Donald James Smith v. State of Florida ( 2021 )


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  •         Supreme Court of Florida
    ____________
    No. SC18-822
    ____________
    DONALD JAMES SMITH,
    Appellant,
    v.
    STATE OF FLORIDA,
    Appellee.
    April 22, 2021
    PER CURIAM.
    Donald James Smith appeals his judgment of conviction and
    sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla.
    Const. We affirm.
    I
    On June 21, 2013, Smith met eight-year-old Cherish
    Perrywinkle, her sisters, and her mother, Rayne, at a Dollar General
    store in Jacksonville. Smith overheard Rayne explain to an
    employee that she could not afford to purchase a dress for Cherish,
    and offered to drive the Perrywinkles to Walmart and buy clothes
    for the family. Smith explained to Rayne that his wife had a gift
    card and would meet the group there. At Walmart, they shopped
    together for hours. It got late and the Perrywinkles had not eaten,
    so Smith said he would buy them all cheeseburgers at a McDonalds
    inside the store. Instead, at 10:44 p.m., he vanished with Cherish.
    Surveillance cameras caught Smith leading her to his van, as well
    as the two of them driving away.
    Cherish was not seen alive again. The next morning, with the
    help of witnesses reporting the location of Smith’s van, police
    located Cherish’s body in a creek behind a church, under a pile of
    debris. Cherish had been brutally raped, then strangled to death.
    An officer identified Smith, who was soaking wet, behind the wheel
    of the same van that had left Walmart. It contained the things
    Rayne had bought at Dollar General. Smith was arrested and
    charged with kidnapping, sexual battery of a person under twelve,
    and first-degree murder.
    News outlets in Florida and the United States covered the
    murder extensively. In Jacksonville, live broadcasts highlighted
    Smith’s prior sex crime convictions in 1977, 1992, and 2009.
    Outlets in Panama City, Tallahassee, Orlando, Tampa, and Miami
    -2-
    reported on the murder. Even CNN and Fox News picked up the
    story. City news stations dedicated webpages to the case and many
    blogs and social media posts discussed the murder.
    Media outlets also covered the effect of the murder on the local
    community, and the community’s outreach to Rayne. Hundreds of
    people attended Cherish’s funeral, which was locally televised.
    Eighteen to nineteen hundred people reportedly signed the guest
    book at Cherish’s viewing. Families that had never met the
    Perrywinkles stopped by their home with groceries.
    Smith’s case progressed to trial, and in 2015, Smith’s defense
    team filed a motion to change venue. They argued that widespread
    media coverage had painted Smith as a monster who should be
    executed, a sexual predator who was guilty beyond doubt. Smith
    maintained that the media had adopted the State’s theory of the
    case, and that the State’s themes persisted on social media two
    years after Cherish’s death. The trial court held a hearing on the
    motion for change of venue, but reserved ruling until after jury
    selection. In light of the extensive pretrial publicity, the trial court
    used a written juror questionnaire and individual voir dire
    regarding exposure to press coverage as part of the jury selection
    -3-
    process. The questionnaire asked about jurors’ knowledge of the
    case and witnesses, and about any opinions they had formed about
    the case and the death penalty. Three hundred potential jurors
    completed these questionnaires. The court ultimately empaneled
    the jury without an objection from defense counsel or a request for
    a final ruling on its motion to change venue.
    Before trial began, Smith also filed a motion in limine to
    prevent the State from offering autopsy photos of the victim.
    Counsel argued that because Dr. Valerie Rao, the chief medical
    examiner for Duval County and a trained pathologist, was to testify
    to Cherish’s injuries, there was no need to introduce photographs of
    those injuries. Smith’s team argued that the pictures’ unduly
    prejudicial emotional effect would outweigh their probative value.
    The trial court denied Smith’s motion.
    In the State’s opening statement at trial, the prosecutor
    described what took place at Walmart and stated, “Every mother’s
    darkest nightmare became Rayne Perrywinkle’s reality.” Smith
    objected to the comment on the grounds that it was argumentative,
    and the court overruled the objection.
    -4-
    Later in the proceedings, the State called Dr. Rao to testify to
    the extent of Cherish’s injuries. Dr. Rao explained that she had
    testified in hundreds of cases as an expert witness, providing her
    opinion on various potential causes of death. Dr. Rao had
    performed Cherish’s autopsy and had been present at the creek
    when her body was recovered. As Dr. Rao testified, the State
    introduced twenty-six pictures of Cherish’s autopsy into evidence.
    Dr. Rao described injuries on Cherish’s scalp, chest, legs, arm,
    neck, chin, lip, nose, eyes, genitals, and throat. When the
    prosecutor asked Dr. Rao about Cherish’s throat, Dr. Rao
    stammered slightly, and the following exchange occurred:
    Prosecutor: I’m going to show you two more photographs
    of the dissection taken of Cherish Perrywinkle’s throat.
    Will you first tell the jury what you saw when you dissected
    her throat?
    Dr. Rao: Yes. So what we do is – I’m sorry. I just need a
    break. Have [sic] about five minutes.
    Court: You want a five-minute break? I think we’ll all take
    a break for ten minutes. Thank you.
    The judge dismissed the jury and defense counsel moved for a
    mistrial, arguing that Dr. Rao’s response was so prejudicial that it
    could not be cured by any jury instruction. The court denied the
    -5-
    motion. After the ten-minute recess, Dr. Rao resumed her
    testimony without further interruption. The State later called a
    crime laboratory analyst, who testified that Smith’s DNA was found
    on and inside Cherish’s body. He put the odds at one in 35
    quintillion that the DNA belonged to someone else. The State also
    produced surveillance footage of Smith leading Cherish from
    Walmart to his van.
    During closing argument, the State at one point stated, “And
    from the grave she’s crying out to you, [‘]Donald Smith raped me.
    Donald Smith sodomized me. Donald Smith strangled me until
    every last breath left my body.[’]” Counsel for Smith did not object
    to this statement, and indeed presented no closing argument.
    The jury deliberated for nineteen minutes before unanimously
    finding Smith guilty of kidnapping, sexual battery of a person under
    twelve years old, and first-degree murder. By special verdict, the
    jury convicted Smith of both premeditated and felony murder with
    kidnapping and sexual battery as the underlying felonies.
    At the penalty phase of trial, Smith presented nine witnesses,
    including a psychologist, a neurologist, and his son. The State
    presented one witness, the victim of a 1992 attempted kidnapping
    -6-
    by Smith. Following these presentations, the jury unanimously
    recommended that Smith be sentenced to death. 1 After conducting
    a Spencer hearing, 2 the trial court entered a sentencing order
    accepting the jury’s recommendation and imposing the death
    penalty.
    II
    On appeal, Smith raises the following five claims: (a) the trial
    court abused its discretion in denying Smith’s motion for change of
    venue; (b) the trial court abused its discretion in denying Smith’s
    motion for mistrial during the medical examiner’s testimony; (c) the
    trial court abused its discretion by denying Smith’s motion to
    exclude autopsy photos; (d) the trial court abused its discretion by
    1. The jury unanimously found six aggravating factors: (1) the
    defendant was previously convicted of a felony involving the use or
    threat of violence to the person; (2) the defendant was engaged in a
    kidnapping and sexual battery during the capital felony; (3) the
    capital felony was committed for the purpose of avoiding or
    preventing a lawful arrest; (4) the capital felony was especially
    heinous, atrocious, or cruel; (5) the capital felony was a homicide
    and was committed in a cold, calculated, and premeditated manner
    without any pretense of moral or legal justification; and (6) the
    victim of the capital felony was a person less than twelve years of
    age. See § 921.141(b), (d)-(e), (h)-(i), and (l), Fla. Stat. (2017).
    2. Spencer v. State, 
    615 So. 2d 688
     (Fla. 1993).
    -7-
    overruling an objection to the prosecutor’s opening statement and
    committed fundamental error by not granting a mistrial during the
    prosecutor’s closing statement; and (e) the cumulative effect of the
    errors in the case deprived Smith of a fair trial. We address each
    claim in turn.
    A
    Smith argues that the trial court erroneously denied his
    motion for change of venue. “[A] defendant may move for a change
    of venue on the ground that a fair and impartial trial cannot be had
    in the county where the case is pending for any reason other than
    the interest and prejudice of the trial judge.” Fla. R. Crim. P.
    3.240(a). A trial court should grant a change of venue if “the . . .
    state of mind of the inhabitants of a community is so infected by
    knowledge of the incident and accompanying prejudice, bias, and
    preconceived opinions that jurors could not possibly put these
    matters out of their minds and try the case solely on the evidence
    presented in the courtroom.” Manning v. State, 
    378 So. 2d 274
    , 276
    (Fla. 1979).
    Generally, we review a trial court’s ruling on such a motion for
    abuse of discretion. However, as is the case with most trial
    -8-
    objections, an objection to the trial court’s denial of a motion for a
    change of venue must be preserved for appellate review. That is,
    “the issue or legal argument must be raised and ruled on by the
    trial court.” Rhodes v. State, 
    986 So. 2d 501
    , 513 (Fla. 2008). If an
    issue is not preserved, it is reviewed only for fundamental error.
    Such an error “reach[es] down into the validity of the trial itself to
    the extent that a verdict of guilty could not have been obtained
    without the assistance of the alleged error.” Knight v. State, 
    286 So. 3d 147
    , 151 (Fla. 2019) (quoting Brown v. State, 
    124 So. 2d 481
    ,
    484 (Fla. 1960)). Defendants have no constitutional due process
    right to correct an unpreserved error, and appellate courts should
    “exercise . . . discretion under the doctrine of fundamental error
    very guardedly.” Sanford v. Rubin, 
    237 So. 2d 134
    , 137 (Fla. 1970).
    The trial court never ruled upon Smith’s motion for change of
    venue and Smith did not renew his objection, thus the issue was
    not preserved for appellate review. Smith made the motion in 2015,
    three years before trial commenced, and the court reserved ruling
    on the motion until after the parties attempted to seat a jury in
    Duval County. In 2018, at the beginning of jury selection, counsel
    renewed Smith’s motion for change of venue, but the court again
    -9-
    deferred a ruling. At the end of jury selection, counsel stated that
    they had no further objections. When the jury was sworn at the
    beginning of trial, Smith’s team did not renew the objection or
    request a final ruling on the motion for change of venue. Because
    there was no ruling on the motion, the issue was not preserved and
    the trial court’s failure to grant Smith’s motion is reviewed for
    fundamental error. Rhodes, 
    986 So. 2d at 513
    ; see also Jones v.
    State, 
    998 So. 2d 573
     (Fla. 2008) (finding appellant’s Brady [v.
    Maryland, 
    373 U.S. 83
     (1963)] claim was not preserved because it
    was not ruled on by the trial court).
    The trial court committed no fundamental error in failing to
    grant Smith’s motion for change of venue. See e.g., Armstrong v.
    State, 
    862 So. 2d 705
    , 719 (Fla. 2003) (finding a trial court
    committed no fundamental error when it denied a motion for
    change of venue where jurors explained they could set aside pretrial
    knowledge and feelings about victims). Courts correct errors as
    fundamental despite a party’s failure to conform to procedural rules
    regarding preservation “to protect the interests of justice itself.”
    Maddox v. State, 
    760 So. 2d 89
    , 98 (Fla. 2000). For example, this
    Court has found fundamental error when appellants were denied
    - 10 -
    the right to counsel. Jackson v. State, 
    983 So. 2d 562
    , 566 (Fla.
    2008) (“While a denial of counsel for an entire sentencing
    proceeding would constitute fundamental error, the temporary
    absence of counsel [during a victim impact statement] does not.”);
    see also Gonzalez v. State, 
    838 So. 2d 1242
    , 1243 (Fla. 1st DCA
    2003) (vacating an indigent appellant’s sentence and remanding for
    further resentencing after appellant was denied counsel). We have
    also found fundamental error when a court provided an inaccurate
    definition of a disputed element of a crime in a jury instruction.
    Reed v. State, 
    837 So. 2d 366
    , 369 (Fla. 2002) (quashing a district
    court’s decision after the court provided a definition of “maliciously”
    in conflict with a previous Florida Supreme Court decision).
    Similarly, we found fundamental error when evaluating “a
    conviction imposed upon a crime totally unsupported by evidence.”
    Troedel v. State, 
    462 So. 2d 392
    , 399 (Fla. 1984); see also F.B. v.
    State, 
    852 So. 2d 226
    , 230 (Fla. 2003) (“[A]n argument that the
    evidence is totally insufficient as a matter of law to establish the
    commission of a crime need not be preserved. Such complete
    failure of the evidence meets the requirements of fundamental error
    . . . .”).
    - 11 -
    Unlike the cases above, here, the interests of justice were not
    jeopardized by counsel’s failure to obtain a ruling on Smith’s motion
    for change of venue. Smith has advanced no specific allegations of
    prejudice, and there is no evidence that the media exposure
    actually tainted Smith’s trial. In capital cases, a fundamental error
    is one that is “so significant that the sentence of death ‘could not
    have been obtained without the assistance of the alleged error.’”
    Poole v. State, 
    151 So. 3d 402
    , 415 (Fla. 2014) (quoting Snelgrove v.
    State, 
    107 So. 3d 242
    , 257 (Fla. 2012)). Here, we find no basis
    upon which to make that conclusion. For one thing, the evidence of
    guilt is overwhelming. The jury in this case saw Cherish’s autopsy
    photos, learned that Smith’s DNA was on and in Cherish’s body,
    watched surveillance footage of Smith leading Cherish to his car,
    heard witness testimony about his van’s location, and listened to
    Rayne Perrywinkle’s 911 call. A jury anywhere in the state would
    have given great weight to this evidence.
    What is more, the court would not have abused its discretion
    had it denied the motion. In exercising discretion regarding a
    change of venue, “a trial court must make a two-pronged analysis,
    evaluating: (1) the extent and nature of any pretrial publicity; and
    - 12 -
    (2) the difficulty encountered in actually selecting a jury.” Griffin v.
    State, 
    866 So. 2d 1
    , 12 (Fla. 2003). This Court has previously
    explained that “pretrial publicity is normal and expected in certain
    kinds of cases, and that fact standing alone will not require a
    change of venue.” 
    Id.
     There are five factors to be considered when
    evaluating pretrial publicity: (1) when the publicity occurred in
    relation to the crime and the trial, (2) whether the publicity was
    made up of factual or inflammatory stories, (3) whether the
    publicity favored the State’s side of the story, (4) the size of the
    community exposed to the publicity, and (5) whether the defendant
    exhausted all of his peremptory challenges in seating the jury.
    Rolling v. State, 
    695 So. 2d 278
    , 285 (Fla. 1997).
    Here, on balance, the Rolling factors weigh in the State’s favor.
    Much of the pretrial publicity in this matter occurred five years
    before jury selection—in 2013, right after Cherish Periwinkle was
    murdered. The court administered a jury questionnaire to screen
    potential jurors for concerns arising from exposure to media
    reports. Four of the jurors ultimately chosen for Smith’s trial had
    not heard of the case at all. Seven jurors had seen some coverage
    in years past but had minimal knowledge of the case. One juror
    - 13 -
    testified that she knew about Smith and the victims, but knew
    nothing of their pasts, and could serve on the jury impartially
    because she saw Smith as a human being. Thus, notwithstanding
    substantial and negative media coverage about Smith and the facts
    of the case, the size and diversity of the community from which the
    venire was drawn, the long delay between the initial publicity and
    trial, and the fact that Smith sought no additional peremptory
    challenges all weigh in favor of concluding that the trial court would
    not have abused its discretion had it denied the motion to change
    venue. See Rolling, 
    695 So. 2d at 287
     (denying motion for change of
    venue in Gainesville after a defendant murdered five students
    despite overwhelming media attention and the fact that “every
    member of the venire had some extrinsic knowledge of the facts and
    circumstances surrounding this case.”).
    B
    Next, Smith argues that the trial court erred in denying his
    motion for a mistrial on account of the interruption to Dr. Rao’s
    testimony. While testifying to the injuries that Cherish sustained,
    Dr. Rao paused, took a breath, and asked to take a break. The trial
    court promptly recessed. Smith contends that this pause was
    - 14 -
    tantamount to a breakdown and asserted the only way to cure the
    disruption was to declare a mistrial. We disagree.
    We review the denial of a motion for mistrial for abuse of
    discretion, and “[a] mistrial is appropriate only where the error is so
    prejudicial as to vitiate the entire trial.” Hamilton v. State, 
    703 So. 2d 1038
    , 1041 (Fla. 1997). When reviewing a motion for a mistrial
    dealing with emotional outbursts from witnesses, “appellate courts
    should defer to trial judges’ judgments and rulings when they
    cannot glean from the record how intense a witness’s outburst
    was.” Thomas v. State, 
    748 So. 2d 970
    , 980 (Fla. 1999) (finding no
    abuse of discretion in failing to grant a mistrial after a friend of the
    victim suffered an emotional breakdown when asked to identify an
    accused while testifying in front of a jury).
    The fact that Dr. Rao took a break during her testimony did
    not affect the fairness of Smith’s trial. The jury saw no outburst of
    emotion. From its vantage point, which was closer to Dr. Rao’s
    reaction than ours, the trial court determined that a recess was
    appropriate, and a mistrial was not. See Thomas, 
    748 So. 2d at 980
    . We cannot say this was an abuse of discretion.
    - 15 -
    This case is not like the one cited by Smith, where a witness’s
    outburst injected into the proceedings a concern for the emotional
    distress of another sufficient to distract the jury from its work as
    finders of fact. See Colon v. State, 
    191 So. 3d 985
    , 986 (Fla. 2d
    DCA 2016) (reversing a trial court’s denial of motion for mistrial
    after a witness-mother cried and threw up when photographs of her
    dead child’s genitals were introduced through her testimony). Here,
    Dr. Rao paused, caught her breath, and asked for a break. She did
    not state why she was requesting a break, and when testimony
    resumed, Dr. Rao spoke clearly and did not appear to the jury to be
    in any emotional distress.
    Smith objects that the trial court should have given a curative
    instruction after Dr. Rao asked to pause. The response to a witness
    outburst is also “better left to the discretion of trial judges who are
    in the best position to assess the intensity of the outburst and its
    potential effect on jurors.” Talley v. State, 
    260 So. 3d 562
    , 569 n.4
    (Fla. 3d DCA 2019) (declining a defendant’s suggestion to adopt a
    new standard requiring trial courts to poll a jury whenever there is
    an outburst during trial proceedings); see also Arbelaez v. State,
    
    626 So. 2d 169
    , 176 (Fla. 1993) (affirming a trial court’s use of a
    - 16 -
    curative instruction after a witness-mother, crying as she took the
    witness stand, cursed the defendant). Here, we cannot say the trial
    court abused its discretion in declining to give such an instruction.
    C
    Smith argues next that the trial court improperly denied his
    motion to exclude autopsy photographs used during Dr. Rao’s
    testimony. Smith’s motion argued that admitting these
    photographs would violate section 90.403, Florida Statutes (2017)
    (“Relevant evidence is inadmissible if its probative value is
    substantially outweighed by the danger of unfair prejudice,
    confusion of issues, misleading the jury, or needless presentation of
    cumulative evidence.”). The State ultimately introduced twenty-six
    photos of Cherish’s various injuries, including pictures of her
    exposed skull and trachea.
    We evaluate rulings about the admissibility of evidence for
    abuse of discretion, and “[t]his Court has long followed the rule that
    photographs are admissible if they are relevant and not so shocking
    in nature as to defeat the value of their relevance.” Czubak v. State,
    
    570 So. 2d 925
    , 928 (Fla. 1990). A court “must determine whether
    the gruesomeness of the portrayal is so inflammatory as to create
    - 17 -
    an undue prejudice in the minds of the jury and [distract] them
    from a fair and unimpassioned consideration of the evidence.” 
    Id.
    (alteration in original) (quoting Leach v. State, 
    132 So. 2d 329
    , 332
    (Fla. 1961)).
    This Court has “consistently upheld the admission of allegedly
    gruesome photographs where they were independently relevant or
    corroborative of other evidence.” Id. at 928; see also Seibert v.
    State, 
    64 So. 3d 67
     (Fla. 2010) (upholding admission of
    photographs of victim’s dismembered body to show premeditation
    and consciousness of guilt); Jackson v. State, 
    545 So. 2d 260
     (Fla.
    1989) (upholding admission of photographs of victims’ charred
    remains to prove identity, show circumstances surrounding
    murder, and corroborate medical examiner’s testimony); Bush v.
    State, 
    461 So. 2d 936
     (Fla. 1984) (ruling photographs of blowup of
    bloody gunshot wound to victim’s face admissible to corroborate
    medical examiner’s testimony); Straight v. State, 
    397 So. 2d 903
    (Fla. 1981) (holding photograph of victim’s decomposed body
    admissible to corroborate testimony as to how death was inflicted).
    Smith has argued that there was no need to publish the
    autopsy photographs given the overwhelming evidence already
    - 18 -
    present in the case linking him to the victim, but “[t]he test for
    admissibility of photographic evidence is relevancy rather than
    necessity.” Pope v. State, 
    679 So. 2d 710
    , 713 (Fla. 1996); see also
    Campbell v. State, 
    271 So. 3d 914
    , 934 (Fla. 2018) (“There is no
    question that [the exhibit] is graphic, depicting a significant
    chopping wound to the brain. However, the photograph was
    relevant to illustrate the nature and extent of the victim’s injuries,
    as well as the medical examiner’s testimony.”); see also Patrick v.
    State, 
    104 So. 3d 1046
    , 1062 (Fla. 2012) (“[P]hotographs . . .
    depict[ing] the skin of the victim’s head pulled back to reveal his
    skull and the entire torso opened to reveal his upper chest . . . were
    provided to demonstrate the internal injuries sustained since they
    were not otherwise visible.”).
    Cherish’s autopsy photos were relevant to the brutality of her
    rape and the premeditation of her murder, as well as the heinous,
    atrocious, and cruel nature of the crime. For example, as the State
    argued, a picture showing the manner in which the skin had been
    stripped from Cherish’s throat was relevant evidence that the cause
    of her death had been strangulation. While not on its own sufficient
    to establish premeditation, “evidence of strangulation, in
    - 19 -
    conjunction with one or more additional facts indicating that the
    killer had time to reflect upon his actions and to form a conscious
    purpose to kill, justifies submitting the question of premeditation to
    the jury for its determination.” Berube v. State, 
    5 So. 3d 734
    , 744
    (Fla. 2d DCA 2009); see also Wainwright v. State, 
    2 So. 3d 948
    , 952
    (Fla. 2008) (“The trial court did not err in concluding that evidence
    of strangulation alone may be sufficient to support the HAC
    aggravator. ‘[T]his court has consistently upheld the HAC
    aggravator in cases where a conscious[ 3] victim was strangled.’”)
    (quoting Bowles v. State, 
    804 So. 2d 1173
    , 1178 (Fla. 2001));
    Barnhill v. State, 
    834 So. 2d 836
    , 850 (Fla. 2002) (“Because
    strangulation of a conscious victim involves foreknowledge and the
    extreme anxiety of impending death, death by strangulation
    constitutes prima facie evidence of HAC.”).
    Context matters in evaluating a trial court’s exercise of
    discretion in evidentiary rulings. While, absent such context, the
    photographs at issue in this case seem numerous, the reality is that
    most of the photos identified separate injuries on Cherish’s body.
    3. Dr. Rao testified that evidence of a struggle showed Cherish
    was conscious when Smith strangled her.
    - 20 -
    There were multiple photographs of Cherish’s genitals and throat,
    but these pictures were necessary to demonstrate the extent of the
    damage done to her body during the sexual battery and to support
    the medical examiner’s explanation of the time period and force
    required to strangle her to death. Each photograph was relevant to
    the brutality of Cherish’s death, and the brutality of the crime, in
    turn, was relevant to support the State’s legal charge: a murder that
    was both premediated and heinous, atrocious, and cruel.
    D
    Next, Smith argues that the State made inappropriate
    comments in its opening statement and in closing argument. Smith
    objected to the prosecutor’s opening statement (“[e]very mother’s
    darkest nightmare became Rayne Perrywinkle’s reality”), so we
    review the trial court’s overruling the objection for abuse of
    discretion. Merck v. State, 
    975 So. 2d 1054
    , 1061 (Fla. 2007).
    Smith did not object to the prosecutor’s closing statement (“from
    the grave she’s crying out to you, Donald Smith raped me”), so we
    review this statement for fundamental error. State v. Smith, 
    241 So. 3d 53
    , 55 (Fla. 2018).
    - 21 -
    First, the trial court did not abuse its discretion in overruling
    Smith’s objection to the statement at issue in the State’s opening.
    The purpose of an opening statement is for parties to convey to the
    jury what they expect the evidence produced at trial to establish.
    Perez v. State, 
    919 So. 2d 347
    , 363 (Fla. 2005). In Florida, the trial
    court gives parties “wide latitude” in presenting opening and closing
    statements, and “comments by the prosecutor will merit a mistrial
    only when they deprive the defendant of a fair and impartial trial,
    materially contribute to the conviction, are so harmful or
    fundamentally tainted as to require a new trial, or are so
    inflammatory they might have influenced the jury to reach a more
    severe verdict than it would have otherwise rendered.” Miller v.
    State, 
    161 So. 3d 354
    , 382 (Fla. 2015) (citing Spencer v. State, 
    645 So. 2d 377
    , 383 (Fla. 1994). Here, Smith claims that the
    prosecutors’ comments amounted to improper “golden rule”
    arguments, which impermissibly persuade jurors to “place
    themselves in the victim’s position during the crime and imagine
    the victim’s suffering.” Mosley v. State, 
    46 So. 3d 510
    , 520 (Fla.
    2009).
    - 22 -
    The State’s opening comment was dramatic, but not untrue;
    nor was it a mischaracterization of the evidence that would soon be
    presented to the jury. At trial, the State may make comments that
    “are based on evidence introduced at trial and are relevant to the
    circumstances of [the crime].” Braddy v. State, 
    111 So. 3d 810
    , 843
    (Fla. 2012) (alteration in original) (quoting Mosley, 
    46 So. 3d at 521
    ). When the prosecutor made the statement at issue, she knew
    that Rayne Perrywinkle was slated to testify and that Rayne’s
    testimony and 911 call recording would attest to the terror she felt
    when she realized Cherish was missing. Here, the State was not
    making an impermissibly inflammatory statement; rather, the
    prosecutor was previewing what Rayne herself would soon explain. 4
    In Reese v. State, 
    694 So. 2d 678
    , 685 (Fla. 1997), this Court
    found no error where a prosecutor made similar comments during
    closing argument describing a victim’s rape and murder as “every
    woman’s worst nightmare.” Reese v. Sec’y Fla., Dept of Corr., 
    675 F. 3d 1277
    , 1292 (11th Cir. 2012). Nor did the Eleventh Circuit find
    4. In her testimony, Rayne explained that she “started to
    panic,” and her 911 call documented her asking, “Why on earth
    would he take my little girl?”
    - 23 -
    any part of that closing argument to be a due process violation. 
    Id. at 1278-88
    . The court explained that no golden rule violation had
    occurred because “the prosecutor did not impermissibly invite ‘the
    jury to place themselves in the victim’s shoes.’” 
    Id. at 1292
     (quoting
    Reese, 
    694 So. 2d at 685
     (Fla. 1997). Like the comment in Reese,
    here, the State’s opening comment was a reasonable projection of
    what the evidence would show to be Rayne Perrywinkle’s state of
    mind when she found out her daughter was missing.
    Second, the trial court did not commit fundamental error
    when it allowed the State’s comment during summation to which
    Smith objects. Summation is intended to review evidence and draw
    inferences, but, like opening statement, “must not be used to
    inflame the minds and passions of the jurors so that their verdict
    reflects an emotional response to the crime or the defendant rather
    than the logical analysis of the evidence in light of the applicable
    law.” Bertolotti v. State, 
    476 So. 2d 130
    , 134 (Fla. 1985).
    Comments that “invit[e] the jury to imagine the victim’s final pain,
    terror and defenselessness” are prohibited. 
    Id. at 133
    . Yet a
    prosecutor’s words may, indeed sometimes must, elicit an
    emotional response from the jury. That fact of life, particularly in
    - 24 -
    matters of life and death, is not a basis for reversal. Here, by the
    time of closing argument, the State had put forth evidence that
    Smith raped and sodomized Cherish, and that he strangled her to
    death. The prosecutor’s comments did more purposefully to elicit
    an emotional reaction than is advisable, but they were moving in
    substantial measure because of how they characterized the
    disturbing facts in evidence. See Rogers v. State, 
    957 So. 2d 538
    ,
    549 (Fla. 2007) (holding that State’s comments describing victim’s
    murder and last moments alive were not improper because they
    were based upon facts in evidence); see also Mosley, 
    46 So. 3d at 520
     (holding that State’s comments describing victim trying to
    breathe as she was being suffocated and noting victim’s opportunity
    to contemplate death were not improper because comments were
    based on facts in evidence).5 Smith had an opportunity to rebut the
    5. In Darden v. Wainwright, 
    477 U.S. 168
    , 181 (1986), the
    Supreme Court relied on six factors in evaluating a due process
    claim arising from a prosecutor’s inappropriate comments: (1)
    whether the prosecutor manipulated or misstated the evidence, (2)
    whether the comments implicated other specific rights of the
    accused, (3) whether the comments were invited by or responsive to
    defense counsel’s arguments, (4) whether the trial court’s
    instructions ameliorated the harm, (5) whether the evidence
    weighed heavily against the defendant, and (6) whether the
    defendant had an opportunity to rebut the prosecutor’s comments.
    - 25 -
    prosecutor’s comments in closing argument, but waived closing
    statement instead. See Darden, 
    477 U.S. at 181
    .
    E
    In the final point on appeal, Smith argues that the cumulative
    effect of the errors in this case deprived him of a fair trial. Where
    multiple errors are discovered, it is appropriate to review the
    cumulative effect of those errors because even with competent,
    substantial evidence to support a verdict, “and even though each of
    the alleged errors, standing alone, could be considered harmless,
    the cumulative effect of such errors [may be] such as to deny to
    defendant the fair and impartial trial that is the inalienable right of
    all litigants in this state and this nation.” McDuffie v. State, 
    970 So. 2d 312
    , 328 (Fla. 2007) (alteration in original) (quoting Brooks v.
    State, 
    918 So. 2d 181
    , 202 (Fla. 2005)). But relief is not warranted
    if there is “no reasonable probability that the cumulative effect of
    these errors affected [a defendant’s] right to a fair trial.” Floyd v.
    The comments at issue here did not manipulate or misstate the
    evidence, implicated no specific rights of the accused, and while
    they were neither invited by the accused nor the subject of an
    instruction from the court, were insignificant when compared to the
    weight of the evidence, and drew no response from the defendant.
    - 26 -
    State, 
    850 So. 2d 383
    , 408 (Fla. 2002). And where we find “no
    individual error, no cumulative error can exist.” Smith v. State, 
    998 So. 2d 516
    , 530 (Fla. 2008); see also Bush v. State, 
    295 So. 3d 179
    ,
    214 (Fla. 2020) (finding an appellant entitled to no relief on his
    cumulative error claim when each of his individual claims of error
    was meritless).
    That is the case here. Smith’s DNA was found in and on
    Cherish’s body, he was caught on several different surveillance
    cameras leading Cherish to his car, multiple witnesses spotted his
    van by the water in which Cherish’s body was found, and his pants
    were soaking wet as he was arrested. It is the evidence in this case,
    not error, that is cumulative.
    CONCLUSION
    We affirm Smith’s judgment of conviction and sentence of
    death.
    It is so ordered.
    CANADY, C.J., and POLSTON, LAWSON, COURIEL, and
    GROSSHANS, JJ., concur.
    LABARGA, J., concurs in result with an opinion.
    MUÑIZ, J., recused.
    NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
    AND, IF FILED, DETERMINED.
    - 27 -
    LABARGA, J., concurring in result.
    In light of this Court’s decision in Lawrence v. State, 
    308 So. 3d 544
     (Fla. 2020) (receding from proportionality review
    requirement in death penalty direct appeal cases), and for the
    reasons expressed in my dissent in Lawrence, id. at 552-58, I can
    only concur in the result.
    An Appeal from the Circuit Court in and for Duval County,
    Mallory Durden Cooper, Judge – 162013CF005781AXXXMA
    H. Kate Bedell and Richard Randall Kuritz of Law Offices of Bedell
    & Kuritz, Jacksonville, Florida,
    for Appellant
    Ashley Moody, Attorney General, and Charmaine M. Millsaps,
    Senior Assistant Attorney General, Tallahassee, Florida,
    for Appellee
    - 28 -