Filing # 28623986 E-Filed 06/17/2015 05:06:21 PM

IN THE SUPREME COURT OF FLORIDA

QUENTIN MARCUS TRUEHILL,

Appellant,

STATE OF FLORIDA, Case No. SC14-1514

Appellee.

ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, IN AND FOR ST. JOHNS COUNTY, FLORIDA

ANSWER BRIEF OF APPELLEE

PAMELA JO BONDI ATTORNEY GENERAL

STACEY E. KIRCHER ASSISTANT ATTORNEY GENERAL Florida Bar No. 050218 Office of the Attorney General 444 Seabreeze Blvd., 5th Floor Daytona Beach, Florida 32118 [email protected] [email protected] RECEIVED, 06/17/201505:08:32 PM,Clerk,Supreme Court Telephone: (386)238-4990 Facsimile: (386)226-0457

COUNSEL FOR APPELLEE

TABLE OF CONTENTS

CONTENTS

TABLE OF CONTENTS ...... i

TABLE OF CITATIONS ...... iii

PRELIMINARY STATEMENT ...... 1

STATEMENT OF THE CASE ...... 1

STATEMENT OF THE FACTS ...... 2

SUMMARY OF ARGUMENT ...... 49

ARGUMENT ...... 50

POINT I THE TRIAL COURT PROPERLY GRANTED THE STATE’S PREMPTORY CHALLENGE AS TO JUROR BROOKS ...... 50

POINT II THE TRIAL COURT PROPERLY GRANTED THE STATE’S PEREMPTORY CHALLENGE AS TO JUROR DIXON ...... 61

POINT III THE INEXTRICABLY INTERTWINED EVIDENCE WAS PROPERLY ADMITTED ...... 65

POINT IV THE PROSECUTOR’S CLOSING ARGUMENT DID NOT CONSTITUTE FUNDAMENTAL ERROR ...... 75

POINT V THE TRIAL COURT MADE NO ERRORS DURING THE PENALTY PHASE, SO THERE IS NO ERROR TO AGGREGATE...... 84 i

POINT VI FLORIDA’S DEATH SENTENCING SCHEME IS CONSTITUTIONAL UNDER THE SIXTH AMENDMENT PURSUANT TO RING V. ARIZONA...... 88

POINT VII THE DEATH SENTENCE IS PROPORTIONATE WHEN COMPARED WITH SIMILAR CASES ...... 91

POINT VIII SUFFICIENCY OF THE EVIDENCE ...... 97

CONCLUSION ...... 99

CERTIFICATE OF SERVICE ...... 100

CERTIFICATE OF COMPLIANCE ...... 100

TABLE OF CITATIONS CASES Abdool v. State, 53 So. 3d 208 (Fla. 2010) ...... 89 Almeida v. State, 748 So. 2d 922 (Fla. 1999) ...... 96 Alonzo v. State, 46 So. 3d 1081 (Fla. 3rd DCA 2010) ...... 60 Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ...... 61 Anderson v. State, 841 So. 2d 390 (Fla. 2003) ...... 92 Ault v. State, 866 So. 2d 674 (Fla. 2003) ...... 65 Booker v. State, 773 So. 2d 1079 (Fla. 2000) ...... 63 Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002) ...... 89 Bowden v. State, 787 So. 2d 185 (Fla. 1st DCA 2001) ...... 60 Braddy v. State, 111 So. 3d 810 (Fla. 2012) ...... 86 Bradley v. State, 787 So. 2d 732 (Fla. 2001) ...... 71, 97 Bright v. State, 90 So. 3d 249 (Fla. 2012) ...... 75 Brooks v. State, 918 So. 2d 181 (Fla. 2005) ...... 85, 86

iii

Brown v. State, 18 So. 3d 1149 (Fla. Dist. Ct. App. 2009) ...... 82 Bryan v. State, 533 So. 2d 744 (Fla. 1988) ...... 71, 72 Bryant v. State, 386 So. 2d 237 (Fla. 1980) ...... 62 Bryant v. State, 901 So. 2d 810 (Fla. 2005) ...... 91 Busby v. State, 894 So. 2d 88 (Fla. 2004) ...... 59, 61 Buzia v. State, 926 So. 2d 1203 (Fla. 2006) ...... 95 Calhoun v. State, 138 So. 3d 350 (Fla. 2013) ...... 91, 92 Carr v. State, 156 So. 3d 1052 (Fla. 2015) ...... 89 Caruso v. State, 645 So. 2d 389 (Fla. 1994) ...... 69 Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ...... 74 Cobb v. State, 825 So. 2d 1080 (Fla. 4th DCA 2002) ...... 63 Cole v. State, 701 So. 2d 845 (Fla. 1997) ...... 77 Conde v. State, 860 So. 2d 930 (Fla. 2003) ...... 73 Coolen v. State, 696 So. 2d 738 (Fla. 1997) ...... 71 Curtis v. State, 685 So. 2d 1234 (Fla. 1996) ...... 56

Czubak v. State, 570 So. 2d 925 (Fla. 1990) ...... 74 Daniels v. State, 837 So. 2d 1008 (Fla. 3d DCA 2002) ...... 63 Davis v. State, 691 So. 2d 1180 (Fla. 3d DCA 1997) ...... 57, 60 Dennis v. State, 817 So. 2d 741 (Fla. 2002) ...... 92 Dessaure v. State, 891 So. 2d 455 (Fla. 2004) ...... 77 Dorsey v. State, 868 So. 2d 1192 (Fla. 2003) ...... 59 Douglas v. State, 878 So. 2d 1246 (Fla. 2004) ...... 93 England v. State, 940 So. 2d 389 (Fla. 2006) ...... 76, 77 Fennie v. State, 855 So. 2d 597 (Fla. 2003) ...... 84 Ferrell v. State, 686 So. 2d 1324 (Fla. 1996) ...... 71, 72 Files v. State, 613 So. 2d 1301 (Fla. 1992) ...... passim Fleming v. State, 825 So. 2d 1027 (Fla. 1st DCA 2002) ...... 60 Floyd v. State, 569 So. 2d 1225 (Fla. 1990) ...... 52 Floyd v. State, 850 So. 2d 383 (Fla. 2002) ...... 85 Floyd v. State, 913 So. 2d 564 (Fla. 2005) ...... 77, 92

Ford v. State, 802 So. 2d 1121 (Fla. 2001) ...... 77 Foster v. State, 369 So. 2d 928 (Fla. 1979) ...... 96 Foster v. State, 679 So. 2d 747 (Fla. 1996) ...... 69 Fotopoulos v. State, 608 So. 2d 784 (Fla. 1992) ...... 52 Franqui v. State, 699 So. 2d 1332 (Fla. 1997) ...... 53, 56 Gonzalez v. State, 136 So. 3d 1125 (Fla. 2014) ...... 85 Goodwin v. State, 751 So. 2d 537 (Fla. 1999) ...... 77 Green v. State, 190 So. 2d 42 (Fla. 2d DCA 1966) ...... 70 Gregory v. State, 118 So. 3d 770 (Fla. 2013) ...... 99 Griffin v. State, 639 So. 2d 966 (Fla. 1994) ...... 69, 72 Griffin v. State, 866 So. 2d 1 (Fla.2003) ...... 85 Grossman v. State, 525 So. 2d 833 (Fla. 1988) receded from ...... 96 Hall v. State, 87 So. 3d 667(Fla. 2012), ...... 91 Hamdeh v. State, 762 So. 2d 1030 (Fla. 3rd DCA 2000) ...... 57, 59 Hamilton v. State, 703 So. 2d 1038 (Fla. 1997) ...... 77

Hamilton v. State, 875 So. 2d 586 (Fla. 2004) ...... 91 Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) ...... 74 Hawk v. State, 718 So. 2d 159 (Fla. 1998) ...... 88 Hayes v. State, 94 So. 3d 452 (Fla. 2012) ...... 58, 59 Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991) ...... 61 Hoskins v. State, 965 So. 2d 1 (Fla. 2007) ...... 52, 58, 63 Huff v. State, 569 So. 2d 1247 (Fla. 1990) ...... 77 Hurst v. State, 147 So. 3d 435 (Fla. 2014) ...... 89 Jackson v. State, 127 So. 3d 447 (Fla. 2013) ...... 89 Jackson v. State, 575 So. 2d 181 (Fla. 1991) ...... 85, 86 Johnson v. State, 752 So. 2d 61 (Fla. 2d DCA 2000) ...... 57 Johnston v. State, 863 So. 2d 271 (Fla. 2003) ...... 91 Jones v. State, 963 So. 2d 180 (Fla. 2007) ...... 97 Jones v. State, 923 So. 2d 486 (Fla. 2006) ...... 53, 58 Kalisz v. State, 124 So. 3d 185 (Fla. 2013) ...... 93

vii

Kearse v. State, 770 So. 2d 1119 (Fla. 2000) ...... 94 King v. Moore, 831 So. 2d 143 (Fla. 2002) ...... 89 King v. State, 623 So. 2d 486 (Fla. 1993) ...... 88 Kopsho v. State, 84 So. 3d 204 (Fla. 2012) ...... 70, 71 LaMarca v. State, 785 So. 2d 1209 (Fla. 2001) ...... 71 Malloy v. State, 382 So. 2d 1190 (Fla. 1979) ...... 69 McKenzie v. State, 29 So. 3d 272 (Fla. 2010) ...... 94 McLean v. State, 934 So. 2d 1248 (Fla. 2006) ...... 71 Melbourne v. State, 679 So. 2d 759 (Fla. 1996) ...... passim Merck v. State, 975 So. 2d 1054 (Fla. 2007) ...... 75 Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174, 33 L. Ed. 2d 1 (1972) ...... 74 Moore v. Taylor Concrete & Supply Co., 553 So. 2d 787 (Fla. Dist. Ct. App. 1989) ...... 81 Murray v. State, 3 So. 3d 1108 (Fla. 2009) ...... 57 Nixon v. State, 572 So. 2d 1336 (Fla. 1990) ...... 75 Nowell v. State, 998 So. 2d 597 (Fla. 2008) ...... 57, 63, 64

viii

Offord v. State, 959 So. 2d 187 (Fla. 2007) ...... 92 Pacifico v. State, 642 So. 2d 1178 (Fla. 1st DCA 1994) ...... 78 Pagan v. State, 830 So. 2d 792 (Fla. 2002) ...... 84 Perez v. State, 919 So. 2d 347 (Fla. 2005) ...... 76 Peterson v. State, 2 So. 3d 146 (Fla. 2009) ...... 71 Poole v. State, 151 So. 3d 402(Fla. 2014) ...... 57, 58 Poole v. State, 997 So. 2d 382 (Fla. 2008) ...... 77 Porter v. State, 564 So. 2d 1060 (Fla. 1990) ...... 92 Power v. State, 605 So. 2d 856 (Fla. 1992) ...... 77 Reed v. State, 560 So. 2d 203 (Fla. 1990) ...... 54 Ricks v. Loyola, 822 So. 2d 502 (Fla. 2002) ...... 77 Rimmer v. State, 825 So. 2d 304 (Fla. 2002) ...... 52 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002) ...... 50, 88 Ritter v. Smith, 811 F.2d 1398 (11th Cir. 1987) ...... 89 Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 173 L. Ed. 2d 320 (2009) ...... 61, 65

Robertson v. State, 829 So. 2d 901 (Fla. 2002) ...... 74 Robinson v. State, 865 So. 2d 1259 (Fla. 2004) ...... 91 Rodgers v. State, 948 So. 2d 655 (Fla. 2006) ...... 92, 96 Ruiz v. State, 743 So. 2d 1 (Fla. 1999) ...... 82 Saffold v. State, 911 So. 2d 255 (Fla. 3rd DCA 2005) ...... 63 Salazar v. State, 991 So. 2d 364 (Fla. 2008) ...... passim Sexton v. State, 697 So. 2d 833 (Fla. 1997) ...... 68 Silvia v. State, 60 So. 3d 959 (Fla. 2011) ...... 93 Simmons v. State, 934 So. 2d 1100 (Fla. 2006) ...... 97, 99 Sims v. Brown, 574 So. 2d 131 (Fla. 1991) ...... 60, 87 Singleton v. State, 783 So.2d 970 (Fla. 2001) ...... 94 Sireci v. Moore, 825 So. 2d 882 (Fla. 2002) ...... 93 Snipes v. State, 733 So. 2d 1000 (Fla. 1999) ...... 77 Spencer v. State, 615 So. 2d 688 (Fla. 1993) ...... 1, 48 Spencer v. State, 645 So. 2d 377 (Fla. 1994) ...... 77, 80

State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) ...... 83 State v. Neil, 457 So. 2d 481 (Fla. 1984) ...... 51, 56 State v. Truehill, 38 So. 3d 1246 (La. App. 3rd Cir. 2010) ...... 29 Stokes v. Wet 'N Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA 1988) ...... 81 Straight v. State, 397 So. 2d 903 (Fla. 1981) ...... 70 Tanzi v. State, 964 So. 2d 106 (Fla. 2007) ...... 95 Taylor v. State, 855 So. 2d 1 (Fla. 2003) ...... 68 Tillman v. State, 591 So. 2d 167 (Fla. 1991) ...... 92 Trease v. State, 768 So. 2d 1050 (Fla. 2000) ...... 77 Trotter v. State, 576 So. 2d 691 (Fla. 1990) ...... 61, 65 Victorino v. State, 23 So. 3d 87 (Fla. 2009) ...... 68, 69, 85 Washington v. State, 766 So. 2d 325 (Fla. 4th DCA 2000) ...... 59 Williams v. State, 110 So. 2d 654 (Fla. 1959) ...... 70 Wright v. State, 19 So. 3d 277 (Fla. 2009) ...... 93 Yacob v. State, 136 So. 3d 539 (Fla. 2014) ...... 91

Young v. State, 744 So. 2d 1077 (Fla. 4th DCA 1999) ...... 57 Zack v. State, 753 So. 2d 9 (Fla. 2000) ...... 71 STATUTES Florida State Stat. §90.404(2) (2009) ...... 70 Florida State Stat. §787.01 ...... 54 Florida State Stat. §921.141 ...... 88 RULES Fla. R.App. P. 9.142(a)(5) ...... 97

xii

PRELIMINARY STATEMENT

This brief will refer to Appellant as such, Defendant, or by proper name, e.g.,

"Truehill." Appellee, the State of Florida, was the prosecution below; the brief will refer to Appellee as such, the prosecution, or the State. Unless the contrary is indicated, bold- typeface emphasis is supplied; cases cited in the text of this brief and not within quotations are italicized; other emphases are contained within the original quotations.

STATEMENT OF THE CASE

On May 10, 2010, Quentin Marcus Truehill was indicted by the grand jury of St.

Johns County, Florida, for the April 2010 murder of Vincent Binder. (V1, R5).1

Following various pre-trial proceedings, Truehill's trial began on February 3, 2014. On

February 18, 2014, the jury found Truehill guilty of the following: Count One – First

Degree Premeditated and Felony Murder; and Count Two – Kidnapping, as charged in the indictment. (V43, R1419). The case proceeded to the penalty phase with respect to the capital conviction. (Vols. 46-53, R1-1029). On March 7, 2014, the jury returned an advisory sentence of death by a unanimous vote of twelve to zero (12-0) for the murder of Vincent Binder. (V53, R1023). A Spencer2 hearing was held on March 27, 2014.

(V54, R1-72). The trial court imposed a sentence of death on May 16, 2014. (V55, R1-

1 Cites to the record are “V” for volume number followed by “R” for page number; cites to the supplemental record are “SR” followed by V” for volume number followed by “R” for page number. 2 Spencer v. State, 615 So. 2d 688 (Fla. 1993).

9). Truehill’s motion for a new trial was denied on June 25, 2014. (V19, R3339-51; V20,

R3477). A timely notice of appeal was filed on July 17, 2014. (V20, R3478). Truehill filed his Initial Brief on or about April 8, 2015. This Answer follows.

STATEMENT OF THE FACTS

The State relies on the following facts from the evidence and testimony presented at trial. The Guilt Phase Escape from Louisiana Jail Jarod Smith

Jarod Smith was a booking officer at the Avoyelles Parrish Sheriff’s Office in

Mansura, Louisiana, in March 2010. (V33, R67-8). Smith was working the evening shift from 5:30 p.m. to 5:30 a.m. on March 29-30. Truehill, Kentrell Johnson, and Peter

Hughes were in holding cell one during the night.3 (V33, R71). At approximately 1:36 a.m., Smith was in the booking office while Augustine was giving water to Truehill,

Johnson and Hughes. Smith noticed that a trustee/inmate cleaning nearby “had a weird look on his face ... turned around ... and walked away.” (V33, R78-9). Smith went down the stairs to the holding cell area and found Augustine pinned up against the wall by two inmates with a third standing nearby. (V33, R79-80, 81). Truehill jumped at Smith and attacked him with a shank. (V33, R80, 82, 83). Truehill pushed Smith back toward the

3 At the time of the escape, Truehill was 22-years-old, 5’9”, 140 pounds; Hughes was 22 years-old, 6’2”, 152 pounds; and Johnson was 38-years-old, 6’3”, 230 pounds. (V33, R115-16, 117-18).

stairs and up toward the booking office. One of the three inmates grabbed Augustine’s radio and keys, Truehill, Johnson, and Hughes escaped through a door near the cells.

(V33, R80, 84). The lobby doors were unlocked; there was no security personnel posted.

(V33, R86). Smith sustained a laceration to his finger and scratch on his arm. (V33, R83,

98). He initiated a radio call that inmates had escaped which was followed by an APB.

(V33, R87-8).

Events in Louisiana After the Escape

James Mose

James Mose was renovating a house in Mansura, Louisiana, in March 2010, and drove his brother’s 2006 black Chevy truck.4 (V33, R123-24, 125-26). On the morning of March 30, Mose arrived at the house and discovered someone had had entered the home through a window and had built a small campfire. (V33, R127, 132; V34, R155).

Later that day, Mose parked the Chevy truck and a trailer in the backyard area. After running errands in his own truck and returning to the home, he discovered the Chevy truck was missing but the trailer was still there. (V33, R134, 140-41, 142; V34, R160).

The truck contained many different tools including a flush-cut saw. He reported the stolen truck to police. (V33, R142, 146; V34, R162, 164).

Lieutenant Roland Patterson

Lieutenant Roland Patterson, Avoyelles Sheriff’s Office, interviewed on-duty officers and other inmates that were housed with the escapees. (V33, R103, 104). He

4 Mose’s brother Stephen Mose owned the truck and lived in Georgia. (V33, R124).

obtained the VIN and license plate number of a black Chevy pickup stolen from a home in close proximity to the jail. (V33, R108, 110-11).

Randall Martin

Randall Martin lived in Broussard, Louisiana, in March 2010. (V34, R169-70). In the evening of March 30, Truehill approached his apartment through the back gate and said he was looking for his brother-in-law who used to live there. (V34, R170-71, 175,

178, 186). Truehill had dreadlocks, a tattoo between the eyes, and a circular scar on the right side of his face in the mouth area. (V24, R176, 178).

Martin recognized the brother-in-law’s name because he had received mail belonging to him. He told Truehill his brother-in-law had moved. (V34, R175). A second tall, Black male walked up to the gate and stood with Truehill. Martin could not identify this man.5 (V34, R177-78). A short time later, Martin saw a news bulletin containing the three escapees’ photos. He called law enforcement after recognizing two of the photos as the men who had come to his home. He later identified two of the men from a photo lineup. (V34, R180-81, 183-84).

Robert Minyard

Robert Minyard owned the Broussard Commons Shopping Center in Lafayette,

Louisiana, in March 2010. Video surveillance of the area from March 30 contained images of the stolen Chevy black truck backing into a parking spot near the La Hacienda restaurant. (V34, R196, 205-06).

5 Martin could only identify Truehill at trial. (V34, R177-78).

Leann Williams

Leann Williams was meeting friends at the Broussard Commons Shopping Center at 9:30 p.m., on March 30, 2010. (V34, R213-14, 224). She parked in front of the La

Hacienda restaurant. (V34, R216). As she gather her things and opened her car door, someone pulled on the door from the outside. She attempted to close it but the door was pulled open and she fell into the door frame area. (V34, R217, 225). She struggled as her purse was pulled from her shoulder. (V34, R217, 225, 227). Williams is 5’10” but the man she struggled with was bigger and heavier than her. (V34, R226). She saw two men but could not identify them. One of the men told the one she was struggling with to

“Hurry up. Let’s go.” Her purse contained a debit/credit card, driver’s license, and 200 dollars in cash. The men ran off with her purse. (V34, R218-19, 220, 227). After the robbery, Williams’ credit card was used three times in three different cities in

Louisiana—Patterson, Boutte, and New Orleans. (V34, R222-23). Video surveillance footage from three stores in those three cities was obtained and submitted to law enforcement. (V34, R233-34, 263-64, 269-70, 271).

Events in Florida after the Escape

Brenda Brown

Brenda Brown was a housekeeper at Stoddard Place Apartments in Pensacola,

Florida, in April 2010. (V35, R295). In the afternoon of April 1, she was cleaning an apartment on the second floor of one of the buildings and was retrieving cleaning

supplies from a cart on the ground floor. A black male, whom she identified as Johnson,6 approached her from the parking lot area where she also noticed a parked, black truck.

(V35, R296-97, 298-99, 321-22). When Johnson asked Brown for a bottle of water, she told him she would bring him some water in a blue, plastic cup that he provided to her.

However, Johnson followed her to the second floor apartment she was cleaning, along with another black male, whom she identified as Truehill. (V35, R299-300, 301, 305,

316). When she gave Truehill some water in the same blue cup, she noticed a third black male, whom Brown identified as Hughes,7 standing on the landing against the wall.

(V35, R306-07, 322). While Johnson walked around the apartment, Brown asked

Hughes if he wanted some water. At that point she noticed Truehill had a knife in his waistband. (V35, R307).

Truehill came toward her, knife in hand, and demanded her money. (V35, R308).

The knife was about 10 to 12 inches long, bent to a point with jagged edges—“the kind you use for ... filleting fish or hunting.” (V35, R308). Brown gave Truehill money from her wallet and gave Johnson her cell phones. (V35, R309). Hughes wrapped black, electrical tape over her mouth, head, and her hands, which were then tied behind her back. (V35, R309). Hughes also had a knife—about 12 inches long with a brown handle.

(V35, R311, 321, State Exh. 11). Truehill and Hughes forced Brown toward the back bedroom. She was hit on the head as she got down on her knees. (V35, R310, 311). She

6 State Exh. 5.

7 State Exh. 6.

broke the tape off her hands, covered her head, and was struck several more times. (V35,

R311, 312). She was kicked in the shoulder as she pretended to be unconscious. (V35,

R312-13). After the men left, she crawled to the stairs and yelled for help. (V35, R313-

14). As a result of the attack, three of Brown’s fingers on her right hand were amputated; two on her left hand; she sustained a skull fracture; and had additional lacerations to her hands and her head. (V35, R315).

James Sims

James Sims works in assess protection at a Tallahassee WalMart Store. (V36,

R474). He obtained the store’s video surveillance footage for April 1, 2010, for the time frame of 7:30 to 8:30 p.m. (V36, R478, 479). The footage shows Truehill, Johnson, and

Hughes in the store. (V12, R2227-28, State Exhs. 33, 34, 35A, 35B).

Mario Rios

Mario Rios was a student at Florida State University in April 2010. (V35, R328,

329). At about 10:30 p.m. on April 1, Rios was walking from his car toward his friend’s apartment when he was approached by Johnson. (V35, R329-30, 332-33, 337-38).

Johnson initially made small talk but Rios was suspicious. Truehill grabbed Rios’ shirt8 from behind as Rios backed up toward his car. (V35, R337-38, 341-42, 343). Truehill had a “silver ... shiny” knife and demanded Rios’ money. (V35, R343). Rios saw Hughes standing in the parking lot. Rios screamed for help but Hughes appeared to be a

“lookout.” (V35, R344, 345). Rios was able to push Truehill off him and run to his

8 Rios gave the shirt to police. (V35, R352, State Exh. 25).

friend’s apartment where police were called. (V35, R346-47, 348).

Cris Pavlish

Cris Pavlish and her friend “Jerry” were walking to Walgreens in Tallahassee between 10:00 p.m. and 11:00 p.m., on April 1, 2010. A newer model black truck drove up next to them, stopped, and blocked them from moving forward. (V35, R357-58, 361-

62, 363). Johnson got out of the front seat passenger side and asked for directions. (V35,

R362, 372). Truehill got out of the backseat driver’s side. Pavlish gave them a map she kept in her purse. (V35, R364, 365, 367). As Pavlish was looking through her purse,

Truehill “turned around quickly and swung a huge knife” and said “give me the purse.”

(V35, R367). The knife was “really long - - a long, flat, thin blade with a - - gold band across it and a wooden handle.” Truehill grabbed Pavlish’s purse,9 grabbed her arm, and attempted to shove her in the truck’s backseat. (V35, R368, 376). Jerry was surrounded by Hughes and Johnson. Pavlish ran toward a hotel when Truehill crouched on the ground to look through her purse. (V35, R369, 372, 376-77). Jerry arrived soon after and police were called. (V35, R370).

Victim Reported Missing

Beth Frady and Rebecca Edwards

Beth Frady, her husband David, and Rebecca Edwards were roommates and graduate students at Florida State University in April 2010. (V35, R382-83; V36, 419).

9 The purse contained Pavlish’s cell phone, driver’s license, birth certificate, social security card, high school graduation information, and credit cards. (V35, R372-73).

Binder,10 also a graduate student and debate coach, was Frady’s best friend—“the big brother to me.” (V35, R382-83, 384). Frady and Binder either saw or talked to each other every day. (V36, R403). Binder did not have a car and walked everywhere most of the time. He lived about a mile from the Fradys/Edwards and frequently walked home from their house. (V36, R405-06, 408, 425). On Friday, April 1, 2010, the Fradys,

Edwards, and Binder met for dinner, went to a bar, and eventually ended up at the

Fradys’ home. (V36, R409, 421-24). Beth went to bed at about 11:30 p.m. and did not see what time Binder left. (V36, R411, 416). Edwards and Binder worked on a school paper until midnight. (V36, R424). Although Edwards offered to drive Binder home, it was a night nice and Binder wanted to walk. He left around midnight. (V36, R425, 433).

Beth Frady texted Binder numerous times the next day but he never responded.

(V36, R412-13). Edwards also called and emailed him but got no response. (V36, R427).

The Fradys stopped by Binder’s home on Sunday, April 3, but he did not answer the door. Beth Frady reported Binder missing on April 8. (V36, R415).

Investigation Leading to Apprehension and Arrest

Sergeant Ann-Marie Johnson

Sergeant Ann-Marie Johnson, Tallahassee Police Department, investigated

Binder’s disappearance. (V36, R434-35). After a welfare check was conducted at

Binder’s residence,11 police obtained his bank account information. Records were

10 Binder was 29-years-old at the time of his death. (V47, R147). 11 Shannon Gerry, forensic specialist, assisted in processing Binder’s apartment and collected Binder’s toothbrushes. (V36, R483-84).

consistent with Binder’s activities with the Fradys and Edwards on April 1. (V36, R437,

439). However, shortly after midnight into April 2, Binder’s debit/credit card was used for two transactions that occurred at 12:15 a.m., and 12:21 a.m., respectively, at the

Halftime Keg store in Tallahassee. (V36, R440). Surveillance footage was obtained from the store.12 (V36, R459-60; V37, R535-38). Additional transactions with the card occurred in Madison County—an hour from Tallahassee; Jacksonville—two hours from

Tallahassee;13 Fort Pierce; Daytona Beach; Opa Locka; and Miami. (V36, R440-41,

466). Due to suspicious activity, Binder’s debit card was blocked on April 4. A physical attempt to withdraw $1300.00 was made at a Wachovia Bank branch on April 6 in the

Opa Locka/Miami area. (V36, R441). The license tag number from the vehicle was obtained when the withdrawal was attempted at bank drive-through lane. The car was a red, Ford Sport Trac with a female driver and two Black male passengers. The female driver gave the bank teller Binder’s license, his Wachovia Bank card, and a withdrawal slip. (V36, R442).

On April 9, Sgt. Johnson and Investigator Greg Wilder went to the Miami area and met with Agents Peter Chong and John Vecchio from the Florida Department of

12 Store Manager Sean Callahan provided the video footage to police. (V36, R468- 69). 13 Store clerk Donald Bolding worked the graveyard shift at the Gate Gas station in Jacksonville in April 2010. He gave FDLE Agent Lawrence Perez video surveillance footage from April 2. Bolding also identified Johnson in a photo lineup as a customer he helped on April 2, 2010, when Johnson asked him for directions to I-95. (V37, R544-48, 551; V37, R554-56, 557-58).

Law Enforcement “FDLE.” (V36, R443). The registered owner of the red Ford Sport

Trac was Shirley Marcus who lived in the Miami area. (V36, R444). On April 10,

Johnson, Wilder, and Vecchio went to Marcus’ home, with the sole purpose of gaining information into Binder’s disappearance. (V36, R445). Sgt. Johnson saw Truehill and

Hughes sitting in Marcus’ Sport Trac. Johnson was lying on a bench in front of the house. (V36, R446, 448, 453). Truehill, who was sitting in the driver’s seat, had a “cross tattoo” on his forehead. (V36, R448). Marcus came out of the home and identified herself to the agents. (V36, R446). Truehill, Hughes, and Johnson all gave false names.

(V36, R447-48, 449).

Sgt. Johnson obtained a search warrant for Marcus’ vehicle. (V36, R449-50). Sgt.

Johnson contacted Miami Beach Police Detective Juan Sampedro, who was part of a task force that works with the U.S. Marshall’s Service in locating fugitives. (V36, R451,

452). Sgt. Johnson viewed the Marshall Service’s website and was able to identify the three men at Marcus’ home as Truehill, Johnson, and Hughes. (V36, R452-53). The three escapees were apprehended and arrested on April 12. (V36, R453). Sgt. Johnson obtained a search warrant and collected buccal swabs from Truehill, Johnson and

Hughes. (V36, R454).

Events Before Apprehension and Arrest

Shirley Marcus

Shirley Marcus met Truehill, Johnson, and Hughes in April 2010 when the three men and her friend Tony picked her up near her grandfather’s home in Miami. (V38,

R645-46, 651-52). The men were in a big, four-door, black truck. All of the windows

were intact. (V38, R647-48). Marcus, another female-“Nicole,” and the four men went to a hotel to party but when they ran out of alcohol, Marcus left with Truehill and Hughes to buy more. “They had money.” (V37, R652-53, 680). After spending the night at the hotel, Marcus, Truehill, Johnson, and Hughes got into the black truck, went to Burger

King, and then to Haulover Beach. (V38, R655, 656-57). By this time, Marcus was having a relationship with all three men. (V38, R676). When they left the beach, one of the men said he had lost the keys to the truck. (V38, R657). Marcus told them if she could get a ride to her grandfather’s house, they could ride in her truck—a red, Ford

Sport Trac. (V38, R657-58, 676). Marcus and Johnson got a plan together, picked up her truck, and got Truehill and Hughes at Haulover Beach. (V38, R661-62, 676). When

Truehill and Hughes got in her vehicle, they had a black bag with them along with her tennis shoes that she had left in the locked, black truck. (V38, R662-63).

Marcus and the three men went to her house where her son also lived. By this time, the men had run out of money. (V38, R663-64). Marcus eventually drove Truehill and “Nicole” to a nearby WalMart where Nicole got money for them. (V38, R680).

Truehill initially said he could call someone (he had a phone) wire money to him but they went to a bank instead. (V38, R665).

Marcus drove Truehill, Johnson, and Hughes to a local Wachovia bank. Truehill had a bank card and a driver’s license. (V38, R665-66, 667). Marcus drove through the drive-through lane and submitted a withdrawal slip for $1300.00, the bank card, and the driver’s license that Truehill provided to her. (V38, R666, 667). However, the teller took too long. Johnson, who was sitting in the front passenger seat, told Marcus to drive

away. Truehill and Hughes sat in the backseat. (V38, R668-69, 681). Before they left, a bank security guard appeared to write down the car’s tag number. (V38, R668).

Marcus and the three men returned to her house. A male and female detective showed up a few days later. Truehill and Hughes were sitting in her car while Johnson was inside her house. (V38, R669-70). By this time, Marcus and Johnson had started having an exclusive relationship. (V38, R677). Marcus gave detectives her name but did not know whether or not the three men gave true information. (V38, R670-71).

Marcus realized something was wrong when police showed up following the bank incident. The men appeared to be “shaky.” (V38, R671, 672). A dispute arose between the three men because Marcus had chosen to have an exclusive relationship with

Johnson.14 (V38, R677). There were also times Marcus noticed that Johnson told

Truehill and Hughes what to do. (V38, R682). Johnson stayed at her house but Truehill and Hughes left. (V38, R672-73, 677-78). The men used clothing she had laying around her house. (V38, R673). Marcus never saw a knife in the mens’ possession but she saw a knife “cover.” (V38, R673-74). Shortly after the detectives’ visit, Marcus and Truehill were in her truck on their way to a hotel when they were both arrested. (V38, R674-75).

Denise Perez

Denise Perez worked at Wachovia Bank in Miami in April 2010. (V37, R611). On

April 6, Perez was working the teller drive-through lanes when she saw a red SUV pull in and submit a transaction. (V37, R612-13). The transaction canister contained a

14 Marcus considered Johnson to be the “leader of the group.” (V38, R679).

withdrawal ticket for $1300.00 from Vincent Binder’s account, a debit card, and a driver’s license belonging to a White male. (V37, R613, 615, 618). The SUV’s driver was a Black female. Perez also saw two Black male passengers. The passenger sitting behind the driver had dreadlocks. (V37, R613, 614). Perez was suspicious so she called her fraud unit. (V37, R614). The banks’ security guard obtained the car’s tag number.

(V37, R615, 618). The occupants complained Perez was taking too long and left when the security guard appeared behind them. (V37, R615). A video surveillance camera captured images of the SUV. (V37, R619-20).

Peters Milien

Peters Milien, Public Service Aide with the Miami-Dade Police Department, was patrolling Haulover Beach in Miami on April 7, 2010, when he saw a black truck parking in the lot. (V37, R589, 590, 592). Milien had seen the truck a few days earlier during the weekend and noticed that the left rear window appeared shattered. He assumed the truck belonged to someone who was at the park. When he saw it a second time, however, he noticed the license tag was missing. (V37, R593). Milien learned the truck had been stolen from Louisiana when he ran the VIN through dispatch. (V37,

R594, 597, 602).

Milien followed procedure and training and donned gloves to search the vehicle before it was towed. (V37, R597-98, 602-03). Although the window was shattered, the door was unlocked. (V37, R597). When he looked for the registration and anything that looked “suspicious,” he found a bloody knife underneath the front passenger seat. (V37,

R598-99, 607). He packaged the knife as evidence, notified his supervisor, and called the

tow company. (V37, R599, 600).

Detective Juan Sampedro

Detective Juan Sampedro, Miami Beach Police, works on a task force with the

U.S. Marshall’s Service. He assisted with locating Truehill, Johnson, and Hughes. (V36,

R490-91).

Mose’s stolen Chevy black truck was located in a Miami tow yard and searched.

Several items of evidence were collected including a Burger King receipt, ATM receipts, a map, Leann Williams’ Louisiana ID card, Stephen Mose’s Georgia Insurance card, and

Cris Pavlish’s documents. (V36, R494, 496, 498, 503, 510). Burger King surveillance video footage dated April 4, 2010, was obtained from the Burger King15 associated with the receipt found in the truck. Footage showed Mose’s Black truck going through the drive-thru. (V36, R515; V37, R632). Sampedro contacted Tallahassee police regarding

Pavlish’s ID because he thought she might be a missing person. (V36, R516). After he provided credit card information from one of the receipts found in the truck, Sampedro was informed Tallahassee detectives were in Miami on the Binder case. (V36, R519-20).

Several agencies worked together to find the escapees and possibly find Binder. (V36,

R521, 522-23).

Agent Peter Chong-Yen

Agent Peter Chong-Yen, FDLE, assisted with the Binder investigation. (V38,

15 Juan Cruz, franchisee of the North Miami Burger King provided the video surveillance footage to police. (V37, R623-25).

R694-95). He ran the tag number of the red Sport Trac after the incident at the bank and determined it belonged to Shirley Marcus. He then obtained her address. (V38, R696,

697, 700).

Chong-Yen met with Sgt. Johnson and Investigator Wilder on April 10, 2010. He tracked locations of where Binder’s bank card had been used and contacted several individuals to obtain video surveillance footage from those locations. (V38, R697-98,

699). He assisted Sgt. Johnson in obtaining a search warrant for Marcus’ car and requested surveillance for Marcus’ house. (V38, R699). Marcus, Truehill, and Hughes were arrested at a Budget Inn motel16 on April 12, 2010. Johnson was arrested a block away from the motel a short time later. (V38, R700-01, 712).

Several bags were found in the motel room where the Defendants were staying. A black, heavy-duty plastic garbage bag containing clothing, a metal handsaw, a machete, and a pair of black Levi jeans (size 38/32) was seized as well as a black bandana/handkerchief17 found in front of the dresser. (V38, R702, 704, 711, 713). A black Utilitech bag contained a brown, leather men’s wallet18 with the FSU logo on it.

(V38, R709-10; State Exh. 65). A second garbage bag contained a tax receipt in Steven

Mose’s name. (V38, R712).

16 Quisheena “Nicole” Grant had rented the room. (V38, R701). 17 Handsaw-State Exh. 11 (V33, R145); machete-State Exh. 63 (V38, R705); black Levi jeans-State Exh. 64 (V38, R707-08); and bandana/handkerchief (V38, R711-12, State Exh. 66). 18 Beth Frady identified the wallet as Binder’s. (V36, R428).

Events Subsequent to Arrest

Agent José Valera

Agent José Valera, FDLE, searched Marcus’ home. (V38, R717-18). Evidence seized included a South Carolina license plate found in the trash in the front yard; a black sheath for a knife found in the living room/dining room area; a pair of Giovanni blue jeans found on Marcus’ bed; paperwork found in the jeans; a Wachovia card with an account number written on it, found in the jeans; and a wallet found in the jeans.19

(V38, R718, 722). The paperwork included a Dolfin Food Mart receipt which indicated a withdrawal was attempted but denied due to the daily limit. The bank card was a

Wachovia bank card. (V38, R724). A black shirt found inside the home was also seized.

(V38, R729-30, State Exh. 73).

Philip Balunan

Philip Balunan, FDLE, processed the Chevy Black Silverado truck and the red

Ford Explorer/Sport Trac on two occasions—April 14, 2010, and June 15, 2010. The driver’s side window was shattered. There did not initially appear to be any indications of blood inside the Chevy truck or the bed of the truck. (V38, R732, 735-36, 737, 740-

41, 759). A stain on the driver’s side rear door was tested for blood but did not yield a positive result. During the second processing, the stain was swabbed along with other stains that were located but none yielded the presence of blood. (V38, R740, 772).

19 South Carolina license plate (State Exh. 67); black sheath (State Exh. 68); Giovanni blue jeans (State Exh. 69); paperwork from jeans (State Exh. 70); and wallet (State Exh. 71). (V38, R718-27).

A green washcloth found underneath the back bench seat indicated a positive reaction for blood. (V38, R741, 743-44, 746, State Exh. 75). A sketch was drawn to show where thirty (30) latent fingerprints lifts were developed and lifted from several areas of the truck. (V38, R747-78, 749, State Exhs. 76A, 76B). A blue, plastic cup20 was collected from the red Ford Explorer/Sport Trac. (V38, R753—54, State Exh. 79).

Agent Lawrence Perez

Agent Lawrence Perez, FDLE, assisted with the Binder investigation. (V37,

R554-55). On April 13, he obtained a copy of a receipt that showed Binder’s credit card had been used at the Jacksonville Gates gas station on April 2. (V37, R556). After reviewing video surveillance footage from the station, he showed store clerk Donald

Bolding a photo lineup at which time Bolding picked Johnson as the person he had seen at the gas station on April 2. (V37, R557-59).

On April 28, 2010, after Perez was directed to look for Binder’s body in the vicinity of I-95 and State Road 16 in St. Augustine, he found Binder’s body in a commercial open field. (V37, R559).

John Holmquist

John Holmquist, crime lab analyst, FDLE, photographed and processed the area where Binder’s body was found. Binder was “very decomposed.” (V37, R566-67, 569,

571, 573). His body was about 455 feet from the nearest roadway. A hat was located

20 Brenda Brown identified this cup as the one she used to give the Defendants drinks of water. (V35, R322).

about 25 feet from Binder’s body. The hat had a “straight line cut” on the bill going back toward the hat. (V37, R579). Holmquist attended Binder’s autopsy and collected his clothing. He also obtained a body tissue sample. (V37, R582, 584).

Christine Keegan

Christine Keegan, evidence specialist, St. Johns County Sheriff’s Office, obtained the fingerprints of Truehill, Johnson, and Hughes subsequent to their arrest. (V38, R686,

688-89).

Marvin Stephens

Marvin Stephens, senior crime lab analyst-latent print section, FDLE, compared the fingerprint standards of Truehill, Johnson, and Hughes to several pieces of evidence as well as the latent fingerprint lifts from the Chevy truck. (V39, R795, 797, 815, 817).

Johnson’s left ring finger was identified on the Dolfin Food Mart receipt. (V39, R817,

821). Three (3) fingerprints on the Chevy truck were identified as Johnson’s, and nine

(9) fingerprints were identified as Hughes’s. (V39, R822-24). Hughes’s prints were also identified on Pavlish’s high school document. (V39, R825-26).

Suzanne Livingston

Susanne Livingston, senior crime lab analyst, FDLE, examined several items of evidence for the presence of biological material/DNA. (V39, R856-57).

DNA standards were received from Truehill, Johnson, and Hughes. (V40, R896,

899). She also received DNA standards from Brenda Brown and Mario Rios, as well as

Binder’s two toothbrushes and Binder’s tissue sample obtained by Holmquist. (V40,

R899, 901, 902).

DNA testing conducted on Rios’ shirt (State Exh. 25) revealed Rios and Truehill were possible contributors to the mixed DNA profile found in the swabbing taken from the puckered area of the shirt. Johnson and Hughes were excluded as possible contributors. (V40, R904, 909-10). DNA testing conducted on the baseball hat found near Binder’s body resulted in a complete DNA profile that matched Binder. (V40,

R910, 911). A swabbing from the interior part of the FSU wallet (State Exh. 65) found in a bag from the Budget motel room contained a mixed DNA profile of three individuals—Binder was the major contributor. Truehill, Shirley Marcus, and Johnson were all included as possible minor contributors. Hughes was eliminated as a possible contributor. (V40, R912, 913-14, 915). DNA testing conducted on the machete (State

Exh. 63) resulted in a partial DNA profile that matched Truehill. Marcus, Brown,

Binder, Hughes, and Johnson were all excluded as contributors. (V40, R914-15).

Eight areas of the green washcloth (State Exh. 75) found underneath the truck’s back seat tested positive for blood. Livingston was able to obtain a DNA profile on six of the eight21 blood stain areas. (V40, R915-16, 919). The first blood stain area tested contained a partial DNA profile that matched Johnson. The second blood stain area contained a limited DNA mixture so Livingston was unable to make any conclusions.

The third blood stain area contained a mixed DNA profile of three individuals. Truehill,

Binder, and Johnson were possible donors to that mixed profile. (V40, R917-18). The

21 Livingston was unable to obtain DNA profiles from the second and seventh blood stain areas. (V40, R917, 919).

fourth blood stain area contained a partial DNA profile that matched Johnson. The fifth blood stain area contained a complete DNA profile that matched Binder. The sixth blood stain area contained a mixed DNA profile of two individuals—Binder was the major contributor and Johnson was a possible minor contributor. The eighth blood stain area contained a mixed DNA profile of two individuals—Binder was the major contributor and Johnson was the minor contributor. (V40, R917-19).

Five blood stains were found on the black/gray, Levi jeans (State Exh. 64) found in the garbage bag in the Budget motel room. (V40, R919, 920). Mixed DNA profiles were found on all the stains with Binder as the major contributor. (V40, R921). A swab of the inside waistband revealed a mixed DNA profile match to Truehill, Johnson,

Hughes, and Marcus as possible donors. (V40, R921-22, 938. 946-47). The Giovanni blue jeans (State Exh. 69) found on Marcus’s bed contained five blood stains. (V40,

R922-23). The blood stain on the right leg contained a complete DNA profile that matched Binder. (V40, R923). A second blood stain below the left knee area contained the DNA profile of Brenda Brown. (V40, R924). A third blood stain on the left knee area contained a mixed DNA profile with Brown as the major contributor and Johnson as a possible minor contributor. The fourth blood stain area on the left leg crotch area contained a mixed DNA profile that matched Binder as the major contributor and

Johnson as a possible minor contributor. (V40, R925). The fifth blood stain located at the bottom of the left leg contained a mixed DNA profile with a partial profile for Brown as the major contributor. A minor contributor was not identifiable. (V40 R925-26). A swab of the waistband area yielded a DNA mixture of at least three individuals with

Johnson as the major donor. (V40, R926).

Several areas of the knife (State Exh. 54) found underneath the front seat of the truck contained red/brown stains in several areas. 14 swabbings were taken from the knife—one was from the cutting edge of the blade and the remainder were from the handle. (V40, R928). The blood stains were predominately on the handle with a little bit on the blade and the hilt. (V40, R929). Eight of the bloodstains contained a complete

DNA profile that matched Binder. (V40, R929-30, 950). The cutting edge of the blade contained a mixed DNA profile that matched Binder, Brown, Truehill, Hughes, and

Johnson as possible contributors to the mixture. (V40, R930, 951). A partial profile for the major contributor to the mixture matched Binder. (V40, R930). A stain at the blade end closest to hilt contained a mixed DNA profile—Binder was the major contributor and Johnson as the minor contributor. (V40 R930-31). The remaining stains on the handle all matched Binder’s DNA profile as the major contributor. A determination could not be made for the minor contributors to those stains. (V40, R931).

The Autopsy

Dr. Frederick Hobin

Dr. Frederick Hobin, medical examiner, performed the autopsy on Binder. (V40,

R957, 961).

Binder was found laying face-up in an open, unshaded field with his arms and legs splayed out. He was fully clothed and had no personal items on him.22 (V40, R965,

22 Hobin said there is no medical science to determine the exact time and date of

967, 970). His body was in an advanced postmortem decomposition condition. (V40,

R967). All of Binder’s internal organs—“heart, lungs, liver, kidneys, intestines” had completely “decomposed ... disappeared.” (V40, R988). The part of his body that was covered with clothing had undergone a leathery transformation. (V40, R967). Binder’s black and white size 13 sneakers appeared to be brand new—“the soles of those shoes - - had a white color and they were absolutely clean.” (V40, R965; V41, R1020).

Most of the external tissue from the parts of Binder’s body that had been unprotected from the sun—his arms, head, and neck area “had entirely disappeared” and was “pretty nearly completely skeletonized.” His neck was a complete skeleton. The ligaments and all the soft tissues of the neck had disappeared as a result of putrefaction.

(V40, R968). Due to Binder’s contact with the ground during the petrefactive process, the soil and his body fats had merged together and formed a soapy substance. Therefore his clothing and posterior area were fused with that substance. (V40, R968).

There were two holes in the back of Binder’s shirt that did not have corresponding wounds to his body underneath. The shirt was covered with an adherent residue. After the residue was removed, Hobin observed additional defects in the back of the shirt that had corresponding injuries to his back. (V40, R966-67, 971, 973). There were four stab wounds about an inch in length to Binder’s back. (V40, R993-94). The stab wounds had

“an extremely characteristic outline.” The weapon had a sharp side and a blunt side “like

death. Hobin was “extremely confident” that the evidence showed Binder died in that field on April 2, 2010. (V41, R1008, 1022, 1026-27).

a kitchen knife.” (V40, R993; V41, R1011, 1020, 1028-29).

There were sharp and blunt force injuries to Binder’s left head area that penetrated through all the skin and into the cranium. (V40, R971, 979; V41, R1014). One of these injuries was four inches long. (V40, R979). Some of the bones on the left side of his skull were pushed inward from force that was inflicted from the outside—“And this isn’t

- - just something that happened like in the postmortem period as a result of some of problem.” (V40, R980). There were several forceful “chopping type injuries” to the back of Binder’s head which caused fractures extending outward. (V40, R982, 983; V41,

R1018). As a result of these injuries, there was a hole four inches in diameter to the back of Binder’s head. (V40, R983). There were at least five to ten chopping injuries to

Binder’s head. (V40, R984).

There were rib fractures in his right lower chest. (V40, R971, 988). His ulna bone in his left forearm was fractured and the radius was dislocated. “A classic defensive injury.” (V40, R971, 989, 991). There were “chopping” injuries on his hands that penetrated through the bones and caused fractures. (V40, R971, 985). Hobin opined that these were also defensive injuries. (V40, R994-95). Binder’s right index finger was badly dislocated “pointing upward.” His right middle finger was amputated. (V40,

R986). The two to four chopping-like injuries were consistent with a large “Rambo- style” knife. (V40, R981, 987). Hobin opined that Binder could have had his hands over his head in an attempt to protect himself from knife blows. (V40, R986). In Hobin’s opinion, Binder was conscious and trying to protect himself during the attack. (V40,

R995; V41, R1030).

In Hobin’s opinion, one of the weapons used on Binder had a sharp edge, was relatively heavy, and was used in a chopping type fashion, “... like a hatchet or tomahawk or an axe or a machete.” (V40, R981). Hobin opined that the knife found underneath the truck seat (State Exh. 54) was possibly a murder weapon. “I would not exclude that knife as a possibility.” (V40, R981).

In Hobin’s opinion, however, the weapon used to inflict the stab wounds to

Binder’s back was a different one than the weapon used to inflict the chopping injuries to Binder’s head, hands, and left forearm. (V40, R994). In his opinion, the cause of death was homicidal violence. The manner of death was homicide. (V40, R996, 997).

Dr. Michael Warren

Dr. Michael Warren, Ph.D., is a forensic anthropologist and the director of the

C.A. Pound Human Identification Laboratory at the University of Florida. He assists medical examiners in identifying decedents as well as the cause and manner of death.

(V41, R1033-34). He specializes in forensic identification and trauma analysis. (V41,

R1036). On April 30, 2010, Warren was contacted by Hobin to consult on Binder’s case.

(V41, R1051).

Warren examined the amount of decomposition and larval (insect) activity on

Binder’s body. (V41, R1051-52). Insects lay eggs in dark, moist areas, “eyes ... nose ... mouth ... ears ...and decomposition that spreads from the head downward.” The insects gain access to the body through these orifices and start to ingest the body. (V41, R1053).

In Binder’s case, however, there was an atypical distribution of larvae. Insects were in his chest area rather than in the head area. “That usually means that the insects had

access through some other way into the body ... indicative of a prior trauma that’s there.”

(V41, R1053-54).

Warren took Binder’s head and left arm to his lab for further analysis.23 (V41,

R1054-55).

Binder’s cranium had “six distinct” sharp-force injuries consistent with a knife or machete. Sharp force injuries also have a blunt force component. Fractures are associated with the cut marks. (V41, R1061-62, 1063, 1069). Several injuries were consistent with a part of the bone being pulled away due to a “rocking motion” of the weapon. “So the blade or instrument went down [and] stuck in the substrate. It was pulled up and then rocked at a different angle” which indicated the weapon got stuck in

Binder’s skull. (V41, R1066, 1067, 1097). The longest hack mark was about four inches in length. The knife (State Exh. 54) found under the truck passenger sheet could have caused the injuries to Binder’s head. (V41, R1073, 1074).

Warren found a distinct blunt-force fracture in Binder’s left ulna bone which was indicative of a defensive wound. (V41, R1074, 1077, 1078). There were three sharp- force injuries with at least “two hacks” to Binder’s ulna bone also indicative of defensive wounds. (V41, R1079, 1080, 1082). There were also defensive wounds to Binder’s left hand. The middle finger had been cut off. (V41, R1083, 1085-86).

Truehill did not to present a case in chief. (V42, R1122). His motion for judgment of

23 Hobin testified that the cervical vertebrae were already loose and Binder’s head was only attached by a stringy piece of skin. (V40, R996).

acquittal was denied. (V42, R1123, 1145). Several motions for mistrial were denied.

(V43, R1269, 1297, 1331, 1358, 1359).

On February 18, 2014, the jury found Truehill guilty of the counts as charged in the indictment. (V43, R1419).

The Penalty Phase

State’s Case in Chief

The penalty phase began on March 3, 2014. (V46, R1).

Keith Stutes

Keith Stutes, former assistant district attorney from Lafayette, Louisiana, prosecuted

Truehill for a 2007 manslaughter case in which Truehill pled guilty.24 (V46, R66-7, 69-

70). In that case, Truehill and the victim: “ ... had encountered each other, making accusations against each other about the two of them stealing things from each other. On this particular day, January 4, 2007, the defendant was in the 200 block of Rue Royale. He was confronted by the victim. The victim came to confront him and argued with the defendant about the defendant breaking into the victim's apartment and stealing his shoes. The defendant was armed with a weapon at that point, had been armed with a weapon during the two days prior, and told -- the defendant told the victim that he had a weapon and that he was going to shoot him, going to kill him. The victim responded by taking his coat off and approaching the defendant and telling him, well, kill me if you're going to kill me. And then the defendant pulled the gun, shot the victim in the face. “He fell, the victim did, and the defendant approached, stood over the body, and the victim shot three more times. The victim eventually died five days later on January 9, 2007, of the injuries suffered in the shooting."

24 Penalty Phase State Exh. 1.

(V46, R77-8). Truehill was sentenced to 30 years. (V46, R79).

Christine Keegan

Christine Keegan, evidence specialist, St. Johns County Sheriff’s Office, compared

Truehill’s known prints from this case (State Exh. 61B) which matched Truehill’s known prints from a Louisiana armed robbery conviction case. (V46, R85, 87, State Exh.

3).

Richard Perkins

Richard Perkins worked in Louisiana in 2006. (V47, R107). At around midnight on

December 1, 2006, Perkins was parked at a gas station when a Honda SUV pull up behind him, stopped, and then left. A few minutes later, two masked men forced their way into Perkins’ truck—one on the driver’s side and the other on the passenger side, squeezing Perkins between them. (V47, R110-11, 113, 115). The assailant on the driver’s side put something up to his face, “it felt like a gun.” The second assailant might have also had a gun. (V47, R113-14). The first assailant demanded Perkins’ money and told him to move over. “He says if I don’t give him the money, he was going to shoot me.” (V47, R114-15).

Perkins gave the men his wallet. The assailants then drove Perkins’ truck a few blocks to where a Honda SUV was parked—the same one Perkins had seen parked behind him a little earlier. When the men jumped out and got into the Honda SUV,

Perkins got into his truck’s driver’s seat, locked the doors, and called 911. (V47, R115-

16, 117). He pursued the SUV while he talked to police. Police caught up to him and took over the chase. (V47, R117, 118). When Perkins’ truck was eventually returned to

him, it had a flat tire and a bullet hole in the hood. (V47, R119, 121).

Truehill was tried and convicted of armed robbery.25 Perkins could not identify the driver of the SUV or the two men who had robbed him. (V47, R120).

Isadore White

Isadore White and her boyfriend Anthony Jones were Truehill’s neighbors at an apartment complex in Louisiana in 2006. Anthony and Truehill were friends. (V47,

R123, 137). Late in the evening on December 1, 2006, Truehill, Anthony, and their friend “J-Ride” left the apartment in a Honda SUV. (V47, R125-26, 137). Truehill called her later that same night and asked her to pick him up from someway along the highway.

(V47, R131-32, 137). After retrieving Truehill, he told White that he, Anthony, and J-

Ride had robbed Perkins at gunpoint after gaining access to Perkins’ truck. Truehill got into Perkins’ truck from the driver’s side and J-Ride got in on the passenger side.

Anthony was waiting for them in the Honda SUV parked a few blocks away. (V47,

R133-34).

After driving Perkins’ truck to where Anthony was parked, they got out of Perkins’ truck and drove off. They fired gunshots at Perkins’ truck when they saw Perkins get on his cell phone and chase them. (V47, R133-34). The men drove into an apartment complex fence and wrecked the SUV. Truehill and J-Ride ran but Anthony remained in the passenger seat. J-ride was caught but Truehill got away. Truehill had already thrown

25 See State v. Truehill, 38 So. 3d 1246 (La. App. 3rd Cir. 2010).

his gun out the SUV’s window onto a rooftop. (V47, R135).

There were times that White saw Truehill and Anthony wear ski masks when it was

“cold outside.” (V47, R136, 139).

Several victim impact statements were read to the jury.26 (V47, R146, 150-59, 160-

64).

Defense’s Case in Chief

Eleanor Smith

Eleanor Smith’s daughter Sharell dated Truehill in 2004 when they were both 17- years-old. Smith saw Truehill on a regular basis and had no concerns about Sharell dating him. (V47, R165-66, 193). Although they frequently argued, Smith felt Truehill would not harm Sharell. (V47, R201). Truehill “joked ... played ... laughed. He - - was really pleasant to be around.” (V47, R198). His mother’s house was four blocks away.

(V47, R202).

Smith lived with her boyfriend and two daughters in New Orleans when Hurricane

Katrina came through the city. Truehill was also at her house during the storm. (V47,

R169). They initially waited it out but the house eventually flooded. (V47, R170-71,

174, 176). Truehill left the following morning and returned with a boat. They grabbed what they could and headed for dry land. (V47, R178-79, 180, 182). They did what they could to “survive.” “It was very, very scary.” (V47, R187). Truehill got a car for them to

26 Maria Andersen, Binder’s aunt, whom he lived with since age 11 after Binder’s mother died; Beth Frady, Binder’s friend; and Professor Davis Houck, FSU Communications Department (video statement).

go to a safe place until the city was secured. They did not return to Smith’s house for about a month. (V47, R189, 190, 191). The neighborhood was deserted and her house had been destroyed. (V47, R192).

Truehill was sad and angry after the hurricane. He and Smith’s family lived in a shelter. He got a job but had trouble sleeping. “He was ... very restless.” Truehill got locked out of the shelter when he wandered in and out or did not return by a certain time.

(V47, R198, 199, 200). He struggled emotionally. He had graduated high school, planned on more schooling, but instead, had to take care of himself. (V47, R201).

Walter Goodwin

Walter Goodwin is a retired principal/administrator from schools Truehill attended.

(V47, R205, 207). Truehill’s parents were substitute teachers at the junior high school where the Truehill children attended. Truehill’s parents were “community people.”

(V47, R208).

Goodwin occasionally saw Truehill at school. (V47, R205, 209). He was a good student, had no discipline problems, and played sports. He was a “follower ... he wanted to be one of the guys.” (V47, R210, 211). Goodwin was the high school principal when

Truehill attended. By then, Truehill was not “very talkative. Very quiet.” (V47, R213,

214). Truehill’s parents, who were divorcing at the time, told Goodwin that Truehill was hanging out with the wrong people. (V47, R214). Goodwin talked to Truehill about seeing a counselor but he said, “I’m all right.” Goodwin asked the counselor to approach

Truehill but did not know if they ever met. (V47, R217-18).

Miranda Truehill27

Miranda Truehill met the Defendant through his father, Marshall when Marshall counseled her and her first husband. (V48, R251-52). Miranda lived with the Truehill family28 when her marriage became abusive. (V48, R252-53). Only the Defendant and his sister Jessica lived in the home at that time. (V48, R254).

The Truehills maintained “a reasonable normal family dynamic.” (V48, R248, 268).

Truehill however, was “an unhappy child.” (V48, R254). He was not talkative and did not express himself. (V48, R260-61). Miranda left the Truehill home for a few months but returned to the area for Marshall III’s high school graduation when he was valedictorian. She also attended Brianna’s graduation from medical school.29 (V48,

R255).

Miranda and Marshall began a relationship and eventually married in 1999. The

Defendant was in high school at the time. (V48, R255, 261). They were married for nine years until his death.30 Truehill blamed her for his parents’ divorce. (V48, R261, 263).

Truehill was different when his siblings were around—“his brothers and sisters were his

27 For clarity, Truehill’s family members will be referenced by their first names. 28 Truehill’s older siblings are Briana-a doctor; Marshall III-a marketer and television cameraman; Tracey-a model/actress, and Jessica-a choreographer/dancer. (V48, R276-78; V49, R463-64). 29 Miranda and Brianna were about the same age and approximately ten years older than Truehill. (V48, 266, 267). 30 Marshall Truehill died on December 25, 2008. (V53, R31).

support system.” Without them, he did not have anyone to talk to. (V48, R262, 263).

Truehill went back and forth between his parents’ two homes. Although he preferred to live with his mother, “he needed additional discipline” and was encouraged to live with his father and Miranda. Truehill ignored his permissive mother when she tried to discipline him. (V48, R255-56, 271). (V48, R271). When Truehill lived with his father and Miranda, he did not need to talk to a counselor. Marshall did not encourage mental health counseling—he “absolutely” believed in being a disciplinarian. (V48, R257).

Miranda and Marshall were not always aware of events that occurred in Truehill’s life. At one point, one of his friends died; at another time, a high school shooting occurred when Truehill was living with his mother. (V48, R258-59, 272). Nonetheless,

Truehill visited his father at least twice a week. (V48, R272).

They did not approve of Truehill hanging out at a local car shop. An older man owed the shop and allowed minors to stay there during school hours and play video games. Truehill’s mother allowed him to do so. (V48, R259-60, 271). Truehill loved and respected his father but also feared him because he was a disciplinarian. (V48, R266,

268). Miranda knew the Truehills for about 11 years at the time of her husband’s death.

(V48, R269). She never saw her husband hit Truehill. Any discipline imposed was appropriate. (V48, R271). Miranda was close with all of Truehill’s siblings but not him.

He was a “follower.” (V48, R267).

Miranda and Marshall evacuated from their home during Hurricane Katrina. The

Defendant “absolutely” could have gone with them but he was living at his mother’s home at the time. Miranda later learned that he did not evacuate with his mother. (V48,

R265).

Marshall Truehill, III

Marshall Truehill III is one of the Defendant’s four older siblings. There is about three years’ difference in age between all of the siblings. (V48, R276-78). Briana, the oldest, acted like a mother figure to Truehill but Marshall and Truehill eventually shared a room. The brothers had a close relationship. (V48, R279, 280, 282). They played sports together and went fishing. (V48, R282, 284). Truehill was a happy child and part of a very loving and supportive family. (V48, R307, 308).

Prior to their parents’ divorce, the Truehills went on family vacations. (V48, R308).

However, their parents started having verbal and physical altercations. During one family discussion meeting, Marshall slapped his wife and told her she was full of s - - t.

There were times the children woke up to “cursing and yelling and things flying, crashing.” Truehill was frightened during these events. (V48, R285, 286-87, 314, 319).

All of the siblings were upset when Miranda left her first husband and moved in with the

Truehills. (V48, R288). They all knew there were problems in their parents’ marriage.

(V48, R289). Truehill started having “rebellious behavior” during the divorce proceedings. He was upset and refused to do chores. (V48, R290-91, 297-98, 307, 319).

Neither Marshall III or Truehill were happy when their father married Miranda. (V48,

R299, 319-20).

All of the children participated in community service at the church when their father was a pastor. Some of the service jobs were in the housing projects. (V48, R302).

Marshall disciplined all his children with a belt or his hands. (V48, R300, 306). Truehill

was not close with his father. (V48, R301). Nonetheless, Marshall supported the family, helped the children with homework, and spent time with them. He ensured the children had proper moral values. (V48, R303-04).

Marshall III and his other siblings are all well-adjusted people and take care of themselves. (V48, R310-11). They were all supportive of each other while growing up.

(V48, R312). Marshall III never saw any mental issues with Truehill. (V48, R316).

However, he was very different after Hurricane Katrina—“very disturbed. Protective ... a sense of worry.” (V48, R320).

Jessica Truehill

Jessica Truehill is Truehill’s next oldest sibling. (V48, R323). Their parents argued and fought and “were definitely physical with each other ... in front of us. It was just a very dysfunctional relationship ...” (V48, R325). When the parents were behind closed doors she heard “screaming, yelling, stuff being thrown ... bodies hitting the walls ...”

(V48, R326). All of the children saw their parents fight. (V48, R327-28, 355).

The children were spanked with a belt or their father’s hands. The discipline “was definitely abuse.” (V48, R328, 355). Marshall physically disciplined all his children in the same manner but was verbally, emotionally, and mentally harder on Marshall III and the Defendant. (V48, R335).

Truehill was a happy child before his parents divorced. He was “fun, loving - - we played a lot.” After Miranda came to live with them, Truehill changed and became distant. (V48, R336). Subsequent to the divorce, Jessica and Truehill lived with their mother; however, Jessica eventually went to live with their father. (V48, R356). Truehill

saw his father on a regular basis. (V48, R358). Truehill did not discuss personal things like his friend dying or a shooting that had occurred at his school. After these events,

Truehill became angry and withdrawn. (V48, R338-39). In addition, Truehill went into

“survival mode ... on edge” subsequent to Hurricane Katrina. (V48, R340).

Jessica and her other siblings are all well-adjusted and doing well in their respective communities. (V48, R358). She had not seen Truehill for “years.” (V48, R360). The siblings never discuss the discipline that occurred in their home. (V48, R363-64).

Valli Truehill

Valli Truehill, Truehill’s mother, is a retired special education school teacher. (V49,

R378-79, 380).

Valli was on bed rest for five months while pregnant with Truehill. All of her pregnancies were high risk due to the Rh-negative factor. (V49, R382). Valli returned to work after Truehill was born. His oldest sibling Briana took care of him. (V49, R386).

Truehill eventually attended the same elementary school where Valli taught. (V49,

R388). He graduated from high school in 2005. (V49, R390).

The family had happy, fun times together that included family dinners, family visits, and vacations. They went to church together and sang in the choir, always celebrated birthdays, and watched videos together. They were “a ministering family” involved in the community. (V49, R457, 458, 462, 472). Marshall loved all of his children very much and tried to instill moral values in all of them. (V49, R459, 460). Financial assistance was provided to their daughters to attend college. In addition, Valli’s father and her ex-husband Marshall bought Truehill a mustang after Hurricane Katrina. (V49,

R461, 462).

Valli and Marshall had marital troubles both before and after Truehill’s birth. (V49,

R387). Marshall was physically, emotionally, and verbally abusive toward Valli. The abuse was not hidden from the children. (V49, R391). Prior to the divorce, Marshall told all of the children they were separating because Marshall “was not satisfied with me sexually.” The children were all shocked and embarrassed. (V49, R398).

It was not unusual when Miranda came to live with the family earlier in the year before Marshall filed for divorce in October 1998. (V49, R400). Both Valli and Marshall counseled their church members. If they needed a place to stay, the Truehills provided a place for them. (V49, R402). Truehill volunteered at his parents’ church ministry, sang in the choir, and had a good relationship with the children that attended church camp.

“Kids loved Quentin.” (V49, R413-14). After the Truehills divorced in 1999, Truehill became very angry and was especially upset when Marshall and Miranda married. (V49,

R403, 404). He was not the happy-go-lucky child he used to be and became a

“challenge.” (V49, R406). Nonetheless, he had after-school jobs at a Baskin-Robbins and a collision repair shop and also played high school basketball. (V49, R408, 409,

464). Truehill “was a star basketball player” and Valli attended his games. (V49, R456).

Truehill lived with Valli and her father in the father’s house after he graduated from high school in 2005. He planned on studying collision repair at Louisiana Technical

College prior to Hurricane Katrina. (V49, R418-19, 464-65, 473). He was very good at this type of work and Valli had no problems with Truehill hanging out at a local auto- repair shop. She spoke with the shop owner who had a positive influence on Truehill.

However, she did not like the environment around the shop-“People who just hung out in the neighborhood.” (V49, R465, 466). Valli disciplined Truehill by restricting his activities. (V49, R467).

Valli, her father, and her boyfriend evacuated their home and stayed with relatives when Hurricane Katrina hit their area. Truehill stayed with his girlfriend’s family. “He didn’t want to leave Sharell.” (V49, R420-21, 424). When Valli, her father, and her boyfriend moved into a house with help from FEMA, Truehill was angry because the boyfriend “took his place.” Truehill came to Valli’s house and slashed the car tires.

(V49, R424-26, 470-71). Three of Truehill’s siblings were also displaced due to damage to their apartment building. (V49, R478).

Truehill also went back to his grandfather’s damaged house numerous times to check on it because he wanted to renovate it himself.31 (V49, R428, 430). However, he could not get help from FEMA because he was on Valli’s application for assistance.

(V49, R424, 443, 470). Truehill, along with the other evacuees, received financial counseling services after Hurricane Katrina. He was never diagnosed with any type of mental illness. (V49, R471, 476). Only Truehill suffered the trauma of living through

Hurricane Katrina. (V49, R479).

James Aiken

James Aiken has a Masters degree in Criminal Justice and has worked in the

31 26 photographs of the damaged home were published to the jury. (V49, R429). In addition, numerous photographs of Truehill and his family were published to the jury. (V49, R442).

correctional field for over forty years. (V50, R520). He currently is a self-employed consultant who evaluates and assesses the security and confinement behaviors of inmates. (V50, R520-29). He was never employed in the Florida prison system. (V50

R550).

Aiken evaluated Truehill for possible long-term incarceration. (V50, R532). He conducted a “20-30 minute” interview with Truehill at the St. Johns County jail and reviewed evidence that included the following: the indictment; Avoyelles Parish jail surveillance video of the escape; Avoyelles Parish police reports and witness statements; depositions; Tallahassee police reports; and Truehill’s St. Johns County incarcerations records which included two disciplinary reports. (V50, R532-33, 538, 540-41, 548). The disciplinary reports involved “disrespectful” behavior32 and did not involve violence for which Truehill received the “appropriate punishment.” (V50, R540, 549-50). In Aiken’s opinion, based on Truehill’s compliance in St. Johns County jail, as well as his age,

Truehill could be managed in a high-security setting for the rest of his life without causing undue risk of harm to staff, inmates, or the general community. (V50, R542-43).

In Aiken’s opinion, “the older you become, the more compliant you become.” (V50,

R543).

Aiken did not review the forensics, photographs, interviews and all of the depositions in this case. (V50, R546, 553). In his opinion, inmates “cannot fake [their]

32 Truehill threatened a staff member, “What if I take my head and bash it into yours?” (V50, R550).

behavior.” (V50, R548). “What you see is what you get.” In his opinion, Truehill did not fake his behavior for the four years he had been awaiting trial in St. Johns County jail. (V50, R548). Truehill was not manipulative but rather, “demonstrated ... a spiritual connection to his maturity - - and realizing where he is and the gravity of where he is.”

(V50, R556). Aiken, however, did not talk to anyone within the Florida Prison system about Truehill and his classification. (V50, R550).

Dr. Frederic Sautter, Ph.D.

Dr. Frederic Sautter, Ph.D., is a clinical psychologist and primarily works with veterans diagnosed with Post Traumatic Stress Disorder “PTSD.” He has worked in the

PTSD field for twenty years. (V51, R645, 649, 651). He does not devote his practice to dealing with survivors of Hurricane Katrina—“my mission is veterans.” (V51, R685,

773).

Sautter evaluated Truehill on April 29-30, 2013. (V51, R687-88). He also interviewed Truehill’s mother, his girlfriend and her mother, Walter Goodwin, and all of

Truehill’s siblings. (V51, R684-85). Several tests were administered including: the

Clinician Administered PTSD Scale “CAPS”; PTSD Checklist; two malingering tests; and the Structured Clinical Interview for the DSM-IV-R “SCID”. (V51, R658, 688). The

DSM-IV-TR was used to diagnose Truehill in conjunction with the DSM-V. (V51,

R680).

Truehill’s exposure to at least 12-15 traumatic events during his life led to the development of posttraumatic stress disorder. Sautter, however, could not ascertain whether or not Truehill met the diagnostic criteria for PTSD “until the hurricane

happened ... the hurricane kind of put him over the edge ... ” which led to “full-blown

PTSD.” (V51, R692, 693-94). Prior to that, his father abused him, he was robbed at gunpoint when he was 15-years-old, and his friend lost a baby to SIDS (not Truehill’s).33

(V51, R694). Truehill also “shot somebody ... which he was sent to jail for ... that was a traumatic event.” His PTSD worsened when the hurricane hit as Truehill was also depressed at the time. Depression was an “off-and-on experience” for him. (V51, R695).

Truehill also had previous problems with drugs. (V51, R696). Truehill showed signs of irritability, hypervigilance, and hyperarousal symptoms. (V51, R701). Truehill’s score of

48 on the CAPS test was a “moderate” score in terms of meeting the criteria for PTSD.

(V51, R702). And, although Truehill‘s siblings are all successful, “people just left him” and Truehill felt “abandoned.” (V51, R707, 708, 762-63). Nonetheless, in Sautter’s opinion, with treatment, the score on the CAPS can be lowered so that a person does not meet the criteria for PTSD anymore. (V52, R719).

In Sautter’s opinion, PTSD ”may inhibit a person’s ability to control their emotions when ... under high conditions of threat.” (V52, R725). Hurricane Katrina was “a major trauma for him.”34 (V52, R726). Sautter concluded, that due to a history of trauma, periods of depression, and the results from scientifically-approved psychological tests, Truehill suffers from PTSD. (V52, R731-32). Truehill’s behavior was strongly affected by PTSD during the murder. V52, R744).

33 See Valli Truehill’s testimony at V49, R480. 34 A National Geographic production of a five-minute video of Hurricane Katrina was published to the jury. (V52, R726-30, Def. Exh. 3).

Sautter was aware that Truehill is not a veteran and had never been diagnosed with PTSD prior to his diagnosis. (V52, R733, 735). This was the first time Truehill talked to a doctor about PTSD. (V52, R736). Sautter had not read any of the police reports or seen the videos pertaining to Truehill’s case. (V52, R737, 739-40). He did not ask Truehill any questions about his crimes. (V52, R744-45, 746). PTSD did not cause Truehill to kidnap, rob, and murder Binder. (V52, R749-50, 768).

Sautter opined that incarceration lowers an inmate’s level of PTSD. He was aware that prior to Truehill’s March 30, 2010, escape, he had been incarcerated since 2007. (V52, R759, 760).

In Sautter’s opinion, the five-year time frame between Hurricane Katrina and

Binder’s murder was “not particularly relevant.” (V52, R759).

State’s Case in Rebuttal

Dr. Greg Prichard, Psy.D.

Dr. Greg Prichard, Psy.D., clinical psychologist, has evaluated “hundreds” of individuals for a diagnosis of PTSD. (V52, R791-92, 796).

Prichard evaluated Truehill on February 23, 2014. (V52, R801, 802). He reviewed voluminous records that included police reports related to this case; police reported related to Truehill’s Louisiana convictions; depositions from family members, Truehill’s girlfriend and her mother, Walter Goodwin; and the 2009

Louisiana trial transcript of the 2006 armed robbery case; and Dr. Sautter’s report.

(V52, R802-04).

Prichard and Truehill discussed the traumas in Truehill’s life including how he

was affected by Hurricane Katrina. (V52l, R806). The CAPS test was not administered because “its place is for usually evaluating individuals at a Veterans

Administration clinic for treatment purposes ... in a forensic environment, when you hand them a checklist ... about the traumas [he] may have experienced, you’re basically feeding the defendant what information you are looking for. And for me, that’s really problematic. And that’s not what you should do in a forensic evaluation.” (V52, R809). Secondly, the test should not be administered a second time and Prichard had access to Sautter’s data. (V52, R810).

The Diagnostic and Statistical Manual of Mental Disorders “DSM”35 is the psychological standard used to diagnose mental disorders and the corresponding criteria associated with each mental disorder. (V52, R812). The required criteria for a diagnosis of PTSD are: A) exposure to a traumatic event; B) intrusive symptoms or thoughts about the prior trauma; C) avoidance of anything that reminds of the trauma; D)negative moods or cognitions associated with the trauma; E)alterations in arousal or reactivity associated with the traumatic event; F)duration of the disturbance; G)the disturbance causes significant distress or impairment; and H) the disturbance is not attributable to the physiological effects of a substance or another medical condition. (V52, R816-18).

In Prichard’s opinion, living through Hurricane Katrina, experiencing a school shooting even though Truehill did not actually see it happen, and the death of his friend,

35 The DSM-V was published in 2013.

Amber Brown, were traumatic events that met criteria A for a diagnosis of PTSD. (V52,

R818-20). Truehill’s upbringing, however, did not meet the threshold of a traumatic experience. (V52, R819, 821). As to criteria B, Truehill said “well, sure, I think about”

Hurricane Katrina. But he said he slept well, did not have dreams about any of these events, and did not “like to dwell on things, So I don’t.” In Prichard’s opinion, Truehill did not meet criteria B for a diagnosis of PTSD. (V52, R822-23, 824). As for criteria C,

Truehill watched a documentary about Hurricane Katrina, and remarked that he had helped clean up——“so that’s not an avoidance response.” (V52, R825). In addition, although Truehill lost his friend Amber Brown in a shooting incident, he was convicted of manslaughter after shooting a man five times as well as armed robbery with a firearm——“that’s doesn’t sound like avoidance at all. It sounds like he’s an active participant in criminal acts involving firearms, on at least, we know two occasions, perhaps more.”36 (V52, R827).

In Prichard’s opinion, as for criteria D, Truehill has some negative alterations in mood and cognitions. Truehill experienced agitation and anger expressed through his criminal acts. However, Prichard did not find a link between Truehill’s negative moods

36 Truehill moved for a mistrial when Prichard speculated there might be “perhaps more” occasions where Truehill was involved with firearms because the State had introduce only two priors. The State argued it was a small comment and was not a feature of Prichard’s complete answer. The court stated that it was an “impermissible comment” and offered to give a curative instruction to the jury which Truehill’s counsel initially declined. The court gave a curative instruction and denied Truehill’s motion for mistrial. (V52, R827-33).

to the traumatic events in his life. (V52, R834-35). As for criteria E, marked alterations in arousal or activity, Truehill has some “hypervigilance” but no more than many others who live on the streets——“a natural response to the kind of environment he lived in. In

Prichard’s opinion, Truehill did not meet this criteria, either. (V52, R837-39).

There are duration requirements for all mental disorders. “They have to persist, and they have to create the impairment.” (V52, R840). The impairment has to be “see[n].”

(V52, R841). Some individuals with PTSD cannot leave their home, are so anxious and tormented all the time, cannot work, and have difficulties with their relationships. In

Prichard’s opinion, Truehill does not experience “impairment post-trauma.” Truehill’s behavior was based on his choices and “seemed to be more who Truehill was.” His impairment is related to criminal conduct and not to any kind of trauma. (V52, R841-

422). Truehill had never been diagnosed with PTSD or had any kind of mental health diagnosis.37 (V52, R842, 843).

In Prichard’s opinion, based on his interview and evaluation, as well as the review of all the materials provided to him, Truehill was not “somebody who was a . . . follower or kind of wallflower, kind of shy” person. “He seemed very assertive. He seemed very opinionated. He seems to be an independent individual. He seems smart.”

37 Truehill objected and moved for a mistrial based on Prichard’s mention of the Louisiana armed robbery conviction and that the trial transcript did not contain mention of PTSD. The court sustained the objection as to any mention of a prior diagnosis of PTSD as it related to the Louisiana case but denied the motion for mistrial. (V52, R843-47). The court denied Defense counsel’s request for a curative instruction because it was not “necessary in this instance.” (V52, R848-49).

(V52, R856). Prichard also considered the language in the sentencing order from the

Louisiana conviction for armed robbery which stated: The offender was a leader or his violation was in concert with one or more persons with respect to whom the offender occupied a position of organizer, a supervisory position or any other position of management. (V52, R856). In Prichard’s opinion, Truehill does not suffer from PTSD. “I don’t think he ever suffered from PTSD.” Whatever symptoms Truehill experienced as they related to the criteria for PTSD, hose experiences did not have any influence over the kidnapping and murder of Vincent Binder. (V52, R857-58).

Lieutenant Larry Durden

Lieutenant Larry Durden is a watch commander at the St. Johns County jail and the custodian for communication and phone records. (V53, R893-94).

All inmates are notified before they make a phone call that it is a recorded line and the information is downloaded to a server. Durden is able to retrieve the information at any time. Inmates are given a unique ID number “M and I number” and they create a

PIN which they carry with them throughout their time at the jail. They create their own account with Paytel Communications, a contracted service through the jail. (V53, R894).

Durden retrieved Truehill’s recorded jail phone calls and downloaded them to a CD.

(V53, R895, State Exh. 5). Truehill called his mother on August 4, 2010.38 The entire call was published to the jury. (V53, R901, 906). In pertinent part:

38 See Valli Truehill's Spencer hearing testimony. (V54, R53).

"AUTOMATED FEMALE VOICE: Hello. This is a collect call from. "MALE SPEAKER: Quentin. "AUTOMATED FEMALE VOICE: An inmate at St. Johns County. This call will be recorded and subject to monitoring at any time.

...

"FEMALE SPEAKER: Mm-hmm. So how are you doing? "MALE SPEAKER: All right. (Unintelligible) some crazy lawyer. I don't know what they up to, but seems kind of fishy to me. They want a, uh, psychiatrist to come talk to me. For what? "FEMALE SPEAKER: Well, um, you know, Deanna's cousin (unintelligible) pleaded temporary insanity something or emotional disturbance. "MALE SPEAKER: (Unintelligible) say what? "FEMALE SPEAKER: Temporary insanity or emotional disturbance or traum -- trauma because of the storm. What they call that? "MALE SPEAKER: Yeah.

...

"FEMALE SPEAKER: Yep. Yeah. Mm-hmm. And then with your daddy passing, you -- and all that kind of stuff, the storm, the trauma of going through the storm, you know? "MALE SPEAKER: Yeah. (Unintelligible) yeah. "FEMALE SPEAKER: They could make a storm story off of you. "I saw one on TV the other day. And, uh, It reminded me of you. "It talked about his family that the water was coming up on them, you know. And they had to get out through the roof and all of that. "Yep. 47

That's what my child went through. Say that's enough to make anybody do strange stuff."

(V53, R902-06).

On March 7, 2014, the jury returned an advisory sentence of death by a vote of ten to two (12-0) for the murder of Vincent Binder. (V53, R1023).

Spencer Hearing

The Spencer39 hearing was held on March 27, 2014. (V54, R1-72).

The State presented additional victim impact statements from the victim’s relatives and friends. (V53, R8-28). Truehill submitted various exhibits and additional testimony.

Deirdra Humphrey

Deirdra Humphrey is Truehill’s maternal Aunt. (V54, R46). During her visits with him at the St. Johns County jail, Truehill was quiet and “seemed contented. He was taking things ... in stride” and reading the Bible. Truehill “is not a bad individual. He’s a normal growing kid. And sometimes in life, individuals make mistakes.” (V54, R47-8,

49-50).

Valli Truehill

Truehill’s mother Valli was aware he attended conflict resolution classes when he was incarcerated in Louisiana for the manslaughter conviction. (V54, R53).

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

During their August 4, 2010, phone call from St. Johns County jail, Truehill

“laughed ... off” any suggestion by his attorneys to talk to a psychiatrist about psychological instability and how Hurricane Katrina had affected him. “He didn’t feel like he had any trauma or anything that would cause him to be psychologically unstable.

And I ... would think the same thing because we take things in stride.” (V54, R50, 54).

Although they laughed off any suggestion of PTSD, Truehill did suffer traumatic events throughout his life. Truehill’s father was never open to any kind of therapy because their children “had him.” (V54, R57, 58). Nonetheless, she did not plant the idea of claiming

PTSD as a defense. (V54, R60).

SUMMARY OF ARGUMENT

Point I: The trial court did abuse its discretion when it ruled that the State’s peremptory challenge to Juror 22, Ms. Brooks was not racially motivated. After an evidentiary hearing on the matter, the court agreed with the State that Ms. Brooks had failed to disclose several instances of criminal conduct she alleged in an injunction petition against her ex-husband. This, paired with her experience dealing with mental illness, constituted a genuine race-neutral reason for the peremptory challenge.

Point II: The trial court did abuse its discretion when it ruled that the State’s peremptory challenge to Juror 92, Ms. Dixon based on her youth was a genuine race- neutral reason. Young people are not a protected class under Florida law.

Point III: The trial court properly admitted the inextricably intertwined evidence of the three co-defendants’ escape from a Louisiana jail and subsequent travels across

Florida, culminating in their arrest in Miami to give the jury the complete context for the crime.

Point IV: The court properly ruled on each of the five objections argued as to improper prosecutorial argument during the State’s closing argument. None of the other questioned comments, if error, rise to fundamental error, either individually, or cumulatively.

Point V: The trial court properly ruled on the objections raised during the penalty phase. As such, there is no cumulative error.

Point VI: Ring v. Arizona40 does not apply to this case.

Point VII: The death sentence is proportionate in this case.

Point VIII: There is sufficient evidence in this case to support a conviction for first- degree felony murder.

ARGUMENT POINT I THE TRIAL COURT PROPERLY GRANTED THE STATE’S PREMPTORY CHALLENGE AS TO JUROR BROOKS Appellant argues that the trial court abused its discretion when it ruled that the

State’s peremptory challenge to venire member number 22, Juror Brooks – a member of a protected class as an African American – was supported by a race-neutral reason after holding a hearing on the matter. (IB at 47).

40 Ring v. Arizona, 536 U.S. 584, 584, 122 S. Ct. 2428, 2429, 153 L. Ed. 2d

Appellant did not “object” to the State’s exercise of its third peremptory challenge as to Juror Brooks; however, Appellant asked for a race neutral reason for the challenge, claiming she was “the only black individual on the panel” during that particular round of questioning. (V25, R316).

Appellant objected to the State’s renewed peremptory challenge after the hearing with Juror Brooks. (V28, R688). Appellant claimed that “the reasons given by the State are not genuine and are mere pretext for a racially motivated strike.” (V28, R688-689).

Prior to the judge swearing the jury, the Appellant accepted the panel “[s]ubject to the objections that we argued yesterday” (V32, R1331), thereby preserving the objections to the jury panel for appeal.

The appropriate standard for appellate review for determining whether there is a likelihood of racial discrimination in the use of peremptory challenges is the abuse of discretion standard. Files v. State, 613 So. 2d 1301, 1304 (Fla. 1992).

The State contends that the evidence and the law support the trial court's ruling that the State’s peremptory challenge was not racially motivated. In State v. Neil, 457 So. 2d

481 (Fla. 1984), this Court first authorized trial courts to make inquiry into whether peremptory challenges were being exercised for racial reasons. Here, the trial court conducted a proper inquiry and asked, “State, what is the race neutral reason?” (V25,

R316). The State responded:

First of all, she discussed about an aunt who was the victim of a domestic violence case and had passed away as a result of that. There was also – – and we went back and asked – – I asked her two or three different times about any other family members that have been the victim of any kind of crime, and the reason that I did that was because in our research it appears

that Ms. Brooks had filed for an injunction against her husband up in Duval County and she made very explicit accusations against the husband about various crimes that he was committing against her children. And, again, I asked that question two or three different times to try to get that information from her, and she indicated that that was the only case – – involving the aunt was the only case that she had a close family member that was the victim of a crime.

So for that reason, Your Honor, is what we – – one of the accusations was that her husband was planning to kidnap her children, and that’s one of the issues that are involved here. So as a result of that, we feel that she would not be appropriate for this jury.

(V25, R317).

Importantly, the defense objected because it was “not convinced” that the State had sufficiently proven Juror Brooks was the same individual depicted in [FDLE’s] records; and based on counsel’s interactions with FDLE’s inaccuracy in the past; as well as the genuineness of the State’s race neutral reason. (V25, R317-19). Defense did not state that any of those facts alleged by the State were incorrect. Therefore, the issue of whether the underlying facts of the challenge are supported by the record was not preserved for appeal. Hoskins v. State, 965 So. 2d 1, 9 (Fla. 2007) (citing Rimmer v.

State, 825 So. 2d 304, 321 (Fla. 2002) (“The trial court ... cannot be faulted for accepting the facial reason offered by the State, especially where the State's factual assertion went unchallenged by the defense.”); Fotopoulos v. State, 608 So. 2d 784, 788 (Fla. 1992)

(“[The] claim that this reason is not supported by the record was not raised below and therefore has been waived.”); Floyd v. State, 569 So. 2d 1225, 1229 (Fla. 1990)

(“[W]hen the state asserts a fact as existing in the record, the trial court cannot be faulted

for assuming it is so when defense counsel is silent and the assertion remains unchallenged”)).

The trial court reserved ruling until the next day, when a hearing was set to rule on the challenge. After taking testimony and hearing brief argument, the court found as follows:

Okay I am going to find that there is enough evidence in the records to sustain the challenge here, so I’m going to allow the peremptory challenge to stand. I don’t believe – – the reasons offered for the record – – and I guess I better be specific. Her omission in disclosing some of this information is not nearly as troublesome to the Court as the substance of the incident. I mean that clearly it’s domestic violence going on at home. Threats of kidnapping, mental illness issues, all that, to some extent, do touch upon the heart of the case, which some of those issues will also be the basis of this trial.

So the peremptory challenge will be upheld. Juror Brooks will be struck for – – as a peremptory challenge. Let’s have her come back in real quick and take care of her. And that would be the state’s number three.

(V28, R690-691).

It is the trial court's responsibility to evaluate the race-neutral reasons given to determine whether they are credible. Franqui v. State, 699 So. 2d 1332, 1335 (Fla.

1997). The trial court is in the best position to assess the genuineness of the reason advanced. See Jones, 923 So. 2d at 490. As this Court stated in Files v. State, 613 So. 2d

1301, 1305 (Fla. 1992):

As stated in Reed, we must rely on the superior vantage point of the trial judge, who is present, can consider the demeanor of those involved, and can get a feel for what is going on in the jury selection process. It is difficult, if not impossible, to establish a strict rule of law in this sensitive

area and still “achieve the delicate balance between eliminating racial prejudice and the right to exercise peremptory challenges.” Reed, 560 So. 2d at 206. The responsibility to apply these principles properly and eliminate racial prejudice in our jury selection process rests largely on our trial judges. Substituting an appellate court's judgment for that of the trial judge on the basis of a cold record is not a solution because it would provide an automatic appeal in every case where a prospective minority juror was challenged.

The prosecutor pointed to several instances where Juror Brooks had not been forthcoming as evidenced in the Petition for Injunction. (SR, V57, R27-37). During questioning, Ms. Brooks failed to mention the injunction she had sought and received against her ex-husband, Cory Brooks, in May 2010 for threatening to kidnap their three children. (V28, R680-681). Not only did Juror Brooks fail to mention a threat of kidnapping,41 she also failed to mention the various other crimes she alleged in her injunction petition. In the injunction, she alleged not only the threat of kidnapping, but also domestic violence where she was abused by her husband “… multiple accusations of other crimes that this individual, her husband, Cory committed. Harassed, stalked or physically abused her, attempted to harm family members or initially close with her, killed a family pet.” (V28, R687).

While seeking and being granted an injunction is not a criminal matter, and Juror

Brooks’ explanation that she “didn’t believe that to be a crime, just getting a restraining

41 Kidnapping is a felony of the first degree under Fla. Statute §787.01.

order,” the underlying allegations in this case clearly were. Moreover, Juror Brooks was well-aware that domestic violence constituted a criminal act, and that the trial court needed to be made aware of that, because she mentioned that she “had an aunt that was -

- had domestic violence.” (V25, R170-171). The prosecutor was also concerned about a statement dated January 18, 2011, signed by Monique Talton, that was included in the same file as the injunction, separate from the petition which stated:

I am writing to refute the statements by Lauren Brooks. I did not at any time inform her that I had threatened to kidnap or otherwise harm her. The claims made by Lauren are deliberate manipulations of a conversation I had with her.

(V28, R687-688). Furthermore, the prosecutor had reason to believe that because the defense was going to be presenting evidence of mental mitigation in the instant case,

Juror Brooks would be more amenable to that mitigation and “… may favor an individual who has psychological or mental problems and favor the defense” based on her experiences with her ex-husband, who was alleged in the petition for injunction to suffer from “… mental problems for depression, sexual disorder and psychological problems.” (V28, R687).

The question is whether the reason the prosecutor struck Juror Brooks was purposeful discrimination. It is clear that the answer is no. The State, with good cause, was genuinely concerned about Juror Brooks’ ability to be forthcoming with her continued denial of her status as a past victim of crime, which was completely unrelated to her status as a member of a protected racial class.

The trial court conducted the appropriate procedure in deciding whether or not to allow the State’s peremptory strike against Juror Brooks. (V28, R686-691). The

Prosecutor peremptorily struck two white jurors prior to moving to strike Jurors Brooks,

Dinsmore, and Drake. (V25, R314, 315). Although singling out a juror for special treatment can indicate pretext, Juror Brooks was not singled out with the question,

“Have you or any member of your [immediate] family ever been the victim of a crime or charged with a crime?” The judge asked each and every panel member that question.

While it is true Ms. Brooks was the only African American individual on this particular round of questioning the same challenge would have been made to any other member of the venire who testified identically to Ms. Brooks, in the face of evidence to the contrary, without regard to race.

This Court has consistently held that trial courts have broad discretion in determining the propriety of the exercise of peremptory challenges. Franqui v. State, 699

So. 2d 1332, 1334-35 (Fla. 1997) (citing Curtis v. State, 685 So. 2d 1234 (Fla. 1996);

Files v. State, 613 So. 2d 1301 (Fla. 1992)). In Melbourne v. State, 679 So.2d 759, 764

(Fla. 1996) this Court streamlined the Neil42 procedure that is to be used whenever a race-based objection to a peremptory challenge is made:

A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the

42 State v. Neil, 457 So. 2d 481, 486–87 (Fla. 1984).

venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.

At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court's focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

Id. A party who objects to the use of a peremptory challenge has “a heavy burden to show that members of a distinct racial group are being challenged solely because of their race.” Hamdeh v. State, 762 So. 2d 1030, 1032 (Fla. 3rd DCA 2000) (citing Johnson v.

State, 752 So. 2d 61 (Fla. 2d DCA 2000); Young v. State, 744 So. 2d 1077 (Fla. 4th DCA

1999); Davis v. State, 691 So. 2d 1180 (Fla. 3d DCA 1997)).

In Poole v. State, 151 So. 3d 402, 410 (Fla. 2014), cert. denied, 135 S. Ct. 2052

(2015), this Court stated:

In making a genuineness determination, the Court should consider all relevant circumstances surrounding the strike, which may include, but are not limited to “the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment.” Nowell, 998 So. 2d at 602 (quoting Melbourne, 679 So.2d at 764 n. 8); Murray v. State, 3 So. 3d 1108, 1119 (Fla. 2009). In order to determine whether a trial court's decision to allow a peremptory strike of a juror was clearly erroneous, this Court must review the proffered race-neutral explanations offered by the State and the circumstances in which they were made. Nowell, 998 So. 2d at 604 (Fla. 2008).

The trial court must make an indication on the record that it not only accepted the race-neutral explanation, but actually engaged in a “genuineness” analysis. Hayes, 94 So. 3d at 463–64. Although there is no script for the trial judge to recite, to properly comply with Step 3 of Melbourne, a trial court must weigh the genuineness of a proffered race- neutral explanation just as it would any other disputed fact. Id. at 463. As the trial court proceeds to evaluate the genuineness of the proffered reason, it can “inquire of the opponent of the strike, who at that point bears the burden of persuasion, to demonstrate why the reason was not genuine.” Id.

Poole v. State, 151 So. 3d at 410.

This Court also discussed the applicable deference given to the trial court in Hoskins v. State, 965 So. 2d 1 (Fla. 2007), where it stated:

Peremptory challenges “are presumed to be exercised in a nondiscriminatory manner.” Jones v. State, 923 So. 2d 486, 490 (Fla. 2006) (quoting Melbourne, 679 So. 2d at 764). “[T]he appropriate standard for appellate review for determining the threshold question of whether there is a likelihood of racial discrimination in the use of peremptory challenges is the abuse of discretion standard.” Files v. State, 613 So. 2d 1301, 1304 (Fla. 1992). The trial court's decision turns on an assessment of credibility and will be affirmed unless clearly erroneous. Jones, 923 So. 2d at 490.

Hoskins v. State, 965 So. 2d at 7.

Appellant claims that “[b]y all counts Juror Brooks appeared to be an ideal juror

(IB at 50); “Juror Brooks was a poster child of a juror that was straightforward with the state and trial judge” (IB at 55); and “Juror Brooks was completely straightforward with the trial court at all times.” (IB at 60). Subjective opining aside, this is not the standard on appeal. The only consideration before this Court is whether the trial court abused its discretion in finding sufficient evidence to support the fact that the State’s peremptory challenge was not racially motivated. Appellant argues, “[i]n the instant case, the state

[sic] race-neutral reasons advanced by the state are not supported by the record” (IB at

52), and yet cites to the injunction petition and containing the very support cited by the trial judge.

Appellant cleverly attempts to shift the burden back to the prosecutor to ask particular questions of Ms. Brooks to disprove his “pretext” (IB at 59-60), stating:

Review of peremptory challenges necessarily turns on the record of jurors' responses in voir dire. See, e.g., Hamdeh v. State, 762 So. 2d 1030 (Fla. 2000)(reversing where “[t]here is no record support for the trial court's finding of pretext”); Washington v. State, 766 So. 2d 325 (Fla. 4th DCA 2000). Where the reason is a subjective impression unsupported by the record, however, review becomes impossible.

However, the very nature of a peremptory strike is subjective. See Busby v. State,

894 So. 2d 88, 99 (Fla. 2004), as revised on denial of reh'g (Feb. 3, 2005). As long as the subjective reasons are genuinely race-neutral, they are perfectly appropriate.

Furthermore, the law is clear that “the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.” Melbourne v. State, 679 So. 2d at

764. Appellant failed to persuade the trial judge that the prosecutor’s stated race-neutral reasons were disingenuous when the court found merit to the State’s argument.

Appellant further argues that the trial judge did not read the injunction paperwork into the record. (IB 58-59). The court is not required to do so, since the court’s task at this point is to rule on the evidence supporting the State’s genuineness like he would any other factual matter. Hayes v. State, 94 So. 3d 452, 463 (Fla. 2012) (citing Dorsey v.

State, 868 So. 2d 1192, 1200 (Fla. 2003)).

The court stated the factors he based his ruling on, and found the prosecutor’s argument was genuine as reflected by his grant of the peremptory strike.43 This is a perfect example of why the trial judge is more aptly situation to rule on peremptory challenges. Decisions of the trial court will not be overturned absent an abuse of discretion. Sims v. Brown, 574 So. 2d 131, 133 (Fla. 1991).

Because the trial court followed the procedure outlined in Melbourne, and its findings regarding the genuineness of the State's race-neutral reasons for striking Juror

Brooks were supported by the record, the trial court’s decision to allow the peremptory strike was not clearly erroneous.

Assuming arguendo, that the trial court abused its discretion in granting the state’s peremptory challenge, any error is harmless under these facts. Appellant was tried

43 Though Appellant does not specifically argue that the trial court failed to properly rule on the genuineness of the State’s proffered race-neutral reason, the fact that the trial court did not use the words “genuine” or “reasonable” makes no difference. Alonzo v. State, 46 So. 3d 1081, 1084 (Fla. 3rd DCA 2010) (acknowledging that a court’s affirmance of a peremptory strike when the genuineness analysis merely was implicit in the trial court's ruling is well-supported); Davis v. State, 691 So. 2d 1180, 1183 (Fla. 3rd DCA 1997) (holding that when the trial court allowed a peremptory challenge, without more explanation, “clearly indicates that [the trial court] did not find the State's reason to be pretextual” and was sufficient to establish a finding of genuineness); Bowden v. State, 787 So. 2d 185, 188 (Fla. 1st DCA 2001) (holding that the trial court's indication that it did not believe strike was racially motivated established that “the trial court reached step three of the Melbourne analysis and determined the strike was genuine”); Fleming v. State, 825 So. 2d 1027, 1029 (Fla. 1st DCA 2002) (concluding that, by overruling the defense's objections, the trial court made an implicit finding that the State's strikes were genuine).

before a qualified jury composed of individuals not challengeable for cause, and

Appellant has pointed to no objectionable juror that was accepted as a result of Juror

Brooks’s removal from the jury. See Rivera v. Illinois, 556 U.S. 148, 157, 129 S. Ct.

1446, 1453, 173 L. Ed. 2d 320 (2009); Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990).

Appellant’s case was decided by a constitutionally fair jury so there is no clear error. See

Busby v. State, 894 So. 2d 88, 102 (Fla. 2004), as revised on denial of reh'g (Feb. 3,

2005); Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).

Additionally, as the High Court stated in Hernandez v. New York, 500 U.S. 352,

369, 111 S. Ct. 1859, 1871-72, 114 L. Ed. 2d 395 (1991) (citing Anderson v. Bessemer

City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)) regarding the trial court finding the prosecutor’s race-neutral reason for a challenge was credible,

“[w]e have said that “[w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Hernandez v. New York,

500 U.S. at 369.

POINT II THE TRIAL COURT PROPERLY GRANTED THE STATE’S PEREMPTORY CHALLENGE AS TO JUROR DIXON

Appellant argues on page 61 of his brief that “[t]he time now has come to extend

Batson and Neil to protect potential jurors from being excluded from the jury solely on the basis of their age.” Appellant urges a change in the law for which there is no precedent, and no workable standard. Appellant contends that he should be granted a

new trial because the State excluded potential Juror 92, Ms. Dixon, on the basis of her youth. (IB at 62, 71). Appellant further argues that because Truehill was 26-years-old at the time 92of trial, the State’s strategy of excluding young jurors “violates Truehill’s right to equal protection because it denies him the protection that a trial by jury is intended to secure;” presumably, a jury of his youthful peers. (IB at 62). It is clear, however, that there can be no violation of equal protection where there is no protected class, and merely showing the existence of a distinct group, is not sufficient. Bryant v.

State, 386 So. 2d 237, 240 (Fla. 1980). The assertion that the nebulous group, “young people” – with no parameters as to age,44 date of birth, IQ, or maturity – should be a cognizable class has been rejected by this Court in Bryant v. State, 386 So. 2d at 240-41

(holding that “young adults” do not constitute a cognizable class.) Appellant's claim on this issue also fails in another respect. Merely showing the existence of a distinct group is insufficient; Appellant would also have to prove substantial underrepresentation over a significant period of time. Id. Appellant makes no attempt to provide a statistical analysis showing to what extent young people are underrepresented in jury service.

Appellant, therefore, has failed to meet the threshold burden for showing a prima facie

44 Appellant cites to Florida’s statutory restrictions on people under the age of 21 years, but also under the age of 25 years old. He discusses different generational titles, but fails to suggest a workable standard, inclusive years, or age parameter in his suggestion to change the law to recognize young people as a cognizable class. (IB at 66-67).

equal protection violation regarding the presence of young adults on juries.

Furthermore, “[t]he prevailing view is that a peremptory challenge based on the age of the juror is permissible” and can constitute a valid race-neutral reason for a peremptory challenge. Saffold v. State, 911 So. 2d 255, 256 (Fla. 3rd DCA 2005) (citing

Daniels v. State, 837 So. 2d 1008, 1009 (Fla. 3d DCA 2002)). This Court has more pointedly discussed the issue of age as a race-neutral basis for peremptory challenges in

Nowell v. State, 998 So. 2d 597, 604-05 (Fla. 2008). Though this Court did not endorse age as an acceptable race-neutral reason for a peremptory challenge, it pointed out that several district courts in Florida have held that age is an acceptable basis to challenge a juror, and instead, focused on the genuineness assessment that the trial court must still engage in under Melbourne. This Court stated:

Although this Court has never held that age is a legitimate race-neutral reason for a peremptory challenge, district courts have concluded that it is. See Saffold v. State, 911 So. 2d 255, 256 (Fla. 3rd DCA 2005) (holding that peremptory challenge based on age of juror is permissible); Daniels v. State, 837 So. 2d 1008 (Fla. 3rd DCA 2002) (same); Cobb v. State, 825 So. 2d 1080 (Fla. 4th DCA 2002) (concluding that it was not unreasonable to strike a prospective juror in a drug case when the State genuinely believed that the juror's youth and status as a student would cause her to be more lenient). However, the court's inquiry does not end when the proponent of the strike points to the potential juror's age; rather, the judge must consider all the relevant circumstances to determine whether the justification is genuine, including the reasonableness of the explanation and whether other jurors of a similar age were challenged for these reasons. See Hoskins, 965 So. 2d at 9; Booker v. State, 773 So. 2d 1079, 1089–90 (Fla. 2000) (acknowledging that a race-neutral reason that applied to another juror who was not challenged could indicate pretext); Melbourne, 679 So. 2d at 764 & nn. 8–9. In this case, Mr. Ortega was struck from the jury panel based on his young age, which was a reason equally applicable to a white juror who

was not challenged by the State.

Nowell v. State, 998 So. 2d at 604-05.

Appellant objected to the State’s use of a peremptory challenge as to Juror number

92, Ms. Dixon, an African American juror. (V28, R798). Prior to the judge swearing the jury, the Appellant accepted the panel “[s]ubject to the objections that we argued yesterday” (V32, R1331), thereby preserving the objections to the jury for appeal.

The State contends that the evidence and the law support the trial court's ruling that the State’s peremptory challenge was not racially motivated, and that age is not a protected class for jury challenge purposes. The court granted the peremptory challenge, and agreed with the State’s argument that she was “too young to realize the repercussions of the case” by stating “…her intellect still, I would suspect, has a lot of time to develop …” (V28, R801, 802).

The Prosecutor did not challenge Mr. Gatewood, Juror number 59; or Mr.

Mostella, Juror number 113, who were both African American, and who both served on the jury. (V28, R798; V31, R1311). And while that does not necessarily preclude discriminatory intent as to an individual juror, it is a factor the court can consider. In addition, the prosecutor fairly applied his “no young persons” challenges across all races

including, Ms. Densmore, Ms. Muck, and Ms. Sullivan. (V28, R798-799).

Assuming arguendo that the trial court the abused its discretion in granting the state’s peremptory challenge, any error could only be harmless under these facts. Aside from the fact the record seems to indicate from the parties that Juror Dixon’s intellect, or lack of understanding would have been a sufficient race-neutral reason to strike her,

Appellant was tried before a qualified jury composed of individuals not challengeable for cause, and Appellant has pointed to no objectionable juror that had to be accepted as a result of Ms. Dixon’s removal from the jury. See Rivera v. Illinois, 556 U.S. 148, 157,

129 S. Ct. 1446, 1453, 173 L. Ed. 2d 320 (2009); Trotter v. State, 576 So. 2d 691, 693

(Fla. 1990). The composition of the jury panel as a whole was not negatively affected by the trial court's granting of a peremptory challenge against Ms. Dixon. See Ault v. State,

866 So. 2d 674, 686 (Fla. 2003)

POINT III THE INEXTRICABLY INTERTWINED EVIDENCE WAS PROPERLY ADMITTED

On page 72-73 of his brief, Appellant argues that the trial court erred in ruling that evidence of Truehill’s other crimes was admissible. Appellant argues that he is entitled to a new trial where the “introduction of other crimes or wrongs should be limited to

Appellant’s actions in Tallahassee, Florida, until his arrest in Miami.”45 (IB at 80).

The State filed a Notice of Intent to Introduce Evidence of Other Crimes, Wrongs, or Acts of the Defendant on January 31, 2013. (V3, R398). In that pleading, 18 prior acts were identified which the State submits can be characterized as: 1) escape from

Avoyelles Parish Jail in Marksville, LA, on or about March 30, 2010; 2) theft of Stephen

Mose’s truck from Masura, LA, on or about March 30, 2010; 3) the strong arm robbery of Leann Williams’ purse from Broussard, LA, on or about March 30, 2010; 4) the use

45 There is considerable confusion as to what evidence Appellant is actually arguing was error for the trial court to have admitted under this claim. For example, on page 72 of his brief, Appellant states it was error to admit “18 other crimes or wrongs for the period of March 30, 2010 through April 6, 2010;” on page 75, he takes issue with the jail break, specifically; on page 76, Appellant states, “[t]he state could have reasonably elicited testimony which indicated that the Appellant’s where [sic] in Tallahassee the night of Binder’s abduction; had earlier committed similar crimes against Mario Rios and Cris Pavlish leading up to Binder’s abduction; and where [sic] seen on video using Binder’s debit card minutes after Binder was last seen by his friends;” on page 75, he takes issue with the jail break, specifically; on page 77, he states, “[t]he evidence of other wrongs sought to be introduced in this trial can be summarized as follows: 1. Jail Escape 2. Louisiana Crimes 3. Florida Panhandle Crimes 4. Tallahassee Crimes 5. Use of the Victim’s Credit Card; while on page 78, he characterizes them as follows “…without the addition of introducing the other wrongs of the Appellant:1) Jail break in Louisiana; 2) Stealing James Mose’s truck in Louisiana; 3) Robbing LeAnn Williams in Brossard, Louisiana; 4) Unlawfully using LeAnn Williams stolen credit card; 5) Robbery of Brenda Jo Brown in Pensacola, Florida; 6) Attempted murder and maiming of Brenda Jo Brown in Pensacola, Florida; on page 79, he takes issue with the jail break and the attack on Brenda Brown; finally, on page 80, Appellant states, “the introduction of other crimes or wrongs should be limited to Appellant’s actions in Tallahassee, Florida until his arrest in Miami.”

of Leann Williams’ stolen credit card at the gas station in Patterson, LA, on or about

March 30, 2010; 5) the use of Leann Williams’ stolen credit card at the gas station in

Boutte, LA, on or about March 31, 2010; 6) the strong arm robbery of Brenda Brown’s money and cell phone from Pensacola, FL, on or about April 1, 2010; 7) the attempted murder of Brenda Brown from Pensacola, FL, on or about April 1, 2010; 8) the attempted strong arm robbery of Mario Rios in Tallahassee, FL, on or about April 1,

2010; 9) the strong arm robbery of Chris Pavlish in Tallahassee, FL, on or about April 1,

2010; 10) the use of Vincent Binder’s credit card twice in Tallahassee, FL, on or about

April 2, 2010; 11) the use of Vincent Binder’s credit card in Madison, FL, on or about

April 2, 2010; 12) the use of Vincent Binder’s credit card in Jacksonville, FL, on or about April 2, 2010; 13) the use of Vincent Binder’s credit card in Daytona Beach, FL, on or about April 2, 2010; 14) the use of Vincent Binder’s credit card in Ft. Pierce, FL, on or about April 2, 2010; 15) the use of Vincent Binder’s credit card in Opa Locka, FL, on or about April 3, 2010; 16) the use of Vincent Binder’s credit card in Opa Locka, FL, on or about April 3, 2010; 17) the use of Vincent Binder’s credit card in Opa Locka, FL, on or about April 4, 2010; 18) the attempted use of Vincent Binder’s credit card in

Miami, FL, on or about April 6, 2010. (V3, R398-401).

Appellant filed his Objection to State’s Introduction of Evidence of Alleged Other

Crimes, Wrongs, or Acts of the Defendant on February 23, 2013. (V3, R422). A hearing was held on August 19, 2013. (V21, R4). Appellant filed his Memorandum of Fact and

Law in Response to State’s Notice of Intent to Introduce Evidence of Other Crimes,

Wrong, or Acts of the Defendant on October 4, 2013. (V11, R1948-1980).

A trial court's determination that evidence is relevant and admissible “will not be disturbed absent an abuse of discretion.” Victorino v. State, 23 So. 3d 87, 98 (Fla. 2009)

(quoting Taylor v. State, 855 So. 2d 1, 21 (Fla. 2003); Sexton v. State, 697 So. 2d 833,

837 (Fla. 1997)).

The trial court found:

I’m going to find that there is a mixture of Williams Rule evidence and a mixture of evidence that I would consider relevant under 90.402. Under both scenarios I’m going to find that the evidence is admissible, but I’m going to qualify that statement by saying the following: That evidence cannot become a feature of the trial, and I reserve the right to limit it at any time if I find that it’s becoming a feature of the trial. So based upon that, I’m going to rule that it is admissible at this time with that caveat that if I feel that it becomes too prejudicial, I may limit it or eliminate it at trial. So you need to be aware of that, that that’s -- that ruling is going to be limited to that extent.

(SR, V63, R6-7).

In the trial court’s sentencing order, the court addressed the “Williams Rule

Evidence” again, by stating in pertinent part:

First, the evidence was relevant and material and inextricably intertwined with the facts surrounding Vincent Binder’s disappearance and killing. Those acts leading up to the kidnapping explain the reason why Mr. Binder was killed. Second, some of the evidence was strikingly similar to the evidence in Mr. Binder’s homicide.

Those acts that preceded the kidnapping of Vincent Binder tell the story which ultimately ends with his death. To consider the kidnapping and killing of Vincent Binder in a vacuum; that is, without knowing the antecedent events that had taken place just prior to Vincent Binder’s 68

kidnapping, would have misled the jury into a story that would have made little or no sense.

(V19, R3300-3301). In Victorino v. State, 23 So. 3d at 99, this Court discussed the analysis with regard to admission of dissimilar fact evidence of uncharged misconduct by stating:

Dissimilar fact evidence of uncharged misconduct—which is governed by section 90.402's general rule of relevancy—is admissible to “establish[ ] the relevant context in which the [charged] criminal acts occurred.” Caruso v. State, 645 So. 2d 389, 394 (Fla. 1994). “[T]o prove its case, the State is entitled to present evidence which paints an accurate picture of the events surrounding the crimes charged.” Griffin v. State, 639 So. 2d 966, 970 (Fla. 1994). Accordingly, evidence of uncharged misconduct is relevant when its admission is “necessary to adequately describe the events leading up to” the commission of the charged offense. Id.(emphasis added).

Victorino v. State, 23 So. 3d at 99. Truehill, like Victorino, acted with a group of co-defendants to engage in a

“continuing chain of events leading up to the murder” involving the same evidence, and establishing a cohesive, logical timeline for the jury. Malloy v. State, 382 So. 2d 1190

(Fla. 1979) (holding that the State could present evidence of uncharged conduct that showed a “continuing chain of chronological events”); Foster v. State, 679 So. 2d 747,

753 (Fla. 1996) (“[t]he State can present to the jury the complete picture of the criminal episode, and the evidence of the earlier crimes was admissible on this basis.”) These facts, like in Victorino, Malloy, and Foster, were all “necessary to adequately describe the events leading up to” the commission of the murder, just like in the case at bar. The court did not err.

Even though the State advised in the pre-trial evidentiary hearing that it was not proceeding under 90.402, and only seeking to admit the evidence under 90.404, the evidence is actually admissible for any purpose aside from proving propensity, as the trial court found. Williams v. State, 110 So. 2d 654 (Fla. 1959). In Kopsho v. State, 84

So. 3d 204, 212-13 (Fla. 2012), this Court discussed this analysis by stating:

In Williams [v. State, 110 So. 2d 654 (Fla. 1959)], we articulated the following standard for the admission of such evidence:

Our view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy. The test of inadmissibility is a lack of relevancy.

Id. at 659–60 (emphasis omitted). As codified in section 90.404(2), Florida Statutes (2009), “[s]imilar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” However, such evidence is “inadmissible when the evidence is relevant solely to prove bad character or propensity.” When Williams rule evidence is improperly admitted because its sole purpose was to prove bad character or propensity, or because it was irrelevant to an issue of material fact, its admission is presumed harmful and amounts to reversible error. See, e.g., Williams, 110 So. 2d 654; see also Straight v. State, 397 So. 2d 903, 908 (Fla. 1981).

Evidence of other crimes, wrongs or acts is admissible if (1) it is relevant and has probative value in proof of the instant case or some material fact or facts in issue; and (2) its sole purpose is not to show the bad character of the accused; and (3) its sole purpose is not to show the propensity of the accused to commit the instant crime charged; and (4) its admission is not precluded by some other specific exception or rule of exclusion. Green v. State, 190 So. 2d 42, 46 (Fla. 2d DCA 1966) (discussing Williams, 110 So. 2d 654). This Court has held that before admitting collateral crime evidence, the trial court must make four determinations: (1) whether there is sufficient evidence that the defendant committed the collateral crime; (2)

whether the collateral crime meets the necessary similarity requirements necessary to be relevant; (3) whether the collateral crime is too remote, so as to diminish relevance; and (4) whether the prejudicial effect of the collateral crime substantially outweighs the probative value. Peterson v. State, 2 So. 3d 146, 153 (Fla. 2009). In making its determination, the trial court must find that the prior acts were proved by clear and convincing evidence prior to admitting the evidence to the jury. McLean v. State, 934 So.2d 1248, 1262 (Fla.2006). Thus, relevant evidence of other crimes, wrongs, or acts is admissible if the probative value to show motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident outweighs any unfair prejudice, confusion of the issues, misleading of the jury, or needless presentation of cumulative evidence. See LaMarca v. State, 785 So. 2d 1209 (Fla. 2001). (emphasis added).

Further, introduction of other crimes evidence is not limited to crimes with similar facts. Bradley v. State, 787 So. 2d 732, 741 (Fla. 2001) (citing Zack v. State, 753 So. 2d 9, 16 (Fla. 2000)); see also Bryan v. State, 533 So. 2d 744 (Fla. 1988). Dissimilar fact evidence may be admissible under section 90.402, but like similar fact evidence its admissibility is determined by its relevance. Bradley, 787 So. 2d at 741. It is permissible to introduce evidence that helps to put the entire case into perspective to the extent that its relevance is not outweighed by its prejudicial effect. Id. at 742 (citing Zack, 753 So. 2d at 17) (emphasis added).

Therefore, the evidence was relevant to developing the circumstances leading up to the murder, regardless of whether it is termed similar or dissimilar evidence. See Coolen v. State, 696 So. 2d 738, 742–43 (Fla. 1997) (evidence of knife threat to victim's son was relevant to show defendant's state of mind on the night of the murder); Ferrell v. State, 686 So. 2d 1324, 1328–29 (Fla.1996) (evidence of robbery was properly admitted to complete the story of the crime on trial and to explain defendant's motivation in seeking to prevent retaliation by the victim). Bradley, 787 So. 2d at 742.

Kopsho v. State, 84 So. 3d at 212-13.

Here, the evidence of the three co-defendants working in concert to distract, intimidate, and terrorize victims in their cross-country crime spree was “inseparable

from the crime charged, or evidence which is inextricably intertwined with the crime charged,” and, as such, is admissible under section 90.402 because it is relevant and necessary to adequately describe the crime at issue. Ferrell v. State, 686 So. 2d 1324,

1329 (Fla. 1996) (citing Griffin, 639 So. 2d 966, 968 (Fla. 1994); Bryan v. State, 533 So.

2d 744 (Fla. 1988).

Like in Ferrell, the State properly admitted this evidence against Truehill to

“complete the story of the crime on trial” and to “explain [Truehill’s] motivation in seeking to prevent retaliation from the victim.” Ferrell v. State, 686 So. 2d at 1329.

Here, the State’s theory was the “retaliation” Truehill sought to prevent which was the victims canceling their credit cards that he planned to use to finance his party in Miami and fund his fugitive status. (V22, R225) The victims he had left alive quickly cancelled their credit cards so he could only get a single use out of them. He had to continually rob people to finance his flee from justice. Once he killed Vincent Binder, he lived on that victim’s credit for more than five days.

Furthermore, the other crimes were not made a feature of the trial. The focus of the trial was clearly on the kidnapping and murder of Vincent Binder, and on proving

Truehill’s culpability for those crimes. The testimony of these prior crime witnesses was limited in their scope and only as long as necessary to prove the State’s stated purpose of tying together pieces of evidence from different crimes – including Brown’s DNA found on pants located in Miami, and the stolen black pickup truck from Louisiana used to

commit the robberies in Florida – and establishing the modus operandi employed by

Truehill, Johnson, and Hughes to attack victims and commit crime as a cohesive unit.

(V22, R222-223).

Appellant cites to Conde v. State, 860 So. 2d 930 (Fla. 2003) for the proposition that admissible inextricably intertwined evidence must still be limited to only the necessary details (IB at 76). This Court stated in Conde:

We note that while evidence, such as the G.M. incident, that is inextricably intertwined with the charged crime is admissible to establish the entire context of the crime, care should be taken to exclude unnecessary details. There is, of course, no bright line between the admissible and inadmissible facts of inextricably intertwined collateral crimes. The drawing of that line is within the discretion of the trial court. Here, the trial court limited testimony regarding the G.M. incident to a quick recital of the basic facts. We therefore conclude that the trial court did not abuse its discretion.

Conde v. State, 860 So. 2d at 948 (emphasis added). Here, the State elicited questing in the same manner as in Conde, and elicited no more than the pertinent facts from each witness in the chain of events.

Appellant attempts to conflate the precedent for limiting the number of “gruesome autopsy photos that may come into evidence” with inextricably linked evidence by arguing, “[s]imilarly, the trial judge in this case should have limited the evidence of the number and quality of wrongs or crimes that came before the jury.” (IB at 79). These two considerations are completely unrelated, but for being governed by the rules of evidence, and there is no support for this assertion found anywhere in the line of cases dealing with inextricably linked evidence.

Appellant next cites to Czubak v. State, 570 So. 2d 925, 928 (Fla. 1990) for the proposition that the evidence that Truehill escaped from jail is “extremely prejudicial.”

(IB at 79). However, in that case, where Czubak was called an “escaped convict” as a pejorative, and it had no relevance to any material fact at issue – is completely distinguishable from the case at bar, where Truehill’s escape from the Louisiana jail began his crime spree across the Gulf coast and established his method of working in concert with Hughes and Johnson.

Assuming, arguendo, that the challenged testimony should have been excluded; the record clearly reveals that any error in its admission was harmless beyond a reasonable doubt. Milton v. Wainwright, 407 U.S. 371, 372-73, 92 S. Ct. 2174, 2175-76, 33 L. Ed.

2d 1 (1972) (citing Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d

284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

The jury here, like in Milton, -- in addition to hearing the challenged testimony – was presented with overwhelming evidence of Appellant's guilt, including his DNA on the murder weapon, his recent possession of the victim’s property, and his DNA co-mingled with the blood of the victim.

Robertson v. State, 829 So. 2d 901, 913-14 (Fla. 2002) discusses similar fact evidence under 90.404, not inextricably intertwined evidence under 90.402. The trial court properly admitted the State’s collateral crime evidence because it was not more prejudicial than probative of a material fact at issue, and it was relevant, material, and

inextricably intertwined with Vincent Binder’s murder.

POINT IV THE PROSECUTOR’S CLOSING ARGUMENT DID NOT CONSTITUTE FUNDAMENTAL ERROR

On page 81 of his brief, Appellant contends that he is entitled to a new trial based on various comments that the prosecutor made during closing arguments in the guilt phase.

The comments can be characterized as (1) “the partners in crime” comment; (2) the

“personal belief” comment; (3) the “restatement during rebuttal” comment; (4) the

“victim deserves justice” comment; and (5) the “let this defendant know” comment.

To preserve a claim based on improper comment, counsel has the obligation to object and request a mistrial. If counsel fails to object or, if after having objected, fails to move for a mistrial, his silence will be considered an implied waiver. Bright v. State, 90

So. 3d 249, 259 (Fla. 2012), cert. denied, 133 S.Ct. 300, 184 L.Ed. 2d 177 (2012)

(quoting Nixon v. State, 572 So. 2d 1336, 1340–41 (Fla. 1990). Comments properly preserved by an objection are reviewed for abuse of discretion by the trial court. Merck v. State, 975 So. 2d 1054 (Fla. 2007).

A. “The partners in crime” comment

Appellant argues that the prosecutor violated the trial court’s William’s rule instruction when he referred to the co-defendants Truehill, Johnson, and Hughes as “partners in crime.” Appellant takes issue with this characterization, which he cites from (V48, R1266). However, it is worth noting that the prosecutor refers to the co-

defendants as “partners in crime” prior to that, when he states:

And the man who had just turned down a ride from his friends’ home found himself in the back of a stolen pickup truck with this defendant and his partners in crime.

(V48, R1256). This comment was not objected to. The objection that was preserved for appeal was to the comment:

Leann Williams, you remember her testimony. She lived in the area of Broussard, Lousiana which is just south of Marksville, Lousiana where the defendant and his partners in crime escaped in the Avoyelles Praish Jail. (V43, R1266). Defense objected and asked for a sidebar. The objection went to the fact the jury instruction noted that the jury was not to consider other crimes, but that the prosecutor referred to them as partners in crime, which, he argued was violating the court’s order not to consider the escape from jail a crime. (V43, R1266-1267). The court sustained the objection but denied the Appellant’s motion for a mistrial. The court did, however, admonish the prosecutor to refer to the bad acts as “circumstances” rather than crimes. The court also noted that the jury would be well-aware that the acts described were crimes, but granted the defendant’s request for a curative instruction and re-read the Williams rule instruction to the jury. (V43, R 1267-1269).

This Court reviews a trial court’s denial of a mistrial based on prosecutorial comments under and abuse of discretion standard as discussed in Salazar v. State, 991

So. 2d 364, 371-72 (Fla. 2008):

We have repeatedly held that this Court reviews a trial court's ruling on a motion for mistrial under an abuse of discretion standard. See England v. State, 940 So. 2d 389, 402 (Fla. 2006) ( “A trial court's ruling on a motion for mistrial is subject to an abuse of discretion standard of review.”); Perez v. State, 919 So. 2d 347, 363 (Fla. 2005) (“[A] trial court's ruling on a 76

motion for mistrial is subject to an abuse of discretion standard of review.” (quoting Goodwin v. State, 751 So. 2d 537, 546 (Fla. 1999))); Floyd v. State, 913 So. 2d 564, 576 (Fla. 2005); Ricks v. Loyola, 822 So. 2d 502, 506 (Fla. 2002) (holding that “trial courts have broad discretion when ruling on motions for new trial and motions for mistrial”); Ford v. State, 802 So. 2d 1121, 1129 (Fla. 2001) (“A trial court's ruling on a motion for a mistrial is within the sound discretion of the court and will be sustained on review absent an abuse of discretion.”); Snipes v. State, 733 So. 2d 1000, 1005 (Fla. 1999) (“A decision on a motion for a mistrial is within the discretion of the trial judge and such a motion should be granted only in the case of absolute necessity.”); Power v. State, 605 So. 2d 856, 861 (Fla. 1992) (“Ruling on a motion for a mistrial is within the sound discretion of the trial court.”). “A motion for mistrial should be granted only when it is necessary to ensure that the defendant receives a fair trial.” Cole v. State, 701 So. 2d 845, 853 (Fla. 1997). Stated differently, “[a] motion for a mistrial should only be granted when an error is so prejudicial as to vitiate the entire trial.” England, 940 So. 2d at 401–02; see Hamilton v. State, 703 So. 2d 1038, 1041 (Fla. 1997) (“A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial.”). Under the abuse of discretion standard, a trial court's ruling will be upheld unless the “judicial action is arbitrary, fanciful, or unreasonable.... [D]iscretion is abused only where no reasonable [person] would take the view adopted by the trial court.” Trease v. State, 768 So. 2d 1050, 1053 n. 2 (Fla. 2000) (second alteration in original) (quoting Huff v. State, 569 So. 2d 1247, 1249 (Fla. 1990)). Thus, “[i]n order for the prosecutor's comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.” Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994).

Salazar v. State, 991 So. 2d at 371-72.

Furthermore, even if a prosecutor’s comments are erroneous, the trial court does abuse its discretion in denying a motion for mistrial unless the error was “so prejudicial as to vitiate the entire trial.” Poole v. State, 997 So. 2d 382, 391 (Fla. 2008) (citing

Dessaure v. State, 891 So. 2d 455, 464-65 (Fla. 2004)).

There is nothing about this prosecutorial comment that deprives the defendant of a fair and impartial trial, materially contributes to the conviction, and it is not so harmful or fundamentally tainted as to require a new trial. Referring to co-defendants as

“partners in crime” is a reasonable comment. Furthermore, under these facts, it was a fair comment on the evidence presented at trial, for nothing other than the fact that Truehill,

Johnson, and Hughes were together when they kidnapped Vincent Binder, used his credit cards, and his body shows two different sets of stab wounds. In any event, the objection was sustained, but this was neither an inflammatory comment intended to influence the jury to reach a more severe verdict, nor an attempt to circumvent the court’s Williams rule ruling. There was no error in denying a mistrial.

Appellant cites Pacifico v. State, 642 So. 2d 1178 (Fla. 1st DCA 1994) for this proposition, but this case is not precedent from this Court, binding on this Court, nor does it speak to this issue. Pacifico is a sexual battery case – not a capital, or even a murder case – and the only similarity to the case at bar is that the defendant in that case also challenged exactly five types of comments the prosecutor in that case made during his closing arguments. The five types of comments in that case amount to many more actual comments of a much more egregious nature than the case at bar, however. Some of those comments included:

Ladies and gentlemen of the jury, this case is about a chronic liar, a convicted felon, a sadistic selfish bully who lied his way into a fraternity because he liked the social opportunities and the life style that it offered him. He targeted a naive trusting freshman girl. He tricked her into coming to his apartment by manipulation and ruse. Pacifico v. State, 642 So. 2d at 1181 (footnotes omitted). Pacifico is further removed

from this case because the prosecutor continued to argue the objectionable line of argument even after the trial court had sustained the defendant’s objection three times. In that case, under those circumstances, the District Court of Appeals found that the improper prosecutorial comments, in the aggregate, resulted in an unfair trial, and reversed.

It was not an abuse of discretion for the trial court to deny the mistrial. Taken in context, as the trial court pointed out, it was hardly an egregious comment. (V43,

R1267). In any event, any harm was cured when the curative instruction – in the form of the Williams rule jury instruction – was re-read.

B. The “personal belief” comment

Appellant argues that the prosecutor injected his personal belief into the closing argument when he stated:

The independent-act doctrine -- and when you really break it down and think about it, it really is not going to affect premeditated murder because, if you think about it, we have proven that this defendant was involved in premeditated murder. We have shown the facts that we believe and the facts that show - -

(V43, R1330). Appellant objected immediately, which was sustained; and at sidebar, moved for a mistrial, which was denied. Defense stated no curative instruction would cure the improper comment, but then asked for a curative instruction, which was granted.

The judge admonished the prosecutor to “just talk about the evidence and what -- what it shows or doesn’t show.” (V43, R1331). The judge further instructed the jury that closing arguments were not evidence or instructions on the law, but to aid the jury in its

understanding of the case. (V43, R1332).

As discussed supra, a trial court’s denial of a mistrial based on prosecutorial comments during closing argument is reviewed under an abuse of discretion standard.

Thus, “[i]n order for the prosecutor's comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.” Spencer v. State, 645 So. 2d at 383.

While it is inappropriate for a prosecutor to personally vouch for the evidence during closing argument, viewing the comment in the totality of the circumstances, that was not what the prosecutor did here, and it certainly was not his intention. It is clear, both from the prosecutor’s response to the objection, and the line of argument the State takes up after the curative instruction, that the prosecutor’s intention was not to personally endorse the evidence or any particular verdict, but a mere misspeak in the context of an “off-the cuff” argument as to the State’s position of what the evidence proved. He used “we believe” in the same way prosecutors use “I submit the evidence proves …” or “the State has proven …” which are perfectly appropriate arguments. At sidebar, the prosecutor states, “It’s what we say that all the time, Judge.” (V43, R1330).

And after resuming his argument, the prosecutor continues “When you look at the evidence, ladies and gentlemen, you will see – and, of course, it’s your determination whether or not premeditated murder even falls within that instruction. I would submit to you, ladies and gentlemen, that it does not …” (V43, R1332).

Notably, Appellant did not cite any precedent in support of this sub-claim. Even still, the prosecutor’s comment here was wholly distinguishable from the line of cases holding that an attorney cannot become a hearsay witness in the case, not subject to cross-examination. Contra Moore v. Taylor Concrete & Supply Co., 553 So. 2d 787, 792

(Fla. Dist. Ct. App. 1989); Stokes v. Wet 'N Wild, Inc., 523 So. 2d 181 (Fla. 5th DCA

1988).

Even if this comment is improper, the objection was sustained, the prosecutor was instructed to keep his argument to what the law could or could not prove, a curative instruction was given, and the prosecutor had not even gotten to the part of the statement that could have conceivably influenced the jury by the prosecutor’s personal belief

“…the evidence that we believe, and the facts that show –“ This statement was not so egregious or could not have influenced the jury such that a mistrial was warranted. As such, the trial court did not abuse its discretion in denying Appellant’s motion for a mistrial.

C. The “restatement during rebuttal” comment

Appellant next claims that the prosecutor improperly argued when he restated his closing argument. (IB at 82-83). This claim is insufficiently argued in Appellant’s brief because he neither identifies what the prosecutor said, nor clarifies why it is inappropriate. Appellant states only, “[a] prosecutor must confine his or her closing argument to evidence in the record and must not make comments which could not be reasonably inferred from the evidence” and “a proper rebuttal argument is limited to a reply to what has been brought out in the defendant's closing argument.” (IB at 82-83).

The corresponding objection was equally nebulous at trial. Appellant objected to the prosecutor’s line of rebuttal argument pointing out that in each criminal attack, Truehill was the one witnesses saw with the large knife that caused one set of Vincent Binder’s injuries, that he was the “muscle.” When Appellant objected he stated, “[w]hile defense concedes much of what he is arguing is things I touched on, but he’s limited in his second closing to only facts that we talked on … [s]o all they are doing is step by step doing things, whether I talked about it or not” (V43, R1341). The prosecutor pointed out that he was entitled to rebut the defense’s argument that there was a lack of proof as to

Truehill. The court agreed and overruled the objection. The State submits that this sub- claim should be denied because it is insufficiently pled and, furthermore, the argument was wholly proper.

Appellant cites Ruiz v. State, 743 So.2d 1, 4 (Fla.1999) under this sub-claim. But

Ruiz deals with a prosecutor testifying as an “expert” during closing arguments, essentially arguing “if the defendant wasn't guilty, he wouldn't be here,” and “we try to prosecute only the guilty.” Ruiz points out that this type of argument has been soundly rejected by courts. However, it is not relevant to this sub-claim and nothing akin to this improper vouching occurred in this case as it relates to sub-claim B, either.

Appellant also cites Brown v. State, 18 So. 3d 1149 (Fla. Dist. Ct. App. 2009) for the supposition that the prosecutor’s rebuttal closing argument was improper. In Brown, the prosecutor was found to have gone beyond the function of a proper rebuttal – to reply to defendant's closing argument – because during his rebuttal, he utilized a detailed PowerPoint presentation that summarized testimony of each witness,

what was shown in surveillance tape, and elements of each crime for which defendant was charged. Nothing akin to that occurred in the prosecutor’s rebuttal closing argument here, which merely addressed the lack of proof arguments raised by Appellant in his closing argument by pointing out the proof of guilt the State presented.

Even assuming arguendo, that the trial court erred in overruling the objection, the harmless error analysis that would apply, there is no reasonable possibility that such error contributed to the conviction. Salazar v. State, 991 So. 2d 364, 383 (Fla. 2008);

State v. DiGuilio, 491 So.2d 1129 (Fla.1986). See the discussion, supra.

D. The “victim deserves justice” comment

Appellant next argues that the state inflamed the passions of the jury and evoked sympathy for the victim with the statement, “Justice demands a verdict of guilty, ladies and gentleman. Vince, he deserves justice”. (V43, R1357).46 The objection and motion for a mistrial is lodged and, at sidebar, Appellant explains that he is objecting to that statement, saying it inflames the passions of the jury and also misstates the law. The objection was overruled, and the court stated, “I don’t believe he is appealing to the sympathy or anything like that.” (V43, R1358).

The standard on appeal and applicable case law is discussed supra.

E. The “let this defendant know” comment.

Appellant next argues that the state used a send-a-message-to-the-community

46 This comment actually appears on page 1357 of volume 43, not on page 1353 as cited by Appellant.

argument when the prosecutor stated, “If you find the evidence in this case was proven beyond a reasonable doubt, then through your verdict ... let this defendant know that you can’t kidnap people, let him know that you can’t rob people...”. (V43, R1358). An objection was lodged and, at sidebar, Appellant argued for a mistrial. The objection was sustained and the court cautioned the prosecutor that “[t]his is about one victim. I think that’s going beyond …” (V43, R1359). The motion for mistrial was denied, but the court, sua sponte, gave a curative instruction to the jury to “disregard that last comment made by Mr. Lewis.” (V43, R1359).

Similarly, in Pagan v. State, 830 So. 2d 792, 812 (Fla. 2002) this Court held that the prosecutor’s comments “[h]e wanted to get away with it. Now he wants to get away with them now. You are the only force on earth that can prevent that from happening” did not warrant a mistrial because it was neither a golden rule violation nor an assertion that the defendant would kill again. This case is also similar to Fennie v.

State, 855 So. 2d 597, 609 (Fla. 2003), where the Appellant argued that the prosecutor had improperly incited the jury to “send a message” to, or “do their duty” for the community by sentencing Fennie to death. In Fennie, this Court concluded that

Appellant could not demonstrate that the unanimous death recommendation was improperly tainted by the allegedly improper comments. The same is true here, especially given the curative instruction by the court. POINT V: THE TRIAL COURT MADE NO ERRORS DURING THE PENALTY PHASE, SO THERE IS NO ERROR TO AGGREGATE. On page 86 of his brief, Truehill argues that the trial court’s rulings during his penalty phase “in the aggregate” entitle him to a new trial. Presumably, this claim is 84

based upon the “cumulative effect” of the other claims raised in Truehill's brief. The

State’s response to that argument is that because none of Truehill’s other claims establish error; there is no “error” to “aggregate.” Victorino v. State, 23 So. 3d 87, 108

(Fla. 2009); Floyd v. State, 850 So. 2d 383, 408 (Fla. 2002). Truehill's individual claims are each without merit, so his cumulative error claim must also fail. See Griffin v. State,

866 So. 2d 1, 22 (Fla.2003) (“[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail.”) The State asserts that the trial court did not commit error, as argued in this pleading. Assuming arguendo, that this Court was to find error, an examination of the record and a consideration of the totality of evidence presented at Truehill's trial would support the proposal that the cumulative effect of any errors did not deprive Truehill of a fair trial. This Court has set forth the analysis for cumulative error in the recent case of

Gonzalez v. State, 136 So. 3d 1125, 1166-67 (Fla. 2014). Gonzalez states: “[r]elief can only be granted if the errors cumulatively constitute fundamental error, meaning they

‘must be so prejudicial as to taint the jury's recommended sentence.’” (quoting Thomas,

748 So. 2d at 985 n. 10.) As to cumulation of errors, this Court has further held:

We have previously held that the cumulative effect of multiple harmless errors did not amount to fundamental error where the errors shared three decisive factors: “(1) none of the errors were fundamental; (2) none went to the heart of the state's case; and (3) the jury would have still heard substantial evidence in support of the defendant's guilt.” Brooks II, 918 So. 2d at 202 (citing Jackson v. State, 575 So. 2d 181, 189 (Fla. 1991)). In Brooks II, 918 So. 2d at 202, we “determined that five errors of law occurred during the course of Brooks' retrial” for two counts of first-degree murder and corresponding sentences of death, and in Jackson, 575 So. 2d at 189, we determined that three such errors had occurred. In both of those 85

cases, based on the three decisive factors listed above, we held that—in light of the totality of the evidence against the defendant—there was no reasonable possibility that the cumulative effect of the errors contributed to the conviction. Brooks II, 918 So.2d at 202; Jackson, 575 So. 2d at 189. Braddy v. State, 111 So. 3d 810, 860 (Fla. 2012)

Any alleged error argued by Appellant would meet the three Brooks elements, in that 1) none of the errors were fundamental; (2) none went to the heart of the state's case; and (3) the jury would have still heard substantial evidence in support of the defendant's guilt.

To this extent that Truehill is using this heading to actually argue that the court erred in denying his Motion for New Trial filed on 5/23/14, as seems to be the case on pages 86-87, the State responds that the trial court did not err in denying Truehill’s motion for a new trial. Truehill’s Motion for New Trial appears in the record in V19,

R3339. Furthermore, Appellant asks to merely “adopt and incorporate” 17 various claims containing several sub-claims of another motion as though it was presented and argued on direct appeal. The State submits that this does not properly present these claims to the Court for review, and should be deemed insufficiently pled. In any event, there was no error in the trial court’s denial of Appellant’s motion for new trial. This

Court reviews the trial court's ruling on a mistrial motion for abuse of discretion. Salazar v. State, 991 So. 2d 364, 371 (Fla. 2008) and the Court’s ruling was not arbitrary, fanciful, or unreasonable. Id.

a. To the extent that Truehill is using this heading to argue that the court erred in precluding Aiken’s testimony, and thereby inhibited the defense from establishing evidence of Truehill’s “amenability to incarceration and rehabilitation” (IB at 91), the

State argues that the trial court did not err. The determination of relevancy is within the discretion of the trial court, and where a trial court has weighed probative value against prejudicial impact before reaching its decision to admit or exclude evidence, an appellate court will not overturn that decision absent a clear abuse of discretion. Sims v. Brown,

574 So. 2d 131, 133 (Fla. 1991). Moreover, "[t]he weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two.” Id.

b. To the extent that Truehill is using this heading to argue that the court erred in denying a mistrial based on Dr. Prichard’s testimony (IB at 90-91), this Court reviews the trial court's ruling on a mistrial motion for abuse of discretion. Salazar v. State, 991

So. 2d 364, 371 (Fla. 2008). Dr. Prichard was qualified to opine as to Truehill’s claim of

PTSD, and paired with Appellant’s own voice on the phone call discussing fabricating a

PTSD defense based on Hurricane Katrina, this is not so unfair as to warrant a mistrial.

Trial counsel’s motion for mistrial was properly denied because the ruling was not arbitrary, fanciful, or unreasonable. Id.

c. To the extent that Truehill is using this heading to argue that the court erred in denying a mistrial based on the State’s closing argument (IB at 91-92)47, specifically in regards to the PowerPoint slide used as a visual aide during the State’s closing argument which depicted a photo of the deceased with the text: “The dead cannot cry out for

47 Under this sub-heading, Truehill also re-incorporates his arguments from Point IV. The State responds to this averment as argued in Point IV, supra.

justice. It is the duty of the living to so for them.” This is neither improper argument nor intended to “inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant” as cautioned against in King v. State,

623 So. 2d 486, 488 (Fla. 1993). There is nothing in the prosecutor’s closing argument that “injects elements of emotion and fear into the jury’s deliberations.”Truehill cites to

Hawk v. State, 718 So. 2d 159, 164-65 (Fla. 1998) as analogous, but there is nothing remotely similar about the closing argument in that case, where the prosecutor urged the jury to return a death recommendation based on the victim’s disability. POINT VI FLORIDA’S DEATH SENTENCING SCHEME IS CONSTITUTIONAL UNDER THE SIXTH AMENDMENT PURSUANT TO RING V. ARIZONA.48

Truehill asks this Court to “reconsider its position in Bottoson and King because

“Ring represents a major change in constitutional jurisprudence which would allow this

Court to rule on the constitutionality of Florida's statute.” (IB at 94). Truehill argues that

“[i]n order for a maximum sentence of life to be increased to death, a trial court must make findings of fact.” That is precisely what the trial court in this case did in the sentencing order, delineating the aggravating circumstances that outweighed the mitigating circumstances. Truehill argues:

Florida Statute section 921.141 requires the trial court to make “written findings of fact” that sufficient aggravating circumstances exist and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances. If the trial court does not make these required written

48 Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

findings it must impose a sentence of life imprisonment. In fact this is incorrect. The trial court must make written findings of fact that the aggravating circumstances outweigh the mitigation. The presumption, of course, is for a life sentence. See generally Carr v. State, 156 So.3d 1052, 1071 (Fla. 2015).

This argument, like those considered by this Court in the past, is meritless. In

Jackson v. State, 127 So. 3d 447 (Fla. 2013), this Court stated that it has repeatedly upheld Florida's capital sentencing scheme. Furthermore, that scheme does not violate the United States Constitution under Ring v. Arizona. See also Abdool v. State, 53 So. 3d

208, 228 (Fla. 2010) (“This Court has also rejected [the] argument that this Court should revisit its opinions in Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002), and King v. Moore,

831 So. 2d 143 (Fla. 2002), and find Florida's sentencing scheme unconstitutional.”)

Appellant references the proposed legislation requiring unanimous jury verdicts in capital cases. However, Senate Bill 664 and related House Bill 139 “died” in the

Judiciary on May 1, 2015. (Exhibit A).

While it is true the Supreme Court of the United States has accepted certiorari review in Hurst,49 the fact that certiorari has been granted in a factually distinguishable case, does not mean that Appellant is entitled to relief. A grant of certiorari by the

United States Supreme Court has no precedential value. Ritter v. Smith, 811 F.2d 1398,

1400-05 (11th Cir. 1987). To the extent Appellant is arguing for a stay (IB at 96), this

49 Timothy Lee Hurst v. Florida, United States Supreme Court Case No. 14-7505, case below, Hurst v. State, 147 So. 3d 435, 446 (Fla. 2014), reh'g denied (Sept. 4, 2014), cert. granted in part, No. 14-7505 (U.S. Mar. 9, 2015).

Court has already considered that issue after a motion and response by the parties, and ruled on that issue. (Exhibit C).50 Any speculation as to what the U.S.S.C. may or may not do at this point is pure conjecture, and the law in Florida is currently clear on this point. The lower court was correct to follow the law.

Furthermore, Ring does not apply here because Defendant was proven to have prior felony convictions involving the use or threat of violence. Specifically, Appellant, was proven to have previously been convicted of both Robbery and Manslaughter as evidenced by the testimony of the Louisiana Distinct Attorney, Keith Stutes, and the admission into evidence of the certified judgment and sentences bearing Appellant’s fingerprints. 51 (V46, R66-7, 69-70, Penalty Phase State Exh. 1). Appellant was under a sentence of imprisonment of 40 years for the Robbery and 30 years for the Manslaughter at the time he escaped to commit a string of crimes culminating in the murder of Vincent

Binder. Appellant was also convicted for the contemporaneous felony of kidnapping.

This Court has consistently held that a defendant who was proven to have been convicted of a prior or contemporaneous violent felony aggravator falls outside of the

50 For brevity and to avoid redundancy, undersigned counsel would ask this Court to incorporate the State’s substantive arguments against Truehill’s motion to stay his proceedings pending the outcome of Hurst previously submitted to this Court for consideration on March 30, 2015 and denied by this Court on April 7, 2015. (Exhibit B). 51 These prior violent felonies stem from unrelated acts. The victim of the Robbery was Richard Perkins and Appellant was sentenced to 40 years imprisonment on June 23, 2007. The victim of the manslaughter was James Bourgeois and Appellant was sentenced to 30 years imprisonment on December 17, 2009.

Ring analysis. See Hall v. State, 87 So. 3d 667, 671 (Fla. 2012), cert. denied, 133 S.Ct.

537 (2012) (Ring claim “is without merit because the prior violent felony aggravator is present in this case”); Bryant v. State, 901 So. 2d 810, 823 (Fla. 2005); Robinson v.

State, 865 So. 2d 1259, 1265 (Fla. 2004) (“This Court has held that the aggravators of murder committed ‘during the course of a felony’ and prior violent felony involve facts that were already submitted to a jury during trial and, hence, are in compliance with

Ring.”); Hamilton v. State, 875 So. 2d 586, 594 (Fla. 2004) (prior violent felony aggravator “need not be found by the jury”); Johnston v. State, 863 So. 2d 271, 286 (Fla.

2003) (The “prior violent felony conviction alone satisfies constitutional mandates because the conviction was heard by a jury and determined beyond a reasonable doubt.”)

Because the prior violent felony aggravator was necessarily found by a jury, Truehill's

Ring claim must fail. POINT VII THE DEATH SENTENCE IS PROPORTIONATE WHEN COMPARED WITH SIMILAR CASES Next, even though Truehill does not specifically raise the issue, and it is not required under the Eighth Amendment to the United State Constitution, this Court conducts a qualitative analysis and comparison of other capital cases to determine whether the death sentence is proportionate. Yacob v. State, 136 So. 3d 539, 556-58 (Fla.

2014). As discussed in Calhoun v. State, 138 So. 3d 350 (Fla. 2013), cert. denied, 135 S.

Ct. 236, 190 L. Ed. 2d 177 (2014):

[T]o ensure uniformity in death penalty proceedings, ‘we make a comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence.’ ” 91

Floyd v. State, 913 So. 2d 564, 578 (Fla. 2005) (quoting Anderson v. State, 841 So. 2d 390, 407–08 (Fla. 2003)). This Court has described the “proportionality review” as involving “a thoughtful, deliberate proportionality review to consider the totality of circumstances in a case, and to compare it with other capital cases.” Tillman v. State, 591 So. 2d 167, 169 (Fla. 1991) (quoting Porter v. State, 564 So. 2d 1060, 1064 (Fla. 1990) (emphasis omitted)). “This entails ‘a qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis.’ In other words, proportionality review ‘is not a comparison between the number of aggravating and mitigating circumstances.’ ” (citing Offord v. State, 959 So. 2d 187, 191 (Fla. 2007) (citations and emphasis omitted)).

Calhoun v. State, 138 So. 3d 350 (Fla. 2013), cert. denied, 135 S. Ct. 236, 190 L. Ed. 2d 177 (2014).

In conducting proportionality review, this Court has stated that in the absence of

“demonstrated legal error,” the trial court's findings on the aggravating and mitigating circumstances are accepted. The trial court thoroughly considered the aggravating and mitigating circumstances at issue and supported each with specific written findings of fact, finding that the aggravators outweigh the mitigators. See Dennis v. State, 817 So.

2d at 763. Here, the court “gave all mitigating circumstances careful and deliberate consideration” and made a written finding of fact as to each, concluding that death was the appropriate sentence. (V19, R3330). Accord Rodgers v. State, 948 So. 2d 655, 670

(Fla. 2006); (V19, R 3300-3338).

Six aggravating circumstances, HAC, CCP, avoiding arrest, engaged in a kidnapping and/or robbery, under sentence of imprisonment, and prior violent felony, have been proven beyond all reasonable doubt and each was accorded great weight.

Here, three of the six aggravators are considered to be especially weighty. HAC is one of 92

the most serious aggravators in the statutory sentencing scheme. See, e.g., Douglas v.

State, 878 So. 2d at 1262. In Kalisz v. State, 124 So. 3d 185, 213 (Fla. 2013) this Court noted that “the CCP aggravator is one of the most serious aggravators provided by the statutory scheme,” (citing Wright v. State, 19 So. 3d 277, 304 (Fla. 2009)). Similarly, the prior violent felony aggravator is considered one of the weightiest aggravators. Kalisz,

124 So. 3d at 213; Silvia v. State, 60 So. 3d 959, 974 (Fla. 2011); Sireci v. Moore, 825

So. 2d 882, 887 (Fla. 2002). In this case, the three most serious aggravators are bolstered by a fourth, fifth, and sixth aggravator, which makes this case among the most aggravated Capital cases in Florida jurisprudence.

The trial court considered five statutory mitigating circumstances and forty non- statutory mitigating circumstances; making specific finding of fact as to each which were scrupulously documented in the sentencing order. Even still, the mitigation offered in this case pales by comparison to the six aggravating circumstances which have been proven by the State. None of the mitigation, including five statutory mitigators, and forty non-statutory mitigators, was particularly compelling, each piece of mitigation, and the mitigation as a whole, was given only “slight” or “no” weight. (V19, R3318-33). The only exceptions, which were given moderate weight, were nonstatutory mitigating factor

23, regarding Truehill witnesses the events of a retaliatory murder unfold in his high school; 29, regarding Truehill acting as a protector to his girlfriend and her mother during the flooding after Hurricane Katrina; 30, regarding Truehill rescuing his girlfriend

when she fell out of a boat during the flooding after Hurricane Katrina, and 32, regarding

Truehill being able to secure a car after reaching dry land during the flooding after

Hurricane Katrina. (V19, R3318-33).

This Court considers the totality of the circumstances of the case at bar in comparing it to other capital cases in determining whether the death sentence is proportionate.

Kearse v. State, 770 So. 2d 1119, 1134 (Fla. 2000). This Court has consistently found a death sentence proportionate in comparable cases. A qualitative review of the totality of the circumstances in this case and a comparison between this case and other capital cases reveals that the death penalty here is proportionate. The aggravation in this case is more aggravated and less mitigated than in Singleton v. State, 783 So.2d 970 (Fla. 2001) where the death sentence was ruled proportionate. Singleton was a stabbing murder where the trial court found prior violent felony and HAC aggravators as well as substantial mitigation, including extreme mental or emotional disturbance, impaired capacity to appreciate criminality of conduct or to conform conduct to requirements of law, and that the defendant was under the influence of alcohol and possibly medication at time of offense. See also McKenzie v. State, 29 So. 3d 272,

287 (Fla. 2010) (upholding a sentence of death where the defendant killed two victims by striking them in the head with a hatchet multiple times, and then stabbing one victim with a butcher knife and four statutory aggravating circumstances: (1) previously convicted of another capital felony or of a felony involving the use or threat of violence;

(2) murders committed while engaged in the commission of a robbery; (3) murders committed for pecuniary gain (merged with robbery aggravator-no additional weight given); and (4) CCP weighed against seven (7) non-statutory mitigating circumstances, stating “[t]his Court has upheld the death penalty as a proportionate sentence where the murder was committed for pecuniary gain, the defendant had been convicted of a prior violent felony, and little mitigation evidence was found); and Buzia v. State, 926 So. 2d at 1215 (in this case, the defendant murdered an elderly man in his home with an ax retrieved from the home and also attempted to murder his wife and this Court found the death sentence proportionate where the trial court found and assigned great weight to four aggravating circumstances including prior violent felony, HAC, and CCP balanced against two statutory mitigators which were assigned little weight, specifically, Buzia's interaction with the community and his work record, and seven nonstatutory mitigators).

The death penalty was proportionate in Tanzi v. State, 964 So. 2d 106, 117-118 (Fla.

2007) as well, where the victim was kidnapped, robbed, and forced to travel throughout the State and ultimately strangled. Tanzi was also a 12-0 decision with a finding of 6 weighty aggravators, and a finding of “some weight” and “some small weight” to 10 non-statutory mitigating factors.

The State acknowledges this is a weighing, not a counting, process. Based on the trial court’s assignment of weight to each of the mitigators and aggravators, any one of the aggravators would outweigh the minimal mitigation in this case, and death would

still be the appropriate sentence. The death penalty is appropriate if one aggravator is found and outweighs the mitigation offered, see Rodgers v. State, 948 So. 2d 655, 670

(Fla. 2006) (finding a death sentence proportionate when the single aggravator is a prior second-degree murder conviction); Almeida v. State, 748 So. 2d at 933 (noting that “this

Court has affirmed the death penalty in single-aggravator cases where a prior murder was involved”); Foster v. State, 369 So. 2d 928, 931 (Fla. 1979).

Each of the six aggravating circumstances proven by the State is given great weight and far outweighs the mitigating circumstances. Each one of the above aggravating circumstances, standing alone, would be sufficient to outweigh the total of the minimal amount of mitigation that exists. The weight to be given the aggravators was properly determined by the trial court. The jury in Appellant's case recommended death by a unanimous vote of 12 to 0, and that recommendation must be given great weight by the court. Grossman v. State , 525 So. 2d 833 (Fla. 1988) receded from on other grounds by Franqui v. State, 699 So. 2d 1312 (Fla. 1997), cert. denied, 523

U.S. 1040, 118 S.Ct. 1337, 140 L.Ed.2d 499 (1998), and cert. denied, 523 U.S. 1097,

118 S.Ct. 1582, 140 L.Ed.2d 796 (1998). The aggravating circumstances proven by the

State – including the fact that Appellant was already serving a lengthy prison term for manslaughter when he escaped, only to commit a crime spree that would affect several more innocent victims—clearly establishes that the death penalty is appropriate. If ever there was a case in which the death penalty was appropriate, this is that case. The State

asks this Court affirm the sentence of death because it is proportionate.

POINT VIII SUFFICIENCY OF THE EVIDENCE Although Truehill does not specifically raise the issue, this Court has a mandatory obligation to review the sufficiency of the evidence in every case in which a sentence of death has been imposed, even when not challenged. See Jones v. State, 963 So. 2d 180,

184 (Fla. 2007); Fla. R.App. P. 9.142(a)(5) (“On direct appeal in death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the [C]ourt shall review these issues and, if necessary, remand for the appropriate relief.”). “In determining the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Simmons v. State, 934 So. 2d 1100, 1111 (Fla. 2006) (quoting

Bradley v. State, 787 So. 2d 732, 738 (Fla. 2001)).

The record in this case contains sufficient evidence to support Truehill's conviction for the first-degree murder of Vincent Binder. Within 15 minutes of Vincent Binder leaving his friends’ residence, Truehill is caught on the video surveillance system of the

Half Time Keg convenience store the victim’s credit card and withdrawing cash from the

ATM machine. The victim did not know Truehill, Johnson, or Hughes and had no connections to any of them. Binder would never be seen alive again. Truehill makes several gasoline purchases using the victim’s cards, traveling from Tallahassee to

Jacksonville to Miami. Truehill used Vincent Binder’s Driver’s license and credit card to attempt a $1300 withdrawal from Binder’s account at a Miami Wachovia on April 6,

2010, leaving the documents when the transaction took too long. The stolen pickup truck was processed and, inside, officer found debit card receipts, a bloody Rambo knife congaing Mr. Binder’s DNA, Williams’ driver’s license from Louisiana, a map of

Tallahassee, an insurance card for the registered owner of the vehicle in Louisiana, and

Pavlish’s social security card and diploma. The evidence from the surviving victims of

Truehill’s attacks testified that he was always the one brandishing the Rambo knife, and seemed to be the leader. He held Mr. Rios during the Robbery, he struggles with Ms.

Pavlish during her robbery and ultimately snatches her purse, and it was him who cornered Ms. Brown inside the apartment brandishing a large knife, ordered her around, tied her up, and beat her head in, hacking off her fingers, and kicking her before leaving her for dead.

The state introduced approximately 94 pieces of physical evidence at the trial. Some of the physical evidence that linked Appellant to the crime was DNA testing conducted on the large knife which was one of the murder weapons (State Exh. 63). This weapon was consistent with the injuries sustained by the victim and the description of the weapon the Defendant used. Witnessed testified that Truehill was the defendant who carried this weapon. Testing resulted in a DNA profile that matched Truehill, while

Marcus, Brown, Binder, Hughes, and Johnson were all excluded as contributors. (V40,

R914-15). The bloodstains on the knife contained a complete DNA profile that matched

Binder. (V40, R929-30, 950). The cutting edge of the blade contained a mixed DNA profile that matched Binder, Brown, Truehill, Hughes, and Johnson as possible contributors to the mixture. (V40, R930, 951). The bloody green washcloth (State Exh.

75) found inside the truck contained a mixed DNA profile of three individuals, Truehill,

Binder, and Johnson were possible donors to that profile. (V40, R917-18). The jeans covered in Binder and Brenda Brown’s blood presented an inside waistband that revealed a mixed DNA profile match to Truehill, Johnson, Hughes, and Marcus as donors. (V40, R921-22, 938. 946-47).

Based on a review of the evidence presented in this case, a “rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.”

Gregory v. State, 118 So. 3d 770, 785 (Fla. 2013) (quoting Simmons, 934 So. 2d at

1111). Thus, this Honorable Court should conclude that there was sufficient evidence to support Truehill's conviction and affirm his sentence of death.

CONCLUSION

Based on the foregoing discussions, the State respectfully requests this Honorable

Court affirm Appellant's convictions, specifically for First-Degree Murder and resultant sentence of death.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy hereof has been furnished by E-Portal to George

D. E. Burden, Assistant Public Defender, [email protected], [email protected], and [email protected], 444 Seabreeze Blvd., Suite 210,

Daytona Beach, Florida 32118, on this 17th day of June, 2015.

CERTIFICATE OF COMPLIANCE

I certify that this brief was computer generated using Times New Roman 14 point font.

Respectfully submitted,

PAMELA JO BONDI ATTORNEY GENERAL

STACEY E. KIRCHER ASSISTANT ATTORNEY GENERAL Florida Bar No. 050218 Office of the Attorney General 444 Seabreeze Blvd., 5th Floor Daytona Beach, FL 32118 Primary E-Mail: [email protected] Secondary E-Mail: [email protected] (386)238-4990 (386)226-0457 (FAX)

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