Marlin L. Joseph v. State of Florida

Supreme Court of Florida
____________
No. SC20-1741
____________
MARLIN L. JOSEPH,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
February 10, 2022
PER CURIAM.
Marlin Joseph appeals two first-degree murder convictions
and two corresponding sentences of death. 1 For the reasons
explained below, we affirm Joseph’s convictions and sentences of
death.
I. BACKGROUND
On January 18, 2018, Marlin Joseph was indicted for two
counts of first-degree murder with a firearm related to the deaths of
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
Kaladaa Crowell and her 11-year-old daughter, Kyra Inglett. 2 The
incident in this case occurred on December 28, 2017. The evidence
presented at trial established that at that time, Joseph resided in a
home in West Palm Beach with his mother, Robin Denson;
Denson’s girlfriend, Crowell; Crowell’s daughter, Kyra; and Joseph’s
three brothers, Parice Joseph, Patrick Joseph, and Cordarius
Joseph. 3 Also staying at the home at the time was Joseph’s eight-
year-old daughter, Kamare Canty, and Jeshema Tarver, Denson’s
goddaughter.
Earlier in the day, an incident occurred between Kyra and
Kamare. Kamare asked Kyra and Jeshema to sit on her back
because it was hurting. Kamare then told Kyra and Jeshema to get
off her back because they were hurting her, but Kyra had trouble
getting off Kamare. Jeshema testified at trial that another incident
had occurred on December 23, 2017 (two days before Christmas
and five days before the shootings), and she heard Joseph yelling to
2. Joseph was also indicted for felon in possession of a
firearm, which charge was bifurcated for trial.
3. For clarity, Marlin Joseph’s brothers will be referred to by
their first names because they share the same last name as Joseph.
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Denson about Kyra saying she “ha[d] one more time to make [him]
mad or to bother, she needs to leave my daughter alone.”
Later in the day on December 28, 2017, Parice and Patrick
picked Denson up at the end of her workday, and Denson went
grocery shopping before returning home. Present in the home when
they arrived were Joseph, Crowell, Kyra, Kamare, Cordarius, and
Jeshema. Joseph helped bring in the groceries and then was
reading his Bible in the room he shared with Patrick, and Cordarius
and the girls (Kamare, Kyra, and Jeshema) were sitting on the
couch in the living room. The girls were laughing, talking, and on
their phones. Crowell was folding clothes in the room she shared
with Denson. After Denson arrived home, she had a conversation
with Joseph in the living room area about a text message he
received from Crowell, who was still in her room. During this
conversation, Joseph brought up Kamare’s mother asking whether
she was coming to pick Kamare up. Denson testified that Joseph
was not upset but was being disrespectful about Kamare’s mother.
Joseph started using expletives in reference to Kamare’s mother,
and Denson told him to calm down because she did not want the
kids to hear that kind of language. After the conversation with
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Joseph, Denson walked outside to the porch where Parice and
Cordarius were. Cordarius was outside the home waiting for his
girlfriend to pick him up. Denson took Cordarius aside, and they
went to the sidewalk in front of the home while Parice stayed on the
porch.
Jeshema went to take a shower, and she heard arguing
between Joseph and Crowell. Jeshema heard Joseph say to
Crowell, “Why is your daughter [Kyra] being mean to my daughter
[Kamare], she didn’t do anything wrong.” Jeshema exited the
shower after hearing three loud bangs. She heard Crowell
screaming and crying, asking for someone to call 911. Jeshema
then heard another bang. She opened the bathroom door, and
Kamare told her Crowell and Kyra had been shot. Jeshema walked
out to blood all over the floor and Crowell flat on her face. Jeshema
and Kamare went into Kyra’s room and hid under the bed. Kamare
called 911 using Joseph’s phone.
Parice heard gunshots while sitting on the front porch. He
saw Kyra run outside, looking backwards. Joseph came outside
after Kyra. Parice tackled Joseph because he was scared after
hearing the gunshots. Parice saw Joseph with a gun in his hand.
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Parice attempted to get the gun from Joseph but was unsuccessful.
Parice saw Joseph run back into the home while Kyra was lying on
the walkway. Parice ran to go check on Denson and Cordarius
down the street. Joseph exited the home again and drove off in
Crowell’s car. Parice testified at trial that he did not see anyone
shoot Crowell or Kyra, but he also saw Joseph with a gun a couple
of days prior. Besides Joseph, Parice did not see anyone else with a
gun.
While outside, Denson and Cordarius also heard gunshots
coming from inside the home, and Cordarius told Denson to run.
Cordarius saw Kyra come outside and fall to the ground. Cordarius
did not see Joseph chasing Kyra. Denson ended up on the ground
in her neighbor’s yard; Patrick later picked her up off the ground.
Patrick was crying and told Denson that Crowell had been shot.
Denson went to the front of the home and saw Kyra on the
sidewalk. Kyra was not moving but was breathing. Denson ran
inside with Parice and saw Crowell on the floor in between the living
room and dining room area. Denson checked for a pulse, but
Crowell was unresponsive. Denson did not see Parice, Patrick, or
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Cordarius with a gun. She also did not see Joseph with a gun and
did not see him at all during the incident.
Joseph was the only person not at the scene when police
arrived. Officer Ryan Forbes, the first responding officer, arrived at
the scene and saw Kyra on the sidewalk with a gunshot wound to
her head. She was breathing but would not talk back to him.
Officer Forbes went inside to find a lifeless Crowell on the ground.
Unlike Crowell, Kyra showed signs of life when police and medical
personnel arrived—she had a pulse and was breathing. Kyra was
transported to the hospital but died hours later. She never
regained consciousness from the time police found her at the crime
scene to when she died. Crowell and Kyra each died from gunshot
wounds. Five spent cartridge casings were found outside the home,
and four spent casings were found inside the home. The State’s
firearms expert opined that the casings were fired from the same
firearm. A firearm was never found.
The medical examiner testified concerning his autopsies of
Crowell and Kyra. Crowell sustained several gunshot wounds to
various parts of her body—the back of her right hand (defensive
wound), her belly, left calf, chest, the back of her head, and
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forehead. The wound to Crowell’s forehead was fatal; the bullet
broke her skull and destroyed her brain. Kyra also sustained
several gunshot wounds to various parts of her body—left buttock,
lower back, the side of her head, and the back of her head. The
wound to the back of Kyra’s head was fatal; the bullet entered the
back of her head and exited her forehead, damaging her skull and
brain.
Later that night, Denson, Parice, Patrick, and Cordarius went
to the police station to give statements. Detective Paul Creelman,
the lead detective in this case, interviewed Denson, Parice, and
Cordarius; and Parice and Cordarius identified Joseph as the
shooter. Joseph’s family members recanted in their trial testimony
regarding their prior statements to the police. However, the State
introduced Parice’s and Cordarius’ identifications of Joseph as the
shooter through Detective Creelman’s testimony. Specifically,
Detective Creelman testified, “Cordarius told me that his brother,
Marlin Joseph, had shot Kyra.” Detective Creelman also testified
that “Parice told me his brother, Marlin Joseph,” was the shooter.
Joseph was later found in Lake Worth and taken into custody on
January 2, 2018.
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On February 24, 2020, a jury found Joseph guilty of first-
degree murder with a firearm on both counts. The penalty phase of
the trial began the same day with the same jury. The State
presented two witnesses—Joseph’s then-probation officer and a
latent print examiner. Through these witnesses, the State
introduced evidence of Joseph’s prior conviction for battery on a
child. The defense called 15 witnesses, most of whom were lay
witnesses.
On February 26, 2020, the jury rendered unanimous verdicts
recommending a penalty of death on both counts of first-degree
murder with a firearm, determining the aggravating factors
outweighed the mitigating circumstances. The jury found that the
State had established beyond a reasonable doubt the existence of
the following aggravating factors: (1) Joseph was previously
convicted of a felony and was on felony probation; (2) Joseph was
previously convicted of another capital felony or a felony involving
the use or threat of violence to another person; (3) the first-degree
murder was especially heinous, atrocious, or cruel (HAC); and
(4) the first-degree murder was committed in a cold, calculated, and
premeditated (CCP) manner. As to Kyra, the jury also found a fifth
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aggravator—the victim was a person less than 12 years of age. The
jury found no mitigating circumstances.
A Spencer 4 hearing was held on October 16, 2020, and
sentencing occurred on November 19, 2020. The trial court
followed the jury’s recommendation and sentenced Joseph to death.
The trial court found four aggravating factors that applied to both
counts: (1) Joseph was previously convicted of a felony and under
sentence of imprisonment or on felony probation (moderate weight);
(2) Joseph was previously convicted of another capital felony or a
felony involving the use or threat of violence (great weight); (3) the
first-degree murder was especially heinous, atrocious, or cruel
(great weight); and (4) the first-degree murder was committed in a
cold, calculated, and premeditated manner (great weight). The trial
court found an additional aggravator for the charge related to
Kyra—the victim of the first-degree murder was a person less than
12 years of age (great weight).
The trial court considered and found as proven one of the
three statutory mitigators proffered by Joseph—Joseph had no
4. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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significant history of prior criminal activity (little weight). The trial
court further found seven nonstatutory mitigators: (1) Joseph’s
family background (little weight); (2) Joseph was a good employee
with an excellent work ethic as well as a talented football player
who exhibited this work ethic on and off the field (little weight);
(3) Joseph was a caring and attentive parent (moderate weight);
(4) Joseph had the support of his family (little weight); (5) Joseph
regularly attended church and was a devout Christian (little
weight); (6) Joseph suffered from a delusional disorder of a
persecutory type (little weight); and (7) Joseph had a low IQ (little
weight).
II. ANALYSIS
In this direct appeal, Joseph raises the following 15 claims:
(1) the trial court’s denial of a motion to exclude witness testimony;
(2) the State’s impeachment of its own witnesses; (3) the admission
of out-of-court statements identifying Joseph as the shooter; (4) the
admission of testimony concerning a statement Joseph made to his
mother about one of the victims; (5) the trial court’s denial of a
motion to dismiss charges; (6) the trial court’s denial of a motion to
interview jurors; (7) the constitutionality of Florida’s death penalty
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scheme in light of this Court’s decision in Lawrence v. State, 308
So. 3d 544 (Fla. 2020); (8) the trial court’s imposition of the death
penalty without finding beyond a reasonable doubt that the
aggravating factors were sufficient to justify death and outweighed
the mitigating circumstances; (9) the trial court’s finding of HAC;
(10) the trial court’s finding of CCP; (11) the proportionality of
Joseph’s death sentence; (12) the constitutionality of Florida’s death
penalty statute; (13) improper prosecutorial comments during
penalty-phase closing argument; (14) the alleged failure of the jury
to follow the law in the penalty phase; and (15) cumulative error.
This Court also considers (16) whether there is sufficient evidence
to support Joseph’s two murder convictions. 5
5. We do not further address Claims 8 and 12 because we
have repeatedly rejected these arguments. See Bush v. State, 295
So. 3d 179, 214 (Fla. 2020) (concluding that the defendant was not
entitled to relief on his claim that Florida’s death penalty statute is
unconstitutional because it does not sufficiently narrow the class of
individuals eligible to receive the death penalty); Newberry v. State,
288 So. 3d 1040, 1047 (Fla. 2019) (citing Rogers v. State, 285
So. 3d 872, 878-79 (Fla. 2019)); see also Rogers, 285 So. 3d at 886
(holding that “the sufficiency and weight of the aggravating factors
and the final recommendation of death” are not elements and “are
not subject to the beyond a reasonable doubt standard of proof”).
Further, as to Claims 7 and 11, we do not review the proportionality
of Joseph’s sentence of death. See Lawrence v. State, 308 So. 3d
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A. Motion to Exclude Witness Testimony (Claim 1)
Joseph first argues that the trial court erroneously denied his
motion to exclude the testimony of the State’s firearms witness,
Omar Felix. Joseph’s motion was based on an alleged discovery
violation due to the expert witness being disclosed the day before
trial. Because the trial court properly conducted a Richardson 6
inquiry and its actions pursuant to that inquiry were proper, we
conclude that the trial court did not abuse its discretion in denying
Joseph’s motion to exclude.7
On February 13, 2020, the day before trial, the State filed a
supplemental witness list naming Omar Felix, a firearms expert, as
an expert witness. The State also filed a firearms report as
supplemental discovery. The report indicated that nine 9mm Luger
caliber Winchester cartridge cases had been submitted to Felix for
544, 551-52 (Fla. 2020) (receding from the judge-made requirement
to review the comparative proportionality of death sentences).
6. Richardson v. State, 246 So. 2d 771 (Fla. 1971).
7. We review a trial court’s ruling on a motion in limine for an
abuse of discretion. Patrick v. State, 104 So. 3d 1046, 1056 (Fla.
2012).
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forensic analysis. The report’s conclusion was that the cartridge
cases were identified to have come from the same unknown firearm.
The first day of jury selection, Joseph filed a motion to
exclude, specifically seeking to exclude Felix from testifying because
of the State’s discovery violation and resulting prejudice to him.
During jury selection, Joseph brought the motion to the trial court’s
attention, arguing that a Richardson hearing needed to be held and
that he was prejudiced by the late discovery. Joseph moved for the
appointment of a firearms expert, and the trial court granted
Joseph’s motion. Joseph also deposed Felix during this time. After
the jury had been sworn but before opening statements, the trial
court held a hearing on Joseph’s motion to exclude. The following
exchange occurred:
[DEFENSE COUNSEL]: . . . I got a firearms expert
approved, we did JAC stuff, you issued an order allowing
me to get a firearms expert and I got a firearms expert
and we sent him the report and the firearms expert said
you don’t need an firearms expert. This is not firearms,
this is tool mark identification.
....
THE COURT: So your firearm expert is not an
expert in tool markings as well.
....
[DEFENSE COUNSEL]: We were told that the
firearms expert is not a tool mark expert. A firearms
expert can be a tool mark expert but not visa versa, and
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our firearms expert was not a tool mark expert and we
can’t find any tool mark expert --
THE COURT: Do you want to use Mr. Omar Felix?
[DEFENSE COUNSEL]: No, I do not want to use Mr.
Omar Felix. Although he seems a very nice man, I want
to tear him apart if he goes to trial if this doesn’t get
granted. So, what I did was I had my investigator call the
JAC and see whether or not we can find, they have a list
of tool mark experts. They don’t.
THE COURT: Okay.
[DEFENSE COUNSEL]: He contacted somebody in
Orlando who used to be a tool mark expert who is retired
and is far, far away and never coming back to a
courtroom and said he does not know of any tool mark
experts in Florida or anywhere. So I can’t find a tool
mark expert, and the question here, no where up to the
13th, which is the day before we started jury selection,
was there anything about a firearms expert, anything
about tool marks, anything about anything. I took it
upon myself to attempt to find out what I needed to know
about a tool mark expert to properly prepare . . . .
The trial court then went on to conduct a Richardson inquiry. The
State explained why it did not turn over the evidence until the day
before trial:
What happened is Detective Creelman and myself,
we were going through the evidence. I asked Detective
Creelman, who was the lead detective in this case, I said
where is my firearms report? And he said, this would
have been after hours on the 12th of this month. And he
said, well, I’m not at the office but when I get back 8:30
the following day, which would have been the 13th, he
said it’s on the server, I’ll get it to you and send it to [you]
from the server, and that morning at about 8:35 I
received an email from him, or a text, indicating that he
thought that he had sent the casings over, he realized
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that he had forgotten, he thought he had sent them over
earlier. I said, well, can you get, can you contact PBSO
Lab and see if they can get them done today. He
retrieved the evidence from West Palm Beach Police
Department’s evidence department and he went over to
PBSO lab and contacted, I believe it was Mr. Yateman, it
went up the chain to see if they would be able to examine
the casings the same day and get a report the same day,
and because we didn’t have a gun, because we don’t have
a gun, Judge, he said all this entails is me looking at all
nine casings.
....
And see if they were fired from the same gun, so
yes, I’m able to do it today. And I put them on notice
that same day.
The trial court found that a Richardson violation occurred but
that it was inadvertent, noting that the State turned the evidence
over as soon as it knew about it. The trial court then said it needed
to decide whether the violation was trivial or substantial but did not
make an express finding. The trial court asked the State why the
violation would not prejudice Joseph. The following exchange
occurred:
[STATE]: These casings have been in evidence
since the date the homicide occurred, Judge, and the
Defense was aware that they were in evidence that date.
They have been aware all along that there has never been
a gun located in this case. Realistically, Judge, if there
was some concern about whether or not nine shell
casings that were collected were all fired by the same
gun, they had an opportunity to retain a tool expert or a
firearms expert to determine, well, first of all, do these
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casings even match? So it’s not that it’s, it’s new
evidence, Judge, that I just realized is related to the case.
They’ve been, they were collected on the same day as the
homicides, so they were on notice that these casings were
in evidence so this is not something that’s new. The only
thing that is new is they were examined on the 13th.
THE COURT: And that they potentially were fired
from the same versus a different gun.
[STATE]: And, I’m sorry, yes, Judge, and that they
were potentially fired from the same gun.
THE COURT: I think that’s his -- all right. Is there
any other evidence in the case to suggest there may have
been multiple guns?
[STATE]: No, not from the State, Judge.
THE COURT: Okay. And all of, from all of your
witnesses is there any indication that --
[STATE]: I can tell you, Judge, that based on what
I anticipate the witnesses are going to say, that there was
one gun that was seen in this defendant’s hand when he
shot Kaladaa Crowell and Kyra Inglett. There was one
gun. I do not anticipate, based on what I know from
interviewing these witnesses, based on their statements
to the police right after this happened, there wasn’t some
other person who was unrelated to the family members
that was on the property. The defendant was the one
that was seen with the gun and one gun.
THE COURT: All right. And after the shots were
fired, are there any witness testimony or any evidence to
indicate that another gun was ever used or shot or fired
around the same time?
[STATE]: No, Your Honor.
THE COURT: Okay. So the other evidence seems
to suggest that there was only one gun used in both of
these homicides.
[STATE]: Yes, Judge.
THE COURT: Okay. So all of, all what this does is
confirm witness testimony.
[STATE]: That’s exactly what it does, yes.
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THE COURT: Okay. So let me turn to the Defense.
What is the prejudicial effect? How did this impact your
ability to prepare for trial?
....
[DEFENSE COUNSEL]: What if my firearms expert
who examines it says, no, they weren’t from the same
gun. What the Court’s asking me to do is accept their
firearms expert as being correct. That’s why I asked for
an expert to try to analyze it. I will tell the Court that on
December 20th, 2019, we went down to the West Palm
Beach Police Department and looked at all of the
evidence, and at that point we saw that there were search
warrants for the laptops or whatever they were, at which
point we asked about it in court and the State gave us
the contents of it. I don’t believe it’s my responsibility to
ask the State why they didn’t test their evidence.
....
Your Honor, what the State has just confirmed is
that they want this evidence to confirm their other
evidence, which is clearly highly prejudicial to me
because if I knew they were going to do that, I would
have done something beforehand and if I got an expert
that said, yep, they’re the same --
THE COURT: Does it change the theory of your
case? The theory of your Defense?
[DEFENSE COUNSEL]: Your Honor, yeah, yes, it
would, Your Honor.
THE COURT: How so?
....
[DEFENSE COUNSEL]: Your Honor, I’m not
agreeing with the State’s facts of how many shooters
there was who did the shooting.
The trial court denied the motion to exclude, finding the
Richardson violation did not prejudice Joseph’s trial preparation.
The trial court indicated that Felix’s testimony would only
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corroborate expected witness testimony. The trial court also stated
that it would give the defense time to find an expert and would
make accommodations, noting that it could not imagine the defense
would be unable to find an expert in two weeks.
At trial, before the State called Felix to the stand, defense
counsel told the trial court that the defense still had not found a
tool mark expert. Defense counsel renewed the defendant’s
objection and asked the trial court to exclude Felix as a witness.
The trial court overruled the objection. The trial court then
reiterated its ruling from the Richardson hearing. Felix went on to
testify that the casings were fired from the same unknown firearm.
Joseph cross-examined Felix extensively. During this cross-
examination, Felix was asked about a database known as the
National Integrated Ballistic Information Network. The trial court
cut off this line of questioning, finding it not relevant, and asked
defense counsel to move on.
“A Richardson hearing is required when there is a possible
discovery violation in order to flesh out whether there has indeed
been a discovery violation.” Landry v. State, 931 So. 2d 1063, 1065
(Fla. 4th DCA 2006). “Where exclusion of evidence . . . is sought
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because of a discovery violation, Richardson holds that the trial
court’s discretion can be properly exercised only after an adequate
inquiry is made into three areas: (1) whether the discovery violation
was willful or inadvertent; (2) whether it was trivial or substantial;
and (3) whether it had a prejudicial effect on the opposing party’s
trial preparation.” McDuffie v. State, 970 So. 2d 312, 321 (Fla.
2007). When a trial court conducts a Richardson hearing, “[t]his
Court will review the record to determine if the inquiry was properly
made and if the trial court’s actions pursuant to the inquiry were
proper.” Delhall v. State, 95 So. 3d 134, 160 (Fla. 2012).
Here, the record shows that the trial court conducted an
adequate Richardson inquiry. The trial court first determined that
the State’s disclosure of its firearms expert and firearms report was
a discovery violation due to the State not disclosing this information
until a day before trial. The trial court next determined that the
State’s discovery violation was inadvertent, and the record supports
this finding. The State told the trial court that the cartridge casings
had been in evidence since the day of the murders, but after going
through the evidence with Detective Creelman on the eve of trial, it
realized there was no firearms report because Detective Creelman
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forgot to send the casings to the lab for analysis. The State had the
casings analyzed the same day it discovered there was no firearms
report and then filed a supplemental list of witnesses and Felix’s
firearms report later that day. There is no record evidence that the
State willfully delayed analyzing the cartridge casings and
generating a firearms report. The trial court then said it needed to
determine whether the State’s violation was trivial or substantial,
but it did not make an explicit finding.
The trial court finally determined that the State’s discovery
violation did not have a prejudicial effect on Joseph’s trial
preparation. “Prejudice in this context means procedural prejudice
significantly affecting the opposing party’s preparation for trial.”
McDuffie, 970 So. 2d at 321. “[T]he defense is procedurally
prejudiced if there is a reasonable possibility that the defendant’s
trial preparation or strategy would have been materially different
had the violation not occurred.” State v. Schopp, 653 So. 2d 1016,
1020 (Fla. 1995). “Trial preparation or strategy should be
considered materially different if it reasonably could have benefited
the defendant.” Id. A court’s analysis of procedural prejudice
“considers how the defense might have responded had it known
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about the undisclosed piece of evidence and contemplates the
possibility that the defense could have acted to counter the harmful
effects of the discovery violation.” Scipio v. State, 928 So. 2d 1138,
1149 (Fla. 2006).
The trial court properly ruled that the State’s discovery
violation did not procedurally prejudice Joseph. The trial court first
turned to the State and asked why its discovery violation would not
prejudice Joseph. Once the State provided its reasons—that the
cartridge casings had been in evidence since the crimes and that
Felix’s testimony would merely corroborate other expected
testimony—the trial court then asked the defense how Felix’s
testimony impacted its ability to prepare for trial. Defense counsel
said the defense would have retained its own firearms expert who
could testify that the cartridge casings did not come from the same
firearm. However, even if the defense had been able to retain their
own expert to contradict Felix’s testimony, there is no reasonable
possibility that the defendant’s trial preparation or strategy would
have been materially different. Felix’s testimony would not have
changed the defense’s theory of the case, which was that Joseph
was not the shooter. Felix’s testimony did not involve the identity of
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the shooter; it was merely corroborative of other witness testimony.
Therefore, Joseph’s theory that he was not the shooter would be
just as plausible after Felix’s testimony as it was prior to its
admission into evidence. See Cox v. State, 819 So. 2d 705, 713
(Fla. 2002) (concluding that the State’s discovery violation did not
materially hinder the defendant’s trial preparation where the
defense’s theory of the case was just as viable after the challenged
testimony as it was prior to the introduction of the testimony).
There was no evidence suggesting there was more than one gun or
more than one shooter involved in these crimes. The trial court also
gave defense counsel time to find a firearms expert and an
opportunity to depose Felix. Further, even if the trial court
erroneously denied Joseph’s motion to exclude, any error was
harmless. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).
Accordingly, we deny relief on this claim.
B. The State’s Impeachment of its Own Witnesses (Claim 2)
Joseph next argues that the trial court erred in allowing the
State to improperly impeach its own witnesses at trial. Joseph
argues that the State attempted to impeach each member of
Joseph’s family with purported inconsistent statements, but Joseph
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fails to identify any specific instances of improper impeachment in
the argument section of his initial brief. In his reply brief, Joseph
identifies one instance, which we briefly address. We conclude that
even if this issue has been properly presented, it is without merit.
During the trial testimony of Robin Denson (Joseph’s mother),
the State inquired about a conversation Denson had with Joseph
immediately before the shootings. Specifically, Denson testified
that she had a conversation with Joseph when she got home from
work but that it was not about the incident between Kyra and
Kamare. Denson further testified that Joseph was not upset and
was not being disrespectful to her but towards Kamare’s mother.
Denson testified that she remembered going to the police station
and speaking with Detective Creelman shortly after the murders.
The State asked about a specific statement Denson made to
Detective Creelman: “You said that Marlin [Joseph] kept going on
and on.” Defense counsel objected on hearsay and improper
attempted impeachment grounds, arguing that a proper predicate
must be laid for a prior inconsistent statement. The trial court
found that the State did lay a proper predicate and overruled the
objection but noted that the State needed to confront Denson with
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the prior inconsistent statement and ask her if she ever made a
different statement. The State then asked Denson whether she said
something to Detective Creelman about her conversation with
Joseph that was different from what she said on the stand. Denson
said she was testifying as to what she remembered from over two
years ago. The State then impeached Denson with her prior
inconsistent statements to Detective Creelman that Joseph was
upset because Kyra and Kamare got into a disagreement and was
being disrespectful.
Pursuant to section 90.608, Florida Statutes (2017), “[a]ny
party, including the party calling the witness, may attack the
credibility of a witness.” Specifically, a party may impeach a
witness by “[i]ntroducing statements of the witness which are
inconsistent with the witness’s present testimony.” § 90.608(1),
Fla. Stat. In order to impeach a witness with a prior inconsistent
statement, “the prior statement must be both (1) inconsistent with
the witness’s in-court testimony, and (2) the statement of the
witness.” Wilcox v. State, 143 So. 3d 359, 383 (Fla. 2014). Prior
statements are deemed inconsistent only if they directly contradict
or are materially different from testimony during trial. Id. “Before a
- 24 -
witness can be impeached with a prior inconsistent statement, the
proper foundation must be laid.” Pasha v. State, 225 So. 3d 688,
713 (Fla. 2017) (quoting Pearce v. State, 880 So. 2d 561, 569 (Fla.
2004)). “Prior to questioning a witness about the contents of a
previous inconsistent statement, counsel must call to the witness’s
attention the time, place, and person to whom the statement was
allegedly made.” Pearce, 880 So. 2d at 569-70. “Further, a trial
court’s ruling on the admissibility of evidence will be upheld absent
an abuse of discretion.” Wilcox, 143 So. 3d at 373.
Here, contrary to Joseph’s argument, Denson testified at trial
inconsistent with the sworn statement she gave to the police on the
night of December 28, 2017, in which she stated that Joseph was
upset because Kyra and Kamare got into a disagreement and was
being disrespectful. At trial, Denson denied that Joseph was upset
or disrespectful during their conversation on the night of the
shootings. The State also laid the proper predicate by asking
Denson if she remembered giving a statement to Detective Creelman
at the police station shortly after the murders before confronting
- 25 -
her with the statement. Accordingly, the State did not improperly
impeach Denson, and we deny relief on this claim. 8
C. Out-of-Court Identifications of Joseph (Claim 3)
Joseph argues that the trial court erroneously admitted
Detective Creelman’s testimony regarding out-of-court statements
made by Cordarius and Parice that identified Joseph as the shooter.
Specifically, Joseph argues that the identifications were hearsay
because Cordarius and Parice provided in-court testimony and did
not testify inconsistently at trial. However, because Cordarius’ and
Parice’s out-of-court identifications were not hearsay and were
admissible as statements of identifications pursuant to section
90.801(2)(c), Florida Statutes (2017), we conclude that the trial
court did not err in admitting Detective Creelman’s testimony.
8. We also find Joseph’s argument that the trial court never
found the witnesses’ testimony affirmatively harmful or never
declared the witnesses to be adverse without merit. See Morton v.
State, 689 So. 2d 259, 262 (Fla. 1997) (“In 1990, section 90.608
was amended to remove the necessity of showing that one’s own
witness had become adverse. . . . [Section 90.608] now permits a
party to impeach its own witness by introducing prior inconsistent
statements without regard to whether the witness’s testimony is
prejudicial.”), receded from on other grounds by Rodriguez v. State,
753 So. 2d 29 (Fla. 2000).
- 26 -
“Admissibility of evidence is within the sound discretion of the
trial court, and the trial court’s ruling will not be disturbed on
appellate review unless there is an abuse of discretion.” Tundidor v.
State, 221 So. 3d 587, 598 (Fla. 2017). “However, the question of
whether a statement is hearsay is a matter of law and is subject to
de novo review on appeal.” Id. (quoting Cannon v. State, 180 So. 3d
1023, 1037 (Fla. 2015)). Hearsay is defined as “a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted.” § 90.801(1)(c), Fla. Stat. (2017). Section 90.801(2)(c)
provides an exception to the hearsay rule: “A statement is not
hearsay if the declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement and the
statement is . . . [o]ne of identification of a person made after
perceiving the person.” § 90.801(2)(c), Fla. Stat. (2017). An “out-of-
court statement of identification is admissible in court to prove the
truth of the matter asserted, e.g., to prove that the person identified
was the person who committed the act.” Charles W. Ehrhardt,
Florida Evidence § 801.9, at 992-93 (2017 ed.). “Section
90.801(2)(c) recognizes that an identification made shortly after a
- 27 -
crime, accident, or event is more reliable in most situations than
identifications made at a later time.” Id. at 993. “In addition to the
testimony of the person who made the prior identification, section
90.801(2)(c) makes admissible the testimony of a witness who was
present at the time of the identification so long as the person
making the identification testifies during the trial and is subject to
cross-examination concerning the identification.” Id. at 996.
Here, Cordarius and Parice gave prior sworn statements to the
police on the night of the shootings identifying Joseph as the
shooter. At trial, the State offered Cordarius’ and Parice’s out-of-
court identifications of Joseph as the shooter through the testimony
of Detective Creelman, who was present at the time of the
identifications. Specifically, Detective Creelman testified that he
interviewed Cordarius on the night of the incident and that
“Cordarius told [him] that his brother, Marlin Joseph, had shot
Kyra.” Detective Creelman also testified that he interviewed Parice
on the night of the incident and that “Parice told [him] his brother,
Marlin Joseph,” was the shooter. The trial court allowed Detective
Creelman’s testimony regarding the out-of-court identifications
under section 90.801(2)(c)’s hearsay exception.
- 28 -
Our decision in Evans v. State, 838 So. 2d 1090 (Fla. 2002), is
instructive. In Evans, we concluded that the testimony of two
police officers that two eyewitnesses identified the defendant as the
person who shot the victim was admissible as a hearsay exception
under section 90.801(2)(c) where the two eyewitnesses testified at
trial and were subject to cross-examination concerning their
identification of the defendant as the shooter. Id. at 1094; see also
Polite v. State, 41 So. 3d 935, 942 (Fla. 5th DCA 2010) (holding that
the State properly elicited testimony about two out-of-court
identifications through the police where the State asked the
identifying witness on direct examination if she had identified the
robber and given the police his name), quashed on other grounds,
116 So. 3d 270 (Fla. 2013).
Cordarius’ and Parice’s out-of-court identifications qualify as
an exception to hearsay under section 90.801(2)(c). Cordarius and
Parice were eyewitnesses to the crimes and specifically identified
Joseph as the shooter on the night of the shootings in their
statements to Detective Creelman. See Ibar v. State, 938 So. 2d
451, 460 (Fla. 2006) (stating that section 90.801(2)(c) applies to
statements of identification made by a witness to a crime); Charles
- 29 -
W. Ehrhardt, Florida Evidence § 801.9, at 994-95 (stating that
section 90.801(2)(c) “does not specify when or where the
identification must be made” but that the identification “should be
made near the time the declarant perceived the individual
identified”). Further, both Cordarius and Parice testified at trial
and were subject to cross-examination concerning their
identifications. See § 90.801(2)(c), Fla. Stat. Accordingly, because
Cordarius’ and Parice’s out-of-court identifications were not hearsay
and were admissible as statements of identifications pursuant to
section 90.801(2)(c), we deny relief on this claim.
D. Testimony Concerning Joseph’s Statements About One of
the Victims (Claim 4)
Joseph next argues that the trial court erroneously admitted
Jeshema Tarver’s testimony that she first heard Joseph yelling
about Kyra “two days ago,” referring to a prior incident that
occurred on December 23, 2017 (two days before Christmas and
five days before the shootings). Specifically, Joseph argues this
testimony was irrelevant, unduly prejudicial, and involved no prior
bad act or collateral crime. However, because the testimony was
- 30 -
relevant to proving motive, we conclude that the trial court did not
abuse its discretion in admitting Jeshema’s testimony.
“A trial court’s determination that evidence is admissible will
not be disturbed unless the trial court abused its discretion.”
Kirkman v. State, 233 So. 3d 456, 467 (Fla. 2018). “That discretion,
however, is limited by the rules of evidence.” Id. (quoting Hudson v.
State, 992 So. 2d 96, 107 (Fla. 2008)). “The prerequisite to the
admissibility of evidence is relevancy.” Wright v. State, 19 So. 3d
277, 291 (Fla. 2009). “Under Florida law, all relevant evidence,
defined as that tending to prove or disprove a material fact, is
admissible unless otherwise provided by law.” Morris v. State, 219
So. 3d 33, 42 (Fla. 2017).
Here, after Jeshema testified concerning the argument she
heard between Joseph and Crowell while in the shower, she
indicated that this was not the first time she heard Joseph yelling
about Kyra. Jeshema testified that she heard Joseph yelling about
Kyra on December 23, 2017 (two days before Christmas and five
days before the shootings). At that time, Joseph told his mother
that Kyra had one more time to make him mad or to bother and
that Kyra needed to leave Kamare alone.
- 31 -
Jeshema’s testimony was relevant to show Joseph’s motive for
committing the murders. We have explained that “evidence may be
admitted in a criminal case if it is relevant as to the motive for the
crime involved.” State v. Riechmann, 777 So. 2d 342, 365 (Fla.
2000). Jeshema’s testimony about what she heard Joseph tell
Denson provided a reason for Joseph’s eventual aggression towards
Crowell and Kyra—Joseph was upset with Kyra because she kept
bothering his daughter, Kamare. Joseph’s statement to Denson
that Kyra had one more time to make him mad, when coupled with
testimony that Kyra and Kamare got into an argument on the day of
the murders, is highly probative. Kyra and Kamare’s argument on
the day of the murders served as the “one more time” to make
Joseph mad, explaining why he killed Kyra and Crowell that night.
Accordingly, we deny relief on this claim.
E. Denial of Motion to Dismiss Charges (Claim 5)
Joseph further argues that the trial court erred in denying his
motion to dismiss charges, which alleged constitutional violations
occurred while Joseph received treatment at Treasure Coast
Forensic Treatment Center. Specifically, he asserts that Treasure
Coast’s staff, in training him to be competent, violated his
- 32 -
constitutional rights under the Fifth, Sixth, and Fourteenth
Amendments to the United States Constitution. However, as
argued by the State, Joseph’s claim is vague, conclusory, and lacks
specificity. Joseph fails to provide facts to support his claims of the
alleged constitutional violations. Accordingly, we deny relief on this
claim.
F. Denial of Motion to Interview Jurors (Claim 6)
Joseph argues that the trial court erred in denying his motion
to interview jurors. “A trial court’s decision on a motion to interview
jurors is reviewed pursuant to an abuse of discretion standard.”
Anderson v. State, 18 So. 3d 501, 519 (Fla. 2009). “The trial court
does not abuse its discretion in denying motions to interview jurors
based on juror bias or misconduct where there is no indication of
bias or misconduct in the record.” Johnston v. State, 63 So. 3d 730,
739-40 (Fla. 2011). Further, in order to be entitled to interview
jurors, Joseph must present “sworn allegations that, if true, would
require the court to order a new trial because the alleged error was
so fundamental and prejudicial as to vitiate the entire proceedings.”
Johnson v. State, 804 So. 2d 1218, 1225 (Fla. 2001). Here, Joseph
alleged that a prospective juror had a conversation with Robin
- 33 -
Denson (Joseph’s mother) after the juror was excused from the
venire panel. In this conversation, the juror said the entire jury
panel discussed the case among themselves, disregarding the trial
court’s instructions. The juror also said all of the prospective jurors
had already made up their minds in wanting to sentence Joseph to
death. The trial court denied Joseph’s motion, finding there was
insufficient evidence to support the need for juror interviews or to
show that the verdict may be subject to challenge. The trial court
did not find Denson’s statements reliable because Denson never
brought this to the trial court’s attention yet brought other matters
to the court’s attention. The trial court also found Denson’s
statements not reliable because they were not supported by the
prospective juror who spoke to the trial court and attorneys about
the concerns she had sitting on the case before being excused.
Because the allegations in Joseph’s motion would not constitute
sufficient grounds to support a new trial, we conclude that the trial
court did not abuse its discretion in denying the motion to interview
jurors.
- 34 -
G. HAC Aggravator (Claim 9)
Next, Joseph argues that there is insufficient evidence to
support the HAC aggravator. We disagree. The HAC aggravator
applies to murders that are both “conscienceless or pitiless and
unnecessarily torturous to the victim.” Francis v. State, 808 So. 2d
110, 134 (Fla. 2001). The focus is “on the means and manner in
which death is inflicted and the immediate circumstances
surrounding the death.” Buzia v. State, 926 So. 2d 1203, 1211-12
(Fla. 2006) (quoting Barnhill v. State, 834 So. 2d 836, 849-50 (Fla.
2002)). Gunshot murders can qualify as HAC if the events
preceding the death “cause the victim fear, emotional strain, and
terror.” Marquardt v. State, 156 So. 3d 464, 488 (Fla. 2015). To
support HAC, “the evidence must show that the victim was
conscious and aware of impending death.” King v. State, 130 So. 3d
676, 684 (Fla. 2013) (quoting Douglas v. State, 878 So. 2d 1246,
1261 (Fla. 2004)). “However, the victim’s perception of imminent
death need only last seconds for this aggravator to apply.” Gonzalez
v. State, 136 So. 3d 1125, 1162 (Fla. 2014).
In applying this aggravator, the trial court found the following
as to Crowell:
- 35 -
Here, the Defendant shot Kaladaa Crowell in her
home while her child was present. Although the medical
examiner testified that he could not conclusively opine
based on examining the body the exact sequence of the
gunshots, he did opine that at least one of the shots to
the head was fatal and would have rendered Kaladaa
Crowell unconscious immediately. However, the State
presented testimony that Jeshema Tarver heard multiple
gunshots as she was showering. She also heard Kaladaa
Crowell begging for help and for someone to call 911 after
she heard the first round of gunshots. Jeshema got out
of the shower and while getting dressed, heard a final
shot. There was no testimony that Kaladaa ever spoke
another word after the sound of that last shot.
This series of events clearly establishes that
Kaladaa Crowell was alive after being shot multiple times,
as she was heard begging for help and for someone to call
911. Based on Jeshema’s testimony, and the testimony
of the medical examiner that one of the gunshot wounds
to the head would have rendered Kaladaa unconscious
immediately, it is reasonable to conclude that Kaladaa
Crowell received her fatal gunshot wound last. This
evidence establishes that Defendant fired multiple shots
into her body, and that she laid there begging for help.
Moments passed, and when Defendant realized she still
was not dead, he delivered the final shot killing her.
Kaladaa thus was well aware of her impending death,
and the act of the final shot was conscienceless and
pitiless.
We conclude that competent, substantial evidence supports
the trial court’s finding as to Crowell. The evidence showed that
Crowell sustained several gunshot wounds to different parts of her
body—back of right hand, belly, left thigh, left calf, chest, back of
head, and forehead. The gunshot wound to Crowell’s forehead was
- 36 -
fatal, breaking her skull and destroying her brain. Despite the
medical examiner being unable to determine the order of the
gunshots, Jeshema’s testimony established that Crowell was alive
after being shot multiple times and that she received her fatal
gunshot wound last. Specifically, Jeshema testified that she heard
three gunshots while showering and then heard Crowell screaming,
crying, and asking for someone to call 911. Jeshema then heard
another shot and did not hear anything from Crowell after this shot.
The medical examiner testified that the gunshot wound to Crowell’s
forehead would have rendered her unconscious immediately.
The evidence presented also indicated that Crowell endured
physical pain, emotional strain, fear, and terror before being killed.
The medical examiner testified that each gunshot individually
would have caused pain to Crowell if she was conscious. This
testimony, coupled with Jeshema’s testimony, established that
Crowell experienced pain from the nonfatal gunshot wounds that
preceded the fatal shot. While it is unclear how much time passed
between the nonfatal shots and the fatal shot, “the victim’s
perception of imminent death need only last seconds for [the HAC]
aggravator to apply.” Allred v. State, 55 So. 3d 1267, 1280 (Fla.
- 37 -
2010). As further evidence that Crowell was conscious and aware
of impending death, the medical examiner testified that the gunshot
wound on the back of Crowell’s right hand was indicative of a
defensive wound. See Hall v. State, 107 So. 3d 262, 276 (Fla. 2012)
(“[W]hen a victim sustains defense-type wounds during the attack,
it indicates that the victim did not die instantaneously and in such
a circumstance HAC was proper.”). Further, immediately prior to
the murder, Joseph and Crowell were arguing about Kyra being
mean to Kamare, so Crowell was aware Kyra was home and in
danger. See Gonzalez, 136 So. 3d at 1163 (finding competent,
substantial evidence to support the HAC aggravator where one of
the victims, aware of her impending death, knew that her children
were probably also in grave danger).
Next, as to Kyra, the trial court found the following:
Kyra Inglett was in her home when Defendant shot
her mother multiple times. Undoubtedly, Kyra heard her
mother crying and begging for help as she laid on the
floor. Having just seen this, Kyra fled from her home.
She was looking back as Defendant was chasing her
down. Defendant’s own brother tried to stop the attack
but was unsuccessful. Defendant then shot Kyra five
(5) times. Kyra was aware of her impending death. There
can be nothing more terrifying for a child than knowing
that someone has just shot their mother multiple times
and now was coming after them. There is no doubt that
- 38 -
this panic-stricken little girl experienced a level of terror
that no child or no one should ever have to endure.
Here, competent, substantial evidence supports the trial
court’s finding of the HAC aggravator as to Kyra. The evidence
showed that Kyra sustained several gunshot wounds to different
parts of her body—left buttock, lower back, right side of head, and
back of head. The gunshot wound to the back of Kyra’s head was
fatal, damaging her skull and brain. Unlike Crowell, there is no
evidence indicating Kyra was still alive after the first gunshot and
thus suffered any physical pain. But a finding of HAC does not
require the victim to undergo physical torture; mental torture is
sufficient. See, e.g., Gonzalez, 136 So. 3d at 1162 (“[T]he HAC
aggravating circumstance will apply in cases where the victim is
terrorized before being shot or endures fear and emotional strain or
the infliction of mental anguish.”).
Here, the circumstances preceding Kyra’s death caused her
fear, emotional strain, and terror. The evidence demonstrated that
Kyra was inside the home at the time Crowell was shot. Testimony
from Denson placed Kyra in the living room, and Crowell’s body was
found between the living area and dining room. Therefore, it can be
- 39 -
reasonably inferred that Kyra saw Joseph shoot her mother or, at
minimum, heard the gunshots directed at her mother. See Heyne
v. State, 88 So. 3d 113, 122-23 (Fla. 2012) (finding competent,
substantial evidence to support the trial court’s finding that the
five-year-old victim experienced fear and terror prior to her death
where she witnessed her mother and father being murdered).
Parice also testified that after he heard gunshots coming from
inside the house, he saw Kyra run outside, looking backwards, and
Joseph was running after her with a gun. This evidence leaves no
doubt that Kyra was aware of her impending death. Accordingly,
Joseph is not entitled to relief on this claim. 9
9. Given our conclusion that competent, substantial evidence
supports the trial court’s HAC finding, Joseph’s argument that the
jury should not have been instructed on the HAC aggravator and
Joseph’s argument that the trial court erroneously assigned great
weight to the HAC aggravator necessarily fail. See Colley v. State,
310 So. 3d 2, 15 n.10 (Fla. 2020) (“Given our conclusion on the
sufficiency of the evidence underlying the trial court’s finding, we
necessarily reject Colley’s argument that the court erred by
instructing the jury on the HAC aggravator.”); Jean-Philippe v. State,
123 So. 3d 1071, 1082 (Fla. 2013) (“[O]nce a trial court finds that
an aggravating circumstance has been established beyond a
reasonable doubt, the weight to be given ‘is within the discretion of
the trial court, and it is subject to the abuse of discretion
standard.’ ” (quoting Bright v. State, 90 So. 3d 249, 261 (Fla.
2012))).
- 40 -
H. CCP Aggravator (Claim 10)
Joseph also argues that the trial court erred in finding that the
CCP aggravator was proven beyond a reasonable doubt. To prove
the CCP aggravator, the court must find that
the killing was the product of cool and calm reflection
and not an act prompted by emotional frenzy, panic, or a
fit of rage (cold); that the defendant had a careful plan or
prearranged design to commit murder before the fatal
incident (calculated); that the defendant exhibited
heightened premeditation (premeditated); and that the
defendant had no pretense of moral or legal justification.
Franklin v. State, 965 So. 2d 79, 98 (Fla. 2007). The CCP
aggravator may be proven by demonstrating such facts as
(1) “advance procurement of a weapon,” (2) “lack of resistance or
provocation,” and (3) “the appearance of a killing carried out as a
matter of course.” Id. (quoting Swafford v. State, 533 So. 2d 270,
277 (Fla. 1988)).
Here, competent, substantial evidence supports the trial
court’s finding of the CCP aggravator as to both Crowell and Kyra.
Joseph armed himself with a firearm, as evidenced by Parice’s
testimony that he saw Joseph with a gun a couple of days prior to
the murders. See Franklin, 965 So. 2d at 98 (“In a number of
cases, we have cited the defendant’s procurement of a weapon in
- 41 -
advance of the crime as indicative of preparation and heightened
premeditated design.”). Further, there is no record evidence
suggesting Joseph killed Crowell and Kyra out of frenzy, panic, or
rage. Denson testified that, on the day of the murders, Joseph,
Kyra, and Crowell were all present in the home when she got home
from work. Joseph was in his room reading the Bible, Kyra was
sitting on the couch in the living room, and Crowell was in her room
folding laundry. Denson did testify that Joseph was being
disrespectful towards Kamare’s mother (who was not there) during
a conversation Denson had with Joseph immediately prior to the
murders. However, Denson explicitly testified that Joseph was not
upset during this conversation. There is also no evidence of
provocation from either Crowell or Kyra. Rather, the evidence
indicates that all things were normal at the house that night.
Joseph was in his room reading the Bible and, when he was ready
to carry out his plan, he confronted Crowell and shot her. Joseph
then chased Kyra out of the house and shot her.
As to heightened premeditation, in addition to the
procurement of a weapon in advance of the crime, Joseph was
heard on December 23, 2017 (two days before Christmas and five
- 42 -
days before the murders) yelling to Denson about Kyra saying she
had one more time to make him mad and that she needed to leave
his daughter alone. That “one more time” incident occurred on the
day of the murders. Joseph had time to consider his plan before
carrying it out. Joseph did not confront Crowell or Kyra
immediately after getting home from work. Joseph was in his room
reading the Bible while Crowell was in her room folding laundry,
and Kyra was in the living room on the couch. When he was ready,
Joseph then confronted Crowell about the incident between Kyra
and Kamare. Out of the nine people present in the home on the
night of December 28, 2017, Joseph targeted Crowell and then
Kyra. Joseph shot Crowell and Kyra multiple times. The evidence
also showed that Joseph could have left both victims alive but,
instead, he decided to murder them. See Turner v. State, 37 So. 3d
212, 226 (Fla. 2010) (“We have held that CCP exists where, as here,
a defendant has ample opportunity to leave, but instead decides to
murder the victim.”). Testimony presented at trial demonstrated
that Crowell was still conscious after the first round of shots and
was heard screaming and asking someone to call 911. Joseph,
upon seeing Crowell still alive, could have left the crime scene. But
- 43 -
he instead delivered a fatal shot to Crowell’s forehead. Joseph
again had the chance to flee after killing Crowell. He was tackled by
his brother on the way out of the house and still proceeded to chase
Kyra and shoot her multiple times, including a fatal shot to the
back of the head. Only after this did Joseph flee in Crowell’s
vehicle. The evidence of Joseph’s actions sufficiently supports
heightened premeditation.
Lastly, “[a] pretense of legal or moral justification is ‘any
colorable claim based at least partly on uncontroverted and
believable factual evidence or testimony that, but for its
incompleteness, would constitute an excuse, justification, or
defense as to the homicide.’ ” Campbell v. State, 159 So. 3d 814,
831 (Fla. 2015) (quoting Nelson v. State, 748 So. 2d 237, 245 (Fla.
1999)). The evidence in the present case showed no pretense of
legal or moral justification for the killing, and Joseph does not
argue that the murder was justified.
Moreover, given the other weighty aggravators found in this
case, even if the CCP aggravator were invalid, there is no reasonable
possibility that an absence of this one aggravator would have
resulted in a different sentence. See Hall v. State, 246 So. 3d 210,
- 44 -
215 (Fla. 2018) (concluding that an error in finding the existence of
CCP was harmless because “Hall has significant and weighty
aggravation beyond the invalidated CCP aggravator”). Accordingly,
we deny relief on this claim. 10
I. Prosecutor’s Penalty-Phase Comments (Claim 13)
Joseph challenges a number of prosecutorial comments made
during penalty-phase closing argument and argues that the trial
court erred in denying his motions for mistrial directed at those
comments. Because the prosecutor’s comments were proper, or if
improper not so prejudicial as to vitiate Joseph’s entire trial, we
conclude that the trial court did not abuse its discretion in denying
Joseph’s motions for mistrial during the State’s penalty-phase
closing argument.
10. Given our conclusion that competent, substantial
evidence supports the trial court’s CCP finding, Joseph’s argument
that the trial court erroneously assigned great weight to the CCP
aggravator necessarily fails. See Lowe v. State, 259 So. 3d 23, 58
(Fla. 2018) (“In reviewing the finding of an aggravating
circumstance, ‘[i]t is not this Court’s function to reweigh the
evidence to determine whether the State proved each aggravating
circumstance beyond a reasonable doubt—that is the trial court’s
job.’ ” (quoting Willacy v. State, 696 So. 2d 693, 695 (Fla. 1997))).
- 45 -
Joseph first challenges the prosecutor’s comment that Joseph
did not care about jail: “[T]here is no question that he understood
the criminality. It’s just he didn’t care. Didn’t care. He was on
probation, ladies and gentlemen. You heard the probation officer
say that any crime can violate you. Still doesn’t. Doesn’t care
about jail. That’s why that punishment is not appropriate.”
Defense counsel objected to this comment, and the trial court
sustained the objection. After the trial court denied Joseph’s
subsequent motion for mistrial, he requested a curative instruction
to be read in the alternative, which the trial court agreed to give.
This Court reviews a trial court’s denial of a motion for mistrial for
an abuse of discretion, where a defendant contemporaneously
objects, and the trial court sustains the objection and gives a
curative instruction. Truehill v. State, 211 So. 3d 930, 949-50 (Fla.
2017). “ ‘A motion for mistrial should be granted only when it is
necessary to ensure that the defendant receives a fair trial.’ In
other words, ‘[a] motion for a mistrial should only be granted when
an error is so prejudicial as to vitiate the entire trial.’ ” Smiley v.
State, 295 So. 3d 156, 169 (Fla. 2020) (quoting Morris, 219 So. 3d
at 44).
- 46 -
The State’s comment that Joseph did not care about jail was
made in the context of mitigating circumstances. Specifically, the
State was arguing that Joseph’s capacity to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law was not substantially impaired. The State
noted the fact that Joseph did not turn himself in, evading police
for five days before being caught. It further noted that Joseph was
on probation and that he was instructed on the conditions of
probation. The State argued that Joseph’s willingness to commit a
new law violation and flee showed that he did not care about jail,
and therefore, life imprisonment was an inappropriate punishment.
Joseph objected and argued that the fact that he did not care about
jail is not a proper aggravating circumstance.
While improper, this comment alone was not so prejudicial as
to vitiate the entire trial. For one, the comment was brief and
isolated. See Truehill, 211 So. 3d at 949 (finding that a brief
“partners in crime” comment did not deprive the defendant of a fair
and impartial trial or materially contribute to the conviction);
Fletcher v. State, 168 So. 3d 186, 209 (Fla. 2015) (denying relief
where the prosecutor’s “send a message” comment, although
- 47 -
improper, was iterated only three times, all at roughly the same
time). And two, the trial court sustained Joseph’s objection and
gave his requested curative instruction, informing the jury that the
fact that Joseph did not care about jail is not a proper aggravating
circumstance to be considered. See, e.g., Card v. State, 803 So. 2d
613, 621-22 (Fla. 2001) (holding that the trial court did not abuse
its discretion in refusing to grant a mistrial for the prosecutor’s
comments, where the trial court sustained the objection and gave
curative instructions). Accordingly, in light of the entire record at
the penalty phase, this brief and isolated comment was not so
prejudicial as to vitiate the entire trial, and the trial court did not
abuse its discretion in denying Joseph’s motion for mistrial directed
at this comment.
Joseph next challenges the following comment: “When that
gets turned in, ladies and gentlemen, this doesn’t happen unless
she [the trial judge] thinks it should.” Joseph objected to this
comment, but the trial court did not rule on the objection.
However, the trial court did rule on Joseph’s motion for mistrial
directed at this comment. When a trial court does not rule on a
defendant’s objection but simply denies the defendant’s motion for
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mistrial, this Court applies an abuse of discretion standard to the
trial court’s ruling on the motion for mistrial. See Poole v. State,
997 So. 2d 382, 391 n.3 (Fla. 2008).
This comment was made in the context of the State’s broad
argument that, based on the evidence, jury instructions,
aggravating factors, and mitigating circumstances, the correct and
proportionate sentence was death. Specifically, the State was
referring to the fact that the jury makes a recommendation of death
and that it is the trial court who ultimately decides whether to
impose a sentence of death. See § 921.141(3), Fla. Stat. (2017).
Joseph objected and argued that the prosecutor’s comment
diminished the jurors’ roles.
The prosecutor’s comment did not diminish the jurors’ roles
and was not improper. Although perhaps stated ineloquently, it is
true that a jury’s recommendation of death “doesn’t happen” unless
the trial court “thinks it should.” See Delgado v. State, 162 So. 3d
971, 981 (Fla. 2015) (“[R]egardless of the jury’s recommendation,
the trial judge must conduct an independent analysis of the
aggravating and mitigating circumstances.” (quoting Phillips v.
State, 39 So. 3d 296, 305 (Fla. 2010))). Before imposing a sentence
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of death, a trial court must first consider each aggravating factor
unanimously found by the jury and all mitigating circumstances.
See § 921.141(3)(a)2., Fla. Stat. (2017). And, even if the jury
recommends a sentence of death, the trial court can still impose a
sentence of life imprisonment. See id.
Any potential issue of the State’s comment diminishing the
jurors’ roles was assuaged by the trial court’s instruction
immediately after Joseph’s objection, as well as the State’s
comments following the instruction. The trial court informed the
jury that the court was the one who imposes the final sentence but
that it would weigh the jury’s recommendation very heavily. The
State then essentially restated what the trial court just said—that
the trial court would consider the jury’s recommendation of death,
weigh the recommendation with everything else, and ultimately
decide whether to impose a sentence of death. Because the State’s
comment was a correct, albeit imprecise, statement of the law and
because any potential harm was cured by the trial court’s
instruction and the State’s subsequent comments, the trial court
did not abuse its discretion in denying Joseph’s motion for mistrial
directed at this comment.
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Joseph’s final challenge is directed at the following comment:
“And the person that committed them has provided no mitigation
worthy to allow him to live out his days in jail . . . .” Joseph
objected to this comment, but the trial court did not rule on the
objection. The trial court did, however, rule on Joseph’s motion for
mistrial after doing a read-back of the transcript. As with the
previous comment, this Court’s standard of review of the trial
court’s denial of the motion for mistrial is abuse of discretion. See
Poole, 997 So. 2d at 391 n.3.
This comment was made at the end of the State’s closing
argument. The State was arguing that a recommendation of death
was appropriate because the murders in this case were different. It
then made the mitigation comment. Joseph objected and argued
that the State commented on his right to remain silent.
The State did not comment on Joseph’s right to remain silent.
Rather, the State was referring to the defendant’s burden to prove
mitigating circumstances. Bright v. State, 299 So. 3d 985, 1000
(Fla. 2020) (“This Court has held that a mitigating circumstance
exists where it is established by the greater weight of the
evidence.”). The trial court noted that the prosecutor was
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commenting on the fact that no mitigation had been presented. The
prosecutor actually stated that Joseph had not presented any
“mitigation worthy to allow him to live out his days in jail.” The
State was not saying Joseph failed to present any mitigation
evidence whatsoever; it was saying Joseph had failed to present
mitigation sufficient to warrant a life sentence rather than a death
sentence. Because this was not a comment on Joseph’s right to
remain silent, the trial court did not abuse its discretion in denying
Joseph’s motion for mistrial directed at this comment. Accordingly,
we deny relief on this claim.
J. Jury’s Failure to Follow the Law (Claim 14)
Joseph argues that he was deprived of a fair trial because the
jury acted out of emotion, misapprehension, or outright refusal to
follow the law or the trial court’s instructions in the penalty phase
of the trial. Specifically, Joseph focuses on the fact that the jury
deliberated for only two hours and found no mitigating
circumstances. We agree with the State that there is no factual
basis to support Joseph’s claim. See Lowe v. State, 259 So. 3d 23,
52 (Fla. 2018) (“[I]n the absence of evidence to the contrary, [this
Court] presume[s] that jurors follow the trial court’s instructions.”).
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Accordingly, because this claim is unsupported by the evidence, we
deny relief on this claim.
K. Cumulative Error (Claim 15)
Joseph argues that numerous errors in this case, when
considered cumulatively, deprived him of a fair trial and due
process. “[W]here the alleged errors urged for consideration in a
cumulative error analysis are individually ‘either procedurally
barred or without merit, the claim of cumulative error also
necessarily fails.’ ” Salazar v. State, 188 So. 3d 799, 818 (Fla.
2016) (quoting Hurst v. State, 18 So. 3d 975, 1015 (Fla. 2009)).
None of Joseph’s alleged errors have merit. Further, Joseph does
not identify any particular errors that cumulatively deprived him of
a fair trial. See Dufour v. State, 905 So. 2d 42, 75 (Fla. 2005)
(concluding that the defendant did not articulate his cumulative
error claim in a manner upon which this Court could afford relief
where he simply referred to the “sheer number and types of errors
involved” in his trial). Accordingly, we deny relief on this claim.
L. Sufficiency of the Evidence (Claim 16)
“In appeals where the death penalty has been imposed,”
regardless of whether the defendant raises the sufficiency of the
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evidence as an issue on appeal, “this Court independently reviews
the record to confirm that the jury’s verdict is supported by
competent, substantial evidence.” Davis v. State, 2 So. 3d 952,
966-67 (Fla. 2008); see also Fla. R. App. P. 9.142(a)(5).
Here, while most of the State’s evidence is circumstantial and
Joseph’s mother and brothers, who were eyewitnesses to the
murders, recanted in their testimony at trial, there is competent,
substantial evidence to support Joseph’s two first-degree murder
convictions. First, Jeshema testified that while she was in the
shower, she heard Joseph and Crowell arguing and then heard
three loud bangs, and Crowell screaming and crying out for help.
Further, Parice testified that he heard gunshots and then saw Kyra
running out of the house, looking backwards as she ran. Parice
then saw Joseph come outside with a gun and tried to tackle him.
No one else was seen with a gun that night. Detective Creelman
testified as to Parice’s and Cordarius’ statements made on the night
of the murders. Specifically, Detective Creelman testified that
Parice told him that Joseph was the shooter, and Cordarius told
him that Joseph shot Kyra. Joseph was also the only person
present at the home that night who was not at the crime scene
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when police arrived—he was seen leaving in Crowell’s car after Kyra
and Crowell were shot. And already we have explained that
Joseph’s actions—including arming himself in advance, specifically
targeting Crowell and Kyra and shooting them without any
provocation—demonstrate not just premeditation but heightened
premeditation.
The State also provided a motive for the murders. On
December 23, 2017 (two days before Christmas and five days before
the incident), Jeshema testified that she heard Joseph yelling to
Denson about Kyra saying that Kyra had one more time to make
him mad or to bother and that she needed to leave Kamare alone.
On the day of the murders, Kyra and Kamare got into an argument
before lunch. That night, immediately before gunshots were heard,
Joseph was heard arguing with Crowell, asking her why Kyra was
being mean to his daughter.
The medical examiner’s testimony showed that both Kyra and
Crowell sustained multiple gunshot wounds to various parts of their
bodies. Both victims incurred fatal gunshot wounds to the head.
Accordingly, competent, substantial evidence supports Joseph’s two
first-degree murder convictions.
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III. CONCLUSION
We affirm Joseph’s convictions for first-degree murder and his
sentences of death.
It is so ordered.
CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., concurs in result with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
LABARGA, J., concurring in result.
For the reasons expressed in my dissenting opinion in
Lawrence v. State, 308 So. 3d 544 (Fla. 2020) (receding from
proportionality review requirement in death penalty direct appeal
cases), I can only concur in the result.
An Appeal from the Circuit Court in and for Palm Beach County,
Cheryl Caracuzzo, Judge
Case No. 502017CF012413AXXXMB
Fredrick R. Susaneck of Levine & Susaneck, P.A., West Palm Beach,
Florida,
for Appellant
Ashley Moody, Attorney General, Tallahassee, Florida, and Rhonda
Giger, Assistant Attorney General, West Palm Beach, Florida,
for Appellee
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