TROY VICTORINO, Appellant,
v.
STATE OF FLORIDA, Appellee.
No. SC06-2090.
Supreme Court of Florida.
November 25, 2009.
An Appeal from the Circuit Court in and for Volusia County, William A. Parsons, Judge — Case No. 04-1378-CFAWS
James Jeffery Dowdy of Dowdy and Nielsen, Winter Springs, Florida, for Appellant
Bill McCollum, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, Florida, for Appellee
PER CURIAM.
Troy Victorino appeals his convictions and sentences of death for first-degree murder. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm.
I. BACKGROUND
On August 27, 2004, Victorino was charged in a fourteen-count superseding indictment that included six counts of first-degree murder in the deaths of Erin Belanger, Roberto Gonzalez, Michelle Nathan, Anthony Vega, Jonathon Gleason, and Francisco “Flaco” Ayo-Roman. Victorino, with codefendants Jerone Hunter and Michael Salas, went to trial on July 5, 2006.1 Codefendant Robert Anthony Cannon previously pleaded guilty as charged.
A. The Guilt Phase
The evidence presented at trial established that the August 6, 2004, murders were the culmination of events that began several days before. On Friday, July 30, Erin Belanger contacted police concerning suspicious activity at her grandmother’s vacant house on Providence Boulevard in Deltona. Without the owner’s permission, Victorino and Hunter had recently moved into the home with their belongings. On Saturday, Belanger again contacted police; this time she reported that several items were missing from her grandmother’s house.
Late Saturday night, Victorino appeared at Belanger’s own residence on Telford Lane. He demanded the return of his belongings, which he believed Belanger had taken from the Providence Boulevard residence. Shortly after leaving Belanger’s residence early on the morning of Sunday, August 1, Victorino contacted law enforcement to report the theft of his belongings from the Providence Boulevard residence. The responding officer advised Victorino that he had to provide a list of the stolen property. This angered Victorino, and he said, “I’ll take care of this myself.”
A short time later, Victorino met Brandon Graham and codefendants Cannon and Salas, who were in Cannon’s Ford Expedition (the SUV). Codefendant Hunter and several young women were also in the SUV. Victorino told them that Belanger and the other occupants of the Telford Lane house had stolen his belongings and that he wanted them to go fight Belanger and the others. According to Graham, Victorino and the occupants of the SUV all went in the SUV to the Telford Lane residence. While Victorino remained in the SUV, the young women went into the residence armed with knives. The young men stood outside holding baseball bats, and Hunter yelled for the occupants to come out and fight. The group left in Cannon’s SUV, however, after victim Ayo-Roman yelled “policia.”
A few days later, on the evening of Wednesday, August 4, Victorino went to a park with Graham and the three codefendants to fight another group. Evidence was presented that some of the members of that group were affiliated with the victims at Telford Lane and would have knowledge of Victorino’s allegedly stolen property. When their foes failed to show up, Victorino and his associates drove back to a house on Fort Smith Boulevard in Deltona where Victorino and Hunter now lived. As they arrived, however, Victorino spotted the car of the group with which the fight was planned and directed Cannon, who was driving, to chase the car. Victorino fired a gunshot at the fleeing car and then told Cannon to take him home.
The following morning, Thursday, August 5, Graham, Salas, and Cannon met with Victorino and Hunter at their residence. There, Victorino outlined the following plan to obtain his belongings from Belanger. Victorino said that he had seen a movie named Wonderland in which a group carrying lead pipes ran into a home and beat the occupants to death. Victorino stated that he would do the same thing at the Telford Lane residence. He asked Graham, Salas, and Cannon if they “were down for it” and said to Hunter, “I know you’re down for it” because Hunter had belongings stolen as well. All agreed with Victorino’s plan. Victorino described the layout of the Telford Lane residence and who would go where. Victorino said that he particularly wanted to “kill Flaco,” and told the group, “You got to beat the bitches bad.” Graham described Victorino as “calm, cool-headed.” Hunter asked if they should wear masks; Victorino responded, “No, because we’re not gonna leave any evidence. We’re gonna kill them all.”
Victorino and his associates then left in Cannon’s SUV to search for bullets for the gun that Victorino fired the previous night. While driving, the group further discussed their plan and decided that each of them needed a change of clothes because their clothes would get bloody. The group dropped Graham off at his friend Kristopher Craddock’s house. Graham avoided the group’s subsequent calls and did not participate in the murders.
Around midnight on Thursday, August 5, a witness saw Victorino, Salas, Cannon, and Hunter near the murder scene on Telford Lane. Cannon, a State witness, testified that he and Salas went because they were afraid Victorino would kill them if they did not. Cannon further testified that he, Victorino, Hunter, and Salas entered the victims’ home on the night of the murders armed with baseball bats.
On the morning of Friday, August 6, a coworker of two of the victims discovered the six bodies at the Belanger residence and called 911. Officers responding to the 911 call arrived to find the six victims in various rooms. The victims had been beaten to death with baseball bats and had sustained cuts to their throats, most of which were inflicted postmortem. Belanger also sustained postmortem lacerations through her vagina up to the abdominal cavity of her body, which were consistent with having been inflicted by a baseball bat. The medical examiner determined that most of the victims had defensive wounds. The front door had been kicked in with such force that it broke the deadbolt lock and left a footwear impression on the door. Footwear impressions were also recovered from two playing cards, a bed sheet, and a pay stub. All of these impressions were linked to Victorino’s Lugz boots. Furthermore, DNA testing linked bloodstains on Victorino’s Lugz boots to several of the victims. A dead dachshund, a knife handle, and a bloody knife blade were also recovered from the crime scene.
On Saturday, August 7, the day after the murders were discovered, Victorino was arrested on a probation violation at his residence on Fort Smith Boulevard. Hunter, who was present at the time, complied with the officers’ request that he come to the sheriff’s office. Once there, Hunter described his role in the murders. That same day, Cannon’s SUV was seized. From it, officers recovered a pair of sunglasses containing victim Ayo-Roman’s fingerprint. In addition, glass fragments found in the vehicle were consistent with glass from a broken lamp at the crime scene.
When questioned by officers, Salas admitted to being at the crime scene on the night of the murders and stated that Cannon drove there with Victorino, Hunter, and Salas. Salas also described his role in the murders and told officers where the bats had been discarded at a retention pond. Based on that information, law enforcement authorities recovered two bats from the pond and two bats from surrounding trees. The two bats recovered from surrounding trees contained DNA material that was linked to at least four of the victims.
At trial, Victorino testified in his defense. He admitted that he believed that Belanger had taken his property from the Providence Boulevard residence. However, he denied meeting Graham, Cannon, or Salas at his residence on August 5, testifying instead that he was at work. He further denied committing the murders and offered an alibi—that he was at a nightclub on the night of the murders. Two friends testified on behalf of Victorino and corroborated his alibi.
Hunter and Salas also testified in their defense. Each described his role in the murders and corroborated the other testimony and evidence offered at trial, including the evidence of the meeting at which Victorino planned the murders and the agreement to participate. They further testified that Victorino attempted to establish an alibi by making an appearance at the nightclub.
On July 25, 2006, Victorino was convicted of six counts of first-degree murder (Counts II-VII); one count of abuse of a dead human body (Count VIII); one count of armed burglary of a dwelling (Count XIII); one count of conspiracy (to commit aggravated battery, murder, armed burglary of a dwelling, and tampering with physical evidence) (Count I); and one count of cruelty to an animal (Count XIV).
B. The Penalty Phase
At the beginning of the penalty phase, the trial court informed the jury of the parties’ stipulation that Victorino was on felony probation for aggravated battery at the time of the murders. After the State introduced victim impact statements by the victims’ family members, the defendant presented several witnesses.
Victorino began by presenting the testimony of three expert witnesses. Dr. Joseph Wu, a psychiatrist, concluded that a PET (Positron Emission Tomography) scan revealed Victorino’s brain was abnormal, evidencing lower than normal frontal lobe activity. While he did not make a diagnosis, he said that the scan was consistent with traumatic brain injury or mental health conditions, such as bipolar disorder or schizophrenia. After reviewing Victorino’s records and conducting numerous tests, Dr. Charles Golden, a neuropsychologist, determined that Victorino has some frontal lobe impairment and severe emotional problems. Although Victorino has average intelligence and knows right from wrong, he performed poorly on executive function tests, has difficulty with interpersonal relationships, and has poor coping skills. Dr. Golden opined that the test results were consistent with Victorino’s personal history of physical abuse, difficulty in controlling his aggression, and lack of mental health treatment. Finally, the third defense expert, Dr. Jeffrey Danziger, a psychiatrist, testified that Victorino has an IQ of 101 and outlined Victorino’s long history of physical and emotional abuse by his father, an incident of sexual abuse, his history of mental health problems (including his several suicide attempts), and his time in prison.
Several relatives and friends also testified. Victorino’s brother and mother also told of Victorino’s mental health problems, an instance of sexual abuse, and the frequent physical abuse by his father. In addition, two friends testified about their regard for him.
In rebuttal, the State presented Dr. Lawrence Holder, an expert in radiology and nuclear medicine. He testified that Victorino’s PET scan was normal. Further, he stated that use of a PET scan to suggest that a patient has a specific mental health problem, such as bipolar disorder, is not an established clinical use of such scans.
The jury recommended life sentences for the murders of Michelle Nathan and Anthony Vega and death sentences for the murders of Erin Belanger (by a vote of ten to two), Francisco Ayo-Roman (by a vote of ten to two), Jonathan Gleason (by a vote of seven to five), and Roberto Gonzalez (by a vote of nine to three). At the subsequently held Spencer2 hearing, the State submitted an additional written victim impact statement. Victorino did not present any additional evidence.
On September 21, 2006, the trial court followed the jury’s recommendations by imposing four death sentences.3 The trial court found the following five aggravating factors applicable to each of the four murders and accorded them the weight indicated: (1) the defendant had a prior felony conviction and was on probation at the time of the murders (moderate weight); (2) the defendant had other capital felony convictions (very substantial weight); (3) the defendant committed the murders in the course of a burglary (moderate weight); (4) the murders were especially heinous, atrocious, or cruel (HAC) (very substantial weight); and (5) the murders were cold, calculated, and premeditated (CCP) (great weight). In addition, the court found a sixth aggravator in the murders of Gleason and Gonzalez—that the murders were committed to avoid arrest (substantial weight). The trial court found no statutory mitigation but did find the following nonstatutory mitigating factors: (1) Victorino had a history of mental illness (some weight); (2) he suffered childhood physical, sexual, and emotional abuse (moderate weight); (3) he was a devoted family member with family support (little weight); (4) he did some good deeds (very little weight); (5) he exhibited good behavior at trial (very little weight); (6) he was a good inmate (little weight); (7) he was a good student who earned awards (little weight); (8) he had an alcohol abuse problem (very little weight); and (9) he had a useful occupation (very little weight). The trial court determined that the aggravating factors far outweighed the mitigating circumstances and, in accord with the jury’s recommendation, sentenced Victorino to death for each of the four murders.
II. GUILT PHASE CLAIMS
Regarding the guilt phase, Victorino argues that the trial court erred in (A) denying his pretrial motion to suppress DNA samples and nail scrapings, which he claimed were forcibly obtained from him; (B) denying his motion to suppress physical evidence seized from his Fort Smith Boulevard residence; (C) denying his motion to sever his trial from that of his two codefendants; (D) admitting evidence of uncharged misconduct; (E) using the “and/or” conjunction between the names of the codefendants when instructing the jury; (F) moving the trial within the Seventh Circuit from Volusia County to St. Johns County after granting a motion to change venue; (G) denying his request for additional peremptory challenges; (H) denying his motion for mistrial when his codefendant testified; (I) denying his motion for judgment of acquittal; and (J) denying him due process in his arrest and service of the warrant and admitting irrelevant evidence. Each argument will be addressed in turn.
A. Motion to Suppress DNA
Victorino argues that the trial court erred in denying his pretrial motion to suppress DNA samples and nail scrapings, which he claimed were forcibly obtained from him.4 After holding an evidentiary hearing, the trial court held that Victorino freely and voluntarily provided DNA samples and nail scrapings. We agree.
At the motion hearing, Victorino testified that after he was taken into custody, he was placed in an interview room. Victorino admits that he was properly advised of his Miranda5 rights and that he agreed to give an interview. Victorino testified, however, that he refused the subsequent request of two uniformed investigators to provide DNA samples, saying he would not comply without a warrant. According to Victorino, Investigator Richard Graves then pried Victorino’s mouth open while Investigator Charles Dowell swabbed Victorino’s cheek; then, Dowell held Victorino’s hand down, while Graves took nail scrapings.
In contrast, Investigator Graves testified that when he asked to collect the samples, Victorino first stated that his DNA was already on record. When Graves indicated that he was unaware of that record, Victorino complied with the request, opening his mouth for the swab and allowing the collection of nail scrapings. According to Graves, Victorino never refused and was cooperative at all times. Investigator Dowell’s testimony was completely consistent with the testimony of Graves. In additio
