instead, Davis shot him

in the face. After being transported to the hospital, Greisman underwent surgery

and remained in the hospital overnight. He was not allowed to watch television,

and he denied seeing any newspaper or other media accounts during his hospital

stay. When Greisman was released from the hospital, his mother drove him to the

Lake Wales Police Department to speak to two detectives. While at the police

station, Greisman viewed a photopack containing six photographs, one of which

was a photograph of Davis. When asked if he recognized the person who shot him,

Greisman quickly recognized Davis’s photograph, and he placed his initials next to

it. Greisman identified Davis again from the witness stand at trial.

Similarly, Ortiz identified Davis as the shooter and testified that he saw

Davis’s face clearly. After Greisman was shot, Ortiz looked Davis in the eyes and

maintained his view of Davis because he was concerned that Davis would attack

him. Four days after the events at Headley, Ortiz viewed a photopack containing

Davis’s photograph. Ortiz easily identified Davis as the perpetrator. In addition to

Ortiz’s observations of Davis at the time of the shooting, Ortiz testified that he





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recognized Davis as someone whom he previously saw at the Florida Natural

Growers juice plant. Ortiz previously worked at the plant.

A. Validity of the Out-of-Court Identifications/Photopacks

First, Davis contends that the photopacks shown to Greisman and Ortiz were

unnecessarily suggestive and that as a result, their out-of-court identifications of

Davis were invalid. “This Court has adopted a two-part test to determine whether

an out-of-court identification may be admitted: First, whether police used an

unnecessarily suggestive procedure to obtain an out-of-court identification, and,

second, if so, considering all the circumstances, whether the suggestive procedure

gave rise to a substantial likelihood of irreparable misidentification.” Green v.

State, 641 So. 2d 391, 394 (Fla. 1994) (citing Grant v. State, 390 So. 2d 341, 343

(Fla. 1980)). When evaluating the likelihood of misidentification, a court should

consider:

the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.



Rimmer v. State, 825 So. 2d 304, 316 (Fla. 2002) (quoting Grant, 390 So. 2d at

343). However, where the procedure used to obtain the out-of-court identification

was not unnecessarily suggestive, the likelihood of irreparable misidentification

need not be explored. See id. In this case, the procedures used to obtain the out





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of-court identifications made by Greisman and Ortiz were not unnecessarily

suggestive.

Greisman and Ortiz were each shown a photopack that was printed on a

piece of letter-sized paper and contained six photographs. The photographs were

divided into two rows, with three photographs in each row. The lower left corner

of each photograph contained an identifying number ranging from one through six.

Below the bottom row of photographs were six sets of book-in numbers, each of

which corresponded to one of the photographs. Each of the numbers contained

between seven and eleven digits and was printed in small font. Davis’s book-in

number contained the number 2007, and the other photographs each contained the

number 93 or 94, representing the year that the photograph was taken. As a result,

Davis argues that the placement of the number 2007 in his book-in number

distinguished it from the other book-in numbers that contained the numbers 93 and

94, and unnecessarily suggested that his was the suspect’s photograph. We

disagree.

The photopack in this case is distinguishable from cases cited by Davis

where a date was actually placed on the suspect’s photograph. For instance, in

Brown v. Commonwealth, 564 S.W.2d 24 (Ky. Ct. App. 1978), a case involving

the appeal of two defendants’ robbery convictions, the appellate court detailed the

following facts:





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The seven photographs shown Lineberry and Scott were mug shots from the files of the Jefferson County Police Department. In each photograph a board was suspended from around the neck of the individual. Each board contained information for identification purposes. In the case of Brown and Hill [the appellants], each board contained the abbreviation “ROB” and the date “November 17, 1975.” In the other five photographs, the boards did not contain the robbery date of November 17, 1975, nor were any two dates the same. Only one of the other five photographs contained the abbreviation “ROB.”



Id. at 26. These facts, which include the unequivocal use of the date of the crime

and the abbreviation “ROB” within the suspects’ photographs, demonstrate an

unnecessarily suggestive photographic lineup.

In contrast, the photopacks shown to Greisman and Ortiz contained, beneath

the entire set of photographs, six sets of book-in numbers that corresponded to the

photographs above. The numbers were printed in small font and were innocuous.

Both Greisman and Ortiz quickly identified Davis’s photograph. Therefore, we

reject Davis’s argument that the book-in numbers rendered the photopacks

unnecessarily suggestive. Consequently, the trial court did not err in admitting the

out-of-court identifications made by Greisman and Ortiz.

B. Validity of the In-Court Identifications

Second, Davis argues that the in-court identifications made by Greisman and

Ortiz are invalid. He asserts that the in-court identifications were rendered

unreliable by the earlier use of unnecessarily suggestive photopacks. However,

because the photopacks were not unnecessarily suggestive and did not invalidate





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Greisman’s and Ortiz’s out-of-court identifications, Davis’s argument that the

photopacks rendered their in-court identifications invalid is without merit. Davis is

not entitled to relief.

X. Weight Assigned to Aggravating and Mitigating Factors

Davis also challenges the weight assigned by the trial court to two mitigating

circumstances, arguing that the trial court failed to individually weigh each on its

own merits. Second, Davis argues that the court improperly weighed the

aggravating circumstances. We address each claim in turn.

Mitigating Circumstances

First, Davis argues that the trial court improperly discounted two

nonstatutory mitigating circumstances. “[A] defendant must raise a proposed

nonstatutory mitigating circumstance before the trial court in order to challenge on

appeal the trial court’s decision about that nonstatutory mitigating factor.” Davis

v. State, 2 So. 3d 952, 962 (Fla. 2008) (citing Lucas v. State, 568 So. 2d 18, 23-24

(Fla. 1990)). Yet, when determining the appropriateness of a sentence of death,

“trial courts are required to consider all mitigating evidence presented by the

defendant and supported by the record.” Griffin v. State, 820 So. 2d 906, 913 (Fla.

2002) (citing Walker v. State, 707 So. 2d 300, 318 (Fla. 1997)). Davis challenges

the trial court’s findings with respect to nonstatutory circumstances nine (stressors

at the time of incident) and ten (good person in general):





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9. Stressors at the time of incident.



It is obvious that the Defendant was under some financial stress in December 2007. By that time, he had lost his long term, good paying job at Florida Natural Growers and had gone to work for the City of Eagle Lake. However, he also lost that job and received his last paycheck from the City of Eagle Lake on December 6, 2007.



The Defendant’s wife, Victoria Lynn Davis, was on a leave of absence from her job due to problems with her pregnancy. The family owed past due mortgage payments and had maxed out their credit cards. The Defendant did not have any significant amount of cash in the bank and was facing his son’s upcoming birthday and the Christmas holidays.



His son . . . was born with [Down] syndrome, and the Defendant was actively participating in this upbringing. It is clear that he spent a lot of time with his son . . . .



The Court finds this mitigating circumstance has been proven by a greater weight of the evidence, but it does not justify a decision to rob a convenience store and murder two victims in the course of the attempted robbery.



The Court assigns this mitigator little weight.



10. Good person in general.



The evidence establishes that the Defendant, Leon Davis Jr., was a loving husband, who was devoted to his [Down] syndrome son . . . . He was also actively involved in his family, regularly seeing his brother and his sisters.



It appears that he was very well regarded by his entire family, his friends, and his employers.



The Court finds this mitigator has been proven by a greater weight of the evidence but, in light of the murders at Headley Insurance Agency, assigns it little weight.







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(Emphasis added.)

When evaluating mitigating circumstances, “each mitigating circumstance is

to be analyzed and weighed individually.” Perez v. State, 919 So. 2d 347, 373-74

(Fla. 2005) (citing Peterka v. State, 640 So. 2d 59, 70 (Fla. 1994)). Furthermore,

“the written findings chronicling the trial court’s analysis and reasons for the

weight assigned by it should be ‘unmistakably clear’ to ensure that a defendant is

afforded a full appellate review in cases where the ultimate sentence is death.” Id.

In this case, the trial court found as a nonstatutory mitigating circumstance

that Davis was subject to stressors at the time of the BP murders but discounted the

mitigation because it did not justify the BP attempted robbery and murders. The

trial court’s analysis was improper. Additionally, while the trial court found as a

nonstatutory mitigating circumstance that Davis was a good person in general, the

court assigned the mitigation little weight “in light of the murders at Headley

Insurance Agency.” Likewise, this analysis was improper. We addressed a similar

issue in Perez, and we again “remind the trial court below that each mitigating

circumstance is to be analyzed and weighed individually.” Id. at 373.

While we conclude that the trial court erred when it discounted these

nonstatutory mitigating circumstances based on other factors, in light of the

weighty aggravating circumstances in this case, we conclude that the trial court’s

error is harmless.





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Aggravating Circumstances

In the conclusion of the sentencing order, the trial court said: “The State has

proven, beyond and to the exclusion of all reasonable doubt, 3 Statutory

Aggravators, to which the Court has assigned great weight.” This language is

inconsistent with the court’s specific findings contained in the sentencing order:

(1) capital felony committed by person previously convicted of a felony and on

felony probation (moderate weight); (2) prior capital/violent felony conviction

(very great weight); and (3) capital felony committed during the course of an

attempted robbery (great weight).

The trial court did misstate the weight that it gave to two of the aggravating

factors. However, while the court overstated the weight assigned to one

aggravating circumstance (Davis was previously convicted of a felony and on

felony probation), it understated the weight assigned to another (prior

capital/violent felony). The sentencing order reflects a detailed consideration of

each aggravating circumstance and acknowledges “that the process is not simply a

quantitative analysis but a qualitative one.” Having conducted its qualitative

analysis, the trial court concluded that the aggravating circumstances outweighed

the mitigating circumstances. Davis is not entitled to relief.





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XI. Proportionality

This Court is required to conduct “a comprehensive analysis in order to

determine whether the crime falls within the category of both the most aggravated

and the least mitigated of murders, thereby assuring uniformity in the application

of the sentence.” Offord v. State, 959 So. 2d 187, 191 (Fla. 2007) (quoting

Anderson v. State, 841 So. 2d 390, 407-08 (Fla. 2003)). “This entails ‘a qualitative

review . . . of the underlying basis for each aggravator and mitigator rather than a

quantitative analysis.’ ” Id. (quoting Urbin v. State, 714 So. 2d 411, 417 (Fla.

1998)). Thus, in determining whether a death sentence is proportionate, this Court

does not simply compare the number of aggravating circumstances versus the

number of mitigating circumstances. See id.

In this case, involving the murders of two victims, the trial court found the

following aggravating circumstances: (1) capital felony committed by person

convicted of a felony and on felony probation (moderate weight); (2) prior

capital/violent felony conviction (very great weight); and (3) capital felony

committed during the course of an attempted robbery (great weight). The court

found as a statutory mitigating circumstance that Davis was under the influence of

extreme mental or emotional distress and assigned it little weight. The trial court

also found multiple nonstatutory mitigating circumstances; the weightiest of these,

related to abuse and bullying in his childhood, and his role as a good father, son,





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and brother, were afforded moderate weight. Ultimately, the trial court concluded

that the aggravating circumstances justified the imposition of the death penalty and

that the mitigating circumstances were insufficient to overcome the weighty

aggravation.

Davis’s case is proportionate to cases involving shooting deaths where this

Court has upheld the appellant’s sentence of death. In Sanchez-Torres v. State,

130 So. 3d 661, 674-76 (Fla. 2013), this Court upheld the death sentence where the

trial court found two aggravating circumstances, including prior violent felony, and

weighed the aggravating circumstances against “numerous nonstatutory

mitigators.” Likewise, in Hayward, this Court upheld the death sentence as

proportionate where the trial court found two aggravating circumstances, including

prior violent felony, and weighed these aggravating circumstances against several

nonstatutory mitigating circumstances. Hayward, 24 So. 3d at 46. See also

McMillian v. State, 94 So. 3d 572 (Fla. 2012) (death sentence upheld where trial

court weighed two aggravating circumstances, including prior violent felony,

against several nonstatutory mitigating circumstances); Lebron v. State, 982 So. 2d

649 (Fla. 2008) (death sentence for shooting murder upheld where trial court

weighed two aggravating circumstances, including prior violent felony, against

several nonstatutory mitigating circumstances).





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Moreover, Davis’s case is also proportionate to other cases involving double

murders. See Marquardt v. State, 156 So. 3d 464 (Fla.) (death sentence upheld

where the trial court weighed four aggravating circumstances as to one victim and

three as to the second victim, including prior violent felony, against two statutory

mitigating circumstances and two nonstatutory mitigating circumstances), cert.

denied, 136 S. Ct. 213 (2015).

Davis argues that his death sentence is disproportionate because the trial

court did not find that the murders were especially heinous, atrocious, or cruel

(HAC), or that the murders were cold, calculated, and premeditated (CCP). While

the absence of HAC or CCP alone does not render a death sentence

disproportionate, this Court has stated that “while their absence is not controlling,

it is also not without some relevance to a proportionality analysis.” Larkins v.

State, 739 So. 2d 90, 95 (Fla. 1999).

In this case, although HAC and CCP are not present, we are especially

mindful of the extremely weighty aggravating circumstance properly found by the

trial court based on Davis’s prior capital felony convictions. The prior

capital/violent felony aggravating circumstance, to which the trial court assigned

the greatest weight, involved the brutal murders of Bustamante and Luciano—

murders that occurred within one week of the BP murders. Like HAC and CCP,

this Court has observed that the prior violent felony aggravating circumstance is





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“among the weightiest aggravators set out in the statutory sentencing scheme.”

Hodges v. State, 55 So. 3d 515, 542 (Fla. 2010).

Also without merit is Davis’s argument that his sentence is disproportionate

because the murders that served as the basis for the prior capital/violent felony

aggravating circumstance occurred one week after the BP murders. This Court has

stated that “previous violent felony convictions suffice for purposes of the prior

violent felony aggravator so long as the convictions predate the sentencing, even

when the crimes underlying the conviction occurred after the crime for which the

defendant is being sentenced.” Knight v. State, 746 So. 2d 423, 434 (Fla. 1998)

(citing Elledge v. State, 346 So. 2d 998 (Fla. 1977)). Davis was convicted of the

murders of Bustamante and Luciano before he was sentenced to death for the

murders of Dashrath and Pravinkumar. Davis is not entitled to relief on this

ground. We therefore affirm on the ground of proportionality.

XII. Ring/Hurst v. Florida Claim

Davis’s final argument is that Florida’s capital sentencing scheme is

unconstitutional and violates the requirements set forth in Ring v. Arizona, 536

U.S. 584 (2002), because it relies on the trial court as the fact finder for an

aggravating circumstance and does not require a unanimous jury finding. Davis

preserved this argument before he waived his right to trial by jury. While Davis’s

appeal was pending, the United States Supreme Court issued Hurst v. Florida, 136





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S. Ct. 616, 621 (2016) (Hurst v. Florida), in which it held that Florida’s capital

sentencing scheme violated the Sixth Amendment under Ring. The Supreme Court

concluded that “[t]he Sixth Amendment requires a jury, not a judge, to find each

fact necessary to impose a sentence of death.” Id. at 619. Davis filed a notice of

supplemental authority stating that he intended to rely upon Hurst v. Florida in

support of his Ring claim. On July 26, 2016, we granted Davis’s “Motion for

Supplemental Briefing Regarding the Application of Hurst v. Florida to This

Case.”

In Mullens v. State, 197 So. 3d 16, 38 (Fla. 2016), we held that a defendant

who has waived the right to a penalty phase jury is not entitled to relief under

Hurst v. Florida. We concluded that a defendant “cannot subvert the right to jury

factfinding by waiving that right and then suggesting that a subsequent

development in the law has fundamentally undermined his sentence.” Id. at 40.

See also Brant v. State, 197 So. 3d 1051, 1079 (Fla. 2016) (relying upon Mullens

to deny relief under Hurst v. Florida in the postconviction context). We have

considered the arguments presented in the supplemental briefing, and based upon

our reasoning in Mullens, we reject Davis’s Ring/Hurst v. Florida claim.

For these reasons, we affirm Davis’s convictions and sentences. It is so ordered.

Verdict Case No. SC13-1

For these reasons, we affirm Davis’s convictions and his sentences of death.