Omar BLANCO, Appellant, v. STATE of Florida, Appellee, 706 So. 2d 7

SHAW, Justice. We have on appeal the sentence of the trial court imposing the death, penalty on Omar Blanco on resentencing. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm. The facts are set out fully in our opinion on direct appeal. See Blanco v. State, 452 So.2d 520 (Fla.1984). Omar Blanco broke into John Ryan’s home at 11 p.m., January 14, 1982, struggled with Ryan, and shot him. As Ryan fell onto a bed, Blanco shot him six more times. Blanco was arrested a few minutes later and was identified at the scene by a neighbor. Blanco’s wallet, driver’s license, and keys were found at the scene.

The next day, he was identified by Ryan’s niece, Thalia, who had confronted him in her lighted bedroom for several minutes just before the shooting. (It was Thalia’s bed that Ryan fell onto when he was first shot, and she was lying underneath him when he was shot six more times.) Blanco was convicted of first-degree murder and armed burglary and presented no evidence in mitigation. The court, consistent with the jury’s eight-to-four vote, sentenced him to death based on four aggravating circumstances and no mitigating circumstances.

After striking two aggravating circumstances, this Court affirmed the conviction and sentence. We denied Blanco’s petition for writ of habeas corpus and affirmed the denial of his rule 3.850 motion. Blanco v. Wainwright, 507 So.2d 1377 (Fla.1987). A federal district court later vacated the death sentence due to ineffectiveness of penalty-phase counsel and remanded for a new penalty phase trial. Blanco v. Dugger, 691 F.Supp. 308 (S.D.Fla.1988). At resentencing, the State presented the testimony of the victim’s niece (Thalia) and that of numerous officers and forensic experts.

Blanco, on the other hand, presented the testimony of ten lay witnesses, the statements of his mother and father, and the testimony of two mental health experts. The jury recommended death by a ten-to-two vote and the trial court imposed the death sentence based on two aggravating circumstances, one statutory mitigating circumstance, and eleven nonstatutory mitigating circumstances. Blanco raises seven issues. Blanco claims that the court erred in refusing to hire the psychiatrist he selected. We disagree. Prior to retrial, defense counsel, Mr.

Moldof, had difficulty selecting a Spanish-speaking psychiatrist and proposed that the court hire a Dr. Gonzales, with whom Moldof had made initial contact. The State balked at Gonzales’s fee of $2,000 per day, and Moldof did not protest when the court questioned whether there were alternatives: THE COURT: And you don’t think there’s anyone else out there? MR. MOLDOF: Judge, I’m in a posture now where I’m taking any suggestions I can get, like I said. When the court suggested that Moldof look for a different psychiatrist, Moldof agreed: “I’d be glad to.” Moldof eventually contacted a Dr.

Maulion — who had been suggested by the court — and discussed the case with him. The following exchange later took place: THE COURT: Are you satisfied with him? MR. MOLDOF: Yes, sir. He seems to be qualified. He is Spanish speaking. He seems to have all of the tools, at least, to be able to accomplish what we’re seeking. On the basis of this initial approval, the court hired Dr. Maulion to assist Blahco. One month later, after Maulion had begun working on the case, Moldof was more than pleased with him, commenting to the court: “I’ve seen his work[ ]. He seems to be more than acceptable.

He is doing an excellent job.” Dr. Maulion ultimately testified for the defense and it was not until months later, at the final sentencing hearing before the judge, that Moldof expressed any dissatisfaction. Moldof was particularly distressed because Maulion had been unable to identify Blanco in the courtroom from the witness stand: [THE COURT:] Is theré anything to discuss at this time prior to sentencing? MR.

MOLDOF: Your Honor, nothing other than I was looking through my sentencing memorandum we submitted to the Court and I could have sworn that in the sentencing memorandum I had placed the portion of the argument relating to the idea that in my .view of the case one of the — probably one of the more important failings, if I look back and see things we did wrong, is when Dr. Maulion testified. I felt like he was really not a forceful witness for the defense and, you know, we were here when he made the statement about not seeing Mr. Blanco in the courtroom.

When I think the case over and over, I think that weighed heavily against us with the jury. THE COURT: There were no complaints at all up to the testimony. MR. MOLDOF: No question. And quite frankly, I guess one of the — you know, if that’s my fault, then it’s my fault. One of the problems is, you know; psychiatry is as much an art as a science to me. We conclude that while Dr.

Maulion may not have been Blanco’s first choice in terms of the sequence in which he was selected, he nonetheless was Blanco’s expert of choice in that he was approved by Moldof prior to appointment and was given high marks before testifying. The fact that Maulion’s testimony did not live up to Blanco’s expectations cannot in any way be categorized as a trial court error. See generally Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985) (pointing out that an indigent defendant has no “constitutional right to choose a psychiatrist of his [or her] personal liking”).

We note that in addition to appointing Dr. Maulion, the court appointed, at county expense, a psychologist, a neuropsy-chologist, a neurologist, and a sociologist to assist in Blanco’s defense. We find no error. During the course of Ms testimony; Dr. Maulion made the following statement: [Blanco] was under extreme duress. It would have been extreme duress for a normal person to be in a situation in wMeh you’re in a way caught inside somebody else’s house with a gun in your hand, and that somebody is trying to grab the gun from your hand. Which, of course, could turn into your death too.

Because if that gun could have been pulled out of his hands, I’m not sure if the victim wouldn’t have used it, okay. That’s a situation of extreme duress to any one of us. With someone with brain damage, that’s catastropMc. Based on this statement, Blanco now claims as his second point that the trial court erred in failing to give his requested instruction on the statutory mitigating circumstance of extreme duress. This issue has already been decided adversely to Blanco. We find no error. In its current sentencing order, the court noted that the jury had previously recommended death by an eight-to-four vote.

Blanco claims that tMs shows that the court improperly counted the prior recommendation as a factor when deciding the present sentence. We disagree. The plain language of the sentencing order shows that the court gave no weight to the prior recommendation — the court was merely reciting a factual Mstory of the case. We find no error. In its sentencing order, the court made the following finding concerning the mitigatmg circumstance of impoverished background: This factor has been proven, however, all of Mr.

Blanco’s family come from the same background and there is no evidence that they followed a course of criminal conduct as Mr. Blanco did. This factor is therefore given little weight. Blanco claims as his fourth point that the court erred in assigning little weight to tMs mitigating circumstance. We disagree. The Court in Campbell v.

State, 571 So.2d 415 (Fla.1990), established relevant standards of review for mitigating circumstances: 1) Whether a particular circumstance is truly mitigating in nature is a question of law and subject to de novo review by this Court; 2) whether a mitigating circumstance has been established by the evidence in a given case is a question of fact and subject to the competent substantial evidence standard; and finally, 3) the weight assigned to a mitigatmg circumstance is witMn the trial court’s discretion and subject to the abuse of discretion standard. Applying this law to the present case, we find no error.

First, the circumstance of impoverished childhood is mitigate ing in nature and qualifies for treatment as a mitigating circumstance. Second, competent substantial evidence supports the court’s finding that this circumstance was established in this ease. And finally, the court did not abuse its discretion in assigning this circumstance little .weight, for we cannot say that no reasonable person would give this circumstance slight weight in the calculus of this crime.

Blanco next argues that Florida’s capital felony' sentencing statute is unconstitutional because every pérson who is convicted of first-degree felony murder automatically qualifies for the aggravating circumstance of commission during the course of an enumerated felony. We disagree: Eligibility for this aggravating circumstance is not automatic: The list of enumerated felonies in the provision defining felony murder is larger than the list of enumerated felonies in the provision defining the aggravating circumstance of commission during the course of an enumerated felony.

A person can commit felony murder via trafficking, carjacking, aggravated stalking, or unlawful distribution, and yet be ineligible for this particular aggravating circumstance. This scheme thus narrows the class of death-eligible defendants. See Zant v. Stephens, 462 U.S. 862, 108 S.Ct. 2733, 77 L.Ed.2d 235 (1983). See generally White v. State, 403 So.2d 331 (Fla.1981). We find no error. We find the remainder of Blanco’s claims to be without merit. We conclude that the conviction for first-degree murder is adequately supported in the record and the sentence of death is proportionate.

We affirm the death sentence. It is so ordered. OVERTON, GRIMES and HARDING, JJ., concur. KOGAN, C.J., concurs in result only. WELLS, J., concurs with an opinion in which GRIMES, J., concurs. ANSTEAD, J., concurs specially with an opinion in which KOGAN, C.J., concurs. . The court found the following: 1) prior violent felony; 2) pecuniary gain and during the course of a burglary; 3) heinous, atrocious, or cruel (HAC); and 4) cold, calculated, and premeditated (CCP). . We struck HAC and CCP. .Fla. R.Crim. P. 3.850. . The federal circuit court affirmed. Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991). .

The court found the following: 1) prior violent felony; and 2) pecuniary gain and commission during a burglary. . The court found impaired capacity. . The court found the following: 1) potential for rehabilitation; 2) fatherhood; 3) dull intelligence; 4) impoverished background; 5) organic brain damage; 6) unwavering declaration of innocence; 7) oppression in Cuba; 8) good character; 9) strong religious beliefs; 10) cooperation with police; and 11) loving family relationship. .

Blanco claims the court erred in the following matters: 1) refusing to allow defense counsel to retain the mental health expert of his choice; 2) refusing to instruct on the statutory mitigating circumstance of extreme duress; 3) giving undue weight to the jury’s present and prior death recommendations; 4) underweighing the mitigating circumstance of impoverished background; 5) proportionality; 6) the felony murder aggravating circumstance is unconstitutional; 7) the death penalty is cruel and unusual. . See § 921.141 (6)(e), Fla.

Stat. (1993) ("The defendant acted under extreme duress or under the substantial domination of another person.”). . See, e.g., Barwick v. State, 660 So.2d 685 (Fla.1995) (holding that no instruction was required where defendant entered home to steal but "lost control” and stabbed victim when she resisted), cert. denied, 516 U.S. 1097, 116 S.Ct. 823, 133 L.Ed.2d 766 (1996); Walls v.

State, 641 So.2d 381 (Fla.1994) (holding that no instruction was required where defendant entered trailer to commit burglary but stabbed victim when he got loose from bindings and attacked defendant), cert. denied, 513 U.S. 1130, 115 S.Ct. 943, 130 L.Ed.2d 887 (1995); Toole v. State, 479 So.2d 731, 734 (Fla.1985) (“[Duress] refers to external provocation such as imprisonment or the use of force or threats.”). . Campbell v. State, 571 So.2d 415, 419 n. 4 (Fla.1990). . Id. at 419 n. 5. . See generally Campbell 571 So.2d at 420. See also Johnson v.

State, 660 So.2d 637, 647 (Fla.1995), cert. denied, - U.S. -, 116 S.Ct. 1550, 134 L.Ed.2d 653 (1996); Windom v. State, 656 So.2d 432, 440 (Fla.), cert. denied, -U.S. -, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995); Ellis v. State, 622 So.2d 991, 1001 (Fla.1993). A trial court's end result in weighing aggravating and mitigating circumstances is subject to the competent substantial evidence standard. Campbell, 571 So.2d at 420. . See Campbell, 571 So.2d at 419 n. 4. .

The record shows that Blanco grew up on a small farm in Cuba without plumbing or electricity, that he carried water from the local well daily, and that he worked in the fields at an early age. . See Huff v. State, 569 So.2d 1247, 1249 (Fla.1990) (''[Discretion is abused only where no reasonable man would take the view adopted by the trial court.”). . See § 782.04, Fla. Stat. (1993). . See § 921.141(5)(d), Fla. Stat. (1993). . Issues 5 and 7 are without merit.