Florida Criminal Law Opinions

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

LAFOREST L. WILLIAMS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D09-2735

Opinion filed September 30, 2011.

Appeal from the Circuit Court for Putnam County,

Edward Hedstrom, Judge.

James S. Purdy, Public Defender,

and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

JACOBUS, J.

Laforest Williams (“Appellant”) timely appeals the judgment and sentence entered after a jury found him guilty of robbery with a firearm. Appellant raises three claims of error on appeal. We find Appellant’ first and second claims are without merit. As to the third claim, however, the court erred in permitting the State to elicit testimony

from Appellant’s wife in violation of the husband-wife privilege.1 We therefore reverse and remand this matter for a new trial.

This case arises out of the armed robbery of an undercover DEA agent. The agent set up a meeting to purchase a substantial amount of drugs at a drug dealer’s home. Upon arrival at the appointed time and place, the agent found the dealer was not home, but his girlfriend was there. While the agent and the girlfriend were standing outside the home, they were approached by two men with guns. The agent was robbed at gunpoint of $11,500 in marked bills. A neighbor who witnessed part of the robbery called 911. During the 911 call, the dealer’s girlfriend spoke to the dispatcher and stated: “Two-Six just robbed him. Two-Six did.”

At trial, the 911 recording was played to the jury. The State also played the girlfriend’s police statement in which she identified Two-Six as the robber, stated Two-Six was Williams, and stated that she was afraid of him. However, at trial the girlfriend denied making any of these statements and denied the veracity of them.

Defense counsel objected to the testimony on the basis of the husband-wife privilege when the State called Appellant’s wife to testify regarding a conversation she had with Appellant. The State made no showing that the statements between Appellant and his wife were not meant to be confidential or that they were made to a third-party. Nonetheless, the court overruled the objection, finding that the conversation between Appellant and his wife was not intended to be confidential. Mrs. Williams testified that Appellant was known as Two-Six on the street, but she knew him as Laforest. She also

1 § 90.504(1), Fla. Stat.

testified that before the robbery Appellant told her that he needed money to pay his attorney in Gainesville.

The State makes two arguments in support of its contention that Mrs. Williams’ statements were properly admitted at trial. First, it contends that Appellant waived the privilege by failing to object to Mrs. Williams’ discovery deposition. During that deposition, Mrs. Williams made the same revelations regarding her conversation with Appellant as she did at trial. Second, the State claims any error in admitting the statements was harmless.

Our supreme court has ruled that even without an objection, the husband-wife privilege is not waived when one spouse gives deposition testimony regarding conversations with the other spouse. See Bolin v. State, 642 So. 2d 540 (Fla. 1994). However, Bolin suggests that using the deposition at trial would waive the privilege. See id. at 541. Here, Appellant did not object to his wife’s deposition and the deposition was never used at trial. Based on these facts, we conclude Appellant did not waive the husband-wife privilege.

We find that Mrs. Williams’ statement regarding Appellant’s street name was not protected by the husband-wife privilege because that information was known generally in the community. However, considering the record before us, we must conclude that the trial court erroneously permitted Mrs. Williams to testify about Appellant’s statement that he needed money to pay his attorney. A communication between a husband and wife is presumed confidential unless there is evidence to the contrary. Blau v. United States, 340 U.S. 332, 333 (1951); Yokie v. State, 773 So. 2d 115, 117 (Fla. 4th DCA 2000). At trial, neither Appellant nor his wife testified whether they meant their

communication to be private or public. Likewise, there was no testimony that the statement was made in the presence of a third party or that Appellant instructed his wife to disclose this information to another person. Without this information, it is impossible to determine whether Appellant’s statement to his wife was privileged and whether that privilege had been waived. As such, the State did not overcome the presumption that the statement is covered by the husband-wife privilege. Therefore, it was error for the trial court to admit Mrs. Williams’ statements over defense counsel’s objection. See Blau, 340 U.S. at 333-34 (noting that government made no effort to overcome marital privilege and communication was likely to be confidential); Yokie, 773 So. 2d at 117.

As to the harmless error claim, the State argues that Mrs. Williams’ testimony was limited and did not involve any admissions of guilt by Appellant. As a result, according to the State, Mrs. Williams’ testimony could not have contributed to the jury’s finding of guilt. To establish harmless error, the State must prove, beyond a reasonable doubt, that the alleged error did not contribute to the verdict. State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986).

In this case, there was evidence to tie Appellant to the robbery. Specifically, the undercover agent positively identified him as one of the robbers. The jury heard the 911 call from the dealer’s girlfriend where she identified “Two-Six” as one of the robbers, and the jury learned that the girlfriend told the police that Laforest “was one of the robbers.” The State also presented evidence that some of the marked money stolen during the robbery was found in Appellant’s lawyer’s office in Gainesville. To link the money to Appellant’s guilt, the State needed to show that Appellant delivered the money to his attorney in Gainesville. The State did so by offering Mrs. Williams’ testimony that

the attorney knew Appellant and that her husband had told her before he was arrested that he needed money to pay his attorney. Without Mrs. Williams’ testimony, the only evidence linking Appellant to the crime would have been the eyewitness identification by the undercover agent and the girlfriend. Defense counsel attacked both of these identifications at trial and weakened their impact during cross-examination. Furthermore, the girlfriend stated that the police coerced her into identifying Appellant as one of the robbers.

Looking at all of the facts, it is apparent that although Mrs. Williams’ testimony was brief, it was vital to the State’s case. Accordingly, it is impossible to determine whether its admission contributed to the jury’s verdict. Therefore, we conclude the erroneous admission of Mrs. Williams’ testimony was harmful. See Bolin, 642 So. 2d at 541 (finding erroneous admission of privileged testimony harmful where statements from Bolin to his wife were integral part of State’s case and reviewing court could not determine whether they played significant role in jury’s determination). For the foregoing reasons, the conviction and sentence are reversed and this matter is remanded for a new trial.

CONVICTION and SENTENCE REVERSED, REMANDED for New Trial.

ORFINGER, C.J. and SAWAYA, J., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

ODALIS CRUZ,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-1441

Opinion filed September 30, 2011

Appeal from the Circuit Court for Marion County,

Hale R. Stancil, Judge.

James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

We affirm the order clarifying Odalis Cruz’s sentence. However, we strike the imposition of the $2000 fine, the related $100 surcharge, and the $20 Crime-stoppers fine because, as the State concedes, such discretionary fines are not authorized under the habitual violent felony offender sentencing scheme. Wright v. State, 48 So. 3d 926 (Fla. 1st DCA 2010).

Sentence AFFIRMED; specified fines STRICKEN.

SAWAYA, MONACO AND TORPY, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

BRYAN CROSKEY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-1594

Opinion filed September 30, 2011

Appeal from the Circuit Court for Orange County,

Alicia L. Latimore, Judge.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Bryan I. Croskey, Perry, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach,

for Appellee.

PER CURIAM.

We affirm in all respects this Anders1 appeal. However, we remand for correction of the written sentencing order. Since the jury specifically found that Appellant possessed but did not discharge a firearm, the reference to a twenty-year minimum

1 Anders v. California, 386 U.S. 738 (1967).

mandatory and section 775.087(2)(a)2., Florida Statutes (2008), is erroneous and should be stricken from the judgment. See Murphy v. State, 977 So. 2d 748 (Fla. 2d DCA 2008) (in Anders appeal, affirming judgment and sentence and remanding to correct scrivener’s errors in written judgment). The trial judge’s oral pronouncement of a ten-year minimum mandatory sentence pursuant to section 775.087(2)(a), Florida Statutes (2008), was correct and should be set forth in the order.

AFFIRMED AND REMANDED FOR CORRECTION.

MONACO, TORPY and EVANDER, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

J.H., A CHILD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-3538

Opinion filed September 30, 2011

Appeal from the Circuit Court for Orange County,

Thomas W. Turner, Judge.

James S. Purdy, Public Defender, and Colby Nicole Ferris, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

SAWAYA, J.

J.H. appeals the disposition order, claiming that it violates the prohibition against double jeopardy. We agree and reverse.

J.H. entered a plea of no contest to one count of lewd or lascivious conduct. At the initial disposition hearing, the court orally sentenced 14-year-old J.H. to probation until he turned 19 and ordered 23 hours of community service in lieu of a cash payment

of court costs. The court signed the Department of Juvenile Justice’s (DJJ) proposed plan and the matter concluded. J.H. left the courtroom to begin his probation. The court proceeded to handle other cases.

Fourteen minutes after J.H.’s sentence had been pronounced, J.H. was summoned back to the courtroom at the request of the assistant state attorney, who thought that the sentence needed to be re-addressed in light of her belief that a commitment staffing that had been previously ordered was never completed. The court withdrew the disposition order and ordered that another disposition hearing be held after the commitment staffing was completed. J.H.’s attorney protested that jeopardy had already attached and J.H. had already begun serving his probation. The court announced that it would deal with those concerns at the next disposition hearing. The hearing concluded.

The commitment staffing was held, and the case proceeded to the second disposition hearing several weeks later. This time, the DJJ recommended that J.H. be placed in residential treatment in a moderate-risk program. J.H.’s attorney again objected on the ground that jeopardy had attached at the earlier sentencing. Acknowledging that there “most likely” would be an appeal and that its second sentencing order “may well be overturned,” the court imposed three years in a level six program, ordered 23 hours of community service to cover court costs, and added 20 hours of community service that had not been included in the first order.

The State concedes that if this court determines that the original sentence was valid, double jeopardy was violated by the resentencing. However, it contends that the original sentence was invalid because the court did not have before it a fully completed,

statutorily-required predisposition report at the time of sentencing, which, it argues, is required under section 985.229(1):

A predisposition report shall be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department. A comprehensive evaluation for physical health, mental health, substance abuse, academic, educational, or vocational problems shall be ordered for any child for whom a residential commitment disposition is anticipated or recommended by an officer of the court or by the department. If a comprehensive evaluation report is ordered, the predisposition report shall include a summary of the comprehensive evaluation.

§ 985.229(1), Fla. Stat. (2010). Missing from the predisposition report was a

comprehensive evaluation, and only after the court received the comprehensive evaluation could a sentence be properly imposed, the State asserts, citing K.D. v. State, 911 So. 2d 885 (Fla. 1st DCA 2005) (remanding for new disposition hearing where the predisposition report noted that a comprehensive evaluation had not yet been received as of the date of the report and DJJ had asked that sentencing be continued so it could be obtained; holding that failure to strictly comply with the mandatory statutory requirements for disposition hearings is reversible error and, without the comprehensive evaluation to consider, the court was in violation of the statutory requirements for sentencing).

It appears the State was misled by a predisposition report filed some months earlier that was incomplete, as that is what it cites in support of its argument that the court could not proceed to sentencing in the absence of a comprehensive evaluation. The State is correct that the predisposition report to which it refers was incomplete—it noted on its face the absence of the comprehensive evaluation at the time it was

prepared. However, the record does contain a subsequent, complete predisposition report and comprehensive evaluation. This complete report, along with the DJJ’s proposed plan for probation, was stamped as “Filed in Open Court” on the day of the first disposition hearing. Hence, the State advances an erroneous argument in support of its contention that the original sentence was improper.

As noted above, J.H. was originally sentenced to probation. Probation cannot be revoked or enhanced without first a determination that the probationer violated probation. § 948.06, Fla. Stat. (2010); Burkhart v. State, 974 So. 2d 1203 (Fla. 1st DCA 2008). Without such proof, “a trial court cannot alter an order of probation by revoking or enhancing the terms thereof.” J.D.D. v. State, 12 So. 3d 820, 821 (Fla. 1st DCA 2009). If it does so, it has violated the prohibition against double jeopardy. See Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003) (“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.”); Gardner v. State, 30 So. 3d 629, 632 (Fla. 2d DCA 2010) (holding that the sentencing court lacked authority to call the defendant back for resentencing that increased sentence terms, even if the originally pronounced sentence was illegal for failing to include minimum mandatory term; further holding that it was a violation of double jeopardy protections to increase the sentence after jeopardy attached); T.D.D. v. State, 981 So. 2d 674, 675-76 (Fla. 2d DCA 2008) (agreeing with the state’s concession that second disposition order had to be reversed and new disposition order reflecting court’s earlier oral pronouncement had to be entered); Obara v. State, 958 So. 2d 1019, 1021-22 (Fla. 5th DCA 2007) (reversing resentencing of the defendant where drugs were found on his person ten minutes after the initial sentence

was imposed; holding that jeopardy had attached and possession was not a violation of the terms of his plea agreement); Shepard v. State, 940 So. 2d 545 (Fla. 5th DCA 2006) (holding that the defendant’s double jeopardy rights were violated when the trial court recalled parties 50 minutes after sentencing hearing concluded and changed oral pronouncement of “concurrent” to “consecutive” on one of defendant’s sentences; noting original pronouncement was neither ambiguous nor illegal, and pronouncement became final when sentencing hearing ended); I.B. v. State, 771 So. 2d 1258, 1259 (Fla. 4th DCA 2000) (concluding that the trial court’s action in setting aside a disposition order and then “resentencing appellant after his sentence had already been served” violated double jeopardy).

Here, the trial court had orally pronounced sentence and J.H. had left the courtroom. When J.H. left, he was on probation and had began to serve the sentence imposed at that disposition hearing. Because this original sentence was valid, the court violated the constitutional proscription’ against double jeopardy by sentencing J.H. a second time to a harsher sentence. Accordingly, we reverse the second disposition order and remand this case for reinstatement of the initial disposition order and sentence originally imposed.

REVERSED and REMANDED.

1 Art. I, § 9, Fla. Const.

GRIFFIN and COHEN, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT JULY TERM 2011

FRANK WHITE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 5D10-2522

Opinion filed September 30, 2011

Appeal from the Circuit Court for Orange County,

Walter J. Komanski, Judge.

James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Frank White appeals his conviction of second-degree murder with a firearm and attempted robbery.1 The only issue raised on appeal is whether the jury instruction on manslaughter by procurement was fundamental error. No error is assigned as to the attempted robbery conviction.

White and an accomplice, Trent Harris, were robbing individuals seeking to purchase drugs at a location well-known for drug sales. The victim, who apparently intended to purchase drugs, drove his vehicle to this location where he was accosted by White and Harris. During the course of the attempted robbery, Harris shot the victim in the neck and back, killing him.

Based on White’s role in the offense, the trial court instructed the jury, without objection, on manslaughter by procurement as a lesser included offense to the first-degree murder charge. White argues that the instruction was erroneous and constituted fundamental error.

In Barton v. State, 507 So. 2d 638 (Fla. 5th DCA 1987), we examined manslaughter by act in the context of a double jeopardy challenge. In dicta, we stated, “The words ‘act’ and ‘procurement’ obviously refer to acts evidencing an intent to kill, as required at common law for voluntary manslaughter.” Id. at 641. While defendants charged with voluntary manslaughter, as in Barton, have argued that it required a showing of an intent to kill, defendants charged with first or second-degree murder, seeking to give the jury the option of a lesser included offense, have argued the opposite: that intent to kill was not an element of the offense.

In Montgomery v. State, 34 Florida Law Weekly D360, D361-62 (Fla. 1st DCA Feb. 12, 2009), the First District ruled that manslaughter by act “requires only an intentional unlawful act, rather than an intent to kill[,]” and certified conflict with Barton. The supreme court accepted jurisdiction and, in State v. Montgomery, 39 So. 3d 252, 256 (Fla. 2010), ruled that under Florida law, the crime of manslaughter by act does not require proof of an intent to kill. Critical to this analysis was the court’s observation that:

[I]mpos[ing] such a requirement on a finding of manslaughter by act would blur the distinction between first-degree murder and manslaughter. Moreover, it would impose a more stringent finding of intent upon manslaughter than upon second-degree murder, which, like manslaughter, does not require proof that the defendant intended to kill the victim.

Id. However, Montgomery did not address manslaughter by procurement.

Section 782.07(1), Florida Statutes (2010), defines manslaughter as follows:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

At the time of White’s trial, the standard jury instructions on manslaughter by procurement provided in relevant part:

To prove the crime of [m]anslaughter, the State must prove the following two elements beyond a reasonable doubt:

1. (Victim) is dead. . . . .

2. b. (Defendant)[2] intentionally procured the death of (victim).

. . . .

To “procure” means to persuade, induce, prevail upon or cause a person to do something.

Fla. Std. Jury Instr. (Crim.) 7.7. White suggests that instruction suffers from the same defect found in Montgomery. We agree.

2 The trial court added “or his principal” to the instruction.

The standard jury instruction for manslaughter by procurement required the State to prove that White procured the death of the victim. While we agree with the State’s position that procurement requires an intentional act, as instructed, it is the victim’s death being procured. The average juror would likely interpret the instruction as requiring a finding that, in advance of the actual killing, the defendant intentionally persuaded, induced, prevailed upon, or caused a person to kill. The purpose of the procurement was to effect the death of another. As was the case in Montgomery, this instruction blurs the distinction between manslaughter by procurement and premeditated first-degree murder, and imposes a more stringent finding of intent than upon that of second-degree murder. In Montgomery, the supreme court found “the relevant intent is the intent to commit an act which caused death[.]” 39 So. 3d at 257. We agree with White that what is procured under manslaughter by procurement is an act that results in the victim’s death.3 That was not what the jury was asked to determine. Instead, the jury was asked to decide whether White procured the death of the victim, in effect, requiring the jury find that White intended the victim’s death. Consequently, we feel bound by the analysis in Montgomery to find that, despite the lack of a contemporaneous objection, the error was fundamental.

AFFIRMED IN PART, REVERSED IN PART; and REMANDED for a new trial on the second-degree murder charge.

ORFINGER, C.J., and JACOBUS, J., concur.

3 We are aware that in April 2010, the Florida Supreme Court authorized, on an interim basis, the publication and use of an amended jury instruction on manslaughter by procurement. In re Amendments to Standard Jury Instructions in Criminal Cases-Instruction 7.7, 41 So. 3d 853 (Fla. 2010), reh’g denied (July 22, 2010). The relevant instruction now reads: “2. b. (Defendant) procured the death of (victim).” Id. at 854. The supreme court does not warrant the correctness of standard jury instructions.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2011

KARL ALAN SCHOENWALDER,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

CASE NO. 5D11-2650

Opinion filed September 28, 2011

Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction.

Robert Wesley, Public Defender Ninth Judicial Circuit and Joanna G. Snow, Assistant Public Defender, Orlando for Petitioner.

Pamela Jo Bondi, Attorney General,

Tallahassee and Megan Saillant,

Assistant Attorney General, Daytona Beach, for Respondent.

PER CURIAM.

Karl Alan Schoenwalder (Petitioner) filed a petition for writ of habeas corpus challenging the trial court’s imposition of a ninety-day sentence for Petitioner’s direct criminal contempt. Petitioner argues that his actions did not rise to the level of a criminal contempt and that he is being illegally detained because of a denial of due process under Florida Rule of Criminal Procedure 3.830. We agree in part.

Petitioner’s conduct clearly constituted a direct criminal contempt of the court. A review of the audio recording of the hearing held below reveals that Petitioner utilized his arraignment on criminal charges to advance his personal agenda and to usurp the objective of the proceedings. Upon being castigated by the trial court for this behavior, Petitioner continued to interrupt the court and to regale all present with his beliefs regarding testimony, oaths, affirmations and appearance for his arraignment.

While we agree with the trial court that Petitioner’s unacceptable behavior constituted a criminal contempt of the court, we must grant Petitioner’s request for relief based on the inadequacy of the contempt hearing. Before being adjudicated guilty of his contemptible behavior, Petitioner was entitled to “the opportunity to present evidence of excusing or mitigating circumstances.”1 Fla. R. Crim. P. 3.830. Petitioner did not receive this opportunity. Beyond a perfunctory request whether there was just cause not to hold Petitioner in contempt, the trial court did not provide Petitioner with the opportunity to present evidence of excusing or mitigating circumstances. A trial court’s failure to afford a defendant this opportunity constitutes fundamental error. See Garrett v. State, 876 So. 2d 24 (Fla. 1st DCA 2004).

In light of the trial court’s omission, the petition for habeas corpus relief is granted to the extent that the trial court shall hold a proper proceeding as mandated by the rule and allow Petitioner the opportunity to present evidence excusing or mitigating the circumstances of his behavior.

1 A subsequent hearing was held on August 9, 2011, upon the defense’s motion for supersedeas bond and to argue that contempt was improper. At that proceeding, the court simply stated that a review of the contempt proceeding would be conducted; it did not afford Petitioner an opportunity to present excusing or mitigating circumstances with regard to the contempt.

PETITION GRANTED and REMANDED WITH INSTRUCTIONS.

SAWAYA, MONACO and EVANDER, JJ., concur.

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Supreme Court of Florida

No. SC11-1381

IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL

PROCEDURE 3.992(A)—CRIMINAL PUNISHMENT CODE

SCORESHEET.

[September 28, 2011]

PER CURIAM.

This matter is before the Court for consideration of proposed amendments to Florida Rule of Criminal Procedure 3.992(a). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Supreme Court Criminal Court Steering Committee (Steering Committee) proposes amendments to rule 3.992(a) in light of recent legislation and on recommendation of the Florida Department of Corrections (DOC). That legislation, chapter 2011-33, sections 2 and 3, Laws of Florida, increases the total sentence points from fifty-two or less to sixty or less, for which the court may place a defendant into a treatment-based drug court program. After considering the Steering Committee’s proposals and reviewing the relevant legislation, we adopt

the proposed amendments to rule 3.992(a), as reflected in the appendix to this opinion. New language is indicated by underscoring, and deleted language is indicated by struck-through type. The amendments shall become effective immediately upon release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.1

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Rules of Criminal Procedure Committee

Judge Kevin M. Emas, Chair, Criminal Courts Steering Committee, Third District Court of Appeal, Miami, Florida, and Bart Schneider, Senior Attorney, Office of State Courts Administrator, Tallahassee, Florida,

for Petitioner

1. An original and nine paper copies of all comments must be filed with the Court on or before November 28, 2011, with a certificate of service verifying that a copy has been served on the Committee Chair, Honorable Kevin Emas, c/o Bart Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399-1925, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until December 19, 2011, to file a response to any comments filed with the Court. Electronic copies of all comments and responses must also be filed in accordance with the Court’s administrative order in In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).

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Supreme Court of Florida

No. SC07-841

RICHARD KNIGHT,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[September 28, 2011]

PER CURIAM.

Richard Knight was convicted of two counts of first-degree murder for the deaths of Odessia Stephens and four-year-old Hanessia Mullings, which occurred on June 28, 2000. Knight appeals his first-degree murder convictions and sentence of death. We have mandatory jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm Knight’s convictions and sentences of death.

FACTS AND PROCEDURAL HISTORY

The evidence presented at trial established that Knight lived in an apartment with his cousin, Hans Mullings, Mullings’ girlfriend, Odessia Stephens, and their daughter, Hanessia Mullings. Mullings and Odessia had asked Knight to move out numerous times.

On the night of the murder, June 27, 2000, Mullings was at work. At approximately 9 p.m., Mullings spoke to Odessia, who said she was going to bed, and then Mullings left his office to run errands. Knight was at the apartment with Odessia and Hanessia.

Around midnight, an upstairs neighbor heard multiple thumping sounds on the apartment walls and two female voices, one of which was a child crying. The neighbor called 911 at 12:21 a.m. on June 28, 2000. The cries continued after the police arrived.

Officer Vincent Sachs was the first to respond. He arrived at 12:29 a.m. and noted that the lights were on in the master bedroom and hall area, and that a second bedroom’s window was slightly ajar. After knocking and receiving no response, he walked around the unit and noticed that the lights had been turned off and that the previously ajar window was now completely open and blinds were hanging out of it. Sachs shined his flashlight through the dining room window. He saw blood in the dining room and master bedroom. Further, he noticed Hanessia curled in the fetal position against the closet door. Once inside, he observed Odessia’s body in

the living room. All of the doors were locked and there had been no ransacking of the apartment.

Officer Natalie Mocny arrived next and walked around the unit.1 She also saw the open window and noticed Knight on the other side of some hedges approximately 100 yards from the building. She beckoned him over for questioning. Officer Sachs joined Mocny. According to the officers, Knight had a scratch on his chest, a scrape on his shoulder, and fresh cuts on his hands. Although it was not raining, Knight was visibly wet. Knight was wearing dress clothes and shoes, yet told Mocny that he had been jogging, and that he lived in the apartment, but did not have a key to get inside. There was blood on the shirt he was wearing and on a ten-dollar bill in his possession.

The crime scene investigation recovered two wet towels in Knight’s bedroom, a shirt, boxers, and a pair of jean shorts under the sink in the bathroom near Knight’s bedroom, all of which belonged to Knight and had numerous bloodstains. Two knife blades were also recovered, one from under the mattress in the master bedroom, and another from under Odessia’s body.

Odessia’s blood was found in the master bedroom between the bed and the wall, on the master bedroom blinds, on the living room carpet, on the knives’

1. Officer Amy Allen also testified that she had climbed through the open window to open the apartment door and observed a deceased black female.

handles and blades, and on the knife holder in the kitchen. Odessia’s blood was also discovered on Knight’s boxers, shirt, jean shorts, the clothing Knight had been wearing when arrested, and his hand. Fingernail scrapings taken from Odessia contained Knight’s DNA profile.

Hanessia’s blood was found on one of the knives, on Knight’s boxers, jean shorts, and on the shower curtain. The shower curtain also contained the blood of Knight’s acquaintance, Victoria Martino.

Dr. Lance Davis, the medical examiner, observed the bodies at the scene. Odessia was found on the living room floor near the entrance with several broken knife pieces around her. She had twenty-one stab wounds: fourteen in the neck, one on the chin, and the rest on her back and chest. Additionally, she had twenty-four puncture or scratch wounds and bruising and ligature marks on her neck. The bruises appeared to have been made by a belt or similar object. She also had defensive wounds on both hands and wounds on her leg, chest, back and neck. Several of the knife wounds were fatal but none would have resulted in an instantaneous death. She had bruises from being punched on her scalp and mouth. Davis opined that Knight began his attack in the bedroom with Odessia fleeing to the living room. He estimated that Odessia was conscious for ten to fifteen minutes after the attack.

Davis discovered Hanessia on the floor next to the closet door. There were broken knife pieces around her. She had a total of four stab wounds in her upper chest and neck. Her hand had one additional stab wound and numerous defensive wounds. Hanessia’s arms and upper body had numerous bruises and scratches. There were bruises on her neck that were consistent with manual strangulation and bruises on her arms consistent with being grabbed.

Stephen Whitsett and Knight were housed together from June 29, 2000, to July 22, 2000, at the Broward County Jail. Knight confessed to Whisett about the murders as follows: The night of the murders Knight and Odessia argued. She told him that she did not want to support him and that he would have to move. He asked for some more time because he had just gotten a job, but Odessia refused

and told him to leave in the morning. Knight left the house to go for a walk and he became increasingly angry. He returned that night, confronted Odessia in her room, and they argued.

Knight went to the kitchen and got a knife. When he went back to the master bedroom, Odessia was on one side of the bed and Hanessia was on the other. He began by stabbing Odessia multiple times. Odessia eventually stopped defending herself and balled up into a fetal position. Knight then turned to four­year-old Hanessia. The knife broke while he was stabbing Hanessia, so he

returned to the kitchen for another. Upon returning, Knight saw Hanessia had crawled to the closet door and was drowning in her own blood.

Again, Knight returned to the kitchen and accidentally cut his hand on one of the broken knives that he had used to stab Odessia and Hanessia. He grabbed another knife. Odessia had crawled from the master bedroom to the living room and was lying in her own blood. He rolled her over and continued his attack.

Odessia’s blood covered Knight’s hands, so he wiped them on the carpet.

Knight further confessed that, after he finished with Odessia, he went to the bathroom, took off the blood soaked shorts and T-shirt, and tossed them under the sink. He showered and put on blue polo pants. He wiped down the knives in the living room. At that time, Knight heard a knock on the door and saw the police outside through the peep hole. He ran to his room and out the window. In an attempt to deflect suspicion away from himself, Knight returned to his bedroom window where he saw a female police officer.

Knight was charged by indictment on August 15, 2001, for the murders of Odessia Stephens and Hanessia Mullings. The jury found Knight guilty of both counts of first-degree murder.

The Penalty Phase

At the penalty phase, Knight called six witnesses, several of whom testified about his childhood and upbringing in Jamaica. His teacher, Joscelyn Walker, told

the jury that Knight was a respectful and loving boy raised in a very respected family. He said that Knight did have a temper when provoked and would become extremely frustrated at times. Walker had to restrain him from time to time when Knight wanted to fight another child. Knight’s high school art teacher, Joscelyn Gopie, described Knight as a pleasant, eager boy who was quite talented at art. Gopie explained that Knight was adopted as a toddler by his family. Knight left high school before he graduated.

Barbara Weatherly is the mother of Knight’s former fiancée. She described him as a decent, honorable guy who respected her rules regarding her daughter. He always helped her younger children with their drawing. He was a quiet and peaceful person who spent a lot of time alone. One night at her house he got sick; his eyes rolled back in his head and he frothed at the mouth before passing out. They took him to the hospital where the doctor said that he needed to see a psychiatrist. She last saw him in 1998 when he left to go to the United States.

A former boss and coworker of Knight’s, Stanley Davis, also testified.

Davis explained that Knight had been adopted into a well respected family and had a close loving relationship with his family members. Knight took over many of his father’s duties when his father lost a leg. Knight worked with him at a construction company and was a good worker. On one occasion Knight fell and blacked out, after which he had difficulty concentrating and became timid.

Valerie River, the defense investigator, and Knight’s attorney journeyed to Jamaica to interview Knight’s family and friends. Knight was abandoned by his mother and the Knight family found him at a hospital and took him home. He was a good brother and son. Knight’s close friends and family said that he was a nice and good person. Knight’s sister-in-law used to have Knight babysit her children but eventually stopped because he was careless around the house. Knight blacked out on one occasion. Knight’s former boss Stedman Stevenson said he was a hard worker and a quick learner. He took Knight to Florida, and Knight decided to stay.

Knight also presented expert Dr. Jon Kotler who practices nuclear medicine and specializes in PET scans of the brain. He explained that Knight’s physical symptoms indicated that he might have a brain injury. The MRI done on him was normal. Dr. Kotler did a PET scan which he interpreted as showing asymmetrical brain activity indicating possible pathology of the brain, perhaps a seizure disorder. He could not say exactly what the pathology might be or how it might manifest itself in Knight’s behavior. Dr. Sfakianakis, another nuclear medicine doctor, read the PET results as showing only a mild difference between the brain hemispheres which was within the normal fluctuations of the brain.

Following the presentation of penalty-phase testimony, the jury unanimously recommended the death penalty for both murders.

The Spencer2 Hearing

The trial court subsequently conducted a Spencer hearing on August 18, 2006. At the hearing, the defense submitted the report and deposition of neuropsychologist Dr. Mittenberg who examined Knight but refused to testify at trial. The State submitted the report and deposition of Dr. Lopickalo, another neuropsychologist. Mullings and Eunice Belan also gave victim impact statements.

The Sentencing Order

Subsequent to the Spencer hearing, the trial court followed the jury’s recommendation and sentenced Knight to death. In pronouncing Knight’s sentence, the trial court determined that the State had proven beyond a reasonable doubt two statutory aggravating circumstances for the murder of Odessia Stephens: (1) a previous conviction of another violent capital felony, and (2) that the murder was especially heinous, atrocious, or cruel (HAC). The court also found three statutory aggravating circumstances for the murder of Hanessia Mullings: (1) a previous conviction of another violent capital felony, (2) HAC, and (3) the victim was under twelve years of age. The court found no statutory mitigating circumstances but found eight nonstatutory mitigators, which are set forth in our proportionality discussion.

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

On direct appeal, Knight raises five claims.3 We conclude that each issue is without merit. We also find the evidence sufficient to support Knight’s convictions, and that the death sentences are proportionate.

ANALYSIS

Hans Mullings’ Testimony

Knight first claims the trial court erred in denying his motion for mistrial following the State’s redirect examination of Hans Mullings, during which Mullings stated that Knight had a “violent background.” Specifically, Knight contends that Mullings’ testimony had a negative impact on his character and resulted in undue prejudice. While we agree with Knight that Mullings’ statement was improper, we disagree that the trial court erred by not granting a mistrial under these circumstances.

The facts underlying this claim are as follows. During redirect examination by the State, Mullings testified that when he arrived at his residence and saw the

3. Knight asserts the following: (1) the trial court abused its discretion by denying Knight’s motion for mistrial based on Hans Mullings’ comment that he knew Knight to have a violent background; (2) the trial court abused its discretion in denying Knight’s motion for mistrial based on the allegation that jurors saw him wearing shackles; (3) the trial court erred in ruling that no discovery violation occurred and in denying Knight’s motion for mistrial based on the State’s expert’s testimony regarding DNA evidence; (4) the trial court erred in denying Knight’s motion to seat a new jury based on Mullings’ testimony; and (5) the Florida death sentencing statute violates the Sixth Amendment and ignores Ring v. Arizona, 536 U.S. 584 (2002).

police, “I was just assuming that, truthfully, probably Odessia and Richard got into an argument or something because I know Richard’s violent background.” The defense objected to this testimony and moved for a mistrial. The trial court sustained defense counsel’s objection and instructed the jury to disregard the comment.

A trial court’s denial of a motion for mistrial is reviewed by an abuse of discretion standard. Cole v. State, 701 So. 2d 845, 852 (Fla. 1997). The granting of a motion for mistrial is not based on whether the error is “prejudicial.” Rather, the standard requires that a mistrial be granted only “when an error is so prejudicial as to vitiate the entire trial,” England v. State, 940 So. 2d 389, 401-02 (Fla. 2006), such that a mistrial is “necessary to ensure that the defendant receives a fair trial.” McGirth v. State, 48 So. 3d 777, 790 (Fla. 2010), cert. denied, 131 S. Ct. 2100 (2011). “It has been long established and continuously adhered to that the power to declare a mistrial and discharge the jury should be exercised with great care and caution and should be done only in cases of absolute necessity.” England, 940 So. 2d at 402 (quoting Thomas v. State, 748 So. 2d 970, 980 (Fla. 1999)). Therefore, “[i]n order for [Mullings’ statement] to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe

verdict than that it would have otherwise.” Salazar v. State, 991 So. 2d 364, 372 (Fla. 2008) (quoting Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994)).

It has been established that the State cannot introduce evidence attacking the character of the accused unless the accused first puts his good character in issue. See Wadsworth v. State, 201 So. 2d 836 (Fla. 4th DCA 1967), quashed on other grounds, 210 So. 2d 4 (Fla. 1968), § 90.404(1)(a), Fla. Stat. (2006).

In the instant case, Mullings, the victims’ surviving boyfriend and father and the defendant’s cousin, testified that he rushed back to the apartment because he knew Knight had a violent background. However, as noted above, the defense objected, the objection was sustained, and the jury was instructed to disregard the remark. The statement was not so prejudicial as to prevent Knight from receiving a fair trial. See, e.g., Roman v. State, 475 So. 2d 1228, 1234 (Fla. 1985) (concluding that the trial court did not err in denying motion for mistrial when prosecutor’s question implied that the defendant had a prior criminal record because although the question was improper, there was other overwhelming evidence against the defendant). Accordingly, we conclude the trial court did not abuse its discretion in denying Knight’s motion for mistrial.

Allegation That Jurors Saw Knight in Shackles

Next, Knight claims that the trial court improperly denied his motion for mistrial for being shackled in the presence of the jury during the guilt phase. On

the final day of jury selection and after the jury had been impaneled, two custody deputies escorted Knight past the jury room. At the same time, the bailiff briefly opened the jury room door. Knight was wearing handcuffs and shackles. Knight filed a motion for mistrial and a motion to disqualify the jury. During an

evidentiary hearing on the motions, the deputies reenacted the scenario. The trial court found that no juror could have seen Knight and denied the motion for mistrial.

This Court reviews a trial court’s ruling on a motion for mistrial under an abuse of discretion standard. England v. State, 940 So. 2d 389, 402 (Fla. 2006). If reasonable people could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and therefore is not an abuse of discretion. Bryant v. State, 901 So. 2d 810, 817 (Fla. 2005) (citing Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (1980)). A motion for mistrial should be

granted only when it is necessary to ensure that the defendant receives a fair trial. Seibert v. State, 923 So. 2d 460, 471-72 (Fla. 2006).

First, it is well accepted that shackling a defendant during a criminal trial is “inherently prejudicial.” Deck v. Missouri, 544 U.S. 622, 635 (2005) (quoting Holbrook v. Flynn, 475 U.S. 560, 568 (1986)); see also Bryant v. State, 785 So. 2d 422, 429 (Fla. 2001) (quoting Bello v. State, 547 So. 2d 914, 918 (Fla. 1989)). Visible shackling interferes with the accused’s presumption of innocence and the

fairness of the fact-finding process. Deck, 544 U.S. at 630; Bryant, 785 So. 2d at 428; see also Diaz v. State, 513 So. 2d 1045, 1047 (Fla. 1987). For that reason, visible shackles must only be used when “justified by an essential state interest” specific to the defendant on trial. Deck, 544 U.S. at 624; see Bello, 547 So. 2d at 918.

Here, Knight was not forced to stand trial while wearing shackles, but was merely shackled during transport when, according to his allegation, he was inadvertently viewed by several jurors. The record indicates that it is unlikely any juror saw Knight in shackles. However, even if we assumed Knight’s allegation to be true,

[w]e have long held that a juror’s or prospective juror’s brief, inadvertent view of a defendant in shackles is not so prejudicial as to warrant a mistrial. See, e.g., Singleton v. State, 783 So. 2d 970, 976 (Fla. 2001) (explaining that the jurors’ brief glances of the defendant while he was being transported in prison garb and shackles, standing alone, were not so prejudicial as to require a mistrial); Stewart v. State, 549 So. 2d 171, 174 (Fla.1989) (finding that a new trial was not warranted where the defendant’s shackles were ruled unobtrusive and necessary by the trial court and were only barely visible beneath the table); Heiney v. State, 447 So. 2d 210, 214 (Fla.1984) (holding that the jurors’ possible inadvertent and brief sight of the defendant being transported into the courtroom in chains did not justify a mistrial); Neary v. State, 384 So. 2d 881, 885 (Fla.1980) (concluding that the jurors’ inadvertent sight of the defendant being brought into the courtroom in handcuffs was not so prejudicial as to require a mistrial). Thus, the mere fact that a prospective juror saw the shackled ankles of a person whom he believed to be [the defendant] underneath a chalkboard set up in the hallway outside the courtroom is not

sufficient, standing alone, to warrant a mistrial or dismissal of the venire.

Hernandez v. State, 4 So. 3d 642, 658 (Fla.), cert. denied, 130 S. Ct. 160 (2009).

Applying that reasoning to the facts of this case, we conclude that even if there was an inadvertent sighting of Knight in shackles, it was not so prejudicial as to warrant a mistrial. Thus, the court’s decision to deny Knight’s motion for mistrial was not an abuse of discretion.

Discovery Violations

Knight also challenges the trial court’s ruling that no discovery violation occurred and alleges the trial court erred in denying Knight’s motion for mistrial based on the State’s experts’ testimony regarding DNA evidence. Knight argues that the State provided defense counsel with what appeared to be a complete DNA comparison, but then ordered further DNA comparisons without any notice to the defense. Based on the State’s discovery produced prior to trial, defense counsel relied on serologist Kevin Noppinger’s DNA analysis that Knight’s jean shorts and boxers, recovered from the apartment bathroom, contained Odessia and Hanessia’s DNA, and excluded the DNA of Knight.

At trial, however, the prosecutor presented testimony from Dr. Kevin McElfresh of Bode Technology Group establishing that Knight’s DNA could not be excluded from the jean shorts and boxers. Because the defense was under the impression that the jean shorts and boxers would exclude Knight, Knight argues

that the State “ambushed” the defense at trial by failing to disclose the additional DNA analysis that failed to exclude Knight’s DNA from the jean shorts and boxers. Knight asserts the State violated discovery rules and that the trial court erred by failing to conduct a Richardson4 hearing on the alleged violation. This claim is without merit.

As articulated by this Court in Sinclair v. State, 657 So. 2d 1138, 1140 (Fla.

1995):

[W]hen the State violates a discovery rule, the trial court has discretion to determine whether the violation resulted in harm or prejudice to the defendant, but this discretion can be properly exercised only after adequate inquiry into all the surrounding

circumstances. State v. Hall, 509 So. 2d 1093 (Fla. 1987). In making such an inquiry, the trial judge must first determine whether a discovery violation occurred. If a violation is found, the court must assess whether the State’s discovery violation was inadvertent or willful, whether the violation was trivial or substantial, and most

importantly, what affect it had on the defendant’s ability to prepare for trial.

See also Taylor v. State, 62 So. 3d 1101, 1112 (Fla. 2011). Under this precedent, it is only after the trial court finds a discovery violation that it must make an inquiry into whether the State’s discovery violation was inadvertent or willful, whether the violation was trivial or substantial, and most importantly, what affect it had on the defendant’s ability to prepare for trial. See Richardson v. State, 246 So. 2d 771, 775 (Fla. 1971) (requiring court to determine if violation of rule relating to exchange of witness lists was inadvertent or willful, whether violation was trivial

4. Richardson v. State, 246 So. 2d 771 (Fla. 1971).

or substantial, and what effect, if any, it had upon ability of other party to properly prepare for trial).

In this case, contrary to Knight’s argument, the trial court determined that the State provided Knight with all the evidence presented at trial and that no discovery violation occurred, which is supported by the record. The record demonstrates that the questioned evidence was produced and the trial court found no discovery violation occurred after two inquiries. In fact, the trial court found that the defense was actually in receipt of all evidence, but complained of having the evidence interpreted differently by two experts and having relied on the information from the first expert. See State v. Evans, 770 So. 2d 1174, 1177-78 (Fla. 2000) (“When testimonial discrepancies appear, the witness’ trial and deposition testimony can be laid side-by-side for the jury to consider. This would serve to discredit the witness and should be favorable to the defense. Therefore, unlike failure to name a witness, changed testimony does not rise to the level of a discovery violation and will not support a motion for a Richardson inquiry.” (quoting Bush v. State, 461 So. 2d 936, 938 (Fla. 1984))). Therefore, because the trial court found that no discovery violation occurred, and that finding is supported by the record, we conclude that no Richardson hearing was required in this case.

Based on a review of the record, we hold that the trial court did not err in finding that no discovery violation occurred. Thus, a Richardson hearing was not

required and the trial court properly denied Knight’s motion for mistrial. Furthermore, although a Richardson hearing was not required, the trial court nevertheless complied with this Court’s precedent in holding such a hearing.

Knight’s Motion to Seat a New Jury

366 So. 2d 19, 21 (Fla. 1978) (concluding that there is “no compulsion in law or logic” to bifurcate juries in capital case trials). Here, the jury is presumed to have followed the trial judge’s admonition to disregard Mullings’ testimony during the guilt phase. Accordingly, there is no basis that would disqualify this jury from rendering a penalty recommendation. Accordingly, the trial court did not err, and we deny relief on this claim.

Florida’s Death Sentence Statute

Miller v. State, 42 So. 3d 204, 227 (Fla. 2010). A review of the record shows there is sufficient evidence to support the murder convictions.

As outlined above, the evidence presented at trial showed that Odessia and Hanessia died after being stabbed numerous times and strangled. There were three knives used in the attacks, all of them broken. There were a combined twenty-six stab wounds between the victims, plus additional puncture and scratch wounds. Hannesia had bruises consistent with Knight having repositioned his hands to strangle her, and Odessia had ligature marks on her neck that appeared to have been made by a belt or similar object. Odessia had bruises consistent with Knight having struck her on her head and punched her in the mouth. Both victims’ blood was found on Knight’s clothing. There was evidence of a struggle and that Knight had pursued Odessia to continue his attack on her. Both victims showed evidence of defense. Neither victim died instantly. Knight was found at the crime scene wet, although it was not raining, and claiming to have been jogging despite the fact he was wearing dress shoes. Further, Knight confessed to a fellow inmate while he was in jail awaiting trial. Accordingly, the record demonstrates that there is competent, substantial evidence to sustain Knight’s convictions for the first-degree murders of Odessia and Hanessia.

Proportionality

Finally, “[t]his Court must review the proportionality of a death sentence, even if the issue has not been raised by the defendant.” Bolin v. State, 869 So. 2d 1196, 1204 (Fla. 2004). Proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Crook v. State, 908 So. 2d 350, 356 (Fla. 2005) (quoting Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990)). Instead, the Court considers the totality of the circumstances to determine if death is warranted in comparison to other cases where the death sentence has been upheld. Davis v. State, 859 So. 2d 465, 480 (Fla. 2003). In addition, the heinous, atrocious, or cruel aggravator is one of the “most serious aggravators set out in the statutory sentencing scheme.” Larkins v. State, 739 So. 2d 90, 95 (Fla. 1999).

The trial court found two statutory aggravating circumstances for the murder of Odessia Stephens: (1) a previous conviction of another violent capital felony, and (2) HAC. The court also found three statutory aggravating circumstances for the murder of Hanessia Mullings: (1) a previous conviction of another violent capital felony, (2) HAC, and (3) the victim was under twelve years of age. The aggravators in this case were weighed against eight nonstatutory mitigators: (1) Knight had a good upbringing (slight weight), (2) Knight loves his family (moderate weight), (3) Knight went to high school and excelled in art (little weight), (4) Knight was admired by the children in his neighborhood as a youth and was well regarded by the adults (little weight), (5) Knight was a valuable

employee in Jamaica (little weight), (6) Knight had part-time employment at the time of the crime (little weight), (7) Knight behaved well in court (little weight), and (8) Knight is capable of forming loving relationships (moderate weight).

Based on the evidence set forth earlier, the aggravators the trial court found, and the totality of the circumstances, Knight’s death sentences are proportionate compared to other death sentences this Court has upheld. See, e.g., Aguirre­Jarquin v. State, 9 So. 3d 593, 610 (Fla. 2009) (finding the death sentence proportionate in a double murder where three aggravators were found for one murder, five for the other, including prior capital felony, commission during a burglary, and HAC for both and eight mitigating circumstances were found, three statutory); Smithers v. State, 826 So. 2d 916, 931 (Fla. 2002) (finding the death sentence proportionate in a double murder where three aggravators were found for one murder and two for the other, including HAC and prior violent felony for both, and two statutory and seven nonstatutory mitigating factors were found); Francis v. State, 808 So. 2d 110 (Fla. 2001) (finding the death sentence proportionate in the double stabbing murders of elderly sisters where the trial court found four aggravators for each murder, including HAC, the victims vulnerability due to age, prior violent felony based on the contemporaneous murder, that the murders were committed during the course of a robbery, two statutory mitigators, and six nonstatutory mitigators); Morton v. State, 789 So. 2d 324 (Fla. 2001) (finding the

death sentence proportionate in a double murder by gunshot and stabbing where trial court found three aggravators with respect to one murder and five with respect to the other, including prior violent felony based on the contemporaneous murder and cold, calculated and premeditated for both and two statutory mitigators and five nonstatutory mitigators).

CONCLUSION

In accordance with our analysis above, we affirm Knight’s convictions for first-degree murder and sentences of death.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Broward County, Eileen M. O’Connor, Judge – Case No. 01-14055 CF 10A

Melodee A. Smith of Law Offices of Melodee A. Smith, Fort Lauderdale, Florida, for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Floria,

for Appellee

Courtesy of David Edelstein

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JAMES J. MATZKE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D09-1763

Opinion filed September 28, 2011.

Appeal from the Circuit Court for Polk County; John K. Stargel, Judge.

James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

CASANUEVA, Judge.

Mr. Matzke raises two issues on appeal in this challenge of his revocation of probation. Regarding the first issue, an alleged Nelson1 violation, we find no reversible error and affirm without further comment. However, we reverse on the

1Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

second issue, the trial court’s failure to make all necessary findings for a revocation of probation, and remand for further proceedings.2

The State charged Mr. Matzke with four violations of the conditions of his probation.3 The trial court revoked Mr. Matzke’s probation after a hearing, finding that there was sufficient evidence to demonstrate a violation. But neither the trial court’s oral pronouncement nor its written order identifies which violations it found Mr. Matzke to have committed.

A trial court must identify the specific conditions which it finds a defendant has violated. Ash v. State, 980 So. 2d 532, 533 (Fla. 2d DCA 2008); Daniels v. State, 45 So. 3d 922, 923 (Fla. 3d DCA 2010). Therefore, we reverse and remand for the trial court to enter a corrected order specifying the conditions violated. If the trial court finds that Mr. Matzke violated condition four, it shall specify which new law offenses Mr. Matzke committed.

Affirmed in part, reversed in part, and remanded with directions.

WALLACE and LaROSE, JJ., Concur.

2Mr. Matzke raised several other issues in his pro se brief. We decline to address these other issues at this time.

3The affidavit of violation of probation contained two enumerated violations. However, in the first of these, the State alleged that Mr. Matzke had violated condition four by committing three separate new law offenses.

Courtesy of David Edelstein

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

DANNY PARKER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

Case No. 2D09-3230

Opinion filed September 28, 2011.

Appeal from the Circuit Court for Polk County; Donald G. Jacobsen, Judge.

James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

Danny Parker appeals his convictions and sentences for possession of child pornography. See §§ 775.0847, 827.071(5), Fla. Stat. (2007). More specifically, he challenges the trial court’s denial of his motion to dismiss the information. We have jurisdiction. See Fla. R. App. P. 9.140(b)(2)(A)(i). Mr. Parker’s conduct, as we will

describe, is loathsome. But it escapes the grasp of the statute on which the State proceeds. Consequently, we must reverse.

Mr. Parker taught Sunday school. Over the years, he photographed many children. They posed innocently enough, much as in the style one would expect of a school photo, a yearbook, or a family scene. The innocence turned perverse. Mr. Parker cut the children’s heads from some of his photographs and pasted them to photographs of bodies of nude or partially nude adult women. Some depicted the bodies of adult women engaged in sexual activity. None of the images are computer generated. In his motion to dismiss, Mr. Parker argued that mere possession of these photographs was not unlawful. The trial court denied the motion.

Pursuant to a negotiated plea, the State nolle prossed counts eleven through ninety of the information. Mr. Parker pleaded no contest to counts one through ten, reserving his right to appeal the denial of the dispositive motion to dismiss. The trial court sentenced Mr. Parker to sixty months in prison to be followed by ten years of sex offender probation. On appeal, we confront ten photographs that the State characterizes as child pornography.1 We review issues involving statutory interpretation de novo. L.A.P. v. State, 62 So. 3d 693, 694 (Fla. 2d DCA 2011) (citing Mendenhall v. State, 48 So. 3d 740, 747 (Fla. 2010)).

Based on our decision in Stelmack v. State, 58 So. 3d 874 (Fla. 2d DCA 2010), and pursuant to the parties’ stipulation, we reverse as to seven photographs

1At its core, child pornography is “any image depicting a minor engaged in sexual conduct.” § 775.0847(1)(b).

(counts 1, 2, 3, 5, 6, 7, and 10).2 Those photographs depict lewd exhibition of an adult female’s genitals with a child’s head superimposed on an adult female body. Those photographs require no further discussion. After thoughtful consideration of the parties’ briefs, listening to counsels’ compelling presentations at oral argument, and conducting our own research, we can discern no basis on which to affirm the convictions and sentences based on three photographs that depict sexual activity (counts 4, 8, and 9). Stelmack compels reversal.

Stelmack involved photographs depicting heads of children attached to the bodies of nude adult women. None depicted sexual activity. To prove the crime of possession of child pornography, a person must ” ‘knowingly possess a photograph, . . . representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.’ ” 58 So. 3d at 875 (emphasis omitted) (quoting

§ 827.071(5)). As defined in section 827.071(1)(g), “sexual conduct” includes

“actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or

sadoma[so]chistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or

unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which

constitutes sexual battery or simulates that sexual battery is being or will be committed.”

Stelmack, 58 So. 3d at 876 (emphasis omitted) (quoting § 827.071(1)(g)); accord § 775.0847(1)(f).

We determined in Stelmack that the only applicable conduct depicted was lewd exhibition of the genitals. 58 So. 3d at 876. But, we held that a conviction

2In ruling on the motion to dismiss, the trial court did not have the benefit of Stelmack; it issued subsequent to the trial court’s order.

required exhibition by a child. Id. at 877. Because the Stelmack photographs contained only images of adult genitalia, there was no “sexual conduct by a child” and, consequently, no violation of section 827.071(5). Stelmack, 58 So. 3d at 876.

To be sure, the three remaining photographs before us are markedly different from those in Stelmack. Each depicts a child’s head superimposed on a body of an adult female engaged in sexual intercourse, deviate sexual intercourse, or masturbation. The conduct falls within the scope of section 827.071(1)(g). But, whether the conduct is “actual” or, as the dissent suggests, “simulated,” the conduct is that of an adult. The crudely constructed depictions, fortunately, leave no doubt that no child engaged in the sexual conduct. Accordingly, we cannot conclude that Mr. Parker possessed child pornography. The legislature’s words constrain us.

It bears repeating that a person is guilty of possessing child pornography if he “knowingly possess[es] a photograph, . . . representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.”

§ 827.071(5) (emphasis added). No matter how one parses the words, section 827.071 requires that the depicted sexual conduct be that of a child. The three photographs fail that test. The content of the three photographs offers us no meaningful basis on which to distinguish Stelmack. Without the sexual conduct of a child, the three photographs elude the statute’s reach.

We are not persuaded by the dissent’s effort to distinguish Stelmack: section 827.071(1)(g) extends to “actual” or “simulated” “sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadoma[so]chistic abuse,” which include the conduct involved here, but excludes the word “simulated” for “lewd

exhibition of the genitals,” an element of the offense of which Mr. Stelmack was convicted. We noted that distinction in Stelmack, but, in light of the record then before us, saw no need to discuss the constitutionality of a provision outlawing “simulated” sexual conduct. Id. at 876 n.2, 877. The dissent concludes that ” ‘simulated’ sexual conduct by a child” includes composites made by attaching children’s heads to adult female bodies engaged in sexual activity. Respectfully, we must disagree.

“Simulated” is “the explicit depiction of conduct . . . which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.” § 827.071(1)(i). The construction of “simulated” sexual conduct is explained in United States v. Williams, 553 U.S. 285, 297 (2008), where the Supreme Court construed the word “simulated” as applied to a “visual depiction” of a minor engaging in “sexually explicit conduct” under 18 U.S.C. § 2252A(a)(3)(B)(ii).3 According

318 U.S.C. § 2252A provides:

Any person who . . . knowingly . . . advertises,

promotes, presents, distributes, or solicits through the mails, or using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, any material or

purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or

purported material is, or contains . . . (ii) a visual depiction of an actual minor engaging in sexually explicit conduct . . . shall be punished as provided in subsection (b).

18 U.S.C. § 2252A(a)(3)(B)(ii).

18 U.S.C. § 2256(2)(A) defines “sexually explicit conduct” as follows: “[S]exually explicit conduct” means actual or

simulated . . . (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genital or pubic area of any person.

18 U.S.C. § 2256(2)(A)(i)-(v).

to the Court, “a reasonable viewer [must] believe that the actors actually engaged in that conduct on camera” and “although the sexual intercourse may be simulated, it must involve actual children.” Williams, 553 U.S. at 297. Williams’ analysis leads us to the same conclusion regarding Mr. Parker’s depictions; no child engaged in simulated conduct and no reasonable viewer could believe so.

To the extent that legislative history is a guide, we note that in enacting section 827.071, the legislature apparently was concerned with the exploitation of children. The 1983 legislative staff summary explains that this legislation “is directed at two types of people—those who use children in sexual performances and those who, being the parent or guardian of the child, ‘consent’ to the child’s participation in such activities.” Stelmack, 58 So. 3d at 876-77 (quoing Fla. H.R. Comm. on Crim. Just., HB 148 (1983) Staff Analysis 2 (Apr. 14, 1983) (on file with comm.)).4 The titles given to the statute are also instructive. Chapter 827 is titled “Abuse of Children” and section 827.071 is titled, “Sexual performance by a child; penalties.” We observed in Stelmack that the legislative history “reveals that it was aimed at preventing the exploitation of children in sexual performances.” Stelmack, 58 So. 3d at 876.

This legislative history is not inconsistent with our polestar, the statutory language. No child performed a sexual act, actual or simulated. And, despite the

4The intent of this legislation is to facilitate the prosecution of persons who use or promote any sexual performance by a child, which is not necessarily obscene. A distinction is

drawn between child abuse and pornography, with the focus on the child abuser. This legislation is directed at two types of people—those who use children in sexual performances and those who, being the parent or guardian of the child, “consent” to the child’s participation in such activities.

Fla. H.R. Comm. on Crim. Just., HB 148 (1983) Staff Analysis 2 (Apr. 14,

1983) (on file with comm.) (emphasis added).

dissent’s conclusion that the packaging of the photographs appears to indicate an intention to display them, we must emphasize that the State did not charge Mr. Parker with distribution of or intent to distribute obscene photographs. See § 847.011(1)(a), Fla. Stat. (2007).5 Neither was he charged with violating section 827.071(4), which prohibits “possess[ion] with the intent to promote any photograph . . . which, in whole or in part, includes any sexual conduct by a child.”6 Even if the State had charged Mr. Parker under section 827.071(4), conviction still would have required sexual conduct by a child. Possession of the photographs is the only crime charged. Although not binding on us, we recognize that the New Hampshire Supreme Court in State v. Zidel, 940 A.2d 255 (N.H. 2008), reached a similar result under a statute remarkably similar to section 827.071.

The dissent discusses federal cases involving First Amendment challenges to a broader federal child pornography statute, 18 U.S.C. § 2256(8)(C). The constitutionality of federal statutes is of little aid in interpreting the scope of section 827.071(5). Nevertheless, a brief overview of some of the federal authority demonstrates how the federal government has addressed the reach of child

5Chapter 847 covers obscene materials. See, e.g., § 847.011, Fla. Stat. (2007) (prohibiting (1) distribution or possession with intent to distribute obscene material including photographs and (2) possession of obscene materials without intent to distribute).

6Section 827.071 proscribes four levels of the offense of sexual performance by a child:

use of a child in a sexual performance, a second-degree felony;

promoting a sexual performance by a child, a second-degree felony;

possession with intent to promote “any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child,” where possession of three or more copies is prima facie evidence of such intent, a second-degree felony; and

possession of an item described in (4), a third-degree felony.

pornography statutes. The federal statute defines “child pornography” as “any visual depiction . . . of sexually explicit conduct, where . . . [the] depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(C); see United States v. Bach, 400 F.3d 622 (8th Cir. 2005); United States v. Hotaling, 599 F. Supp. 2d 306 (N.D.N.Y. 2008). Before 1996, Congress defined child pornography as images created using actual children. 599 F. Supp. 2d at 309 (citing 18 U.S.C. § 2252 (1994 ed.)). The Child Pornography Prevention Action (CPPA) of 1996 added three other categories of prohibited conduct. Id. One of those was 18 U.S.C. § 2256(8)(C), which defined child pornography as “created, adapted, or modified to appear that an identifiable minor [was] engaging in sexually explicit conduct.”

Bach reviewed a conviction under the CPPA for a 2001 charge of receiving child pornography as defined by § 2256(8)(C). Bach, 400 F.3d 622. There, the face of a well-known child actor was “skillfully inserted onto the body of [a] nude boy so that the resulting depiction appear[ed] to be a picture of [the child actor] engaging in sexually explicit conduct.” Id. at 632. In affirming the conviction, the Eighth Circuit reasoned that Bach was “not the typical morphing case in which an innocent picture of a child has been altered to appear that the child is engaging in sexually explicit conduct, for the lasciviously posed body is that of a child.” Id. There was no question but that the depicted sexual conduct was that of a child. We assume that such a photograph certainly would fall within the scope of section 827.071(5).

In 2002, the Supreme Court struck down a different provision of the 1996 CPPA, 18. U.S.C. § 2256(8)(B), defining child pornography as any “visual depiction”

that “is, or appears to be, of a minor engaging in sexually explicit conduct.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 234 (2002). The Court held that it was constitutionally overbroad because it allowed prosecution for images produced without using actual children, including “realistic images of children who do not exist” created with advanced computer techniques. Id. at 240; see Hotaling, 599 F. Supp. 2d at 310. Ashcroft did not challenge § 2256(8)(C). In response to Ashcroft, Congress crafted new legislation. Hotaling, 599 F. Supp. 2d at 311.

The resulting PROTECT Act of 20037 defines child pornography to include not only images of actual children engaged in sexually explicit conduct (18 U.S.C.

§ 2256(8)(A)), but also images created by computer that are “indistinguishable” from images of actual minors engaging in sexually explicit conduct (§ 2256(8)(B)) and images created or modified to appear as though an identifiable minor is engaged in sexually explicit conduct (§ 2256(8)(C)). Hotaling, 599 F. Supp. 2d at 311. Congress specifically removed the defense that no actual minor was involved in the production of the depiction. 18 U.S.C. § 2256(8)(C); Hotaling, 599 F. Supp. 2d at 316, 317. Apparently, Congress may have been motivated to prohibit morphed images that do not use a sexually explicit image of any child. S. Rep. No. 108-2, 2003 WL 33068, at *51 n.2 (2003); see Hotaling, 599 F. Supp. 2d at 312, 316-17.

Hotaling construed this latest evolution of the federal child pornography statutes in denying a motion to dismiss a charge of possession of child pornography. 599 F. Supp. 2d 306; see 18 U.S.C. § 2252A(a)(5)(B). The defendant was charged with possessing images in which heads of six identifiable minor females had been cut from

7Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act. Hotaling, 599 F. Supp. 2d at 307.

original nonpornographic images and pasted onto the bodies of unidentified nude females engaged in sexually explicit conduct. Hotaling, 599 F. Supp. 2d at 307-08. Under the PROTECT Act, child pornography is defined, as in Bach under the CPPA, by § 2256(8)(C), “visual depiction[s] . . . created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” However, the new language of the Act eliminated any question of whether it criminalized images that did not depict actual children engaged in sexual conduct. The court ruled:

The statute defines child pornography as morphed images of “identifiable minors” engaged in sexually explicit activity.

This requirement, together with an express exclusion of a defense for those who create such images without using actual children, leave no doubt the provision intends to criminalize the mere possession of pornographic images of

children even when the images are morphed and no children actually engaged in the sexually explicit conduct depicted therein.

Hotaling, 599 F. Supp. 2d at 322.

As this overview demonstrates, Congress enacted child pornography legislation three times, in 1994, 1996, and 2003; each time it broadened the definition of child pornography. Section 827.071(5) requires that actual children engage in sexual conduct. As the federal experience reflects, if our legislature wants to follow Congress’s example and prohibit the possession of the types of photographs involved here, we are confident that it can, and perhaps should, craft an appropriate statute.

Although the parties urge us to consider the First Amendment

ramifications of section 827.071, we confine our analysis to the statutory language. Because our construction of it concludes that it does not apply to Mr. Parker’s conduct, we have no occasion to decide whether its application to him is unconstitutional. Such

an analysis is unnecessary for our decision.8 See McKibben v. Mallory, 293 So. 2d 48, 51 (Fla. 1974) (“It is a fundamental principle that courts will not pass upon the constitutionality of a statute where the case before them may be disposed of upon any other ground.”).

Reversed.

LENDERMAN, JOHN C., ASSOCIATE SENIOR JUDGE, Concurs. MORRIS, J., Dissents with opinion.

MORRIS, Judge, Concurring in part and dissenting in part.

Based on our decision in Stelmack, and pursuant to the parties’ stipulation, I concur with the majority’s decision to reverse the trial court’s denial of Parker’s motion to dismiss the information as to counts 1, 2, 3, 5, 6, 7, and 10 which feature pictures depicting lewd exhibition of genitalia without sexual activity. However, I do respectfully disagree with my learned colleagues as to that part of the majority opinion that reverses the judgments and sentences as to counts 4, 8, and 9 which depict photographs featuring sexual activity. With regard to these last three pictures, the majority feels bound by our opinion in Stelmack and also appears to feel constrained by the unartful legislative drafting of section 827.071(5) of the Florida Statutes (2007). I disagree, and I would affirm the trial court’s order as it relates to these three photographs because they depict sexual activity.

Our decision in Stelmack dealt with photographs featuring the heads of children attached to the bodies of nude adult women. Unlike the three photographs

8At least one district court of appeal has held section 827.071(5) constitutional on its face. See State v. Beckman, 547 So. 2d 210 (Fla. 5th DCA 1989).

here, none of the photographs in Stelmack depicted sexual activity. As the majority opinion points out, in Stelmack, we opined that to prove the crime of possession of child pornography, a person must ” ‘knowingly possess a photograph, . . . representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child.’ ” 58 So. 3d at 875 (emphasis omitted) (quoting § 827.071(5)). We then further noted that the definition of “sexual conduct” set forth in section 827.071(1)(g) included

“actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or

sadoma[so]chistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or

unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which

constitutes sexual battery or simulates that sexual battery is being or will be committed.”

Stelmack, 58 So. 3d at 876 (quoting § 827.071(1)(g)). In Stelmack, we read section 827.071(1)(g) and 827.071(5) together, and we determined that a conviction based on lewd exhibition required actual lewd exhibition by a child. Thus, because the photographs in Stelmack contained images of adult genitalia, there was no violation of section 827.071(5). Stelmack, 58 So. 3d at 877. We explained that at most, the photographs depicted simulated lewd exhibition by a child. We pointed out that while the words “actual or simulated” were used to describe sexual intercourse and other sexual acts, the legislature did not use the word “simulated” to describe lewd exhibition of the genitals. Id. As a result, we concluded that the legislature intended to exclude simulated lewd exhibition of the genitals from the crime of possession of child pornography. Id.

The crux of this case rests on a crucial distinction from Stelmack. The three photographs at issue here contained children’s heads superimposed on the bodies of adult females engaged in sexual activity consisting of sexual intercourse, deviate sexual intercourse, and masturbation. And section 827.071(1)(g) specifically prohibits “simulated sexual intercourse, deviate sexual intercourse, [or] masturbation.” “Simulated” as defined in section 827.071(1)(i) “means the explicit depiction of conduct set forth in paragraph (g) which creates the appearance of such conduct and which exhibits any uncovered portion of the breasts, genitals, or buttocks.” The photographs here clearly contain an explicit depiction of the conduct set forth in paragraph (g). Because the statutory language is clear and unambiguous, I believe that we should give full effect to the plain meaning9 and hold that the three photographs in this case qualify as child pornography based on the definition of sexual conduct in section 827.071(1)(g).

Further, I believe that the holding in United States v. Bach, 400 F.3d 622 (8th Cir. 2005), is relevant and instructive here. In Bach, the government sought to prosecute Bach under the authority of 18 U.S.C. § 2256(8)(C), which prohibits composite images of child pornography as well as pictures which are “modified to appear that an identifiable minor is engaging in sexually explicit conduct.” 400 F.3d at 629. The photograph at issue in Bach was a composite of a well-known child entertainer’s face attached to another child’s nude body. 400 F.3d at 625. The body portion of the photograph revealed that the child was sexually aroused. Id. In holding that the photograph came within the proscription of the federal statute, the court in Bach reasoned that

9See Polite v. State, 973 So. 2d 1107, 1111 (Fla. 2007) (noting that in determining legislative intent, courts must first look at statute’s plain meaning).

[a]lthough there is no contention that the nude body actually is that of [the well-known child entertainer] or that he was

involved in the production of the image, a lasting record has been created of [him], an identifiable minor child, seemingly engaged in sexually explicit activity. He is thus victimized every time the picture is displayed.

Id. at 632.

While I acknowledge that the federal statute is more carefully drafted and broader in nature than section 827.071(1)(g) and (5), I also believe that the photographs in counts 4, 8, and 9 fall squarely within the proscription set forth in section 827.071(1)(g) and (5), and because the photographs contain images of identifiable minor children, the same concerns that arose in Bach are present here. These photographs created a lasting record, and these real and identifiable children were victimized every time the photographs were viewed.

I likewise strongly disagree with my colleagues that prohibiting photographs such as the ones at issue here does not comport with legislative intent. In support of our decision in Stelmack, we described the legislative intent as being to

” ‘facilitate the prosecution of persons who use or promote any sexual performance by a child.’ ” Stelmack, 58 So. 3d at 877 (emphasis omitted) (quoting Fla. H.R. Comm. on Crim. Just., HB 148 (1983) Staff Analysis 2 (Apr. 14, 1983) (on file with comm.)). The legislature further indicated it was focused on child abusers versus pornography and thus the legislation was directed at people who use or promote the use of children in sexual performances as well as those who consent to the child’s participation. Id. (citing id.).

I acknowledge that the three photographs at issue here did not involve actual sexual performance by a child. However, it is clear that the purpose of the

photographs is to promote sexual performance by a child. The photographs were packaged in photograph sleeves, much like a photograph album. The construction and manipulation of the photographs clearly appeased Parker’s own need for sexual gratification, but I also believe that the packaging of the photographs in this manner appears to indicate an intention to display the photographs. Certainly this type of promotion of sexual performance by a child was intended to be prohibited by the legislature.

Although the majority decided this case without the necessity of addressing the constitutionality of 827.071, because I do not fully join in their opinion, I feel compelled to address this issue. In his brief, Parker argued that the holding in State v. Zidel, 940 A.2d 255 (N.H. 2008), supported his contention that section 827.071(5) is unconstitutional as applied to him. However, in United States v. Hotaling, 599 F. Supp. 2d 306 (N.D.N.Y. 2008), which was a case involving facts virtually identical to the case here under review, the court expressly rejected both the holding and rationale of Zidel.

In Zidel, the court held that where photographs of nude bodies do not actually depict body parts of children engaging in sexual activity, the image is not a product of sexual abuse and therefore the mere possession of such photographs does not constitute demonstrable harm to the child whose face is depicted. 940 A.2d at 263 (citing Ashcroft v. Free Speech Coalition, 535 U.S. 234, 249 (2002)). The Zidel court also cited Osborne v. Ohio, 495 U.S. 103, 111 (1990), for the proposition that “[t]he mere possession of morphed images depicting no victims of child pornography cannot ‘haunt [] the children in years to come’ since the children do not know of their existence

and did not participate in their production.” Zidel, 940 A.2d at 263 (quoting Osborne, 495 U.S. at 111).

In rejecting the Zidel court’s analysis, the district court in Hotaling

explained:

Zidel overlooked Bach’s recognition that [the well-known child entertainer] was harmed even though he had not actually engaged in the conduct depicted in the morphed photo. . . . The court in Zidel failed to recognize that Bach

focused at least partly on the harm to [the well-known child entertainer], the child who had not engaged in sexually explicit activity, in rejecting the defendant’s argument.

Based on its failure to analyze properly the nuances of Bach and the particular facts before it in light of current federal law, Zidel reached the improvident conclusion that lack of

actual sexual conduct on the part of the identifiable minor in a morphed image—if such image is merely possessed and not distributed by a defendant—renders it protected speech under the First Amendment. See Zidel, 940 A.2d at 264-65.

The Court notes that the holding of Zidel is at odds with every other federal and state court which has

confronted, even indirectly, the constitutional question raised by the dicta in Ashcroft concerning statutes which impose

criminal penalties for possession of morphed images of child pornography. . . .

Hotaling, 599 F. Supp. 2d at 319 (emphasis omitted). The district court then went on to hold that

the creation and possession of pornographic images of living, breathing and identifiable children via computer morphing is not “protected expressive activity” under the

Constitution [because such] images “implicate the interests of real children” and are “closer” to the types of images placed outside the protection of the First Amendment in Ferber.10 Ashcroft, 535 U.S. at 242, 254.

Hotaling, 599 F. Supp. 2d at 321 (citation omitted).

10New York v. Ferber, 458 U.S. 747 (1982).

While Hotaling was also based on 18 U.S.C. § 2256(8)(C), the analysis contained therein is helpful for an analysis of section 827.071(1)(g) and (5). I interpret the phrase “simulated sexual intercourse” as set forth in the definition of sexual conduct in section 827.071(1)(g) to include morphed images (computer generated or otherwise) such as the ones at issue in this case. Thus because the Florida statute prohibits some types of morphed images—at least those involving certain kinds of simulated sexual activity—Hotaling is instructive on whether such images are protected by the First Amendment. I reject Parker’s argument that Zidel should control the outcome of his case. Instead, I would align with Hotaling to the extent that it holds that where photographs depicting identifiable children are morphed with adult bodies engaged in sexual activity, such photographs are not protected by the First Amendment.11

Accordingly, I would affirm in part, reverse in part, and remand.

11See State v. Beckman, 547 So. 2d 210 (Fla. 5th DCA 1989).

Courtesy of David Edelstein