OPINION OF THE COURT
JOHN E. FENNELLY, Circuit Judge.
JUDGMENT AND SENTENCE
The defendant was indicted, tried and convicted for the First Degree Murder of Deputy Sheriff Cpl. Richard Raczkoski. The trial jury in accordance with F. S. 921.141(5) and 921.141(6) recommended to the Court by a unanimous vote that the Court impose a sentence of death. The Court, having heard the evidence in both the guilt and the sentencing phase, hereby makes its finding of fact as to both the aggravating and mitigating factors as set forth in F.S. 921.141(5) and F.S. 921.141(6).
The Court has summarized the facts as presented at trial and applied them to each enumerated factor.
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AGGRAVATING CIRCUMSTANCES
(I) 921.141(5)(a) There is no evidence nor was the jury instructed that they could find that the defendant was under a sentence of imprisonment at the time of the commission of this offense.
(II) 921.141(5)(b) Pursuant to Johnson v. State, 465 So.2d 499at pg. 505, the State introduced evidence through certified judgments and sentences and in the form of VIVA VOCE testimony concerning this element. The record supports the conclusion beyond and to the exclusion of any reasonable doubt that the defendant had been previously twice convicted of an offense involving the use or threat of violence. The Court so finds as a matter of fact and law.
(Ill) 921.141(5)(c) The jury was not instructed nor does the evidence support a finding that the defendant knowingly created a risk of death of many persons.
(IV) 921.141 (5)(d) The jury was not instructed nor does the evidencé support a finding that this aggravating factor is established.
(V) 921.141(5)(e) The jury was instructed on this aggravating circumstance. The evidence at trial, in the form of the defendant’s own voluntarily given statement, establishes beyond and to the exclusion of any reasonable doubt that dominant motive for the murder of the officer was to avoid arrest for possession of a firearm in violation of F.S. 790.23. The Court finds that this aggravating circumstances is established as a matter of fact and law.
(VI) 921.141(5)(f) The jury was not instructed nor does the evidence support a finding that the murder was committed for pecuniary gain.
(VII) 921.141 (5)(g) The jury in accordance with Suarez v. State, 481 So.2d. 1201, (Fla. 1985) was instructed on this aggravating circumstance. The Court finds, however, that the same facts which support 921.141(5)(e) apply to and support this aggravating circumstance. Therefore, in accordance with Buford v. State, 403 So.2d 943 (Fla. 1981), the Court specifically has not considered this aggravating factor.
(VIII) 921.141(5)(h) The evidence in this case demonstrated the victim in this case was fully aware of his impending death. Testimonial evidence from the witness Hinton indicated that the defendant within minutes of the shooting, told him that [15]*15the officer told the defendant that he could leave and that the defendant then told the officer it is “either you or me.” Thus bringing home vividly to the officer that the defendant intended his death. The evidence further supports the finding that officer retreated while the defendant pointed a .380 semiautomatic handgun to his face and clutched him by the throat. The evidence further fully supports the conclusion that the officer attempted to flee and that the defendant fired a full clip at the fleeing officer striking him four times. Finally the evidence demonstrates that officer suffered great pain and because of extensive hemorrhaging in his lungs literally drowned in his own blood while simultaneously suffering great pain from massive damage to his liver, small intestines, and vertebrae. The State has established beyond and to the exclusion of any reasonable doubt that the officer experienced both apprehension of impending death and great suffering before death. The Court finds, therefore, as a matter of fact and law that this aggravating circumstance is established factually and legally and this capital felony was heinous, atrocious, or cruel.
(IX) 921.141(5)(i) The jury was instructed on this aggravating circumstance, however, the Court finds that the evidence at trial is not sufficient to support this circumstance. While the evidence clearly demonstrates this murder was committed without any pretense of moral or legal justification it does not support a conclusion of heightened premeditation within the meaning of Preston v. State, 444 So.2d 939 (Fla. 1984).
MITIGATING CIRCUMSTANCES
The defendant, through trial counsel and after an inquiry by the Court, waived reliance on all mitigating circumstances save one. The Court, however, has considered all evidence at trial and sentencing and hereby makes the following findings of fact and law with regard to mitigating circumstances.
(I) 921.141(6)(a) There is no evidence in the record to support the mitigating circumstance of lack of a significant criminal history. The Court finds as a matter of fact and law that this mitigating circumstance has not been established.
(II) 921.141(6)(b) There has been no testimony, either lay or expert, that the offense was committed while the defendant was under the influence of extreme emotional or mental disturbance. The evidence, on the contrary, demonstrates the defendant acted purposefully to accomplish a criminal objective the [16]*16death of Cpl. Raczkoski. The Court therefore finds as a matter of fact and law that this mitigating factor has not been established.
(Ill) 921.141(6)(c) The evidence at trial and in sentence failed to raise the consent of the victim or his participation in the defendant’s conduct or act. The testimony and evidence indicates that the victim begged for his life and fled in an attempt to avoid death. The Court, therefore, finds as a matter of fact and law that this mitigating circumstance has not been established.
(IV) 921.141(6)(d) The evidence in this case establishes beyond a reasonable doubt that the defendant acted alone and was the sole cause of the victim’s death. There is no evidence before the Court, therefore, that supports a finding that the felony was committed by someone other than this defendant or that his participation was minor. The Court, therefore, finds that as a matter of fact and law that this mitigating circumstance has not been established.
(V) 921.141(6)(e) There is no evidence that the defendant acted from extreme duress nor is there any evidence to support a finding that the defendant acted while under the substantial domination of any other person. The evidence in the case, on the contrary, established that the defendant acted purposefully with a clearly voluntary intent to effect the death of the victim.
(VI) 921.141(6)(f) The Court has considered those portions of defendant’s statement introduced at trial that indicate that the defendant may have been under the influence of Cocaine at the time of the shooting.
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OPINION OF THE COURT
JOHN E. FENNELLY, Circuit Judge.
JUDGMENT AND SENTENCE
The defendant was indicted, tried and convicted for the First Degree Murder of Deputy Sheriff Cpl. Richard Raczkoski. The trial jury in accordance with F. S. 921.141(5) and 921.141(6) recommended to the Court by a unanimous vote that the Court impose a sentence of death. The Court, having heard the evidence in both the guilt and the sentencing phase, hereby makes its finding of fact as to both the aggravating and mitigating factors as set forth in F.S. 921.141(5) and F.S. 921.141(6).
The Court has summarized the facts as presented at trial and applied them to each enumerated factor.
[14]*14
AGGRAVATING CIRCUMSTANCES
(I) 921.141(5)(a) There is no evidence nor was the jury instructed that they could find that the defendant was under a sentence of imprisonment at the time of the commission of this offense.
(II) 921.141(5)(b) Pursuant to Johnson v. State, 465 So.2d 499at pg. 505, the State introduced evidence through certified judgments and sentences and in the form of VIVA VOCE testimony concerning this element. The record supports the conclusion beyond and to the exclusion of any reasonable doubt that the defendant had been previously twice convicted of an offense involving the use or threat of violence. The Court so finds as a matter of fact and law.
(Ill) 921.141(5)(c) The jury was not instructed nor does the evidence support a finding that the defendant knowingly created a risk of death of many persons.
(IV) 921.141 (5)(d) The jury was not instructed nor does the evidencé support a finding that this aggravating factor is established.
(V) 921.141(5)(e) The jury was instructed on this aggravating circumstance. The evidence at trial, in the form of the defendant’s own voluntarily given statement, establishes beyond and to the exclusion of any reasonable doubt that dominant motive for the murder of the officer was to avoid arrest for possession of a firearm in violation of F.S. 790.23. The Court finds that this aggravating circumstances is established as a matter of fact and law.
(VI) 921.141(5)(f) The jury was not instructed nor does the evidence support a finding that the murder was committed for pecuniary gain.
(VII) 921.141 (5)(g) The jury in accordance with Suarez v. State, 481 So.2d. 1201, (Fla. 1985) was instructed on this aggravating circumstance. The Court finds, however, that the same facts which support 921.141(5)(e) apply to and support this aggravating circumstance. Therefore, in accordance with Buford v. State, 403 So.2d 943 (Fla. 1981), the Court specifically has not considered this aggravating factor.
(VIII) 921.141(5)(h) The evidence in this case demonstrated the victim in this case was fully aware of his impending death. Testimonial evidence from the witness Hinton indicated that the defendant within minutes of the shooting, told him that [15]*15the officer told the defendant that he could leave and that the defendant then told the officer it is “either you or me.” Thus bringing home vividly to the officer that the defendant intended his death. The evidence further supports the finding that officer retreated while the defendant pointed a .380 semiautomatic handgun to his face and clutched him by the throat. The evidence further fully supports the conclusion that the officer attempted to flee and that the defendant fired a full clip at the fleeing officer striking him four times. Finally the evidence demonstrates that officer suffered great pain and because of extensive hemorrhaging in his lungs literally drowned in his own blood while simultaneously suffering great pain from massive damage to his liver, small intestines, and vertebrae. The State has established beyond and to the exclusion of any reasonable doubt that the officer experienced both apprehension of impending death and great suffering before death. The Court finds, therefore, as a matter of fact and law that this aggravating circumstance is established factually and legally and this capital felony was heinous, atrocious, or cruel.
(IX) 921.141(5)(i) The jury was instructed on this aggravating circumstance, however, the Court finds that the evidence at trial is not sufficient to support this circumstance. While the evidence clearly demonstrates this murder was committed without any pretense of moral or legal justification it does not support a conclusion of heightened premeditation within the meaning of Preston v. State, 444 So.2d 939 (Fla. 1984).
MITIGATING CIRCUMSTANCES
The defendant, through trial counsel and after an inquiry by the Court, waived reliance on all mitigating circumstances save one. The Court, however, has considered all evidence at trial and sentencing and hereby makes the following findings of fact and law with regard to mitigating circumstances.
(I) 921.141(6)(a) There is no evidence in the record to support the mitigating circumstance of lack of a significant criminal history. The Court finds as a matter of fact and law that this mitigating circumstance has not been established.
(II) 921.141(6)(b) There has been no testimony, either lay or expert, that the offense was committed while the defendant was under the influence of extreme emotional or mental disturbance. The evidence, on the contrary, demonstrates the defendant acted purposefully to accomplish a criminal objective the [16]*16death of Cpl. Raczkoski. The Court therefore finds as a matter of fact and law that this mitigating factor has not been established.
(Ill) 921.141(6)(c) The evidence at trial and in sentence failed to raise the consent of the victim or his participation in the defendant’s conduct or act. The testimony and evidence indicates that the victim begged for his life and fled in an attempt to avoid death. The Court, therefore, finds as a matter of fact and law that this mitigating circumstance has not been established.
(IV) 921.141(6)(d) The evidence in this case establishes beyond a reasonable doubt that the defendant acted alone and was the sole cause of the victim’s death. There is no evidence before the Court, therefore, that supports a finding that the felony was committed by someone other than this defendant or that his participation was minor. The Court, therefore, finds that as a matter of fact and law that this mitigating circumstance has not been established.
(V) 921.141(6)(e) There is no evidence that the defendant acted from extreme duress nor is there any evidence to support a finding that the defendant acted while under the substantial domination of any other person. The evidence in the case, on the contrary, established that the defendant acted purposefully with a clearly voluntary intent to effect the death of the victim.
(VI) 921.141(6)(f) The Court has considered those portions of defendant’s statement introduced at trial that indicate that the defendant may have been under the influence of Cocaine at the time of the shooting. The evidence in the case as a whole, including the defendant’s statement as a whole indicate (1) The defendant acted with a stated objective, i.e., the death of the officer (2) That he accomplished this objective in a purposeful manner with full knowledge of the consequences to the victim of his acts, that is in gaining control of the weapon, as reflected in the evidence making a conscious choice to the kill the officer, (3) That the defendant calmly fired a seven round clip striking the officer four times (4) That the defendant, immediately after the shooting, planned and executed a well thought out escape plan and attempted to evade arrest by changing his identity. Based on the foregoing, the Court finds as a matter of fact and law that this mitigating circumstance has not been established.
(VII) 921.141(6)(g) The Court finds that the defendant is thirty-eight years of age and that therefore this mitigating circumstance is not established as a matter of fact and law.
[17]*17As indicated previously, the defendant, through counsel, and after an inquiry by the Court, waived reliance on all statutory mitigating circumstances, except any other aspect of his character, record and other circumstances of the offense.
In accordance with 921.141(6)(h), the defendant introduced military records reflecting his service in the Vietnam conflict. The defendant further testified as to his combat service and awards while serving with the 1st Air Cav. and 4th Infantry Division, in that conflict. The State, in rebuttal, introduced evidence that during this period of service the defendant was tried and convicted by Special Court Martial for a violation of Article 121 of the Uniform Code of Military Justice, Larceny and disobedience of a direct order in violation of Article 92 of the Code.
The Court finds that the defendant’s military service in active combat does support a finding of this mitigating factor.
The Court, therefore, has weighed the aggravating circumstances and the mitigating circumstance. The record reflects that the victim Deputy Sheriff Cpl. Richard Raczkoski’s death was needless and cruel. The defendant has exhibited a continuing and escalating propensity for violence that is chilling. This officer’s death reflects a conscious indifference to lawful authority and a complete absence of human compassion. The mitigating circumstance while significant and deserving of the careful consideration it has received pales into insignificance when placed in juxtaposition with the magnitude of this utterly malevolent murder. The Court, therefore, finds beyond and to the exclusion of any reasonable doubt that the aggravating circumstances outweightthe mitigating circumstance.
This officer literally laid down his life in the performance of his duty. In so doing, he upheld the imperative of duty that the laws of our State impose on law enforcement officers. The Court must be equally willing to perform the duty that the law and evidence mandate in a case of this nature.
William Reaves, based on the foregoing, the Court finds and adjudicates you guilty of the crime of First Degree Murder. It is the judgment and sentence of this Court that you be taken from here to a place specified by law, there to await the pleasure of the Governor of the State of Florida. It is the further judgment and sentence of this [18]*18Court that at the appointed time and place in accordance with law you shall be put to death.
DONE and ORDERED in Open Court, in Indian River County, Vero Beach, Florida on this the 2nd day of September, 1987.
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