Marlin L. Joseph v. State of Florida

• Court: Supreme Court of Florida
• Decided: February 10, 2022
• Docket: SC20-1741
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC20-1741 ____________

MARLIN L. JOSEPH, Appellant,

vs.

STATE OF FLORIDA, Appellee.

February 10, 2022

PER CURIAM.

Marlin Joseph appeals two first-degree murder convictions

and two corresponding sentences of death. 1 For the reasons

explained below, we affirm Joseph’s convictions and sentences of

death.

I. BACKGROUND

On January 18, 2018, Marlin Joseph was indicted for two

counts of first-degree murder with a firearm related to the deaths of

1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Kaladaa Crowell and her 11-year-old daughter, Kyra Inglett. 2 The

incident in this case occurred on December 28, 2017. The evidence

presented at trial established that at that time, Joseph resided in a

home in West Palm Beach with his mother, Robin Denson;

Denson’s girlfriend, Crowell; Crowell’s daughter, Kyra; and Joseph’s

three brothers, Parice Joseph, Patrick Joseph, and Cordarius

Joseph. 3 Also staying at the home at the time was Joseph’s eight-

year-old daughter, Kamare Canty, and Jeshema Tarver, Denson’s

goddaughter.

Earlier in the day, an incident occurred between Kyra and

Kamare. Kamare asked Kyra and Jeshema to sit on her back

because it was hurting. Kamare then told Kyra and Jeshema to get

off her back because they were hurting her, but Kyra had trouble

getting off Kamare. Jeshema testified at trial that another incident

had occurred on December 23, 2017 (two days before Christmas

and five days before the shootings), and she heard Joseph yelling to

2. Joseph was also indicted for felon in possession of a firearm, which charge was bifurcated for trial.

3. For clarity, Marlin Joseph’s brothers will be referred to by their first names because they share the same last name as Joseph.

-2- Denson about Kyra saying she “ha[d] one more time to make [him]

mad or to bother, she needs to leave my daughter alone.”

Later in the day on December 28, 2017, Parice and Patrick

picked Denson up at the end of her workday, and Denson went

grocery shopping before returning home. Present in the home when

they arrived were Joseph, Crowell, Kyra, Kamare, Cordarius, and

Jeshema. Joseph helped bring in the groceries and then was

reading his Bible in the room he shared with Patrick, and Cordarius

and the girls (Kamare, Kyra, and Jeshema) were sitting on the

couch in the living room. The girls were laughing, talking, and on

their phones. Crowell was folding clothes in the room she shared

with Denson. After Denson arrived home, she had a conversation

with Joseph in the living room area about a text message he

received from Crowell, who was still in her room. During this

conversation, Joseph brought up Kamare’s mother asking whether

she was coming to pick Kamare up. Denson testified that Joseph

was not upset but was being disrespectful about Kamare’s mother.

Joseph started using expletives in reference to Kamare’s mother,

and Denson told him to calm down because she did not want the

kids to hear that kind of language. After the conversation with

-3- Joseph, Denson walked outside to the porch where Parice and

Cordarius were. Cordarius was outside the home waiting for his

girlfriend to pick him up. Denson took Cordarius aside, and they

went to the sidewalk in front of the home while Parice stayed on the

porch.

Jeshema went to take a shower, and she heard arguing

between Joseph and Crowell. Jeshema heard Joseph say to

Crowell, “Why is your daughter [Kyra] being mean to my daughter

[Kamare], she didn’t do anything wrong.” Jeshema exited the

shower after hearing three loud bangs. She heard Crowell

screaming and crying, asking for someone to call 911. Jeshema

then heard another bang. She opened the bathroom door, and

Kamare told her Crowell and Kyra had been shot. Jeshema walked

out to blood all over the floor and Crowell flat on her face. Jeshema

and Kamare went into Kyra’s room and hid under the bed. Kamare

called 911 using Joseph’s phone.

Parice heard gunshots while sitting on the front porch. He

saw Kyra run outside, looking backwards. Joseph came outside

after Kyra. Parice tackled Joseph because he was scared after

hearing the gunshots. Parice saw Joseph with a gun in his hand.

-4- Parice attempted to get the gun from Joseph but was unsuccessful.

Parice saw Joseph run back into the home while Kyra was lying on

the walkway. Parice ran to go check on Denson and Cordarius

down the street. Joseph exited the home again and drove off in

Crowell’s car. Parice testified at trial that he did not see anyone

shoot Crowell or Kyra, but he also saw Joseph with a gun a couple

of days prior. Besides Joseph, Parice did not see anyone else with a

gun.

While outside, Denson and Cordarius also heard gunshots

coming from inside the home, and Cordarius told Denson to run.

Cordarius saw Kyra come outside and fall to the ground. Cordarius

did not see Joseph chasing Kyra. Denson ended up on the ground

in her neighbor’s yard; Patrick later picked her up off the ground.

Patrick was crying and told Denson that Crowell had been shot.

Denson went to the front of the home and saw Kyra on the

sidewalk. Kyra was not moving but was breathing. Denson ran

inside with Parice and saw Crowell on the floor in between the living

room and dining room area. Denson checked for a pulse, but

Crowell was unresponsive. Denson did not see Parice, Patrick, or

-5- Cordarius with a gun. She also did not see Joseph with a gun and

did not see him at all during the incident.

Joseph was the only person not at the scene when police

arrived. Officer Ryan Forbes, the first responding officer, arrived at

the scene and saw Kyra on the sidewalk with a gunshot wound to

her head. She was breathing but would not talk back to him.

Officer Forbes went inside to find a lifeless Crowell on the ground.

Unlike Crowell, Kyra showed signs of life when police and medical

personnel arrived—she had a pulse and was breathing. Kyra was

transported to the hospital but died hours later. She never

regained consciousness from the time police found her at the crime

scene to when she died. Crowell and Kyra each died from gunshot

wounds. Five spent cartridge casings were found outside the home,

and four spent casings were found inside the home. The State’s

firearms expert opined that the casings were fired from the same

firearm. A firearm was never found.

The medical examiner testified concerning his autopsies of

Crowell and Kyra. Crowell sustained several gunshot wounds to

various parts of her body—the back of her right hand (defensive

wound), her belly, left calf, chest, the back of her head, and

-6- forehead. The wound to Crowell’s forehead was fatal; the bullet

broke her skull and destroyed her brain. Kyra also sustained

several gunshot wounds to various parts of her body—left buttock,

lower back, the side of her head, and the back of her head. The

wound to the back of Kyra’s head was fatal; the bullet entered the

back of her head and exited her forehead, damaging her skull and

brain.

Later that night, Denson, Parice, Patrick, and Cordarius went

to the police station to give statements. Detective Paul Creelman,

the lead detective in this case, interviewed Denson, Parice, and

Cordarius; and Parice and Cordarius identified Joseph as the

shooter. Joseph’s family members recanted in their trial testimony

regarding their prior statements to the police. However, the State

introduced Parice’s and Cordarius’ identifications of Joseph as the

shooter through Detective Creelman’s testimony. Specifically,

Detective Creelman testified, “Cordarius told me that his brother,

Marlin Joseph, had shot Kyra.” Detective Creelman also testified

that “Parice told me his brother, Marlin Joseph,” was the shooter.

Joseph was later found in Lake Worth and taken into custody on

January 2, 2018.

-7- On February 24, 2020, a jury found Joseph guilty of first-

degree murder with a firearm on both counts. The penalty phase of

the trial began the same day with the same jury. The State

presented two witnesses—Joseph’s then-probation officer and a

latent print examiner. Through these witnesses, the State

introduced evidence of Joseph’s prior conviction for battery on a

child. The defense called 15 witnesses, most of whom were lay

witnesses.

On February 26, 2020, the jury rendered unanimous verdicts

recommending a penalty of death on both counts of first-degree

murder with a firearm, determining the aggravating factors

outweighed the mitigating circumstances. The jury found that the

State had established beyond a reasonable doubt the existence of

the following aggravating factors: (1) Joseph was previously

convicted of a felony and was on felony probation; (2) Joseph was

previously convicted of another capital felony or a felony involving

the use or threat of violence to another person; (3) the first-degree

murder was especially heinous, atrocious, or cruel (HAC); and

(4) the first-degree murder was committed in a cold, calculated, and

premeditated (CCP) manner. As to Kyra, the jury also found a fifth

-8- aggravator—the victim was a person less than 12 years of age. The

jury found no mitigating circumstances.

A Spencer 4 hearing was held on October 16, 2020, and

sentencing occurred on November 19, 2020. The trial court

followed the jury’s recommendation and sentenced Joseph to death.

The trial court found four aggravating factors that applied to both

counts: (1) Joseph was previously convicted of a felony and under

sentence of imprisonment or on felony probation (moderate weight);

(2) Joseph was previously convicted of another capital felony or a

felony involving the use or threat of violence (great weight); (3) the

first-degree murder was especially heinous, atrocious, or cruel

(great weight); and (4) the first-degree murder was committed in a

cold, calculated, and premeditated manner (great weight). The trial

court found an additional aggravator for the charge related to

Kyra—the victim of the first-degree murder was a person less than

12 years of age (great weight).

The trial court considered and found as proven one of the

three statutory mitigators proffered by Joseph—Joseph had no

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

-9- significant history of prior criminal activity (little weight). The trial

court further found seven nonstatutory mitigators: (1) Joseph’s

family background (little weight); (2) Joseph was a good employee

with an excellent work ethic as well as a talented football player

who exhibited this work ethic on and off the field (little weight);

(3) Joseph was a caring and attentive parent (moderate weight);

(4) Joseph had the support of his family (little weight); (5) Joseph

regularly attended church and was a devout Christian (little

weight); (6) Joseph suffered from a delusional disorder of a

persecutory type (little weight); and (7) Joseph had a low IQ (little

weight).

II. ANALYSIS

In this direct appeal, Joseph raises the following 15 claims:

(1) the trial court’s denial of a motion to exclude witness testimony;

(2) the State’s impeachment of its own witnesses; (3) the admission

of out-of-court statements identifying Joseph as the shooter; (4) the

admission of testimony concerning a statement Joseph made to his

mother about one of the victims; (5) the trial court’s denial of a

motion to dismiss charges; (6) the trial court’s denial of a motion to

interview jurors; (7) the constitutionality of Florida’s death penalty

- 10 - scheme in light of this Court’s decision in Lawrence v. State, 308

So. 3d 544 (Fla. 2020); (8) the trial court’s imposition of the death

penalty without finding beyond a reasonable doubt that the

aggravating factors were sufficient to justify death and outweighed

the mitigating circumstances; (9) the trial court’s finding of HAC;

(10) the trial court’s finding of CCP; (11) the proportionality of

Joseph’s death sentence; (12) the constitutionality of Florida’s death

penalty statute; (13) improper prosecutorial comments during

penalty-phase closing argument; (14) the alleged failure of the jury

to follow the law in the penalty phase; and (15) cumulative error.

This Court also considers (16) whether there is sufficient evidence

to support Joseph’s two murder convictions. 5

5. We do not further address Claims 8 and 12 because we have repeatedly rejected these arguments. See Bush v. State, 295 So. 3d 179, 214 (Fla. 2020) (concluding that the defendant was not entitled to relief on his claim that Florida’s death penalty statute is unconstitutional because it does not sufficiently narrow the class of individuals eligible to receive the death penalty); Newberry v. State, 288 So. 3d 1040, 1047 (Fla. 2019) (citing Rogers v. State, 285 So. 3d 872, 878-79 (Fla. 2019)); see also Rogers, 285 So. 3d at 886 (holding that “the sufficiency and weight of the aggravating factors and the final recommendation of death” are not elements and “are not subject to the beyond a reasonable doubt standard of proof”). Further, as to Claims 7 and 11, we do not review the proportionality of Joseph’s sentence of death. See Lawrence v. State, 308 So. 3d

- 11 - A. Motion to Exclude Witness Testimony (Claim 1)

Joseph first argues that the trial court erroneously denied his

motion to exclude the testimony of the State’s firearms witness,

Omar Felix. Joseph’s motion was based on an alleged discovery

violation due to the expert witness being disclosed the day before

trial. Because the trial court properly conducted a Richardson 6

inquiry and its actions pursuant to that inquiry were proper, we

conclude that the trial court did not abuse its discretion in denying

Joseph’s motion to exclude.7

On February 13, 2020, the day before trial, the State filed a

supplemental witness list naming Omar Felix, a firearms expert, as

an expert witness. The State also filed a firearms report as

supplemental discovery. The report indicated that nine 9mm Luger

caliber Winchester cartridge cases had been submitted to Felix for

544, 551-52 (Fla. 2020) (receding from the judge-made requirement to review the comparative proportionality of death sentences).

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

7. We review a trial court’s ruling on a motion in limine for an abuse of discretion. Patrick v. State, 104 So. 3d 1046, 1056 (Fla. 2012).

- 12 - forensic analysis. The report’s conclusion was that the cartridge

cases were identified to have come from the same unknown firearm.

The first day of jury selection, Joseph filed a motion to

exclude, specifically seeking to exclude Felix from testifying because

of the State’s discovery violation and resulting prejudice to him.

During jury selection, Joseph brought the motion to the trial court’s

attention, arguing that a Richardson hearing needed to be held and

that he was prejudiced by the late discovery. Joseph moved for the

appointment of a firearms expert, and the trial court granted

Joseph’s motion. Joseph also deposed Felix during this time. After

the jury had been sworn but before opening statements, the trial

court held a hearing on Joseph’s motion to exclude. The following

exchange occurred:

[DEFENSE COUNSEL]: . . . I got a firearms expert approved, we did JAC stuff, you issued an order allowing me to get a firearms expert and I got a firearms expert and we sent him the report and the firearms expert said you don’t need an firearms expert. This is not firearms, this is tool mark identification. .... THE COURT: So your firearm expert is not an expert in tool markings as well. .... [DEFENSE COUNSEL]: We were told that the firearms expert is not a tool mark expert. A firearms expert can be a tool mark expert but not visa versa, and

- 13 - our firearms expert was not a tool mark expert and we can’t find any tool mark expert -- THE COURT: Do you want to use Mr. Omar Felix? [DEFENSE COUNSEL]: No, I do not want to use Mr. Omar Felix. Although he seems a very nice man, I want to tear him apart if he goes to trial if this doesn’t get granted. So, what I did was I had my investigator call the JAC and see whether or not we can find, they have a list of tool mark experts. They don’t. THE COURT: Okay. [DEFENSE COUNSEL]: He contacted somebody in Orlando who used to be a tool mark expert who is retired and is far, far away and never coming back to a courtroom and said he does not know of any tool mark experts in Florida or anywhere. So I can’t find a tool mark expert, and the question here, no where up to the 13th, which is the day before we started jury selection, was there anything about a firearms expert, anything about tool marks, anything about anything. I took it upon myself to attempt to find out what I needed to know about a tool mark expert to properly prepare . . . .

The trial court then went on to conduct a Richardson inquiry. The

State explained why it did not turn over the evidence until the day

before trial:

What happened is Detective Creelman and myself, we were going through the evidence. I asked Detective Creelman, who was the lead detective in this case, I said where is my firearms report? And he said, this would have been after hours on the 12th of this month. And he said, well, I’m not at the office but when I get back 8:30 the following day, which would have been the 13th, he said it’s on the server, I’ll get it to you and send it to [you] from the server, and that morning at about 8:35 I received an email from him, or a text, indicating that he thought that he had sent the casings over, he realized

- 14 - that he had forgotten, he thought he had sent them over earlier. I said, well, can you get, can you contact PBSO Lab and see if they can get them done today. He retrieved the evidence from West Palm Beach Police Department’s evidence department and he went over to PBSO lab and contacted, I believe it was Mr. Yateman, it went up the chain to see if they would be able to examine the casings the same day and get a report the same day, and because we didn’t have a gun, because we don’t have a gun, Judge, he said all this entails is me looking at all nine casings. .... And see if they were fired from the same gun, so yes, I’m able to do it today. And I put them on notice that same day.

The trial court found that a Richardson violation occurred but

that it was inadvertent, noting that the State turned the evidence

over as soon as it knew about it. The trial court then said it needed

to decide whether the violation was trivial or substantial but did not

make an express finding. The trial court asked the State why the

violation would not prejudice Joseph. The following exchange

occurred:

[STATE]: These casings have been in evidence since the date the homicide occurred, Judge, and the Defense was aware that they were in evidence that date. They have been aware all along that there has never been a gun located in this case. Realistically, Judge, if there was some concern about whether or not nine shell casings that were collected were all fired by the same gun, they had an opportunity to retain a tool expert or a firearms expert to determine, well, first of all, do these

- 15 - casings even match? So it’s not that it’s, it’s new evidence, Judge, that I just realized is related to the case. They’ve been, they were collected on the same day as the homicides, so they were on notice that these casings were in evidence so this is not something that’s new. The only thing that is new is they were examined on the 13th. THE COURT: And that they potentially were fired from the same versus a different gun. [STATE]: And, I’m sorry, yes, Judge, and that they were potentially fired from the same gun. THE COURT: I think that’s his -- all right. Is there any other evidence in the case to suggest there may have been multiple guns? [STATE]: No, not from the State, Judge. THE COURT: Okay. And all of, from all of your witnesses is there any indication that -- [STATE]: I can tell you, Judge, that based on what I anticipate the witnesses are going to say, that there was one gun that was seen in this defendant’s hand when he shot Kaladaa Crowell and Kyra Inglett. There was one gun. I do not anticipate, based on what I know from interviewing these witnesses, based on their statements to the police right after this happened, there wasn’t some other person who was unrelated to the family members that was on the property. The defendant was the one that was seen with the gun and one gun. THE COURT: All right. And after the shots were fired, are there any witness testimony or any evidence to indicate that another gun was ever used or shot or fired around the same time? [STATE]: No, Your Honor. THE COURT: Okay. So the other evidence seems to suggest that there was only one gun used in both of these homicides. [STATE]: Yes, Judge. THE COURT: Okay. So all of, all what this does is confirm witness testimony. [STATE]: That’s exactly what it does, yes.

- 16 - THE COURT: Okay. So let me turn to the Defense. What is the prejudicial effect? How did this impact your ability to prepare for trial? .... [DEFENSE COUNSEL]: What if my firearms expert who examines it says, no, they weren’t from the same gun. What the Court’s asking me to do is accept their firearms expert as being correct. That’s why I asked for an expert to try to analyze it. I will tell the Court that on December 20th, 2019, we went down to the West Palm Beach Police Department and looked at all of the evidence, and at that point we saw that there were search warrants for the laptops or whatever they were, at which point we asked about it in court and the State gave us the contents of it. I don’t believe it’s my responsibility to ask the State why they didn’t test their evidence. .... Your Honor, what the State has just confirmed is that they want this evidence to confirm their other evidence, which is clearly highly prejudicial to me because if I knew they were going to do that, I would have done something beforehand and if I got an expert that said, yep, they’re the same -- THE COURT: Does it change the theory of your case? The theory of your Defense? [DEFENSE COUNSEL]: Your Honor, yeah, yes, it would, Your Honor. THE COURT: How so? .... [DEFENSE COUNSEL]: Your Honor, I’m not agreeing with the State’s facts of how many shooters there was who did the shooting.

The trial court denied the motion to exclude, finding the

Richardson violation did not prejudice Joseph’s trial preparation.

The trial court indicated that Felix’s testimony would only

- 17 - corroborate expected witness testimony. The trial court also stated

that it would give the defense time to find an expert and would

make accommodations, noting that it could not imagine the defense

would be unable to find an expert in two weeks.

At trial, before the State called Felix to the stand, defense

counsel told the trial court that the defense still had not found a

tool mark expert. Defense counsel renewed the defendant’s

objection and asked the trial court to exclude Felix as a witness.

The trial court overruled the objection. The trial court then

reiterated its ruling from the Richardson hearing. Felix went on to

testify that the casings were fired from the same unknown firearm.

Joseph cross-examined Felix extensively. During this cross-

examination, Felix was asked about a database known as the

National Integrated Ballistic Information Network. The trial court

cut off this line of questioning, finding it not relevant, and asked

defense counsel to move on.

“A Richardson hearing is required when there is a possible

discovery violation in order to flesh out whether there has indeed

been a discovery violation.” Landry v. State, 931 So. 2d 1063, 1065

(Fla. 4th DCA 2006). “Where exclusion of evidence . . . is sought

- 18 - because of a discovery violation, Richardson holds that the trial

court’s discretion can be properly exercised only after an adequate

inquiry is made into three areas: (1) whether the discovery violation

was willful or inadvertent; (2) whether it was trivial or substantial;

and (3) whether it had a prejudicial effect on the opposing party’s

trial preparation.” McDuffie v. State, 970 So. 2d 312, 321 (Fla.

2007). When a trial court conducts a Richardson hearing, “[t]his

Court will review the record to determine if the inquiry was properly

made and if the trial court’s actions pursuant to the inquiry were

proper.” Delhall v. State, 95 So. 3d 134, 160 (Fla. 2012).

Here, the record shows that the trial court conducted an

adequate Richardson inquiry. The trial court first determined that

the State’s disclosure of its firearms expert and firearms report was

a discovery violation due to the State not disclosing this information

until a day before trial. The trial court next determined that the

State’s discovery violation was inadvertent, and the record supports

this finding. The State told the trial court that the cartridge casings

had been in evidence since the day of the murders, but after going

through the evidence with Detective Creelman on the eve of trial, it

realized there was no firearms report because Detective Creelman

- 19 - forgot to send the casings to the lab for analysis. The State had the

casings analyzed the same day it discovered there was no firearms

report and then filed a supplemental list of witnesses and Felix’s

firearms report later that day. There is no record evidence that the

State willfully delayed analyzing the cartridge casings and

generating a firearms report. The trial court then said it needed to

determine whether the State’s violation was trivial or substantial,

but it did not make an explicit finding.

The trial court finally determined that the State’s discovery

violation did not have a prejudicial effect on Joseph’s trial

preparation. “Prejudice in this context means procedural prejudice

significantly affecting the opposing party’s preparation for trial.”

McDuffie, 970 So. 2d at 321. “[T]he defense is procedurally

prejudiced if there is a reasonable possibility that the defendant’s

trial preparation or strategy would have been materially different

had the violation not occurred.” State v. Schopp, 653 So. 2d 1016,

1020 (Fla. 1995). “Trial preparation or strategy should be

considered materially different if it reasonably could have benefited

the defendant.” Id. A court’s analysis of procedural prejudice

“considers how the defense might have responded had it known

- 20 - about the undisclosed piece of evidence and contemplates the

possibility that the defense could have acted to counter the harmful

effects of the discovery violation.” Scipio v. State, 928 So. 2d 1138,

1149 (Fla. 2006).

The trial court properly ruled that the State’s discovery

violation did not procedurally prejudice Joseph. The trial court first

turned to the State and asked why its discovery violation would not

prejudice Joseph. Once the State provided its reasons—that the

cartridge casings had been in evidence since the crimes and that

Felix’s testimony would merely corroborate other expected

testimony—the trial court then asked the defense how Felix’s

testimony impacted its ability to prepare for trial. Defense counsel

said the defense would have retained its own firearms expert who

could testify that the cartridge casings did not come from the same

firearm. However, even if the defense had been able to retain their

own expert to contradict Felix’s testimony, there is no reasonable

possibility that the defendant’s trial preparation or strategy would

have been materially different. Felix’s testimony would not have

changed the defense’s theory of the case, which was that Joseph

was not the shooter. Felix’s testimony did not involve the identity of

- 21 - the shooter; it was merely corroborative of other witness testimony.

Therefore, Joseph’s theory that he was not the shooter would be

just as plausible after Felix’s testimony as it was prior to its

admission into evidence. See Cox v. State, 819 So. 2d 705, 713

(Fla. 2002) (concluding that the State’s discovery violation did not

materially hinder the defendant’s trial preparation where the

defense’s theory of the case was just as viable after the challenged

testimony as it was prior to the introduction of the testimony).

There was no evidence suggesting there was more than one gun or

more than one shooter involved in these crimes. The trial court also

gave defense counsel time to find a firearms expert and an

opportunity to depose Felix. Further, even if the trial court

erroneously denied Joseph’s motion to exclude, any error was

harmless. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

Accordingly, we deny relief on this claim.

B. The State’s Impeachment of its Own Witnesses (Claim 2)

Joseph next argues that the trial court erred in allowing the

State to improperly impeach its own witnesses at trial. Joseph

argues that the State attempted to impeach each member of

Joseph’s family with purported inconsistent statements, but Joseph

- 22 - fails to identify any specific instances of improper impeachment in

the argument section of his initial brief. In his reply brief, Joseph

identifies one instance, which we briefly address. We conclude that

even if this issue has been properly presented, it is without merit.

During the trial testimony of Robin Denson (Joseph’s mother),

the State inquired about a conversation Denson had with Joseph

immediately before the shootings. Specifically, Denson testified

that she had a conversation with Joseph when she got home from

work but that it was not about the incident between Kyra and

Kamare. Denson further testified that Joseph was not upset and

was not being disrespectful to her but towards Kamare’s mother.

Denson testified that she remembered going to the police station

and speaking with Detective Creelman shortly after the murders.

The State asked about a specific statement Denson made to

Detective Creelman: “You said that Marlin [Joseph] kept going on

and on.” Defense counsel objected on hearsay and improper

attempted impeachment grounds, arguing that a proper predicate

must be laid for a prior inconsistent statement. The trial court

found that the State did lay a proper predicate and overruled the

objection but noted that the State needed to confront Denson with

- 23 - the prior inconsistent statement and ask her if she ever made a

different statement. The State then asked Denson whether she said

something to Detective Creelman about her conversation with

Joseph that was different from what she said on the stand. Denson

said she was testifying as to what she remembered from over two

years ago. The State then impeached Denson with her prior

inconsistent statements to Detective Creelman that Joseph was

upset because Kyra and Kamare got into a disagreement and was

being disrespectful.

Pursuant to section 90.608, Florida Statutes (2017), “[a]ny

party, including the party calling the witness, may attack the

credibility of a witness.” Specifically, a party may impeach a

witness by “[i]ntroducing statements of the witness which are

inconsistent with the witness’s present testimony.” § 90.608(1),

Fla. Stat. In order to impeach a witness with a prior inconsistent

statement, “the prior statement must be both (1) inconsistent with

the witness’s in-court testimony, and (2) the statement of the

witness.” Wilcox v. State, 143 So. 3d 359, 383 (Fla. 2014). Prior

statements are deemed inconsistent only if they directly contradict

or are materially different from testimony during trial. Id. “Before a

- 24 - witness can be impeached with a prior inconsistent statement, the

proper foundation must be laid.” Pasha v. State, 225 So. 3d 688,

713 (Fla. 2017) (quoting Pearce v. State, 880 So. 2d 561, 569 (Fla.

2004)). “Prior to questioning a witness about the contents of a

previous inconsistent statement, counsel must call to the witness’s

attention the time, place, and person to whom the statement was

allegedly made.” Pearce, 880 So. 2d at 569-70. “Further, a trial

court’s ruling on the admissibility of evidence will be upheld absent

an abuse of discretion.” Wilcox, 143 So. 3d at 373.

Here, contrary to Joseph’s argument, Denson testified at trial

inconsistent with the sworn statement she gave to the police on the

night of December 28, 2017, in which she stated that Joseph was

upset because Kyra and Kamare got into a disagreement and was

being disrespectful. At trial, Denson denied that Joseph was upset

or disrespectful during their conversation on the night of the

shootings. The State also laid the proper predicate by asking

Denson if she remembered giving a statement to Detective Creelman

at the police station shortly after the murders before confronting

- 25 - her with the statement. Accordingly, the State did not improperly

impeach Denson, and we deny relief on this claim. 8

C. Out-of-Court Identifications of Joseph (Claim 3)

Joseph argues that the trial court erroneously admitted

Detective Creelman’s testimony regarding out-of-court statements

made by Cordarius and Parice that identified Joseph as the shooter.

Specifically, Joseph argues that the identifications were hearsay

because Cordarius and Parice provided in-court testimony and did

not testify inconsistently at trial. However, because Cordarius’ and

Parice’s out-of-court identifications were not hearsay and were

admissible as statements of identifications pursuant to section

90.801(2)(c), Florida Statutes (2017), we conclude that the trial

court did not err in admitting Detective Creelman’s testimony.

8. We also find Joseph’s argument that the trial court never found the witnesses’ testimony affirmatively harmful or never declared the witnesses to be adverse without merit. See Morton v. State, 689 So. 2d 259, 262 (Fla. 1997) (“In 1990, section 90.608 was amended to remove the necessity of showing that one’s own witness had become adverse. . . . [Section 90.608] now permits a party to impeach its own witness by introducing prior inconsistent statements without regard to whether the witness’s testimony is prejudicial.”), receded from on other grounds by Rodriguez v. State, 753 So. 2d 29 (Fla. 2000).

- 26 - “Admissibility of evidence is within the sound discretion of the

trial court, and the trial court’s ruling will not be disturbed on

appellate review unless there is an abuse of discretion.” Tundidor v.

State, 221 So. 3d 587, 598 (Fla. 2017). “However, the question of

whether a statement is hearsay is a matter of law and is subject to

de novo review on appeal.” Id. (quoting Cannon v. State, 180 So. 3d

1023, 1037 (Fla. 2015)). Hearsay is defined as “a statement, other

than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted.” § 90.801(1)(c), Fla. Stat. (2017). Section 90.801(2)(c)

provides an exception to the hearsay rule: “A statement is not

hearsay if the declarant testifies at the trial or hearing and is

subject to cross-examination concerning the statement and the

statement is . . . [o]ne of identification of a person made after

perceiving the person.” § 90.801(2)(c), Fla. Stat. (2017). An “out-of-

court statement of identification is admissible in court to prove the

truth of the matter asserted, e.g., to prove that the person identified

was the person who committed the act.” Charles W. Ehrhardt,

Florida Evidence § 801.9, at 992-93 (2017 ed.). “Section

90.801(2)(c) recognizes that an identification made shortly after a

- 27 - crime, accident, or event is more reliable in most situations than

identifications made at a later time.” Id. at 993. “In addition to the

testimony of the person who made the prior identification, section

90.801(2)(c) makes admissible the testimony of a witness who was

present at the time of the identification so long as the person

making the identification testifies during the trial and is subject to

cross-examination concerning the identification.” Id. at 996.

Here, Cordarius and Parice gave prior sworn statements to the

police on the night of the shootings identifying Joseph as the

shooter. At trial, the State offered Cordarius’ and Parice’s out-of-

court identifications of Joseph as the shooter through the testimony

of Detective Creelman, who was present at the time of the

identifications. Specifically, Detective Creelman testified that he

interviewed Cordarius on the night of the incident and that

“Cordarius told [him] that his brother, Marlin Joseph, had shot

Kyra.” Detective Creelman also testified that he interviewed Parice

on the night of the incident and that “Parice told [him] his brother,

Marlin Joseph,” was the shooter. The trial court allowed Detective

Creelman’s testimony regarding the out-of-court identifications

under section 90.801(2)(c)’s hearsay exception.

- 28 - Our decision in Evans v. State, 838 So. 2d 1090 (Fla. 2002), is

instructive. In Evans, we concluded that the testimony of two

police officers that two eyewitnesses identified the defendant as the

person who shot the victim was admissible as a hearsay exception

under section 90.801(2)(c) where the two eyewitnesses testified at

trial and were subject to cross-examination concerning their

identification of the defendant as the shooter. Id. at 1094; see also

Polite v. State, 41 So. 3d 935, 942 (Fla. 5th DCA 2010) (holding that

the State properly elicited testimony about two out-of-court

identifications through the police where the State asked the

identifying witness on direct examination if she had identified the

robber and given the police his name), quashed on other grounds,

116 So. 3d 270 (Fla. 2013).

Cordarius’ and Parice’s out-of-court identifications qualify as

an exception to hearsay under section 90.801(2)(c). Cordarius and

Parice were eyewitnesses to the crimes and specifically identified

Joseph as the shooter on the night of the shootings in their

statements to Detective Creelman. See Ibar v. State, 938 So. 2d

451, 460 (Fla. 2006) (stating that section 90.801(2)(c) applies to

statements of identification made by a witness to a crime); Charles

- 29 - W. Ehrhardt, Florida Evidence § 801.9, at 994-95 (stating that

section 90.801(2)(c) “does not specify when or where the

identification must be made” but that the identification “should be

made near the time the declarant perceived the individual

identified”). Further, both Cordarius and Parice testified at trial

and were subject to cross-examination concerning their

identifications. See § 90.801(2)(c), Fla. Stat. Accordingly, because

Cordarius’ and Parice’s out-of-court identifications were not hearsay

and were admissible as statements of identifications pursuant to

section 90.801(2)(c), we deny relief on this claim.

D. Testimony Concerning Joseph’s Statements About One of the Victims (Claim 4)

Joseph next argues that the trial court erroneously admitted

Jeshema Tarver’s testimony that she first heard Joseph yelling

about Kyra “two days ago,” referring to a prior incident that

occurred on December 23, 2017 (two days before Christmas and

five days before the shootings). Specifically, Joseph argues this

testimony was irrelevant, unduly prejudicial, and involved no prior

bad act or collateral crime. However, because the testimony was

- 30 - relevant to proving motive, we conclude that the trial court did not

abuse its discretion in admitting Jeshema’s testimony.

“A trial court’s determination that evidence is admissible will

not be disturbed unless the trial court abused its discretion.”

Kirkman v. State, 233 So. 3d 456, 467 (Fla. 2018). “That discretion,

however, is limited by the rules of evidence.” Id. (quoting Hudson v.

State, 992 So. 2d 96, 107 (Fla. 2008)). “The prerequisite to the

admissibility of evidence is relevancy.” Wright v. State, 19 So. 3d

277, 291 (Fla. 2009). “Under Florida law, all relevant evidence,

defined as that tending to prove or disprove a material fact, is

admissible unless otherwise provided by law.” Morris v. State, 219

So. 3d 33, 42 (Fla. 2017).

Here, after Jeshema testified concerning the argument she

heard between Joseph and Crowell while in the shower, she

indicated that this was not the first time she heard Joseph yelling

about Kyra. Jeshema testified that she heard Joseph yelling about

Kyra on December 23, 2017 (two days before Christmas and five

days before the shootings). At that time, Joseph told his mother

that Kyra had one more time to make him mad or to bother and

that Kyra needed to leave Kamare alone.

- 31 - Jeshema’s testimony was relevant to show Joseph’s motive for

committing the murders. We have explained that “evidence may be

admitted in a criminal case if it is relevant as to the motive for the

crime involved.” State v. Riechmann, 777 So. 2d 342, 365 (Fla.

2000). Jeshema’s testimony about what she heard Joseph tell

Denson provided a reason for Joseph’s eventual aggression towards

Crowell and Kyra—Joseph was upset with Kyra because she kept

bothering his daughter, Kamare. Joseph’s statement to Denson

that Kyra had one more time to make him mad, when coupled with

testimony that Kyra and Kamare got into an argument on the day of

the murders, is highly probative. Kyra and Kamare’s argument on

the day of the murders served as the “one more time” to make

Joseph mad, explaining why he killed Kyra and Crowell that night.

E. Denial of Motion to Dismiss Charges (Claim 5)

Joseph further argues that the trial court erred in denying his

motion to dismiss charges, which alleged constitutional violations

occurred while Joseph received treatment at Treasure Coast

Forensic Treatment Center. Specifically, he asserts that Treasure

Coast’s staff, in training him to be competent, violated his

- 32 - constitutional rights under the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution. However, as

argued by the State, Joseph’s claim is vague, conclusory, and lacks

specificity. Joseph fails to provide facts to support his claims of the

alleged constitutional violations. Accordingly, we deny relief on this

claim.

F. Denial of Motion to Interview Jurors (Claim 6)

Joseph argues that the trial court erred in denying his motion

to interview jurors. “A trial court’s decision on a motion to interview

jurors is reviewed pursuant to an abuse of discretion standard.”

Anderson v. State, 18 So. 3d 501, 519 (Fla. 2009). “The trial court

does not abuse its discretion in denying motions to interview jurors

based on juror bias or misconduct where there is no indication of

bias or misconduct in the record.” Johnston v. State, 63 So. 3d 730,

739-40 (Fla. 2011). Further, in order to be entitled to interview

jurors, Joseph must present “sworn allegations that, if true, would

require the court to order a new trial because the alleged error was

so fundamental and prejudicial as to vitiate the entire proceedings.”

Johnson v. State, 804 So. 2d 1218, 1225 (Fla. 2001). Here, Joseph

alleged that a prospective juror had a conversation with Robin

- 33 - Denson (Joseph’s mother) after the juror was excused from the

venire panel. In this conversation, the juror said the entire jury

panel discussed the case among themselves, disregarding the trial

court’s instructions. The juror also said all of the prospective jurors

had already made up their minds in wanting to sentence Joseph to

death. The trial court denied Joseph’s motion, finding there was

insufficient evidence to support the need for juror interviews or to

show that the verdict may be subject to challenge. The trial court

did not find Denson’s statements reliable because Denson never

brought this to the trial court’s attention yet brought other matters

to the court’s attention. The trial court also found Denson’s

statements not reliable because they were not supported by the

prospective juror who spoke to the trial court and attorneys about

the concerns she had sitting on the case before being excused.

Because the allegations in Joseph’s motion would not constitute

sufficient grounds to support a new trial, we conclude that the trial

court did not abuse its discretion in denying the motion to interview

jurors.

- 34 - G. HAC Aggravator (Claim 9)

Next, Joseph argues that there is insufficient evidence to

support the HAC aggravator. We disagree. The HAC aggravator

applies to murders that are both “conscienceless or pitiless and

unnecessarily torturous to the victim.” Francis v. State, 808 So. 2d

110, 134 (Fla. 2001). The focus is “on the means and manner in

which death is inflicted and the immediate circumstances

surrounding the death.” Buzia v. State, 926 So. 2d 1203, 1211-12

(Fla. 2006) (quoting Barnhill v. State, 834 So. 2d 836, 849-50 (Fla.

2002)). Gunshot murders can qualify as HAC if the events

preceding the death “cause the victim fear, emotional strain, and

terror.” Marquardt v. State, 156 So. 3d 464, 488 (Fla. 2015). To

support HAC, “the evidence must show that the victim was

conscious and aware of impending death.” King v. State, 130 So. 3d

676, 684 (Fla. 2013) (quoting Douglas v. State, 878 So. 2d 1246,

1261 (Fla. 2004)). “However, the victim’s perception of imminent

death need only last seconds for this aggravator to apply.” Gonzalez

v. State, 136 So. 3d 1125, 1162 (Fla. 2014).

In applying this aggravator, the trial court found the following

as to Crowell:

- 35 - Here, the Defendant shot Kaladaa Crowell in her home while her child was present. Although the medical examiner testified that he could not conclusively opine based on examining the body the exact sequence of the gunshots, he did opine that at least one of the shots to the head was fatal and would have rendered Kaladaa Crowell unconscious immediately. However, the State presented testimony that Jeshema Tarver heard multiple gunshots as she was showering. She also heard Kaladaa Crowell begging for help and for someone to call 911 after she heard the first round of gunshots. Jeshema got out of the shower and while getting dressed, heard a final shot. There was no testimony that Kaladaa ever spoke another word after the sound of that last shot. This series of events clearly establishes that Kaladaa Crowell was alive after being shot multiple times, as she was heard begging for help and for someone to call 911. Based on Jeshema’s testimony, and the testimony of the medical examiner that one of the gunshot wounds to the head would have rendered Kaladaa unconscious immediately, it is reasonable to conclude that Kaladaa Crowell received her fatal gunshot wound last. This evidence establishes that Defendant fired multiple shots into her body, and that she laid there begging for help. Moments passed, and when Defendant realized she still was not dead, he delivered the final shot killing her. Kaladaa thus was well aware of her impending death, and the act of the final shot was conscienceless and pitiless.

We conclude that competent, substantial evidence supports

the trial court’s finding as to Crowell. The evidence showed that

Crowell sustained several gunshot wounds to different parts of her

body—back of right hand, belly, left thigh, left calf, chest, back of

head, and forehead. The gunshot wound to Crowell’s forehead was

- 36 - fatal, breaking her skull and destroying her brain. Despite the

medical examiner being unable to determine the order of the

gunshots, Jeshema’s testimony established that Crowell was alive

after being shot multiple times and that she received her fatal

gunshot wound last. Specifically, Jeshema testified that she heard

three gunshots while showering and then heard Crowell screaming,

crying, and asking for someone to call 911. Jeshema then heard

another shot and did not hear anything from Crowell after this shot.

The medical examiner testified that the gunshot wound to Crowell’s

forehead would have rendered her unconscious immediately.

The evidence presented also indicated that Crowell endured

physical pain, emotional strain, fear, and terror before being killed.

The medical examiner testified that each gunshot individually

would have caused pain to Crowell if she was conscious. This

testimony, coupled with Jeshema’s testimony, established that

Crowell experienced pain from the nonfatal gunshot wounds that

preceded the fatal shot. While it is unclear how much time passed

between the nonfatal shots and the fatal shot, “the victim’s

perception of imminent death need only last seconds for [the HAC]

aggravator to apply.” Allred v. State, 55 So. 3d 1267, 1280 (Fla.

- 37 - 2010). As further evidence that Crowell was conscious and aware

of impending death, the medical examiner testified that the gunshot

wound on the back of Crowell’s right hand was indicative of a

defensive wound. See Hall v. State, 107 So. 3d 262, 276 (Fla. 2012)

(“[W]hen a victim sustains defense-type wounds during the attack,

it indicates that the victim did not die instantaneously and in such

a circumstance HAC was proper.”). Further, immediately prior to

the murder, Joseph and Crowell were arguing about Kyra being

mean to Kamare, so Crowell was aware Kyra was home and in

danger. See Gonzalez, 136 So. 3d at 1163 (finding competent,

substantial evidence to support the HAC aggravator where one of

the victims, aware of her impending death, knew that her children

were probably also in grave danger).

Next, as to Kyra, the trial court found the following:

Kyra Inglett was in her home when Defendant shot her mother multiple times. Undoubtedly, Kyra heard her mother crying and begging for help as she laid on the floor. Having just seen this, Kyra fled from her home. She was looking back as Defendant was chasing her down. Defendant’s own brother tried to stop the attack but was unsuccessful. Defendant then shot Kyra five (5) times. Kyra was aware of her impending death. There can be nothing more terrifying for a child than knowing that someone has just shot their mother multiple times and now was coming after them. There is no doubt that

- 38 - this panic-stricken little girl experienced a level of terror that no child or no one should ever have to endure.

Here, competent, substantial evidence supports the trial

court’s finding of the HAC aggravator as to Kyra. The evidence

showed that Kyra sustained several gunshot wounds to different

parts of her body—left buttock, lower back, right side of head, and

back of head. The gunshot wound to the back of Kyra’s head was

fatal, damaging her skull and brain. Unlike Crowell, there is no

evidence indicating Kyra was still alive after the first gunshot and

thus suffered any physical pain. But a finding of HAC does not

require the victim to undergo physical torture; mental torture is

sufficient. See, e.g., Gonzalez, 136 So. 3d at 1162 (“[T]he HAC

aggravating circumstance will apply in cases where the victim is

terrorized before being shot or endures fear and emotional strain or

the infliction of mental anguish.”).

Here, the circumstances preceding Kyra’s death caused her

fear, emotional strain, and terror. The evidence demonstrated that

Kyra was inside the home at the time Crowell was shot. Testimony

from Denson placed Kyra in the living room, and Crowell’s body was

found between the living area and dining room. Therefore, it can be

- 39 - reasonably inferred that Kyra saw Joseph shoot her mother or, at

minimum, heard the gunshots directed at her mother. See Heyne

v. State, 88 So. 3d 113, 122-23 (Fla. 2012) (finding competent,

substantial evidence to support the trial court’s finding that the

five-year-old victim experienced fear and terror prior to her death

where she witnessed her mother and father being murdered).

Parice also testified that after he heard gunshots coming from

inside the house, he saw Kyra run outside, looking backwards, and

Joseph was running after her with a gun. This evidence leaves no

doubt that Kyra was aware of her impending death. Accordingly,

Joseph is not entitled to relief on this claim. 9

9. Given our conclusion that competent, substantial evidence supports the trial court’s HAC finding, Joseph’s argument that the jury should not have been instructed on the HAC aggravator and Joseph’s argument that the trial court erroneously assigned great weight to the HAC aggravator necessarily fail. See Colley v. State, 310 So. 3d 2, 15 n.10 (Fla. 2020) (“Given our conclusion on the sufficiency of the evidence underlying the trial court’s finding, we necessarily reject Colley’s argument that the court erred by instructing the jury on the HAC aggravator.”); Jean-Philippe v. State, 123 So. 3d 1071, 1082 (Fla. 2013) (“[O]nce a trial court finds that an aggravating circumstance has been established beyond a reasonable doubt, the weight to be given ‘is within the discretion of the trial court, and it is subject to the abuse of discretion standard.’ ” (quoting Bright v. State, 90 So. 3d 249, 261 (Fla. 2012))).

- 40 - H. CCP Aggravator (Claim 10)

Joseph also argues that the trial court erred in finding that the

CCP aggravator was proven beyond a reasonable doubt. To prove

the CCP aggravator, the court must find that

the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification.

Franklin v. State, 965 So. 2d 79, 98 (Fla. 2007). The CCP

aggravator may be proven by demonstrating such facts as

(1) “advance procurement of a weapon,” (2) “lack of resistance or

provocation,” and (3) “the appearance of a killing carried out as a

matter of course.” Id. (quoting Swafford v. State, 533 So. 2d 270,

277 (Fla. 1988)).

court’s finding of the CCP aggravator as to both Crowell and Kyra.

Joseph armed himself with a firearm, as evidenced by Parice’s

testimony that he saw Joseph with a gun a couple of days prior to

the murders. See Franklin, 965 So. 2d at 98 (“In a number of

cases, we have cited the defendant’s procurement of a weapon in

- 41 - advance of the crime as indicative of preparation and heightened

premeditated design.”). Further, there is no record evidence

suggesting Joseph killed Crowell and Kyra out of frenzy, panic, or

rage. Denson testified that, on the day of the murders, Joseph,

Kyra, and Crowell were all present in the home when she got home

from work. Joseph was in his room reading the Bible, Kyra was

sitting on the couch in the living room, and Crowell was in her room

folding laundry. Denson did testify that Joseph was being

disrespectful towards Kamare’s mother (who was not there) during

a conversation Denson had with Joseph immediately prior to the

murders. However, Denson explicitly testified that Joseph was not

upset during this conversation. There is also no evidence of

provocation from either Crowell or Kyra. Rather, the evidence

indicates that all things were normal at the house that night.

Joseph was in his room reading the Bible and, when he was ready

to carry out his plan, he confronted Crowell and shot her. Joseph

then chased Kyra out of the house and shot her.

As to heightened premeditation, in addition to the

procurement of a weapon in advance of the crime, Joseph was

heard on December 23, 2017 (two days before Christmas and five

- 42 - days before the murders) yelling to Denson about Kyra saying she

had one more time to make him mad and that she needed to leave

his daughter alone. That “one more time” incident occurred on the

day of the murders. Joseph had time to consider his plan before

carrying it out. Joseph did not confront Crowell or Kyra

immediately after getting home from work. Joseph was in his room

reading the Bible while Crowell was in her room folding laundry,

and Kyra was in the living room on the couch. When he was ready,

Joseph then confronted Crowell about the incident between Kyra

and Kamare. Out of the nine people present in the home on the

night of December 28, 2017, Joseph targeted Crowell and then

Kyra. Joseph shot Crowell and Kyra multiple times. The evidence

also showed that Joseph could have left both victims alive but,

instead, he decided to murder them. See Turner v. State, 37 So. 3d

212, 226 (Fla. 2010) (“We have held that CCP exists where, as here,

a defendant has ample opportunity to leave, but instead decides to

murder the victim.”). Testimony presented at trial demonstrated

that Crowell was still conscious after the first round of shots and

was heard screaming and asking someone to call 911. Joseph,

upon seeing Crowell still alive, could have left the crime scene. But

- 43 - he instead delivered a fatal shot to Crowell’s forehead. Joseph

again had the chance to flee after killing Crowell. He was tackled by

his brother on the way out of the house and still proceeded to chase

Kyra and shoot her multiple times, including a fatal shot to the

back of the head. Only after this did Joseph flee in Crowell’s

vehicle. The evidence of Joseph’s actions sufficiently supports

heightened premeditation.

Lastly, “[a] pretense of legal or moral justification is ‘any

colorable claim based at least partly on uncontroverted and

believable factual evidence or testimony that, but for its

incompleteness, would constitute an excuse, justification, or

defense as to the homicide.’ ” Campbell v. State, 159 So. 3d 814,

831 (Fla. 2015) (quoting Nelson v. State, 748 So. 2d 237, 245 (Fla.

1999)). The evidence in the present case showed no pretense of

legal or moral justification for the killing, and Joseph does not

argue that the murder was justified.

Moreover, given the other weighty aggravators found in this

case, even if the CCP aggravator were invalid, there is no reasonable

possibility that an absence of this one aggravator would have

resulted in a different sentence. See Hall v. State, 246 So. 3d 210,

- 44 - 215 (Fla. 2018) (concluding that an error in finding the existence of

CCP was harmless because “Hall has significant and weighty

aggravation beyond the invalidated CCP aggravator”). Accordingly,

we deny relief on this claim. 10

I. Prosecutor’s Penalty-Phase Comments (Claim 13)

Joseph challenges a number of prosecutorial comments made

during penalty-phase closing argument and argues that the trial

court erred in denying his motions for mistrial directed at those

comments. Because the prosecutor’s comments were proper, or if

improper not so prejudicial as to vitiate Joseph’s entire trial, we

conclude that the trial court did not abuse its discretion in denying

Joseph’s motions for mistrial during the State’s penalty-phase

closing argument.

10. Given our conclusion that competent, substantial evidence supports the trial court’s CCP finding, Joseph’s argument that the trial court erroneously assigned great weight to the CCP aggravator necessarily fails. See Lowe v. State, 259 So. 3d 23, 58 (Fla. 2018) (“In reviewing the finding of an aggravating circumstance, ‘[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.’ ” (quoting Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997))).

- 45 - Joseph first challenges the prosecutor’s comment that Joseph

did not care about jail: “[T]here is no question that he understood

the criminality. It’s just he didn’t care. Didn’t care. He was on

probation, ladies and gentlemen. You heard the probation officer

say that any crime can violate you. Still doesn’t. Doesn’t care

about jail. That’s why that punishment is not appropriate.”

Defense counsel objected to this comment, and the trial court

sustained the objection. After the trial court denied Joseph’s

subsequent motion for mistrial, he requested a curative instruction

to be read in the alternative, which the trial court agreed to give.

This Court reviews a trial court’s denial of a motion for mistrial for

an abuse of discretion, where a defendant contemporaneously

objects, and the trial court sustains the objection and gives a

curative instruction. Truehill v. State, 211 So. 3d 930, 949-50 (Fla.

2017). “ ‘A motion for mistrial should be granted only when it is

necessary to ensure that the defendant receives a fair trial.’ In

other words, ‘[a] motion for a mistrial should only be granted when

an error is so prejudicial as to vitiate the entire trial.’ ” Smiley v.

State, 295 So. 3d 156, 169 (Fla. 2020) (quoting Morris, 219 So. 3d

at 44).

- 46 - The State’s comment that Joseph did not care about jail was

made in the context of mitigating circumstances. Specifically, the

State was arguing that Joseph’s capacity to appreciate the

criminality of his conduct or to conform his conduct to the

requirements of law was not substantially impaired. The State

noted the fact that Joseph did not turn himself in, evading police

for five days before being caught. It further noted that Joseph was

on probation and that he was instructed on the conditions of

probation. The State argued that Joseph’s willingness to commit a

new law violation and flee showed that he did not care about jail,

and therefore, life imprisonment was an inappropriate punishment.

Joseph objected and argued that the fact that he did not care about

jail is not a proper aggravating circumstance.

While improper, this comment alone was not so prejudicial as

to vitiate the entire trial. For one, the comment was brief and

isolated. See Truehill, 211 So. 3d at 949 (finding that a brief

“partners in crime” comment did not deprive the defendant of a fair

and impartial trial or materially contribute to the conviction);

Fletcher v. State, 168 So. 3d 186, 209 (Fla. 2015) (denying relief

where the prosecutor’s “send a message” comment, although

- 47 - improper, was iterated only three times, all at roughly the same

time). And two, the trial court sustained Joseph’s objection and

gave his requested curative instruction, informing the jury that the

fact that Joseph did not care about jail is not a proper aggravating

circumstance to be considered. See, e.g., Card v. State, 803 So. 2d

613, 621-22 (Fla. 2001) (holding that the trial court did not abuse

its discretion in refusing to grant a mistrial for the prosecutor’s

comments, where the trial court sustained the objection and gave

curative instructions). Accordingly, in light of the entire record at

the penalty phase, this brief and isolated comment was not so

prejudicial as to vitiate the entire trial, and the trial court did not

abuse its discretion in denying Joseph’s motion for mistrial directed

at this comment.

Joseph next challenges the following comment: “When that

gets turned in, ladies and gentlemen, this doesn’t happen unless

she [the trial judge] thinks it should.” Joseph objected to this

comment, but the trial court did not rule on the objection.

However, the trial court did rule on Joseph’s motion for mistrial

directed at this comment. When a trial court does not rule on a

defendant’s objection but simply denies the defendant’s motion for

- 48 - mistrial, this Court applies an abuse of discretion standard to the

trial court’s ruling on the motion for mistrial. See Poole v. State,

997 So. 2d 382, 391 n.3 (Fla. 2008).

This comment was made in the context of the State’s broad

argument that, based on the evidence, jury instructions,

aggravating factors, and mitigating circumstances, the correct and

proportionate sentence was death. Specifically, the State was

referring to the fact that the jury makes a recommendation of death

and that it is the trial court who ultimately decides whether to

impose a sentence of death. See § 921.141(3), Fla. Stat. (2017).

Joseph objected and argued that the prosecutor’s comment

diminished the jurors’ roles.

The prosecutor’s comment did not diminish the jurors’ roles

and was not improper. Although perhaps stated ineloquently, it is

true that a jury’s recommendation of death “doesn’t happen” unless

the trial court “thinks it should.” See Delgado v. State, 162 So. 3d

971, 981 (Fla. 2015) (“[R]egardless of the jury’s recommendation,

the trial judge must conduct an independent analysis of the

aggravating and mitigating circumstances.” (quoting Phillips v.

State, 39 So. 3d 296, 305 (Fla. 2010))). Before imposing a sentence

- 49 - of death, a trial court must first consider each aggravating factor

unanimously found by the jury and all mitigating circumstances.

See § 921.141(3)(a)2., Fla. Stat. (2017). And, even if the jury

recommends a sentence of death, the trial court can still impose a

sentence of life imprisonment. See id.

Any potential issue of the State’s comment diminishing the

jurors’ roles was assuaged by the trial court’s instruction

immediately after Joseph’s objection, as well as the State’s

comments following the instruction. The trial court informed the

jury that the court was the one who imposes the final sentence but

that it would weigh the jury’s recommendation very heavily. The

State then essentially restated what the trial court just said—that

the trial court would consider the jury’s recommendation of death,

weigh the recommendation with everything else, and ultimately

decide whether to impose a sentence of death. Because the State’s

comment was a correct, albeit imprecise, statement of the law and

because any potential harm was cured by the trial court’s

instruction and the State’s subsequent comments, the trial court

did not abuse its discretion in denying Joseph’s motion for mistrial

directed at this comment.

- 50 - Joseph’s final challenge is directed at the following comment:

“And the person that committed them has provided no mitigation

worthy to allow him to live out his days in jail . . . .” Joseph

objected to this comment, but the trial court did not rule on the

objection. The trial court did, however, rule on Joseph’s motion for

mistrial after doing a read-back of the transcript. As with the

previous comment, this Court’s standard of review of the trial

court’s denial of the motion for mistrial is abuse of discretion. See

Poole, 997 So. 2d at 391 n.3.

This comment was made at the end of the State’s closing

argument. The State was arguing that a recommendation of death

was appropriate because the murders in this case were different. It

then made the mitigation comment. Joseph objected and argued

that the State commented on his right to remain silent.

The State did not comment on Joseph’s right to remain silent.

Rather, the State was referring to the defendant’s burden to prove

mitigating circumstances. Bright v. State, 299 So. 3d 985, 1000

(Fla. 2020) (“This Court has held that a mitigating circumstance

exists where it is established by the greater weight of the

evidence.”). The trial court noted that the prosecutor was

- 51 - commenting on the fact that no mitigation had been presented. The

prosecutor actually stated that Joseph had not presented any

“mitigation worthy to allow him to live out his days in jail.” The

State was not saying Joseph failed to present any mitigation

evidence whatsoever; it was saying Joseph had failed to present

mitigation sufficient to warrant a life sentence rather than a death

sentence. Because this was not a comment on Joseph’s right to

remain silent, the trial court did not abuse its discretion in denying

Joseph’s motion for mistrial directed at this comment. Accordingly,

we deny relief on this claim.

J. Jury’s Failure to Follow the Law (Claim 14)

Joseph argues that he was deprived of a fair trial because the

jury acted out of emotion, misapprehension, or outright refusal to

follow the law or the trial court’s instructions in the penalty phase

of the trial. Specifically, Joseph focuses on the fact that the jury

deliberated for only two hours and found no mitigating

circumstances. We agree with the State that there is no factual

basis to support Joseph’s claim. See Lowe v. State, 259 So. 3d 23,

52 (Fla. 2018) (“[I]n the absence of evidence to the contrary, [this

Court] presume[s] that jurors follow the trial court’s instructions.”).

- 52 - Accordingly, because this claim is unsupported by the evidence, we

deny relief on this claim.

K. Cumulative Error (Claim 15)

Joseph argues that numerous errors in this case, when

considered cumulatively, deprived him of a fair trial and due

process. “[W]here the alleged errors urged for consideration in a

cumulative error analysis are individually ‘either procedurally

barred or without merit, the claim of cumulative error also

necessarily fails.’ ” Salazar v. State, 188 So. 3d 799, 818 (Fla.

2016) (quoting Hurst v. State, 18 So. 3d 975, 1015 (Fla. 2009)).

None of Joseph’s alleged errors have merit. Further, Joseph does

not identify any particular errors that cumulatively deprived him of

a fair trial. See Dufour v. State, 905 So. 2d 42, 75 (Fla. 2005)

(concluding that the defendant did not articulate his cumulative

error claim in a manner upon which this Court could afford relief

where he simply referred to the “sheer number and types of errors

involved” in his trial). Accordingly, we deny relief on this claim.

L. Sufficiency of the Evidence (Claim 16)

“In appeals where the death penalty has been imposed,”

regardless of whether the defendant raises the sufficiency of the

- 53 - evidence as an issue on appeal, “this Court independently reviews

the record to confirm that the jury’s verdict is supported by

competent, substantial evidence.” Davis v. State, 2 So. 3d 952,

966-67 (Fla. 2008); see also Fla. R. App. P. 9.142(a)(5).

Here, while most of the State’s evidence is circumstantial and

Joseph’s mother and brothers, who were eyewitnesses to the

murders, recanted in their testimony at trial, there is competent,

substantial evidence to support Joseph’s two first-degree murder

convictions. First, Jeshema testified that while she was in the

shower, she heard Joseph and Crowell arguing and then heard

three loud bangs, and Crowell screaming and crying out for help.

Further, Parice testified that he heard gunshots and then saw Kyra

running out of the house, looking backwards as she ran. Parice

then saw Joseph come outside with a gun and tried to tackle him.

No one else was seen with a gun that night. Detective Creelman

testified as to Parice’s and Cordarius’ statements made on the night

of the murders. Specifically, Detective Creelman testified that

Parice told him that Joseph was the shooter, and Cordarius told

him that Joseph shot Kyra. Joseph was also the only person

present at the home that night who was not at the crime scene

- 54 - when police arrived—he was seen leaving in Crowell’s car after Kyra

and Crowell were shot. And already we have explained that

Joseph’s actions—including arming himself in advance, specifically

targeting Crowell and Kyra and shooting them without any

provocation—demonstrate not just premeditation but heightened

premeditation.

The State also provided a motive for the murders. On

December 23, 2017 (two days before Christmas and five days before

the incident), Jeshema testified that she heard Joseph yelling to

Denson about Kyra saying that Kyra had one more time to make

him mad or to bother and that she needed to leave Kamare alone.

On the day of the murders, Kyra and Kamare got into an argument

before lunch. That night, immediately before gunshots were heard,

Joseph was heard arguing with Crowell, asking her why Kyra was

being mean to his daughter.

The medical examiner’s testimony showed that both Kyra and

Crowell sustained multiple gunshot wounds to various parts of their

bodies. Both victims incurred fatal gunshot wounds to the head.

Accordingly, competent, substantial evidence supports Joseph’s two

first-degree murder convictions.

- 55 - III. CONCLUSION

We affirm Joseph’s convictions for first-degree murder and his

sentences of death.

It is so ordered.

CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur. LABARGA, J., concurs in result with an opinion.

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

LABARGA, J., concurring in result.

For the reasons expressed in my dissenting opinion in

Lawrence v. State, 308 So. 3d 544 (Fla. 2020) (receding from

proportionality review requirement in death penalty direct appeal

cases), I can only concur in the result.

An Appeal from the Circuit Court in and for Palm Beach County, Cheryl Caracuzzo, Judge Case No. 502017CF012413AXXXMB

Fredrick R. Susaneck of Levine & Susaneck, P.A., West Palm Beach, Florida,

for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and Rhonda Giger, Assistant Attorney General, West Palm Beach, Florida,

for Appellee

- 56 -