Alphonso CAVE, Appellant, v. STATE of Florida, Appellee, 727 So. 2d 227

PER CURIAM. We have on appeal the sentence of the trial court imposing the death penalty on Alphonso Cave. 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 Cave v. State, 476 So.2d 180 (Fla.1985). In April 1982, Alphonso Cave and three friends — John Bush, J.B. (“Pig”) Parker, and Terry (“Bo Gator”) Johnson — robbed a convenience store and kidnapped the clerk, Frances Slater. The men drove Slater to a remote location where they stabbed her and shot her once in the back of the head, execution-style.

Cave was arrested shortly thereafter and charged with and convicted of first-degree murder. The court followed the jury’s seven-to-five vote and sentenced him to death. We affirmed. Id. The sentence was later vacated by the federal district court based on ineffective assistance of' trial counsel during the penalty phase, and this ruling was affirmed by the federal circuit court. See Cave v. Singletary, 971 F.2d 1513 (11th Cir.1992). Cave was given a second sentencing proceeding before a jury. The jury recommended death by a ten-to-two vote and the court again imposed a sentence of death.

This Court vacated the sentence due to a procedural error in the trial court’s disposition of Cave’s motion for disqualification of the judge. See Cave v. State, 660 So.2d 705 (Fla.1995). Cave was given a third sentencing proceeding before a jury. The jury recommended death by an eleven-to-one vote and the court again imposed a sentence of death based on four aggravating circumstances, one statutory mitigating circumstance, and several nonstatutory mitigating circumstances. Cave now appeals this third sentence of death, raising twenty-six issues and numerous subissues.

Cave first contends that his role in the murder was secondary and that his death sentence violates Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), and Enmund, v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). This argument has alreády been rejected by this Court. See Cave v. State, 476 So.2d 180 (Fla.1985). Cave also claims that his role in the murder was minor and his death sentence is thus disproportionate.

The trial court, however, found that Cave was a ringleader: “The defendant’s role in the entire criminal episode ... shows that he exercised a leadership role throughout.” Competent substantial evidence supports the trial court’s finding. We find no error. Cave contends that there was insufficient evidence of CCP to support this ag-gravator. We disagree. The standard for evaluating a trial court’s finding of an aggravating circumstance was set forth in Willacy v.

State, 696 So.2d 693 (Fla.), cert. denied, - U.S. -, 118 S.Ct. 419, 139 L.Ed.2d 321 (1997): [I]t is not this Court’s function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt—that is the trial court’s job. Rather, our task on appeal is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding. Id. at 695.

In the present case, the trial court found the following: Clearly there was no pretense of moral or legal justification for this killing.

The cold, calculated, and premeditated nature of it was shown by the general plan of the defendant and his associates to find a convenience store to rob, by defendant being the one with the gun during the robbery, by defendant being the one who chose to lead the victim out of the store at gunpoint, by the defendant keeping her in the back seat of the car for the long ride out to the scene of the murder, and by the defendant taking her out of the car and turning her over to Bush and Parker who knifed and shot her. The Court finds that this aggravating circumstance has been established beyond a reasonable doubt.

The record shows that the court applied the right rule of law (i.e., it gave the standard instruction on CCP), and competent substantial evidence supports its ruling. See, e.g., Preston v. State, 607 So.2d 404 (Fla.1992). We find no error. Cave next claims that there was insufficient evidence of HAC to support this aggravator. We disagree.

The trial court found as follows: In the present case this Defendant personally removed the victim from the convenience store at gun point, placed her in the back seat of the car in which he and a co-defendant were seated, heard her pleas for her life during a fifteen to eighteen minute ride to an isolated area, removed her from the car and turned her over to Bush and Parker who stabbed and then shot her. At some point her panties were wet with urine. The terror she experienced must have been horrible and meets the definition of especially heinous, atrocious and cruel.

The situation here is in contrast to a killing that is sudden and unexpected. The Court finds that this aggravating circumstance has been established beyond a reasonable doubt. Our review of the record shows that the court applied the right rule of law (i.e., it gave the standard instruction on HAC), and competent substantial evidence supports its ruling. See, e.g., id. We find no error. Cave contends that there was insufficient evidence of witness elimination to support this aggravator. We disagree.

The trial court found as follows: The Court finds beyond a reasonable doubt this aggravating factor has been proven. The purpose of the abduction and killing was clearly to eliminate the only witness to the robbery. The Court is not bound to believe defendant’s statement that he did not intend or expect the victim to be murdered. The evidence shows that defendant had a leadership participation in the entire criminal episode. The record shows that the trial court applied the right rule of law (i.e., it gave a proper instruction on this aggravator), and competent substantial evidence supports its ruling.

See, e.g., id. We find no error. Cave next claims that the trial court improperly based its findings of the CCP and witness elimination aggravators on the same facts. The record, however, shows that although the two aggravators share common facts, the witness elimination aggravator is supported by additional independent facts. There was little reason for the men to kidnap Slater except to kill her at their leisure in isolated surroundings where they would not be surprised or observed; and there was no other reason to kill her — she was not shot accidently or in an escape attempt. See, e.g., Stein v.

State, 632 So.2d 1361 (Fla.1994). We find no error. Cave claims that the trial court erred in attributing little weight to the mitigating circumstance of “no significant history of pri- or criminal activity.” We disagree. This Court in Blanco v. State, 706 So.2d 7 (Fla.1997), summarized the Campbell standards of review for mitigating circumstances: 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 mitigating circumstance is within the trial court’s discretion and subject to the abuse of discretion standard. Id. at 10 (footnotes omitted).

In the present case, the trial court found as follows concerning the mitigating circumstance of lack of prior criminal activity: The Court finds that this mitigating factor has been proven. ■ It is entitled to little weight, however, in view of the enormity of the crimes committed in this episode. This Court was once asked by a bank robber for leniency as it was his first bank robbery. The implication was that everyone is entitled to one bank robbery.

In the instant case it cannot be said that defendant is entitled to much consideration because it is his first murder or that robbery, kidnapping and murder were the first crimes he chose to commit. We conclude that the trial court's assignment of weight to this aggravator comports with Campbell (i.e., “the weight assigned to a mitigating circumstance is within the trial court’s discretion and subject to the abuse of discretion standard,” Blanco, 706 So.2d at 10). We cannot say on this record that no reasonable person would assign little weight to this aggravator. We find no error.

Cave contends that the trial court erred in failing to find as a mitigating circumstance that he was a minor participant in the murder. We disagree. The trial court found as follows: The defendant’s role in this murder, as noted above, included leádership activities. He participated in casing out the convenience store, he carried the gun throughout the robbery and the kidnapping, and only relinquished it to Parker for the execution. Defendant personally directed the victim out of the store and into the car. He held her captive in the back seat during her pleas for her life.

He got her out of the car and turned her over to Bush and Parker who promptly stabbed and shot her. We conclude that the trial court’s finding that this proposed mitigating circumstance was not established comports with Campbell (i.e., “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,” Blanco, 706 So.2d at 10). Our review of the record shows that competent substantial evidence supports the court’s finding. We find no error.

Cave claims that the trial court erred in failing to find age as a mitigator. We disagree. The trial court found: It appears that the defendant was twenty-three years of age at the time of the murder. There is no magic cutoff number for this mitigator so in theory it could be applicable to every defendant. However, the purpose of this circumstance would appear to be to give some mitigation where youthful inexperience and immature decision making entered into the crime. Nothing in the evidence establishes such factors. Defendant had left home and was living in an apartment with his girl friend.

He showed criminal sophistication in casing out the convenience store and in eliminating the only witness. There was no childish action involved. Now at age 38 ... he characterizes his action at the time as a “stupid-ass thing to do.” While that may be true, people of all ages and maturities do “stupid-ass things” from time to time. The court finds that this mitigator has not been proven. Our review of the record shows that the court’s finding that this mitigator was not established is supported by competent substantial evidence. See Blanco, 706 So.2d at 10. We find no error.

The trial court’s ruling on' each of the points raised in Issue 9 comports with the above Campbell standards: (

A) The trial court did not abuse its discretion in giving little weight to Cave’s proposed mitigator of remorse; (

B) the sentencing ' order shows that the trial court weighed the fact that Cave was not the shooter; (

C) competent substantial evidence supports the court’s rejection of Cave’s proposed mitigator that he did not know the killing was going to occur; (

D) competent substantial evidence supports the court’s rejection of Cave’s proposed miti-gator that he was less culpable than his cohorts; (E). the court did not abuse its discretion in giving little weight to the fact that Cave saved a relative from drowning when Cave was a child; (

F) the court did not abuse its discretion in giving little weight to Cave’s claim that he had consumed alcohol and drugs on the night of the crime; and (

G) the trial court did not abuse its discretion in giving little weight to the remaining nonstat-utory mitigators. We find no error. Cave next contends that facts not specifically set forth in the sentencing order cannot be used to support the trial court’s finding of aggravating circumstances. We disagree. It is the task of this Court to review the entire record — not just the sentencing order — to determine whether an aggravating circumstance is adequately supported by the evidence. See Willacy v.

State, 696 So.2d 693, 695 (Fla.1997) (“[O]ur task on appeal is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.”); see generally Peterka v. State, 640 So.2d 59, 70 (Fla.1994) (rejecting defendant’s claim that sentencing order was deficient because it “failed to provide sufficient facts to support the finding of the aggravating circumstances.”). We find no error.

To support its finding of HAC, the trial court noted, “At some point [the victim’s] panties were wet with urine. The terror she experienced must have been horrible.” Cave contends that the evidence adduced at trial failed to establish beyond a reasonable doubt that the victim’s urinating was a pre-mortem phenomenon related to her fear. Our review of the record, however, shows that competent substantial evidence supports the trial court’s finding.

The medical examiner testified: “To completely [empty] the bladder ... it’s highly improbable for it to have occurred any time other than while she was alive.” We find no error. We find Cave’s remaining claims to be without merit. ‘ In conclusion, we find that Cave’s sentence of death is adequately supported by the evidence and is proportionate to other capital cases. We affirm the death sentence. It is so ordered. HARDING, C.J., and OVERTON, SHAW, and WELLS, JJ., concur. PARIENTE, J., concurs in result only with an opinion. KOGAN, J., concurs in part and dissents in part with an opinion.

ANSTEAD, J., dissents with an opinion. . The court found that the following aggravating circumstances were proven: the murder was committed during the flight following a robbery and during a kidnapping; the murder was especially heinous, atrocious, or cruel (HAC); the murder was committed in a cold, calculated, and premeditated manner (CCP); the murder was committed to avoid arrest. .' The court found that Cave had no significant history of prior criminal activity. .

The court found that several nonstatutory mitigating circumstances were established, including: remorse; Cave was not the triggerman; Cave saved someone's life when Cave was a youth; Cave was under the influence of alcohol or marijuana at the time of the crime; Cave was a good son, neighbor, worker, and father; Cave’s only son died as a result of a criminal act; Cave has improved himself in prison; and Cave confessed his role in the crime.

The court gave "little weight” to most of these factors. .Cave claims error on the following points: (1) proportionality; (2) evidence of CCP; (3) evidence of HAC; (4) evidence of witness elimination; (5) doubling of CCP and witness elimination; (6) weight given to “no prior criminal activity”;

(7) Cave’s role in the crime; (8) age as a mitigator; (9) evidence of various nonstatutory mitigators; (10) whether facts not listed in the sentencing order can be used to support aggrava-tors; (11) the cause of victim's urination;

(12) HAC instruction;

(13) HAC aggravator; (14) witness elimination instruction; (15) witness elimination aggravator; (16) felony murder instruction; (17) felony murder aggravator;

(18) CCP aggravator; (19) whether CCP should have been submitted to jury; (20) allocation of burdens of proof; (21) guidance for jury; (22) victim impact statute; (23) adequacy of jury vote; (24) adequacy of appellate review; (25) denial of a defense; (26) evidence of victim impact. . See Huff v. State, 569 So.2d 1247, 1249 (Fla.1990) (”[D]iscretion is abused only where no reasonable [person] would take the view adopted by the trial court.”). . Issue 12 has already been decided adversely to the defendant. See, e.g., Chandler v.

State, 702 So.2d 186 (Fla. 1997), cert. denied, -U.S. -, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998). Issue 13 has already been decided adversely to the defendant. See, e.g., id. As to Issue 14, the witness elimination instruction that was given was a correct statement of the law. See generally Wike v. State, 698 So.2d 817 (Fla. 1997), cert. denied, — U.S. -, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998). Issue 15 has already been decided adversely to the defendant. See, e.g., Whitton v. State, 649 So.2d 861 (Fla.1994). Issue 16 has already been decided adversely to the defendant. See generally Blanco v.

State, 706 So.2d 7 (Fla.1997). Issue 17 has already been decided adversely to the defendant. See, e.g., id. Issue 18 has already been decided adversely to the defendant. See, e.g., Phillips v. State, 705 So.2d 1320 (Fla.1997). Issue 19 has already been decided adversely to the defendant. See Preston v. State, 607 So.2d 404 (Fla.1992). Issue 20 has already been decided adversely to the defendant. See, e.g., Brown v. State, 565 So.2d 304 (Fla.1990). Issue 21 has already been decided adversely to the defendant. See, e.g., Robinson v. State, 574 So.2d 108 (Fla. 1991).

Issue 22 has already been decided adversely to the defendant. See, e.g., Windom v. State, 656 So.2d 432 (Fla.1995). Issue 23 has already been decided adversely to the defendant. See, e.g., James v. State, 453 So.2d 786 (Fla.1984). Issue 24 has already been decided adversely to the defendant. See, e.g., Hunter v. State, 660 So.2d 244 (Fla.1995). Issue 25 has already been decided adversely to the defendant. See Bush v. State, 682 So.2d 85, 87 (Fla.1996) ("[W]e know of no legal basis for staying Bush’s third death warrant pending a subsequent penalty hearing for a codefendant.”).

Issue 26 has already been decided adversely to the defendant. See, e.g., Bonifay v. State, 680 So.2d 413, 419-20 (Fla.1996) ("Clearly, the boundaries of relevance under the statute include evidence concerning the impact to family members.”).