%upreme Court of glortba

OBA CHANDLER, around her neck.' Michelle's left hand was Appellant, free with only a loop of rope attached, her ankles were bound, she had duct tape on her vs. face or head, and the rope around her neck was attached to a concrete block. STATE OF FLORIDA, The assistant medical examiner, Dr. Appellee. Edward Corcoran, performed autopsies that same day. He determined that the cause of No. 84,812 death for each victim was either asphyxiation due to strangulation from the ropes tied [October 16, 19971 around their necks or drowning. The Rogers family was vacationing in PER CURIAM. Florida and had checked into a Days Inn in We have on appeal the judgments and Tampa on June 1. One week later, sentences of the trial court imposing the death housekeepers notified the general manager that penalty upon appellant Oba Chandler. We the Rogers' room had not been inhabited for have jurisdiction. Art. V, $ 3(b)(l), Fla. several days. The general manager contacted Const. For the reasons expressed below, we the police, who secured the room and obtained affirm Chandler's first-degree murder the hotel's records for the room. The police convictions and sentences of death. subsequently found the Rogers' car parked at FACTS a boat ramp on the Courtney Campbell The record reflects that the body of Joan Causeway. Rogers and those of her two daughters, Among the items recovered from the car Michelle and Christe, were discovered floating was a handwritten note on Days Inn stationery in Tampa Bay on June 4, 1989. Each body and a Cleanvater Beach brochure, The note was nude from the waist down. Joan's hands read, "Turn right. West W on 60, two and were tied behind her back, her ankles were tied one-half miles before the bridge on the right together, and the yellow rope around her neck side at light, blue w/wht." FBI agent James was attached to a concrete block. Christe's Mathis determined that the handwriting was hands and ankles were similarly tied, and she that of Joan Rogers. Theresa Stubbs from had duct tape on her face or head and a rope FDLE determined that some of the

' Whcn the Coast Guard recovercd Christe's body, they lid to cut the rope around her neck sincc they could not dislodge or pull up the hcavy objcct at the cnd of the ropc handwriting on the Clearwater Beach brochure At trial, she identified the clothing Chandler was Chandler's, while other writing may have had been wearing that night. Mottram picked been Joan Rogers'. Samuel McMullin, a Chandler's photograph out of a photo pack fingerprint expert for the Hillsborough County and identified him in a lineup and in court. Sheriffs Department, found Chandler's palm Chandler visited his daughter, Kristal print on the brochure. Mays, and her husband Rick in Cincinnati in Rollins Cooper worked as a subcontractor November 1989. Kristal later testified that for Chandler at the time of the murders. He Chandler told her he could not go back to testified at trial that on June 1, Chandler Florida because the police were looking for appeared to be in a big hurry after bringing him for killing some women. While Chandler Cooper some screen. When asked why, never admitted to the killings, Kristal testified Chandler told Cooper that he had a date with that he likewise never claimed innocence. three women. Cooper met Chandler the next Similarly, Rick Mays thought Chandler had morning at 7:05 a.m.; when asked why he committed the murders from the way he looked grubby, Chandler replied that he had described how the police were looking for him been out on his boat all night. as a murder suspect. Judy Blair and her friend, Barbara During another visit to Cincinnati in Mottram, both Canadian tourists, testified October 1990, Chandler had Rick Mays set up regarding Chandler's rape of Blair several a drug deal. Before absconding with some of weeks prior to the Rogers' murders. After the drug dealers' money, Chandler put a gun meeting the women at a convenience store, to Rick's head and said, "Family don't mean Chandler, who identified himself as "Dave," s to me." After Chandler fled, Rick was arranged to take them out on his boat the next badly beaten up and almost killed. The Mays' day. The following morning, May IS, 1989, house was also damaged by the drug dealers. Mottram decided not to go out on Chandler's This series of incidents forced Kristal Mays to boat, so Blair met Chandler alone. Blair drop out of nursing school. She was upset and testified that Chandler seemed disappointed told Rick to call the police and report that when told Mottram would not be joining them. Chandler ''put a gun on him." After boating for several hours, Blair and After Chandler was arrested in September Chandler returned to the dock. Chandler 1992, Kristal was contacted and cooperated asked Blair to get Mottram to join them for an with the police and she began to tape their after-dinner boat trip. conversations. She gave a sworn statement to Again, Blair could not convince Mottram the state attorney's office on October 6, 1992. to join them. Blair testified that Chandler Kristal had been convicted of a crime involving seemed "ticked off when she told him dishonesty and appeared on the television Mottram would not be joining them. show Hard Copy in 1994 to discuss her Subsequently, Chandler began making father's alleged role in the murders in return advances to Blair after the boat entered the for a $1000 fee. Gulf of Mexico. Despite Blair's refusals and Robert Carlton testified that he bought a attempts to resist him, Chandler raped her. blue and white boat from Chandler in July or Chandler and Blair then returned to shore. August 1989. Carlton recalled seeing concrete The next day, Blair told Mottram what blocks at the Chandler house and that some of happened and reported the rape to the police. the concrete blocks had three holes and some

-2- had two. Chandler testified that he met Michelle Arthur Wayne Stephenson shared a cell Rogers when he stopped at a gas station. He with Chandler for ten days in late October testified that he had a very brief conversation 1992. He testified at trial that after viewing with Michelle, giving her directions to the television reports about the recovery of the Days Inn on Highway 60. Chandler victims' bodies from Tampa Bay, Chandler said maintained that he never saw any of the that he had met the three women and given Rogers family again after this short encounter them directions to a boat ramp on the and adamantly denied killing them. He also Courtney Campbell Causeway, Chandler told testified that he never told Rollins Cooper that Stephenson that one of the girls was very he had a date with three women. Chandler attractive. claimed that he was out on his boat all night Blake Leslie, an inmate at the Pinellas because his engine died after a hose burst, County Jail with Chandler in the fall of 1992, spilling all of his hel. He testified that two testified that Chandler told him that he took a men in a boat gave him a tow to Gandy Bridge young lady from another country for a ride in Marina, where he put some fuel in his boat. In his boat. Her friend did not want to go. Once rebuttal, James Hensley, a certified boat he got out twenty to thirty miles, Chandler mechanic, testified that Chandler's fuel line told her to have sex with him or swim for it. was possibly still the original, was in good Chandler allegedly said that the only reason shape, and showed no signs of repair. Hensley that woman was still around is because stated that even if there had been a hole in the somebody was waiting for her at the boat fuel line, it would not have leaked because of dock. Leslie, who had been convicted of nine the anti-syphoning valve. felonies, never heard Chandler speak of When asked about details surrounding the murders, only rapes. rape of Judy Blair, Chandler invoked his Fifth Several marine operators for GTE~ Amendment right to remain silent twenty-one testified to collect calls made from a caller times, although he did answer some questions identifying himself as Oba, Obey, Obie, or no regarding his perception of the link between personal name and his boat as Gypsy or Gypsy the rape and the murders. One, from March 17 to June 2, 1989. The After the jury trial concluded, Chandler calls were placed to a number registered to was found guilty of all three counts of murder Debra Chandler, Chandler's wife. One of the on September 29, 1994. The jury reconvened operators, Elizabeth Beiro, testified that she for the penalty phase the next day. During the received three collect calls for Debra penalty phase, Chandler waived the Chandler's telephone number, at 1 : 12 and 1 :30 presentation of any testimonial mitigating a.m. on June 2, 1989. The caller did not give evidence. However, he did present some a first name, although he identified his boat as documentary evidence, including records Gypsy One. Later that same morning, at 9:52 showing that he obtained his high school a.m., Frances Watkins received a collect call equivalency diploma and earned college credits from Gypsy One; the caller identified himself while in prison. The State presented the as Obie. judgments and sentences of Chandler's prior armed robberies. The robbery victims also testified about the details of those crimes. 2Soraya Butler, Elizabeth Heiro, Carl Vocllcr, and The jury recommended a death sentence Frances Watkins.

-3 - for each of the murders by a vote of twelve to mistrial made. Allen v. State,662 So. 2d 323, zero later that same day. On November 4, 328 (Fla. 1995)(requiring contemporaneous 1994, after adjudicating Chandler guilty on all objection and accompanying motion for counts, the trial court imposed three death mistrial to preserve allegedly improper sentences on Chandler for the murders of the prosecutorial comments for appellate review). Rogers Since we do not find that the prosecutor's APPEAL comments during closing argument constitute Chandler raises seven claims of error on fundamental error,5 this claim of error is appeal4 Claim (4) is procedurally barred since procedurally barred. &g Kilaore v. State, 688 no contemporaneous objections were So. 2d 895, 898 (Fla. 1996)(stating that when registered to the prosecutor's alleged personal allegedly improper prosecutorial comments are attacks against Chandler, Sims v. State, 681 not preserved for appellate review, the whole So. 2d 1 112, 1 1 16-17 (Fla. 1996) cert. d enied, claim is procedurally barred in absence of 117 S. Ct. 1558 (l997), or to any of the other fundamental error). We address the remaining allegedly improper prosecutorial comments, issues in turn. nor were any accompanying motions for Collateral Crime Evidence As his first claim of error, Chandler contends that the trial court erred in admitting Thu trial court lbund the li)llowing statutory collateral crime evidence regarding the rape of aggravators' (1 ) the deliidant has heen convicted of prior violent and capital felonies, section 92 1 14 1(5)(b), Judy Blair. As the parties note, we established Flondu Statutes (1 993), (2)the murders were coiiimittcd the rule regarding admission of collateral crime during the commission of a kidnapping, section evidence in Williams v. State, 110 So. 2d 654 92 1 .141 (5)(d), (3) thc murders were coiiuiii tted to avoid (Fla. I959), and enunciated the following arrest, section '32 1.14 I (.?)(I$: and (4) the murders were standard for admitting such evidence: especially heinous, atrocious, or cruel, sectioii 921 141(5)(hj. No statutory mitigators wctc presented or proved Although the dctkndant oll'ered iiunierous Our view of the proper rule simply nonstatutoty mitigators, tlic trial court only Ibund that his is that relevant evidence will not be honorable discharge from the U S Marine Corps and the excluded merely because it relates lcngth of his mandatory scntcnccs were estahlislicd as to nonstatutory mitigation, but accwdcd each little weight. to similar facts which point the commission of a separate crime. The test of admissibility is 4'1he claims arc: (I) the trial court violatcd re1 evan cy . The test of Chuidlcr's constitutional right to a fair. trial by :idiiiittiiig inadmissibility is a lack of evidence that lie scsually battered Judy Blair: (2) the trial court mdin requiring Chandler to repeatedly invoke his right to remain silent bclbrc the jury; (3) the trial court errid in allowing the State to present a prior consistent 'The prosecutor's comment that Chandler never told statement by Kristal Mays; (4) the prosecutor's closing his daughters or son-in-law that hc was innoccnt wus LL arguinent violatcd Chandler's right to a fair trial: (5) the fair charactcrimtion of thc evidence, while his other trial court erred in accepting Chandler's waiver of his comments about Chandler and his counsel wctc right to present mitigating testimony during the penalty thoughtless and petty, s,counsel engaged in "cowardly" phasc: (6) the trial court crrcd in rejecting Chandler's and "dwpicable" conduct and Chandler was "malevolent claiiii ot'childhood trauma :IS a mitigating circumstance; . . . a brutal rapist and conscienceless murderer," but not and (7) the standard jury insti-uction for the heinous, so prc-judicial as to vitiate the entire trial. Estv v. State, atrocious, or crud aggravating circumstancc is 642 Yo. 2d 1074, 1079 (Ha. 1994); Rertolloti v. Statc, unconstitutionally vague. 476 So. 26 130 (Fla. 1'3x5).

-4- relevancy show identity. There must b e identifiable points nf similarity at 659-60. More recently, in Hayes v, which pervade the compared &&e, 660 So. 2d 257 (Fla. 1995), we factual situations. Given .. observed that: 1 for the similar facts to & The Evidence Code, under relevant the po ints of similarity section 90.404(2)(a), Florida must have some special Statutes (1993), allows a party to character or be so unusual a introduce similar fact evidence of to point to the defendant. other crimes when it is relevant to prove a material fact in issue, In Drake, 400 So. 2d at 1219 Drake v. State, 400 So. 2d 1217 (emphasis added). (Fla. 1986), we set forth the principles of how this evidentiary Hayes, 660 So. 2d at 261 (second emphasis provision should be applied. See added) (citations omitted). The common also Thompson v. State, 494 So. thread in our Williams rule decisions has been 2d 203 (Fla. 1980); Peek v. State, that startling similarities in the facts of each 488 So. 2d 52 (Fla. 1986). In crime and the uniqueness of modus operandi Drake, we stated: will determine the admissibility of collateral crime evidence. Williams v. State holds that From that backdrop, we believe the factual evidence of similar facts is situation and our reasoning in Gore v. State, admissible for any purpose if 599 So. 2d 978 (Fla. 1992), are helpful in relevant to any material issue, analyzing Chandler's claim: other than propensitv or bad character, even though Susan Roark was last seen alive evidence points to the on January 30, 1988, in Cleveland, commission of another crime. Tennessee, in the company of The material issue to be [defendant] Marshall Lee Gore. resolved by the similar facts Gore had planned to travel to evidence in the present case is Florida with a friend from identity, which the State Cleveland. While waiting for his sought to prove by showing friend at a convenience store, Gore Drake's mode of operating. struck up a conversation with The mode of operating Roark. Gore then entered Roark's theory of proving identity is car, a black Mustang, and they based on both the similarity of drove away. and the unusual nature of the Gore accompanied Roark to a factual situations being party at the home of a friend of compared. A mere general hers. Roark had planned to spend similarity will not render the the night at her friend's home. similar facts legally relevant to Sometime between 11:30 and

-5- 12:00, Roark left to drive Gore rock, strangled her, and stabbed home. She never returned. The her in the neck, arms, legs, and following day Roark's grandmother buttocks. Shortly thereafter Gore reported her missing. She had pawned several items of Corolis' been expected home by 7 a.m. that jewelry and then proceeded to morning. Kentucky in her car. Gore arrived in Tampa on January 31, driving a black Gore argues that this case is Mustang. He convinced a friend comparable to Drake v. State, 400 to help him pawn several items of So.2d 1217 (Fla.1981), in that the jewelry later identified as collateral crime is not sufficiently belonging to Roark. Gore then similar to the crime at issue and the proceeded to Miami, where police claimed similarities are not unique subsequently recovered Roark's enough to qualify as evidence of Mustang after it was abandoned in identity. . . . In rejecting the a two-car accident. Gore's collateral crimes evidence as fingerprint was found in the car, as evidence of the identity of the well as a traffic ticket which had murderer, we noted that "[a] mere been issued to him while he was in general similarity will not render Miami, the similar facts legally relevant to On April 2, 1988, the show identity. There must be skeletonized remains of Roark's identifiable points of similarity body were discovered in Columbia which pervade the compared

County, Florida. . , , factual situations. 'I Td. at 12 19. .... We find that the Corolis crime The testimony of Tina Corolis does have the required masive was admitted as evidence of a similarities. The significant collateral crime. Corolis was a common features of the two casual acquaintance of Gore's, crimes include the following: The whom she knew as "Tony." Tn victim was a small female with March of 1988, Gore called dark hair; Gore introduced himself Corolis at her home and told her as "Tony"; he had no automobile that his car had broken down and of his own; he was with the victim he needed a ride to it. After they for a lengthy amount of time had driven around for several before the attack began; he used hours, Gore revealed a knife, or threatened to use binding; the gained control of the car, and attack had both a sexual and drove to a partially wooded pecuniary motive; the victim dumping area off a dirt road. He suffered trauma to the neck area; put the knife to Corolis' stomach, Gore transported the victim to the forced her to undress, and raped site of the attack in the victim's her. He then dragged her out of car; the victim was attacked at a the car, punched her face against a trash pile on a dirt road, where the

-6- body was then lee; Gore stole the individually, thev do establish EL victim's car and jewelry; he Sufficiently ..unique patte rn of pawned the jewelry shortly after 1 the theft; he fled in the victim's mon D oints are cons' 1- automobile, leaving the state together. The cumulative effect of where the victim was apprehended the numerous similarities between and staying with a friend or $he two crimes is the establishment .. relative for a period of time after of a unique modus operandi whch the crime; and he represented the points to Gore as t he perpetrator car to be a gift or loan from a of the Roark homicide. We find girlfriend or relative. no error in the admission of Gore argues that there are evidence of Gore's attack on dissimilarities between the two Corolis. incidents as well. . . . Here, however, the similarities are L&. at 980-84 (emphasis added). pervasive, and the dissimilarities In this case, the trial court's detailed order insubstantial. This Court has never admitting the collateral crime evidence found required the collatera1 crime to be the following fourteen similarities between the absolutely identical to the crime Blair rape and the Rogers' murders: (1) All charged. The few dissimilarities the victims were tourists; (2) the victims were here seem to b e a result of young white females between 14 and 36; (3) .. differences in the opportunitla the victims were similar in height and weight; with which Gore mresented, (4) the victims met Chandler by chance rather than differences in modus encounter where he rendered assistance to operandi. &jg Chander v. State, them; (5) the victims agreed to accompany 442 So.2d 171, 173 (Fla.1983), Chandler on a sunset cruise within twenty-four For example, the most significant hours of meeting him; (6) Chandler was non- difference between the two crimes threatening and convincing that he was safe to --that Roark was murdered while be with alone; (7) a blue and white boat was Corolis was not-seems to be more used for both crimes; (8) a camera was taken of a - f us circumstance than a to record the sunset in both crimes; (9) duct reflection of Gore's intent in the tape was used or threatened to be used; (1 0) Corolis crims, since he beat her, there was a sexual motive for both crimes; stabbed her, and left her for dead (1 1) the crimes occurred in large bodies of in an isolated area. water in the Tampa Bay area on a boat at night Gore also argues that the similar under the cover of darkness; (12) homicidal features of the two crimes are not violence occurred or was threatened; (1 3) the sufficiently unique to serve as crimes occurred within seventeen or eighteen evidence of identity. . . . While the days of each other; and (14) telephone calls common points between the were made to Chandler's home from his boat Corolis assault and the Roark while still embarked either before or after these murder may not be sufficiently crimes, When analyzed through a literal unique or unusual when considered application of Williams or under the more

-7- detailed Drake standard as applied in Gore and darkness; murder committed or threatened; Hayes, we conclude that Chandler's claim that and commission of the crimes within a brief evidence of the Blair rape was irrelevant and time frame seventeen to eighteen days of each insufficientlysimilar to his alleged commission other. of the Rogers' murders is unconvincing.' We recognize that the crimes are not On the contrary, we find that the exactly the same. However, that fact alone "identifiable points of similarity which pervade does not preclude admission of collateral crime the compared factual situations," Drake, 400 evidence and, indeed, would erect an almost So. 2d at 1219, include "chance encounters" in impossible standard of admissibility. Gore, public places with young female tourists to 599 So. 2d at 984 (observing that we have whom Chandler offered assistance; almost never required "the collateral crime to be immediate offers of cruises on his boat; the absolutely identical to the crime charged"). In same blue and white boat used for both crimes; this case, the biggest difference is, of course, a warm, non-threatening demeanor that that Judy Blair lived and the Rogers women convinced the eventual victims to accompany were murdered. However, even that Chandler on his boat within twenty-four hours dissimilarity may be attributed to "differences of meeting him; sexual motive with all victims in the opportunities with which [Chandler] was stripped from the waist down; use or presented, rather than differences in modus threatened use of duct tape; crimes occurring operandi." 1$, As with Tina Corolis's in large bodies of water under cover of fortuitous survival after being savagely punched, strangled, and stabbed by Gore, the evidence adduced at trial indicates that Judy 'To support his argument, Chandlcr directs our Blair may be alive today because Barbara attention to Drake v. Statc, 400 So. 2cl I2 17 (Fla. 198 1 ); Mottram refbsed to join her and Chandler on lhomtxon v. Statc, 494 So. 2d 203 @la. 1986); and pccE: the boat and awaited her return at the boat v. Statc, 488 So. 2d 52 (Fla. 198h), wherein we found dock. We note that Mottram refused to go for that the prior sexual crimes of thc defendants in those cases wcre inadmissiblc in their murder prosecutions a cruise not once, but twice. Chandler did not since the collatcral crimes wcrc insufficiently similar. attack Blair until their second cruise, at night, However, we are unpcrsuaded by Chandlcr's citation of and after Blair had another opportunity to ask those cascs, which we liml distinguishable. For example, Mottram if she would join them. tlic only similarity betwccn the crimes in Drakc was that With the Blair rape evidence before her, the victims' hands were ticd hehind their hacks aiid they had left a bar wilh the defcndant. 400 So. 2d at 12 19. In the trial judge found that it was relevant to Peek, the principal similarities wcrc that the crimes establish Chandler's identity as the Rogers' occurred within two months of each other in the same killer; relevant to show Chandler's plan, town, and both women werc white females who wcre scheme, intent, and motive to lure women raped. 488 So. 2d at 55. In 'Thompson, the primary tourists aboard his boat for a sunset cruise ''to similarities wcre that both victims were approsimatcly thc same age and huild: both crimes occurrcd near a commit violence upon them;" and relevant to 7 particular church parking lot; and the defendant was establish Chandler's opportunity to commit having domestic problms on both occasions. 494 So. 2d at 204. In all those cases, we Ibund few similarities and many sigiilicluit dissimilarities. Tn contrast, the equation 70n this factor, the trial judgc wrok as Ibllows: in hscase is exactly the opposite: numerous, signiiicant similaritics outweighing several clissimilaritics Without Judy 13lair and Barbara esplainahlc hy the course of cvcnts and the opportunitics Mottram's testimony, what jury could prcscntcd to Chandler. possibly hclicvc [that1 Mrs. Rogcrs the Rogers' murders on his boat. Accordingly, objection' was denied since, as the trial judge the trial judge concluded that the "unique stated, "[nlone of us has any idea what he is similarities in these two crimes tie the same going to say, and 1 can't rule magically, so individual-Oba Chandler--to both crimes. I' don't ask that."' Counsel did not renew his Since the two crimes "establish a sufficiently objection contemporaneously and thus this unique pattern of criminal activity when all of sub-claim is procedurally barred. Geralds. the common points are considered together," As to Chandler's claim regarding the Gore, 599 So. 2d at 984, and the evidence prosecutor's questions about the Blair rape, we presented Chandler's "unique modus believe that this issue constitutes a classic case operandi," d.we find no abuse of discretion of trying to take the wind out of your in the trial court's admission of the Williams opponent's sails by pre-emptively admitting rule evidence. Fifth Amendment Right to Remain Silent As his next claim of error, Chandler asserts 'This request was made behrc Chandlcr testified on direct examination and thus, obviously, before the State that the trial court erred in forcing him, in cross-cxammcd him effect, to repeatedly invoke his Fifth Amendment right against self-incrimination 91n denying Chandler's request for a standing before the jury in response to questions about objection, the trial 1~idge stated: the Blair rape. This claim is without merit. No wav do I want to Drohibit Mr. At the outset, we agree with the State that Chandlcr from tcstihine. before this much of Chandler's claim that cross- jw. No wav do I want to prohibit the examination impermissibly exceeded the scope Statc liom cross-examining Mr. of direct examination is procedurally barred Chandler about matters that I havc since no contemporaneous objection was ruled are relevant to this case. That puts Mr. Chandler in a tough made. Geralds v. State, 674 So. 2d 96, 99 dilemma. That rcnlly isn't my (Fla.), cert. denied, 117 S. Ct. 230 (1996). conam. That's your concern and Mr. Defense counsel's request for a standing Chandler's concern. . . . [To dcl'ense counsel]: You knew how the court was going to rule. We went ovcr this last night with everybody prcscnt. I'm sure you talkcd to your client after that. and her two children would hoard Certainly [it] cannot come as a Chundler's boat Ibr a sunset cruisz surprisc to you or your client. within 24 hours of having niet him'! 'l'hin is exactly what 1 said last night. This was a critical qucstion the State 'The Xtatc indicated it was their belief had to answer at trial. The Blair I Chandler] shouldn't cvcn be allowed incident was relevant and necessary to to invokc thc Fifth Amendment right. answer that question. It is hccause I said I thought he had a right to testify Judy Blair did the csact same thing in the case, and T thought he had a within 24 hours of having met constitutional right to invokc thc Fillh. Chandler, with no fear for hcr safety, He does want to testify or doesn't'? that the jury had rclcvanl evidence to prove Oha Chandler had thc same Defense counsel: One second, please. omomQto lurc the Kogers' wonla He IS going to tcstifi. aboard his boat and to their ultimate deaths. (Emphasis addcd.)

-9- extremely prejudicial evidence and thereby witness. softening the blow. However, this situation presents a unique twist: Chandler softened the Charles W. Ehrhardt, Florida Evidence 8 608.1 blow by stating to the jury in opening at 385 (1997 ed.) (footnotes omitted). & argument, which of course is not considered Shere v. State, 579 So. 2d 86, 90 (Fla. evidence, that the State would talk at length 1991) (recognizing the general rule that the about the Blair rape but that was a different "purpose of cross examination is to elicit case from the one before them. Thereafter, testimony favorable to the cross-examining when the time came, defense counsel did not party . . . and to challenge the witness's allude to the Blair rape during his direct credibility when appropriate"). Similarly, we examination of Chandler. In that way, the have long held that "cross examination is not State presumably could not address that confined to the identical details testified to in subject matter when cross-examining Chandler chief, but extends to its entire subject matter, since the issue was not broached on direct and to all matters that may modify, examination. See Hunter v. State, 660 So. 2d supplement, contradict, rebut, or make clearer 244, 251 (Fla. 1995) (finding trial court did the facts testified to in chief." Geralds v. not err in limiting attempted cross-examination M,674 So. 2d 96? 99 (Fla. 1996) (quoting of police detective which was "clearly outside COCOv. State, 62 So. 2d 892, 895 (Fla. the scope of direct"); 8 90.612(2), Fla. Stat. 1953)); Coxwell v. State, 361 So. 2d 148, 151 ( 1993)(limiting cross examination "to the (Fla. 1978) (same). subject matter of direct examination and In Geralds, we recently denied a similar matters affecting the credibility of the witness claim from the defendant that the prosecutor's . . . [although the] court may, in its discretion, cross-examination about evidence linking him permit inquiry into additional matters"). to the murder was beyond the scope of the Nevertheless, Professor Ehrhardt has noted defendant's testimony on direct. 674 So. 2d at that: 99-100. We noted that on direct examination, the defendant's testimony covered six general All witnesses who testif4r during a subjects, including his denial that he murdered trial place their credibility in issue. the victim. Id. at 100. Since the defendant Regardless of the subject matter of opened the door on that subject, we concluded the witness' testimony, a party on that the trial court did not abuse its discretion cross-examination may inquire into in allowing questions about evidence linking matters that affect the truthfulness the defendant to the crime. Id. of the witness' testimony. Likewise, in this case, Chandler testified on Although cross-examination is direct examination about his line of work; his generally limited to the scope of family; his boat; his work-related activities the direct examination, the from May 3 1 to June 2, 1989; his encounter credibility of the witness is always with the Rogers family on June 1, 1989, at the a proper subject of cross- convenience store where he gave them examination. The credibility of a directions to a Days Inn; his fishing trip the criminal defendant who takes the evening of June 1, 1989, where he was stand and testifies may be attacked allegedly stranded in Tampa Bay due to a in the same manner as any other broken hose; and three separate denials that he

-10- killed the Rogers family. The crux of Cincinnati: Chandler's defense was that he met Michelle Rogers only briefly at the convenience store Prosecutor: Tell me how it came where he gave her directions to a Days Inn; he out, Mr. Chandler. did not take the Rogers family for a cruise that night;" and he did not kill them." We Chandler: I went to the motel, conclude that the State could legitimately checked in, give her a call. They attack Chandler's credibility in asserting those stopped up, started talking with claims, Geralds, and could permissibly develop Rick about building money up. I the connection between the Blair rape and the needed some cash. Said all he had Rogers' murders to that end. was two ounces of cocaine he For example, the following exchange could front me. I said, that's fine. occurred regarding Chandler's November 1 989 She wanted to know what I was visit with his daughter, Kristal Mays,12 in doing in Cincinnati, so I told her that I had been accused of a rape in Madeira Beach, and they found "Midwily through Chandler's direct testimony, the three women floating in Tampa following exchange occurred: Bay they're trying to link me with. That was it. Dcfcnse counsel: Now, did you see [the Rogcrs family] again at any time Prosecutor: Did you tell her you that day'? were innocent of both crimes? Chandla: I'vc never seen them again. Chandler: Did 1 tell her that I wu Deknsc counscl: Never saw them innocent? aguin in your life'?

Chandler: No. sir. Prosecutor: Yeah.

Defense counsel: Did you kill thcsc Chandler: Most certainly did. She people? never went to no bathroom. She never leR the room. l3 Chandler: No, I did not.

Defcnsc counscl: Did you take them (Emphasis added.) Thus, Chandler testified out on your boat? that he told his daughter he was innocent of both the rape and the murders, which of Chandler: No, they've never hccn on course contradicted defense counsel's my boat. concession in opening argument that the State could prove Chandler raped Judy Blair. "As his final question on direct exam, Chandler's attorney asked him: "Did yoit kill these ladies?" Chandler responded that "I have newkillcd no one in my whole '""his exchange also shows that Chandler did life. I have never -- its's ludicrous. It's ridiculous." answer some questions nhout tho Blair rape, while invoking the Fifth Amendment on others. The trial judgc "Muys hud testified to these issues during the State's pointed this out to defense counsel when he rcncwcd his case-in-chief. request for a standing objection.

-1 I- Therefore, this was a legitimate subject of thus subject himself to cross examination." inquiry for the State in cross-examining That was Chandler's choice alone and we Chandler as it attempted to cast doubt on his agree with the State that first, the trial court defense and undermine his credibility as a did not err in letting him live with the resulting witness. 3 90.612(2), Fla. Stat. (1993). consequences and second, error, if any, was Furthermore, as the State notes, since harmless since there is "no reasonable Chandler's defense counsel conceded that the possibility that the error contributed to the State could prove that Chandler raped Blair conviction." State v. DiGuilio, 491 So. 2d several weeks before the Rogers' murders on 1 129, 1135 (Fla. 1986). a blue and white boat in the Gulf of Mexico, Prior Consistent Statement accordingly, "long before Chandler invoked Next, Chandler argues that the trial court the Fifth concerning the [Blair] rape, the jury erred in admitting Kristal Mays' prior had already accepted Chandler's guilt for [that] consistent statement made on October 6, rape. Therefore, any inference of guilt for the 1992, when the existence of a fact giving rise [Blair] rape from the invocation of the Fifth is to a motive to falsify, the October 1990 drug undeniably harmless. " Appellee's Answer money theft, occurred before the statement Brief at 73. Evidence that Chandler had was made, We agree with the State that the committed the Blair rape was also the essential trial court did not err in admitting the prior link leading to Chandler's indictment for the consistent statement. We also find any Rogers' murders. l4 potential error harmless. In the final analysis, Chandler knew before We have long held that prior consistent he testified that under the ground rules statements "are generally inadmissible to established by the trial judge, the State could corroborate or bolster a witness' trial permissibly cross-examine him about the Blair testimony." Rodriguez v. State, 609 So. 2d rape and he could invoke his Fifth Amendment 493, 499 (Fla. 1992); Jackson v. State, 498 right against self-incrimination. As illustrated, So. 2d 906, 909 (Fla. 1986); Parker v. State, although he invoked the Fifth Amendment 476 So. 2d 134, 137 (Fla. 1985); Van Gallon numerous times, he also gave sorne testimony v. State, SO So, 2d 882 (Fla. 1951). Since about his fear that the Blair rape and the such statements are usually hearsay, "they are murders would be linked. He obviously knew inadmissible as substantive evidence unless that the State would explore the relationship between the two crimes and attack his credibility in asserting that he did not kill the "At a sidebar conference at the end of his cross- exam of Chandler, thc prosecutor stutcd: Rogers family, but he still chose to testify and Just for thc rccord, sinw T'vc hccii repeatedly maligned by the I4As the State points out, "Chandler was accusations that I was causing apprehendcd and identilied as the same person whosc Chandler to invokc the Fifth handwriting and palmprint were on the brochure in the Amendment, I want to clarie that he RO~LTS'car " based on n composltc drawiiip made by Judy has a Fifth Amendment right. I Rlalr. Appellee's Answcr Bricf at 45 Indeed, detectives wanted answers to my questions. assipid to the Rogers' murder casc bccanic awarc ofthc 'hat is what I would prdcr. It was his Blair rapc during the course of their investigation aiid clcction and not niy dcsirc that he "immediately recopwcd thc significance of the similar response [sic] in the way he did. pattern." rd. they qualify under an exception to the rule Chandler told her "that he could not come excluding hearsay." Rodriguez, 609 So. 2d at back to Florida, the police were looking for 500 (citing Charles W. Ehrhardt, Florida him, that he had murdered the women.'' Evidence, 0 801.8 (1992 ed.)). However, We conclude that this statement was prior consistent statements are considered properly admitted as rebuttal regarding the non-hearsay if the following conditions are suggestion that Mays' 1994 Hard Copy met: the person who made the prior consistent appearance motivated her trial testimony, since statement testifies at trial and is subject to Mays testified and was subject to cross- cross-examination concerning that statement; examination, and the statement pre-dated the and the statement is offered to "rebut an existence of her motive to fabricate, i.e., the express or implied charge . . . of improper Hard Copy appearance. See 5 90.801(2)(b), influence, motive, or recent fabrication.'' Fla. Stat. (1993). The October 1992 statement Rodrirmez, 609 So, 2d at 500 (quoting section was undisputedly made after the October 1990 90.80 1 (2)(b), Florida Statutes (1 989)). drug money incident. However, by directly In this case, Kristal Mays testified during suggesting that the Hard Copy appearance the State's case-in-chief that Chandler admitted motivated Kristal's testimony, Chandler could that he committed the murders when he visited not thereaRer prevent the State from her in November 1989.l6 However, on cross- rehabilitating her testimony by urging that examination, defense counsel elicited another motive to fabricate existed earlier. alternative purported motives for Mays to That was a choice that the defendant made in testifL falsely: the October 1990 drug money urging more than one reason to fabricate at theft where her husband was severely beaten trial. Having made this choice, he must suffer after Chandler fled, and her receipt of money its natural consequences. for appearing on Hard Copy in 1994. On The improper admission of prior consistent redirect, the State attempted to rehabilitate statements is also subject to harmless error Mays by introducing her sworn statement analysis. Andersonv. State, 574 So. 2d 87, 93 made to the state attorney's ofice on October (Fla. 1991). The jury was made aware early 6, 1992, before the Hard Copy appearance on that Kristal had cooperated with the police was negotiated. Mays had stated that and given them information about her father's visit and the statements he made. From this the jury could infer that this information was ''Kristal testified on direct examiliation the same as that provided by Kristal at trial, especially since there was no indication to the And then he said that Iic couldn't go contrary. In addition, the prosecutor hack to Florida hccilusc the police questioned Kristal about a similar statement were looking lor hiiu hccausc he killcd somc women. . . . she made to her sister, Valerie Troxell, in 1989.17 The State further argues, and we Prosecutor. Hc indicated he had killed women'! I7Kristal testifid that aftcr her father left Cincinnati, Kristal: Yes she discussed their conversation with Valerie. She stated that she mentioncd her Mhcr's statcincnts during the Of course, as notcd carlicr in the opinion, Chandler gtnlral cotirse of her conversation with Valerie and that testified that he told Kristal that hc was innocent of the their conversation occurred in 1 989, approximately one murders and the rape ycar prior lo thc Octobcr I990 drug incident.

13- agree, that the jury knew that the October situation. 1990 drug money incident occurred before We established the Koon procedure due to Kristal Mays gave her statement to the state our concern "with the problems inherent in a attorney's office in October 1992, l8 and trial record that does not adequately reflect a Chandler's defense counsel had an additional defendant's waiver of his right to present any opportunity to recross-examine Mays mitigating evidence.'' 61 9 So. 2d at 250. To regarding her statement as well as to assert achieve the goal of avoiding such problems, both the drug money episode and the Hard we instituted the following procedure for use Copy appearance as motivations for Kristal to when defendants wish to waive presentation of lie or exaggerate her testimony. While we mitigating evidence during the penalty phase: recognize that the statement may have bolstered Mays' credibility, we conclude, after When a defendant, against his considering the context in which Mays' counsel's advice, refuses to permit testimony was presented, that the jury had the presentation of mitigating ample information from which to assess Mays' evidence in the penalty phase, credibility and weigh her testimony counsel must inform the court on accordingly. Therefore, we also find that any the record of the defendant's error is harmless beyond a reasonable doubt. decision. Counsel must indicate DiGuilio, 491 So. 2d at 1135. whether, based on his Waiver of Right to Present investigation, he reasonably MitiEatinE Testimony believes there to be mitigating As his first penalty phase issue, Chandler evidence that could be presented contends that the trial court erred in accepting and what that evidence would be. his waiver of the right to present penalty phase The court should then require the mitigating testimony because defense counsel defendant to confirm on the record failed to inform the trial court "what that that his counsel has discussed these evidence would be," contrary to the procedure matters with him, and despite we established in -, 6 19 So. 2d counsel's recommendation, he 246 (Fla. 1993). For that reason, Chandler wishes to waive presentation of asks us to vacate his death sentences. We find penalty phase evidence. no merit in this claim based on what we consider to be Chandler's hypertechnical U Obviously, our primary reason for interpretation of what Koon requires in this requiring this procedure was to ensure that a defendant understood the importance of presenting mitigating testimony, discussed ' %ii cross-csamination, dctbnsc counscl csplorcd these issues with counsel, and confirmed in this issue cstctwively, asking Kristal Mays numrous questions about the events surrouiidiiig the drug nioncy open court that he or she wished to waive Ihelt, tho fact that she told her husband to report Chandler presentation of mitigating evidence. Only then to thc poliw because he "put a gun" on him, aiid her later could the trial court, and this Court, be taping of her conversations with her father in cooperation assured that the defendant knowingly, with the police. hstal's testimony lcl't no doubt as to thc intelligently, and voluntarily waived this scqiimcc ol'cveiils tlnd defense counsel asked her several times when the hpmoney thclt occurrcd, u,"[tlhis substantial and important right to show the incidcnt occurred in October of 1990, right'!", to which jury why the death penalty should not be Kristal responded "yes."

-14- imposed in his or her particular case. family members that you have to The record reflects that after defense speak about you and your life and counsel informed the court of Chandler's background and anything that decision and began to go over the list of would be favorable to this jury in penalty phase witnesses and what they would making this decision. Has he gone say, the trial judge stated: over that with you?

However, I think there is a case-- Chandler: Yes, he has, and I have and I don't have it at my fingertips made a decision, your Honor, to --but what it says is, if the call no one. Defendant has told the defense counsel not to call relevant Court: And do you understand, sir, mitigation, that defense counsel is, that I am obliged to tell you by law Number One, obligated to tell the that this could be a mistake Court that; and, Number Two, the because these people could very Court then is obligated to tell you well put some favorable what you would have--who you information before this jury to would have called and what they persuade them to recommend a life would have said, basically. sentence, as opposed to a death sentence? Do you understand And then Mi. Chandler has got to, that? in essence, acknowledge that he understands it could have been Chandler: Yes, I do. helpful and, in essence, announce that he wish that not be presented. Court: And you've had plenty of time to talk this over with your Clearly, the trial judge was describing Koon lawyer? and the compulsory procedure in this situation. Defense counsel then went down the list of Chandler: Yes. penalty phase witnesses and noted that all would say good, favorable, or very favorable Court: And it is your decision that things about Chandler. He also responded that you have instructed your lawyer he had discussed those favorable things with not to call these people. Is that Chandler. At that point, the trial judge correct? commented as follows: Chandler: That's correct. Court: Okay. Mr. Chandler, 1 don't necessarily mean for your Court: Is there anything else we lawyer to stay here and stand here need to put on the record? and tell me exactly what these people would say, but I presume The above colloquy demonstrates that the trial that he has been over with you the court acted fully in compliance with the Koon possibility of calling any and all requirement that a defendant knowingly and

-15- intelligently waive the presentation of mitigating circumstance is mitigating evidence on the record. Moreover, supported by the evidence and if we find that defense counsel complied with his the non-statutory mitigating duties under Koon by investigating Chandler's circumstance is truly of a background, having witnesses ready and mitigating nature. A mitigator is available to testifl, and adequately outlining supported by evidence if it is the favorable character evidence that mitigating in nature and reasonably Chandler's witnesses would have presented. l9 established by the greater weight Accordingly, we find no error in the trial of the evidence. court's acceptance of Chandler's waiver. Childhood Trauma as -Id. Contrary to Chandler's assertion, the Nonstatutnrv. Mitigation sentencing order in this case not only complies As his next claim, Chandler alleges that the with the approved procedure, but is, indeed, a trial court erred in not finding his purported textbook example of how thoughtful, childhood trauma as nonstatutory mitigation. deliberative sentencing orders should be We find no merit in this claim. written. We have specifically addressed the proper Illustrative of the trial court's thorough manner by which trial courts must address analysis of all proffered mitigators is its mitigating evidence during the penalty phase, treatment of this issue, Chandler's alleged first in Campbell v. State, 571 So. 2d 415 (Fla. childhood trauma: 1990), and most recently in Ferrell v. State, 653 So. 2d 367 (Fla. 1995). The analysis has 7. The Defendant was only ten two prongs: first, establishment of a mitigator years old when his father by the greater weight of the evidence; and, committed suicide. second, if a mitigator is established, the trial It is a mitigating factor if a court determines the relative weight accorded Defendant has had a deprived each mitigator. Chandler's claim of error childhood, or has suffered abuse as addresses the first prong. Id. at 37 1. a child, or other matters such as The approved procedure is as follows: this. However, a sinale sentence in B PSI. which also discusses his The sentencing judge must mother. a stepfather. sisters and expressly evaluate in his or her both stepbrothers and half- sentencing order each statutory brothers, is not sufficient proof of and non-statutory mitigating 51 mitigating factor. The Defendant circumstance proposed by the lived with his mother after his defendant. This evaluation must father died. His mother remarried determine if the statutory when he was thirteen, and he lived with them until he was seventeen when he voluntarily left home to ''Thus wc reject Chandler's contention that since live with his sister; and then dcI:nsc counsel did not go iiito greater detail about "what hat favorablc evidence would hc," wc should vacate his decided to live on his own. (This smtcnccs and thereby iggiorc thc (act that the core information is contained in the recluircmml ol'&n--hiowm g, intel 1I gen t, and voluntary 1977 PSI). wuiver in open court--was clcarly met in this cusc

-16- If child abuse or deprived constitutionality of the HAC standard jury childhood existed in Defendant's instruction in James v. State, 695 So. 2d 1229, case, he voluntarily elected not to 1235 (Fla.), petition for cert. filed, No. 97- present any evidence of it. He 6104 (U.S. Sept. 18, 1997). ln James, we elected not to call his confidential rejected the appellant's vagueness and psychologist, and elected not to overbreadth challenges since the HAC call his mother or his sisters to instruction given at trial was the same testify either before the jury or instruction approved in Hall v. State, 614 So. before me. Surely they could have 2d 473 (Fla. 1993), wherein this Court found told us of the Defendant's that neither the instruction nor the aggravator childhood and the effect, if any, of itself was unconstitutionally vague. James, his father's suicide on the 695 So. 2d 1'235; Hartleyv. State, 686 So. 2d Defendant. 1316 (Fla. 1996), cert. denied, No. 96-8870 There is no proof, therefore. in (U.S. Oct. 6, 1997). Since that instruction the record. of the mitigating factor was the same as the one given in this case, we of child abuse. or a d eDrived again uphold the constitutionality of the childhood. standard jury instruction on the HAC aggravator. James; Hartley. (Emphasis added.) The trial court's analysis Proport ionality conforms with the requirements we established Finally, although neither party raises the in Campbell and Ferrell. issue of proportionality, review of our prior Beyond the trial court's procedural case law reveals that the death sentences in compliance with the guidelines for evaluating this case are proportionate to other cases mitigating circumstances, we have recognized where sentences of death have been imposed. that it is within the trial court's discretion to See Rolling v. State, 695 So. 2d 278 (Fla. determine whether such mitigation has been 1997) (death sentence proportionate where established. Foster v. State, 679 So. 2d 747, trial court found that four aggravators, 755 (Fla. 1996), cert. denied, 117 S. Ct. 1259 including HAC, prior violent felony (1997); Preston v. State, 607 So, 2d 404 (Fla. conviction, murders during commission of 1992); Sireci v. Stak, 587 So. 2d 450 (Fla. burglary or sexual battery, and cold, calculated 1991); Stano v. State, 460 So. 2d 890 (Fla. and premeditated outweighed two statutory 1984). In this case, the trial court determined mitigators and significant nonstatutory that there was inadequate proof in the record mitigation), petition for cert. filed, No. 97- that this proffered nonstatutory mitigation 5975 (U.S. Sept. 10, 1997); Henyard v. State, existed. This is the process required by 689 So. 2d 239 (Fla. 1996) (finding four Campbell and Ferrell. aggravators, including HAC, prior violent HAC Standard Jury Instruction felony conviction, and murder during As his last penalty phase issue, Chandler commission of kidnapping and sexual battery argues that the standard jury instruction on the outweighed two statutory mitigators and "heinous, atrocious, or cruel" (HAC) minor nonstatutory mitigation), cert. denied, aggravating circumstance is unconstitutionally No, 96-9391 (U,S, Oct. 6, 1997); Marshall v, vague. State, 604 So. 2d 799 (Fla. 1992) (affirming We recently reaffirmed the death sentence where four strong aggravators,

-17- including HAC, prior violent felony convictions, and murder during commission of burglary outweighed minor mitigation). CONCLU SlON In summary, we affirm Chandler's first- degree murder convictions and sentences of death. It is so ordered.

KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.

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

An Appeal from the Circuit Court in and for Pinellas County, Susan F. Schaeffer, Judge - Case No, CRC92-17438-CFANO-B

James Marion Moorman, Public Defender and Paul C. Helm, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida,

for Appellant

Robert A. Butterworth, Attorney General and Candance M. Sabella, Assistant Attorney General, Tampa, Florida,

for Appellee

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