OSCAR RAY BOLIN JR. IN THE COURTS: THREE TAMPA BAY MURDERS AND TEN VERDICTS, 1994-2015

Three women were killed around Tampa in 1986. Natalie Blanche Holley, twenty-five, worked at a restaurant and was found by a jogger in the woods on the morning of January 25; she had been stabbed at least eight times. Stephanie Collins was seventeen, a high school student, last seen on November 5 in the passenger seat of a white van, and her body was found beside a road in Hillsborough County a month later. On December 5, the day Collins was found, Teri Lynn Matthews, twenty-six, who worked nights at a bank, disappeared from the Land O' Lakes post office in Pasco County, where she kept a box. Her car was left running.

Her own car turned up more than five miles away. A deputy had run the tag of one of two cars parked on the same corner the evening before, and it came back to Oscar and Cheryl Bolin. Nothing came of it for four years. In July 1990 Cheryl's new husband telephoned Crime Stoppers in Fort Wayne, Indiana, and police there interviewed her. She told them what Bolin had said and what she had seen, and the three indictments followed. The Florida Supreme Court opinions in this file record what happened next: every conviction was reversed at least once, most of them because the trial courts let Cheryl testify to things he had told her while they were married, which Florida's spousal privilege protected. One Pasco County conviction was reversed because the judge would not question jurors one at a time about what they had read in the papers. A Holley conviction for second-degree murder was reversed by the Second District in 2009 because the jury was not told about a lesser offense.

The file runs to twelve opinions from April 1994 to December 2015 and about thirty-three thousand words. The fullest statements of the evidence are in the 2004 opinion affirming the third Matthews verdict and the 2013 opinion affirming the Collins verdict, which Bolin had asked a judge rather than a jury to sentence: the half-brother who was a schoolboy on the night of the murder and took a friend to see where the body lay, the lead-filled wooden club Cheryl said she had given him, the cousin's wife who heard him say he had killed a girl, and the mitochondrial DNA from his hair and saliva. The last, from December 17, 2015, rejects his claim built on another prisoner's confession that a traveling companion of his had raped Teri Lynn Matthews.

Juries found Bolin guilty ten times in the three cases. The last Holley jury, in April 2012, returned second-degree murder, which left him serving life for her death and under sentence of death for the other two. He was executed at Florida State Prison in Starke on January 7, 2016, on a warrant for the murder of Teri Lynn Matthews, the first execution in the country that year. The United States Supreme Court turned down his last request for a stay shortly before ten that night. Asked whether he had a final statement, he answered, "No, sir." He was pronounced dead at 10:16.

Two things run through these rulings that are easy to miss when they are read one at a time. Most of the reversals turn on a single point of evidence law, the privilege for what one spouse says to another, and the Florida court kept separate the things Cheryl heard, which the privilege shut out, from the things she saw, which it did not. And almost none of the reversals says anything about whether he did it. They are decisions about how he was tried. Where the court does set out the evidence, it is the court's summary of a trial record, not a finding made fresh.

The courts spell the third victim's surname Mathews throughout; her family and the reporting on the case spell it Matthews, and we have used that spelling in our own paragraphs and left the courts' spelling in theirs. Bolin married Rosalie Martinez, a member of his defense team, on death row in 1996, and she appears in the later opinions under his name; she maintained that he was innocent to the end.

The boy who went with Bolin's half-brother to see the body in 1986 is printed here as D.F., because he was a child when he became a witness. Four people from the jury panels whose seats were argued over are reduced to a single initial, and a juror discussed in a quoted transcript is Ms. B. The half-brother, the ex-wife and the other adult witnesses are named as the court named them, because their testimony is the case. These are official reports and public domain, and the Caselaw Access Project scans left a scatter of hyphens where the reporter broke a line, as in "Bo-lin" and "con-vietion", which we print as they came.

642 So. 2d 540, decided April 21, 1994

Oscar Ray BOLIN, Appellant, v. STATE of Florida, Appellee.

No. 78468.

Supreme Court of Florida.

April 21, 1994.

Rehearing Denied June 20, 1994.

James Marion Moorman, Public Defender, and Douglas S. Connor, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and Candance M. Sabella, Asst. Atty. Gen., Tampa, for appellee.

[OPINION BY PER CURIAM. type=majority]

PER CURIAM.

Oscar Ray Bolin, Jr., appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. Because of reversible error in the admission of evidence, we remand for a new trial.

On the morning of January 25, 1986, a jogger found the body of a Tampa restaurant worker in the woods near his home. The woman’s abandoned ear was found more than five miles from the body. A deputy ran a license tag check on one of two ears parked on the same corner the previous evening and discovered the car was registered to Oscar and Cheryl Bolin. The murder investigation stalled, however, until July 1990. Then, on a tip from Danny Coby, Indiana police interviewed his wife, the former Cheryl Bolin, about the killing. After that interview, the state indicted and tried Bolin for first-degree murder, armed robbery, and kidnapping.

Over objection Cheryl Coby testified that she was with Bolin when he “scoped out” the restaurant, that they returned home where she fell asleep, that Bolin awakened her around 2 a.m. to tell her that he had abducted and killed the victim, and that she went with him to clean up the victim’s car, after which he threw away his blood-stained tennis shoes and the victim’s purse. The jury convicted Bolin as charged and recommended that he be sentenced to death, which the trial court did.

As his first point on appeal, Bolin argues that the trial court erred in admitting into evidence statements made by Bolin to his wife predicated on a ruling that Bolin waived his spousal privilege by taking his ex-wife’s discovery deposition. We agree with Bolin.

The spousal privilege is codified in section 90.504, Florida Statutes (1991), and provides, in pertinent part, as follows:

(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

Cheryl Coby disclosed statements Bolin made to her in her interviews with police, during her discovery deposition taken by Bo-lin and her deposition to perpetuate testimony taken by the state, and at trial. The defense objected both before and at trial that Mrs. Coby could not relate Bolin’s statements because the spousal privilege had not been waived. The trial court, however, agreed with the state that questioning her about Bolin’s statements during the discovery deposition, even though that deposition was kept confidential, constituted a waiver and allowed the state to introduce those statements through his ex-wife’s testimony at trial.

This issue appears to be one of first impression because neither we nor the parties have found any easelaw that is directly on point. An analogous situation exists, however, with the testimonial privilege set out in the deadman’s statute, section 90.602, Florida Statutes (1991). Numerous Florida courts have considered the effect of taking and using discovery depositions on the privilege in the deadman’s statute and have uniformly concluded that, while using a discovery deposition waives the privilege, merely taking such a deposition does not. E.g., Small v. Shure, 94 So.2d 371, 374 (Fla.1957) (“Plaintiffs act of deposing defendant did not waive the protection of the statute where no part of the deposition was offered in evidence.”); In re Estate of McCoy, 445 So.2d 680 (Fla. 2d DCA 1984); Harrell v. Florida First National Bank, 354 So.2d 420 (Fla. 1st DCA 1978); In re Estate of Bechtel 348 So.2d 927 (Fla. 2d DCA 1977), cert. denied, 360 So.2d 1247 (Fla.1978); Bordacs v. Kimmel, 139 So.2d 506 (Fla. 3d DCA 1962).

This is the appropriate rule to apply in connection with the spousal privilege. A discovery deposition is designed to elicit what a witness knows. The defense needs to ascertain what a spouse might know, but, if the privilege will be waived by merely asking, engaging in discovery can become extremely risky. A defendant can, of course, waive the privilege after engaging in discovery, but a waiver then would be knowing.

In the instant case Bolin and his attorneys tried to maintain the spousal privilege at every step of the proceedings. We reject the trial court’s conclusion that taking Mrs. Coby’s deposition waived that privilege.

The statements of Bolin to his wife were an integral part of the state’s case. While it may be that sufficient evidence apart from those statements existed to convict Bolin, we cannot say that they did not play a significant role in the jury’s determination. Harmless error in their admission cannot be found. Therefore, we vacate Bolin’s sentence, reverse his convictions, and remand for a new trial.

It is so ordered.

BARKETT, C.J., and OVERTON, McDonald, shaw, grimes, kogan and HARDING, JJ., concur.

NOTES TO THE OPINION

Due to our resolution of this issue, we do not address the other issues raised on appeal.

Because of Mrs. Coby’s ill health, the trial court allowed the deposition to perpetuate her testimony. The state never used that deposition because she testified at trial.

Subsection (1) of this statute reads as follows: No person interested in an action or proceeding against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, shall be examined as a witness regarding any oral communication between the interested person and the person who is deceased or mentally incompetent at the time of the examination. .This can be risky for attorneys as well as their clients. If an attorney is deemed to have waived the client's privilege by engaging in discovery, that attorney might well be charged with being ineffective. The same is true, however, if the attorney foregoes discovery to maintain the privilege and then is surprised at trial by something that should have been discovered beforehand. Such a catch-22 situation will be avoided by our decision in this case.

650 So. 2d 19, decided February 9, 1995

Oscar Ray BOLIN, Petitioner, v. STATE of Florida, Respondent.

No. 80794.

Supreme Court of Florida.

Feb. 9, 1995.

James Marion Moorman, Public Defender, and Douglas S. Connor, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen. and Candance M. Sabella, Asst. Atty. Gen., Tampa, for appellee.

[OPINION BY PER CURIAM. type=majority]

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Oscar Ray Bolin. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The trial of this case was based upon the indictment of defendant for the murder of Teri Lynn Mathews, who was last seen alive on December 5, 1986. Prior to this trial, the defendant was indicted in the Circuit Court of Hillsborough County for the murder of another woman. During the pretrial proceeding in the Hillsborough County case, a discovery deposition was taken by defendant’s counsel of the defendant’s former spouse. The circuit court ruled that the taking of this discovery deposition by defendant’s counsel waived the spousal privilege as to spousal communications afforded by section 90.504, Florida Statutes (1991). The trial court in this case followed the ruling of the Circuit Court of Hillsborough County, reasoning that once the privilege was waived, the privilege could not be asserted in this subsequent proceeding. However, in Bolin v. State, 642 So.2d 540 (Fla.1994), we reversed the Circuit Court of Hillsborough County and held that the trial court erred in its ruling that the discovery deposition had waived the spousal privilege. Therefore, the trial court here, relying on the reasoning of the Hillsborough Circuit Court, also erred in ruling that the spousal privilege had been waived.

We have reviewed the record of this trial and conclude that the error in respect to the spousal communications was not harmless. Regarding these communications, the former spouse testified that she was told by defendant that he murdered a woman who was the manager of a Church’s Fried Chicken restaurant, that he had murdered a person whose body was said by the former spouse to have been transported from a trailer in which she and defendant lived to a place off a road in Hillsborough County where defendant dumped the body, and that defendant pointed out a spot off another road and said, “[Tjhat’s where the Mathews girl was found.” We cannot say that this testimony regarding defendant’s admissions of murder did not contribute to the jury’s determination of guilt. See Koon v. State, 463 So.2d 201 (Fla.), cert. denied, 472 U.S. 1031, 105 S.Ct. 3511, 87 L.Ed.2d 641 (1985); State v. DiGuilio, 491 So.2d 1129 (Fla.1986). For the purposes of retrial, we do point out that it is only the communications which are not admissible. The former spouse’s testimony as to what she observed is admissible. Kerlin v. State, 352 So.2d 45 (Fla.1977).

Because this case is being remanded for a new trial, in order to facilitate the future proceedings, we will address two other issues raised in this appeal. First, in its brief, the State contends that even if the discovery deposition did not constitute a waiver, a letter sent by defendant to Captain Gary Terry was a valid waiver. This issue was not reached in the trial court because of the error in respect to the ruling that the discovery deposition was a waiver. In our opinion in Bolin v. State, 650 So.2d 21 (Fla.1995), we have set forth the procedure to be followed in determining whether the contents of the letter constituted a waiver.

The issue with respect to the waiver is whether the circumstances surrounding the letter and the content of the letter demonstrate that this defendant voluntarily consented to law enforcement officers talking with his spouse about her knowledge of his alleged criminal activities. Because this issue was not addressed at trial, the record is not sufficiently complete for us to determine whether the letter constituted a voluntary consent. If on remand the trial court determines from the circumstances in which the letter was sent and from the content of the letter itself that the letter constituted a voluntary consent to such disclosure, then the marital privilege would be waived pursuant to section 90.507, Florida Statutes. Bolin’s voluntary consent to the questioning of his former spouse about her knowledge of the criminal activities for which Bolin was being investigated would permit his former spouse to testify as to Bolin’s statements to her regarding the murder because the statements comprised part of what she knew about his activities. See Hoyas v. State, 456 So.2d 1225 (Fla. 3d DCA 1984). If the court determines, however, that the circumstances together with the content of the letter do not indicate that Bolin voluntarily consented to disclosure by Coby of what she knew about Bolin’s alleged criminal activities, then there was not a waiver.

We address also the point raised in this appeal regarding collateral crime evidence. As set out in section 90.404(2)(a), Florida Statutes:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity-

In Peek v. State, 488 So.2d 52 (Fla.1986), this Court emphasized that collateral crime evidence does not become relevant and admissible merely because the offense is the same and it occurs in the same vicinity.

Our review of the record in this case causes us to conclude that the evidence presented concerning the murders of Natalie Holley and Stephanie Collins was not relevant to prove any of the material facts regarding the issues as delineated in section 90.404(2)(a). We note that the trial judge during the trial expressed grave reservation about the admissibility of this evidence, and in the retrial this evidence should not be admitted during the guilt phase on the basis of section 90.404(2)(a) and Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). The evidence does not demonstrate sufficient similarities to come within the rules for admissibility stated in Crump v. State, 622 So.2d 963 (Fla.1993), or Duckett v. State, 568 So.2d 891 (Fla.1990). In those cases, the cumulative effect of the numerous similarities present in the evidence established an unusual modus operandi relevant to identifying the defendants. Such is not the situation in this case.

Accordingly, we vacate Bolin’s sentence, reverse his conviction, and remand for a new trial.

It is so ordered.

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

NOTES TO THE OPINION

We note that Florida’s Evidence Code does not require that the privilege holder’s consent be knowing. See Charles W. Ehrhardt, Florida Evidence, § 507.1 at 324 (1994 ed.).

650 So. 2d 21, decided February 9, 1995

Oscar Ray BOLIN, Appellant, v. STATE of Florida, Appellee.

No. 78905.

Supreme Court of Florida.

Feb. 9, 1995.

James Marion Moorman, Public Defender, and Douglas S. Connor, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and Robert J. Krauss, Sr. Asst. Atty. Gen., Chief of Crim. Law, Tampa, for appellee.

[OPINION BY PER CURIAM. type=majority]

ON REHEARING GRANTED

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Oscar Ray Bolin, Jr. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. In accord with our decision in Bolin v. State, 642 So.2d 540 (Fla.1994) (hereinafter Bolin I), we hold that evidence protected by the spousal privilege was improperly admitted in this case. As in Bolin I, the trial court erroneously decided that the privilege had been waived by the taking of a discovery deposition. We have reviewed the record in this ease to determine if the admission of this evidence requires reversal. Based on our review, we cannot conclude that the error in the admission of the spouse’s testimony was harmless. We therefore remand for a new trial to be held in accordance with this opinion.

Stephanie Collins was last seen on November 5,1986, in the passenger’s seat of a white van. On December 5, 1986, her body was discovered alongside a road in Hillsborough County. An autopsy revealed that Collins sustained a number of stab wounds and several potentially fatal blows to the head.

The investigation into Collins’ murder proved unavailing until July 1990, when Danny Coby telephoned Crime Stoppers in Ft. Wayne, Indiana, with information about the murder. Danny Coby obtained the information from his wife, Cheryl Coby, who had acquired the information during her prior marriage to Bolin. After Mr. Goby’s call, Mrs. Coby told investigators that on November 5, 1986, Bolin, her husband at the time, picked her up from a restaurant and took her back to their travel trailer. Coby stated that while they were driving, Bolin made several attempts to explain the presence of a dead body in their trailer. Bolin finally told Coby that he killed a girl by hitting her over the head and stabbing her. Coby further explained that, upon their arrival at the tráiler, she saw Bolin load what appeared to be the body wrapped in a quilt onto his truck. He and Coby then drove to a spot where Bolin dumped the body. Coby later identified that spot to police. When she returned to the trailer, Coby observed that everything inside, including a knife beside the kitchen sink, appeared wet. Coby also noticed several blood stains in the trailer.

Bolin was charged with first-degree murder, attempted robbery, and kidnapping. The court granted a judgment of acquittal with respect to the attempted robbery charge, and the jury found Bolin guilty of first-degree murder and the lesser offense of false imprisonment. The jury unanimously recommended death, and the judge followed the recommendation, sentencing Bolin to death for first-degree murder and to five years for the remaining charge.

The testimony of Bolin’s former spouse regarding her observations of Bolin’s alleged criminal activity was admissible and may be admitted in the new trial. See Ker-im v. State, 352 So.2d 45 (Fla.1977). Coby, however, could not testify as to what Bolin told her about the murders because those statements constituted privileged communications. During their privileged communications, Bolin offered his spouse three different accounts of how the victim, whose body he and his spouse later transported, was murdered. With regard to the final account, Coby testified to the following:

A. The third version was that he had to kill the girl because she could I.D. him.

Q. When he said “he,” you mean who?

A. Ray.

Q. Did he explain to you how he had done that?

A. Said he hit her over the head and then he stabbed her.

Q. Did he indicate what, if anything, he had hit her with?

A. No.

Q. Did he indicate how many times he had stabbed her?

A. He just said numerous times; he didn’t say how many.

Additionally, Bolin’s former spouse imper-missibly recounted her discussions with the defendant, which occurred when they arrived at the trailer the night of the murder and during her stay in the hospital sometime later. We cannot say that these marital communications, in which Bolin admitted to committing the murder, did not contribute to the jury’s determination of guilt. See Koon v. State, 463 So.2d 201 (Fla.), cert. denied, 472 U.S. 1031,105 S.Ct. 3511, 87 L.Ed.2d 641 (1985). Thus, we cannot conclude that the admission of the privileged communications was harmless error. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

In this appeal, the State also claims that even if Bolin did not waive the spousal privilege by taking Coby’s deposition, he personally waived the privilege in a letter he wrote to an investigating detective. There was no need to consider this issue at trial because the trial court ruled that Bolin waived the spousal privilege by taking the discovery deposition. In light of our conclusion here and in Bolin I that the discovery deposition did not waive Bolin’s spousal privilege, the State will certainly raise at the retrial the issue of whether the letter was a voluntary waiver. We therefore address that issue here.

We agree that a letter may be used to consent to the waiver of a privilege. See St. Paul Fire & Marine Ins. Co. v. Welsh, 501 So.2d 54 (Fla. 4th DCA1987); People v. Fox, 862 P.2d 1000 (Colo.Ct.App.1993), cert. denied, No. 91CA0388 (Colo. Dec. 6, 1993); Mid-American Nat’l & Trust Co. v. Cincinnati Ins. Co., 74 Ohio App.3d 481, 599 N.E.2d 699 (1991). We farther agree that if a person volunteers that his or her spouse may be questioned about his or her involvement in an event or events, this may equate to consent which constitutes a waiver pursuant to section 90.507, Florida Statutes (1993). See Shell v. State, 554 So.2d 887, 894 (Miss.1989), rev’d in part on other grounds, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990). Section 90.507 specifically states that a waiver occurs when the person “consents to disclosure of any significant part of the matter or communication.”

The issue then with respect to the waiver is whether the circumstances surrounding the letter and the content of the letter demonstrate that this defendant voluntarily consented to law enforcement officers talking with his spouse about her knowledge of his alleged criminal activities. Because this issue was not addressed at the trial, the record is not sufficiently complete for us to determine whether the letter constituted a voluntary consent. If on remand the trial court determines from the circumstances in which the letter was sent and from the content of the letter itself that the letter constituted a voluntary consent to such disclosure, then the marital privilege would be waived pursuant to section 90.507. Bolin’s voluntarily consent to the questioning of his former spouse about her knowledge of the criminal activities for which Bolin was being investigated would permit his former spouse to testify as to Bolin’s statements to her regarding the murder because the statements comprised part of what she knew about his activities. See Hoyas v. State, 456 So.2d 1225 (Fla. 3d DCA 1984). If the court determines, however, that the circumstances together with the content of the letter do not indicate that Bolin voluntarily consented to disclosure by Coby of what she knew about Bolin’s alleged criminal activities, then there was not a waiver.

Based on the reasoning set forth above, we vacate Bolin’s sentence, reverse his convictions, and remand for a new trial in accordance with our decision.

It is so ordered.

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

NOTES TO THE OPINION

Prior to both cases, the State filed a motion to perpetuate the testimony of the defendant's former spouse. In granting the State's motion, the court indicated that the State could ask questions about each of the homicides Bolin allegedly committed, including the murder in this case and the murder we addressed in Bolin I. To prepare for the taping of the former spouse's testimony, the defendant took a discovery deposition. During the deposition, defense counsel asked Bolin’s former spouse about statements she made to law enforcement officers regarding her communications with Bolin.

Because we find this issue dispositive, we do not address the other issues raised by Bolin on appeal.

We note that Florida's Evidence Code does not require that the privilege holder’s consent be knowing. See Charles W. Ehrhardt, Florida Evidence, § 507.1, at 324 (1994 ed.).

There is testimony in the record about the letter, but the letter itself is not included. .The testimony of the officer who received the letter indicates that it might have been written in conjunction with a suicide attempt by Bolin. That fact alone would not render the content of the letter involuntary. The court, however, should consider the alleged suicide attempt as evidence relevant to whether the letter contained a voluntary consent.

693 So. 2d 583, decided February 14, 1997

STATE of Florida, Appellant, v. Oscar Ray BOLIN, Appellee.

Nos. 95-03172, 95-03173.

District Court of Appeal of Florida, Second District.

Feb. 14, 1997.

Rehearing Denied March 31, 1997.

736 So. 2d 1160, decided June 10, 1999

Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 89,385.

Supreme Court of Florida.

June 10, 1999.

James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Tenth Judicial Circuit, Bar-tow, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Candance M. Sabella, Assistant Attorney General, Tampa, Florida, for Ap-pellee.

[OPINION BY PER CURIAM. type=majority]

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Oscar Ray Bolin, Jr. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse Bolin’s conviction and sentence and order a new trial because the trial court erred in denying Bo-lin’s motion for individual and sequestered voir dire of prospective jurors who had been exposed to prejudicial pretrial publicity and who eventually served on Bolin’s jury.

Bolin was tried, convicted, and sentenced to death in Pasco County for the murder of Teri Lynn Mathews on the night of December 5, 1986, in the area of the Land O’. Lakes Post Office where Mathews had a post office box.

This Court reversed Bolin’s initial conviction in this case because improper evidence was admitted at trial. Bolin v. State, 650 So.2d 19 (Fla.1995). After retrial, the jury convicted Bolin and returned a unanimous recommendation of a sentence of death. The court sentenced Bolin to death, finding four aggravating circumstances: that Bolin had previously been convicted of violent felonies; that the murder was cold, calculated, and premeditated (CCP); that the murder was heinous, atrocious, or cruel (HAC); and that the murder was committed during a felony (kidnapping). The court gave great weight to each of the aggravators. The court found no statutory mitigating circumstances but found as nonstatutory mental-health miti-gators that Bolin had minimal brain damage (moderate weight); that his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was “impaired but not substantially impaired” (slight weight); and that the crime was committed while Bolin was under the influence of mental or emotional disturbance (moderate weight). The court found and gave little weight to the following additional nonstatutory miti-gators: that Bolin was abused during childhood; had a deprived childhood; was not disruptive during trial; had rescued a friend from potential drowning; and was gainfully employed at the time of the crime. Finding that the aggravators outweighed the mitigators, the court sentenced Bolin to death on October 9, 1996.

Bolin raises eight claims in this appeal. Because we find that the trial court abused its discretion regarding the conduct of voir dire, we must again reverse Bolin’s conviction and death sentence and remand for a new trial. Thus, the remaining claims on appeal are moot. Aside from the first claim, concerning voir dire, we will address claims two and four only as they relate to Bolin’s next trial.

The first claim is dispositive and concerns Bolin’s contention that the trial court abused its discretion in denying defense counsel’s motion for individual and sequestered voir dire of prospective jurors who said they had read newspaper articles about Bolin’s case that were published in Pasco County on the days leading up to Bolin’s trial. Bolin contends that he was deprived of his right to a fair and impartial jury in that he was unable to ascertain how this exposure to pretrial publicity affected jurors who sat on his jury. Specifically, Bolin contends that the court erred in refusing to allow individual and sequestered voir dire of five prospective jurors with admitted prior knowledge of the case, which included possible knowledge of news reports concerning prior-crime evidence that was inadmissible in Bolin’s retrial in Pasco County.

On Saturday, August 10, 1996, two days before jury selection began the following Monday in the instant trial, the Tampa Tribune published an article in its Pasco County edition that contained inadmissible and prejudicial information including the following;

During the first trial, Phillip Bolin was a willing witness for the state, and his testimony played an important part in putting Oscar Bolin, now 34, on death row....

All three convictions were reversed in 1995 by the Florida Supreme Court, which ruled the trial judge erred in allowing testimony of Bolin’s former wife, who is now deceased, as to what Oscar Bolin had told her about the killings.

Also during the weekend before the trial began, the St. Petersburg Times, which circulates in Pasco County, published an article containing the following inadmissible and prejudicial information;

Bolin, a 34-year-old former carnival worker, was convicted of Mathews’ murder and of killing two other women in Hillsborough County, but the convictions were overturned by the state Supreme Court, taking Bolin off death row.

In Bolin’s trials for the 1986 murders of Natalie Blanche Holley, 25, and Stephanie Collins, 17, his ex-wife, Cheryl Jo Colby, testified that he had confessed to the killings. A conviction in the Mathews case was based in part on Bolin’s previous convictions.

On Monday, August 12, 1996, the day that jury selection began, the Tampa Tribune published another article about Bolin’s case based on interviews with the victim’s mother and sister. Inadmissible and prejudicial information in that article included the following:

Bolin was convicted in 1992 in Teri’s death. Juries also found him guilty of murdering two young Hillsborough women and the 34-year-old former truck driver was sentenced to die in the electric chair in all three cases.

But while he sat on death row, Bolin’s convictions were overturned.

The same article quoted Teri Lynn Mathews' mother as follows: “ ‘How do you get three murder convictions and not be guilty of something?’ [Mathews’ mother] says. T brought my child up to obey the law and to trust it. This is a sham of justice. And it’s draining the life out of all of us.’ ” This article also quoted Mathews’ sister as saying: “ ‘This is a predator among all of us. If he gets out, he’ll kill again. It will be someone else’s daughter. It will be someone else’s sister.’ ”

On Monday, August 12, 1996, the Tampa Tribune published a separate article containing inadmissible and prejudicial information including in relevant part:

Accused serial killer Oscar Ray Bo-lin’s retrial begins today in New Port Richey under tight security.

The 34-year-old former truck-driver was convicted in 1992 and sentenced to die for killing 26-year-old Teri Lynn Mathews. But the Florida Supreme Court overturned that murder conviction and two others from Hillsborough County-

From his jail cell in 1990, Bolin was accused of plotting to kidnap the wives of the Hillsborough sheriff and two other officers.

In the months prior to the trial, defense counsel twice moved the court to conduct individual and sequestered voir dire concerning trial-related publicity and prospective jurors’ opinions concerning the death penalty. Bolin sought individual voir dire to question each prospective juror who indicated exposure to pretrial publicity apart from the other venirepersons in order not to “ ‘educate’ all jurors as to prejudicial and incompetent material, thereby rendering it impossible to select a fair and impartial jury.” On the day that jury selection began, the judge denied defense counsel’s renewed motion for individual and sequestered voir dire but agreed to accept proffered questions as to the extent of publicity exposure that defense counsel would have asked during such voir dire. Rather than ordering individual voir dire, the judge required each prospective juror to complete a questionnaire concerning prior knowledge of the case before entering the courtroom for collective voir dire. The judge initially excused, without objection, a total of seventeen venirepersons based on the judge’s assessment that these prospective jurors had indicated in their' questionnaire responses “that they had some knowledge of the defendant and as a result of that knowledge that they would not be able to serve with an open mind and render ... an impartial decision based only on the law and the evidence.”

During the State’s voir dire of this first panel, the prosecutor asked if anyone had read about the case. Five prospective jurors raised their hands. The prosecutor then asked if anyone would have a problem basing his or her verdict solely on the evidence presented at trial. No hands were raised. Subsequently, defense counsel asked whether anyone who had read about the case had formed an opinion as to the guilt or innocence of Bolin and, if so, whether he or she could set aside that opinion. No hands were raised. As to the second group of venirepersons, neither the judge nor the prosecutor asked any collective questions concerning exposure to publicity. However, defense counsel asked, “After further reflection, do any of you who have indicated that you have some knowledge feel that your opinion about this case or the guilt or innocence of my client is so strong that you cannot set that opinion aside?” No hands were raised.

Bolin then challenged six of the remaining prospective jurors for cause based upon his inability to determine whether their exposure to pretrial publicity would make them unsuitable jurors. The judge denied the cause challenges. Defense counsel exercised peremptory strikes on two of the six venirepersons whom he had challenged for cause. In the second round of challenges, defense counsel challenged for cause prospective juror M., who stated that he had been exposed to pretrial publicity. When the judge denied the cause challenge, defense counsel exercised a peremptory strike to excuse M. Defense counsel requested four extra peremptories after his ten allowed peremptory strikes were exhausted in order to excuse the four prospective jurors remaining on the panel who indicated prior knowledge of the ease. The judge denied defense counsel’s request. The State’s use of a peremptory challenge brought onto the panel another prospective juror, W., who said he had been exposed to pretrial publicity and who later was chosen to be the jury foreman. Defense counsel unsuccessfully challenged juror W. for cause and then was denied an additional peremptory challenge. At the end of jury selection, defense counsel challenged the entire jury panel based on prejudice ensuing from probable juror awareness of Bolin’s prior convictions. Bolin contends in this appeal that his jury contained five jurors-Ringuette, Copeland, Spack, Hill, and jury foreman W.-with prejudicial prior knowledge about the case, potentially including knowledge of inadmissible facts set forth in the newspaper accounts.

We begin our analysis by acknowledging that we have held that a trial court has broad discretion in deciding whether prospective jurors must be questioned individually about publicity the case has received. Pietri v. State, 644 So.2d 1847, 1851 (Fla.1994). Individual voir dire to determine juror impartiality in the face of pretrial publicity is constitutionally compelled only if the trial court’s failure to ask these questions renders the trial fundamentally unfair. See Mu’Min v. Virginia, 500 U.S. 415, 430, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). The mere existence of extensive pretrial publicity is not enough to raise a presumption of unfairness of constitutional magnitude. Bundy v. State, 471 So.2d 9, 19 (Fla.1985). A prospective juror is presumed impartial if he or she can set aside a preformed opinion or impression and return a verdict based on evidence presented in court. Id. at 20.

However, in Boggs v. State, 667 So.2d 765 (Fla.1996), decided eight months before the instant trial, we held that another Pasco County trial court erred during a highly publicized trial in refusing to allow individual and sequestered voir dire of three venirepersons who were equivocal as to whether they could set aside preformed opinions regarding the guilt or innocence of the defendant. Id. at 768. All three eventually were excused through peremptory challenges by the defense. Id. We held that the error was not harmless because the trial court forced the defendant to use peremptory challenges on these three jurors and then denied him additional peremptory challenges. Id.

Here, not only was Bolin forced to use his peremptory challenges on prospective jurors he had challenged because of publicity exposure, he also was denied extra peremptory challenges and thus was forced to accept five jurors who had been exposed to pretrial publicity with contents unknown to defense counsel or to the court. Even though these jurors, unlike the challenged prospective jurors in Boggs, stated during voir dire that they had formed no opinions as to Bolin’s guilt, there was no individual voir dire with specific questions concerning the jurors’ knowledge of newspaper articles containing inadmissible and prejudicial information. Thus, defense counsel, the trial judge, and this Court are left to speculate about what these jurors had learned from these newspaper accounts.

In Reilly v. State, 557 So.2d 1365 (Fla.1990), we found the same type of publicity concerning inadmissible information to be so prejudicial that even a prospective juror without a preformed opinion should not be allowed to serve on a jury after exposure to the publicity. Id. at 1867. In Reilly, we reversed a conviction and remanded for a new trial because a trial court erred in refusing to remove for cause a prospective juror who knew that an inadmissible confession had been given. Id. at 1367. We found that the prospective juror’s awareness of a fact that was inadmissible “was far more damaging to Reilly than anything which was actually introduced into evidence.” Id. In respect to such knowledge by a juror, we stated:

While [the juror] subsequently gave the right answers with respect to whether or not he could be an impartial juror, it is unrealistic to believe that during the course of deliberations he could have entirely disregarded' knowledge of the confession no matter how hard he tried. Thus, we conclude that reversible error was committed by the failure to excuse [the juror] for cause.

Id.

Addressing the issue of prospective jurors’ exposure to pretrial publicity as it relates to a defendant’s Sixth Amendment right to an impartial jury and Fourteenth Amendment right to due process, the Eleventh Circuit wrote in Cummings v. Dugger, 862 F.2d 1504 (11th Cir.1989):

[T]he discretion afforded the trial judge to conduct voir dire as he sees fit must be bounded by protection of the defendant’s constitutional rights, especially in a situation of extensive pretrial publicity. For example, in United States v. Davis, 583 F.2d 190 (5th Cir.1978), the former Fifth Circuit reversed the conviction of a defendant who had been the subject of extensive pretrial publicity. The Court held that, in a case where all the jurors had been exposed to some pretrial publicity, simply asking members of the jury venire to indicate by a show of hands whether the publicity would impair their ability to render an impartial decision did not adequately protect the defendant’s constitutional rights.

The preferred approach in such cases, as discussed in Davis, is to conduct individual examination of the jurors. Individual voir dire allows the trial court to probe the effect of any adverse publicity on the juror and insulates the jurors from one another’s prejudicial comments.

862 F.2d at 1507-08 (citations omitted).

In accord with Cummings, we hold that the preferred approach for Florida trial courts is to conduct individual and sequestered voir dire of prospective jurors whenever, as in Boggs, “the timing and content” of pretrial publicity creates the probability that prospective jurors have been exposed to prejudicial information that will not be admissible at trial. Clearly, the timing of the newspaper articles at issue in this case, which were published two days before and the day of the voir dire examination, was such that the information would be fresh in the minds of venirepersons who had read the articles. Just as clearly, the content of the articles stating that the defendant had been convicted in a prior trial of this same murder, that he had been convicted in other prior trials of murdering two Hillsborough County women, and that he had been sentenced to death was prejudicial and inadmissible information. These articles also contained information about Bolin’s former wife’s testimony as to Bolin’s confession to her, which was the very information this Court had found to be erroneously admitted at Bolin’s prior trial. This Court had found harmful error in the admission of this same evidence and had reversed the conviction and remanded for the instant retrial below. Exposure to this information might not require disqualification of prospective jurors if this information were going to be introduced into evidence. See Reilly, 557 So.2d at 1367. However, all of the foregoing information had been excluded from this trial on evidentiary grounds. Moreover, the entire jury venire likely would have been tainted by knowledge of all of this inadmissible evidence if the trial judge or counsel had questioned prospective jurors in the presence of other venire-persons. regarding exposure to pretrial publicity.

We further comment on this issue to provide guidance to trial judges when confronted with pretrial publicity in cases in which the death penalty is sought. Such publicity is normal in cases with extreme public interest, see Rolling v. State, 695 So.2d 278, 285 (Fla.1997), and we continue to adhere to our holding that the decision as to individual and sequestered voir dire is a discretionary decision for the trial judge. However, as a caveat, we advise trial courts that they must consider the timing and content of the published information in making the decision as to whether to conduct individual and sequestered voir dire. Trial courts must ascertain whether prospective jurors possess information which is not admissible in the trial in which they will serve as jurors and which is so prejudicial to the defendant that the jurors’ knowledge of the information creates doubt as to whether the jurors can decide the case based solely upon the evidence that will be admitted at trial.

As we have stated, the defense counsel, the prosecutor, the trial judge, and this Court could not have known, absent individual voir dire, whether the five jurors, including the jury foreman, named by Bo-lin in this appeal had been exposed to the inadmissible and prejudicial information. Thus, we find that under the facts of this case the trial court abused its discretion in refusing to grant Bolin’s request for individual and sequestered voir dire. Accordingly, we remand for a new trial.

Bolin’s second claim, regarding the testimony of his half-brother, Phillip Bolin, would be procedurally barred in this appeal because defense counsel did not preserve the claim by making the specific objection that Phillip Bolin’s prior statements could not be admitted as substantive evidence. See Ferguson v. State, 417 So.2d 639, 641 (Fla.1982); Steinhorst v. State, 412 So.2d 832, 338 (Fla.1982). However, we caution the court in the new trial to prevent the prosecutor from using prior conflicting statements of a witness as substantive evidence of guilt in the guise of impeachment evidence. In Morton v. State, 689 So.2d 259 (Fla.1997), this Court found a prosecutor’s improper impeachment of State witnesses to be harmless error. The Court also observed that continual impeachment and assertion of statements as proven facts made it difficult to separate substantive from impeachment evidence. 689 So.2d at 264. In this case, the trial court allowed the prosecutor to examine Phillip Bolin, a court witness who had recanted previous testimony, solely to present prior statements as to his eyewitness account of events surrounding the murder. Although these prior statements were presented under the guise of impeachment, their effect was substantive, and thus it was error to allow them.

For purposes of the new trial, we also address Bolin’s fourth claim, in which he argues that the trial court erred in allowing State witness Sergeant Gary Kling of the Pasco County Sheriffs Office to testify as to details of the homicide that law enforcement officers withheld from the news media. The prosecutor’s stated purpose in presenting this testimony was to offer an anticipatory rebuttal of a potential defense closing argument (which was never made), alleging that witness Phillip Bo-lin knew certain details of the crime only because he read about them in a newspaper article. We agree with Bolin that this portion of Kling’s testimony was hearsay and was not relevant. Over hearsay objection, the prosecutor questioned Kling to establish that police reports, as public records or business records, indicated which details of the crime were not released. Kling was permitted to testify that newspapers did not report that the victim’s body and clothing were wet, her shoes were missing, and she was wearing stockings. The prosecutor argued that if Kling testified to what was not in newspaper accounts, this was not hearsay. However, police reports are hearsay. § 90.803, Fla. Stat. (1985). Additionally, Kling testified that he was not initially involved in the investigation, which further supports the hearsay conclusion in that Kling’s testimony depended on information from others. See Norton v. State, 709 So.2d 87, 95 (Fla.1997). Here, the trial court, in admitting the testimony, may have relied upon the business-records exception to the hearsay rule, section 90.803(6), Florida Statutes (1985), which fails as a basis for admission because no actual records were offered or admitted. Oral testimony concerning business records is not admissible under this exception. § 90.803(6), Fla. Stat. (1985); Thompson v. State, 705 So.2d 1046 (Fla. 4th DCA 1998); Johnson v. State, 691 So.2d 43, 44 (Fla. 2d DCA 1997).

Aside from being hearsay, this testimony by Kling was inadmissible because it was not relevant to a material fact in issue. § 90.401, Fla. Stat. (1985). Had defense counsel discussed media coverage of police reports, this evidence could have been relevant. However, the defense never mentioned such media coverage, and thus this portion of Kling’s testimony was irrelevant and therefore is inadmissible. The testimony of Kling as to information not published in the news media was erroneously admitted and cannot be admitted in the new trial.

Accordingly, we reverse Bolin’s conviction and sentence and remand for a new trial.

It is so ordered.

HARDING, C.J., SHAW, WELLS, ANSTEAD and PARIENTE, JJ., and OVERTON, Senior Justice, concur.

NOTES TO THE OPINION

Bolin claims that: (1) the trial court erred in not permitting individual and sequestered voir dire of prospective jurors concerning exposure to pretrial publicity; (2) the trial court erred in allowing the prosecutor to introduce prior statements during examination of witness Phillip Bolin; (3) the trial court erred in denying appellant's motion for mistrial after the prosecutor mentioned appellant's first trial; (4) the trial court erred in allowing a police detective to testify as to details of the homicide not reported to or by news media; (5) there was misuse of DNA statistical evidence during the prosecutor’s closing argument, which created reversible error; (6) the trial court erred in not permitting appellant to consult with his investigator during a court recess; (7) the trial court erred by instructing the jury on felony murder with sexual battery as the underlying felony; and (8) the trial court erred in denying defense counsel’s request to have a PET-scan performed on appellant prior to the penalty phase.

We are well aware of the time pressures on trial judges, and we know that long voir dire examinations wreak havoc on overloaded court calendars. However, in this case, a retrial might have been avoided if the court had taken the time to determine what facts fewer than ten venirepersons knew about Bo-lin's case based on news accounts they had read.

793 So. 2d 894, decided July 13, 2001

Oscar Ray BOLIN, Appellant, v. STATE of Florida, Appellee.

No. SC95775.

Supreme Court of Florida.

July 13, 2001.

Rehearing Denied Aug. 27, 2001.

NOTES TO THE OPINION

§ 90.504, Fla. Stat. (1985).

At the time of Coby’s disclosures, Bolin was incarcerated in Ohio for an unrelated crime.

There is testimony in the record about the letter, but the letter itself is not included.

The testimony of the officer who received the letter indicates that it might have been written in conjunction with a suicide attempt by Bolin. That fact alone would not render the content of the letter involuntary. The court, however, should consider the alleged suicide attempt as evidence relevant to whether the letter contained a voluntary consent.

The spousal privilege only applies to confidential communications. See § 90.504(1), Fla. Stat. (1985). Therefore, while Coby’s testimony regarding Bolin’s confidential statements to her is privileged, Coby’s testimony regarding what she witnessed is not privileged.

Bolin was being separately tried for two other Florida homicides.

796 So. 2d 511, decided August 30, 2001

Oscar Ray BOLIN, Appellant, v. STATE of Florida, Appellee.

No. SC95774.

Supreme Court of Florida.

Aug. 30, 2001.

James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Tenth Judicial Circuit, Bar-tow, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Candance M. Sabella, Assistant Attorney General, Tampa, FL, for Appel-lee.

[OPINION BY PER CURIAM. type=majority]

PER CURIAM.

We have on appeal a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. In accord with our decision in Bolin v. State, 793 So.2d 894 (Fla.2001) (“Bolin I”), we reverse Bo-lin’s convictions and sentences and order a new trial.

Bolin was charged with the robbery, kid-naping, and murder of Natalie Blanche Holley. While awaiting his trial, Bolin attempted to commit suicide and wrote a letter to Captain Terry, who was investigating the charged crimes. As in Bolin I, the trial court erroneously held that Bolin had waived his spousal privilege in the suicide letter and improperly admitted evidence at the trial which was protected by the spousal privilege. The jury convicted him of armed robbery, kidnaping, and first-degree murder.

For the reasons expressed in Bolin I, we do not find competent, substantial - evidence to support the trial court’s decision that Bolin made a voluntary waiver through the letter. As in Bolin I, the State’s case against Bolin revolved around privileged statements that Bolin made to his wife; this error cannot be considered to be harmless. • Therefore, we reverse Bolin’s convictions and sentences and remand for a new trial.

It is so ordered.

WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, and LEWIS, JJ., concur.

QUINCE, J., recused.

NOTES TO THE OPINION

Due to our resolution of this issue, we do not address the other issues raised on appeal.

869 So. 2d 1196, decided February 5, 2004

Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. SC02-37.

Supreme Court of Florida.

Feb. 5, 2004.

James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Tenth Judicial Circuit, Bar-tow, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee.

[OPINION BY PER CURIAM. type=majority]

PER CURIAM.

We have on appeal a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See Art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the conviction and sentence of death.

FACTS AND PROCEDURAL HISTORY

Appellant Oscar Ray Bolin, Jr. is again before this Court on direct appeal of his conviction and sentence of death for the December 1986 murder of Teri Lynn Mathews. In 1991, a Pasco County grand jury returned an indictment charging Bo-lin with first-degree murder. In 1992, Bo-lin was tried and convicted for the murder. The trial judge followed the jury’s recommendation and sentenced Bolin to death. On appeal, this Court reversed Bolin’s con-vietion because improper evidence was admitted at trial. See Bolin v. State, 650 So.2d 19 (Fla.1995) (concluding that trial court erred in finding waiver of spousal privilege based on defendant’s deposition of his ex-wife). On remand, Bolin was again tried, convicted, and sentenced to death. On appeal, this Court reversed a second time, based upon an abuse of discretion by the trial court for denying Bo-lin’s motion for individual voir dire of prospective jurors on the issue of pretrial publicity. See Bolin v. State, 736 So.2d 1160 (Fla.1999). The second retrial commenced on October 15, 2001. Bolin was again convicted and sentenced to death.

Evidence presented at Bolin’s 2001 trial included the following. Mathews’ body was discovered on December 5, 1986, near the side of a road in rural Pasco County. The body was found wrapped in a sheet imprinted with a St. Joseph’s Hospital logo. The body had multiple head injuries, was shoeless, and was wet, although it had not rained recently. The victim’s car keys were found close to the body. Evidence collected from the scene included nylon pantyhose and a pair of white pants. There was a single set of truck tire tracks leading to the body. The victim’s car was found the next day by Mathews’ boyfriend, Gary McClelland, who was worried about her disappearance and attempted to trace her steps after she left work the previous day. The victim’s red Honda was found parked at the Land O’ Lakes Post Office, with its headlights still on. The victim’s mail was found scattered on the ground, and her purse was found undisturbed on the seat inside her car.

Bolin’s half-brother, Phillip, testified that he was awakened by Bolin on the night of December 4, 1986. Bolin appeared to be nervous and told Phillip that he needed Phillip’s help. The two walked outside, and then Phillip heard a moaning sound, which he thought could have been a wounded dog. Instead, he saw a sheet-wrapped body, and Bolin told him that the girl was shot near the Land O’ Lakes Post Office. Bolin then walked over and straddled the body with his feet, raised a wooden stick with a metal end, and hit the body several times. Phillip said that he turned away because he was scared to watch, but compared the sound to hitting a pillow with a stick. Bolin next turned on a water hose and sprayed the body. Bolin demanded that Phillip help him load the body onto the back of a black Ford tow truck, and Phillip helped by picking up the body by the ankles. Phillip testified that he noticed there were no shoes on the body and that the girl was wearing pantyhose. Phillip refused Bolin’s offer of money to go with him to dispose of the body, so Bolin went alone and returned twenty to thirty minutes later. He continued talking to Phillip about the girl, stating that she had been shot in a drug deal.

At school the next day, Phillip talked with his friend, D.F., about what happened the night before and took D.F. to where the body had been. D.F. testified at trial, to corroborate Phillip’s account of the murder, that there were blood stains on the ground at the site and that the grass in the area was disturbed. The State presented other corroborating evidence, which included the testimony of Rosie Kahles Neal. At the time of the murder, Neal co-owned with her now-deceased husband Kahles and Kahles, Inc., the business that employed Bolin as a tow truck driver. She testified that the truck Bolin was driving on the night of the murder was not returned that night, and she thought the truck had been stolen by Bolin because he could not be located and it was the first call he had handled by himself. Neal testified that Bolin was late coming to work the next morning, was wearing the same clothes as he had the day before, and had a foul smell. She further testified that Bolin played with and carried a knife and got excited when the story of the missing girl, Mathews, was reported on the news. Her testimony also corroborated the murder weapon, as she testified that she gave Bolin a “tire buddy” on the night of the murder. The tire buddy was a two-foot-long wooden club, which was drilled out and filled with lead.

Michelle Steen also offered corroborating testimony. Michelle Steen was married to Bolin’s cousin, David Steen. In 1987, while Bolin visited their home, he volunteered that he had killed and beaten a girl in Florida and put a hose down her throat, and that Phillip had watched him do it.

The State then offered the perpetuated videotaped testimony of Cheryl Coby, Bo-lin’s ex-wife, who had died after the first trial. She had been a severe diabetic, was hospitalized numerous times in 1986, often brought home hospital towels and sheets from St. Joseph’s Hospital, and identified the sheet that had been wrapped around Mathews’ body as a hospital sheet resembling the ones she brought home. Cheryl Coby had a post office box at the Land O’ Lakes Post Office, and Bolin picked up her social security checks there when she was in the hospital.

The State also offered DNA testimony indicating that Bolin could have been the source of the semen found in a stain on Mathews’ pants. Federal Bureau of Investigation forensic serology expert John R. Brown testified that he could not eliminate Bolin as the contributor of the semen stain but could eliminate Gary McClelland, Mathews’ boyfriend, as the source of the stain. David Walsh, a molecular biologist, extracted DNA from the stain on the pants and found that he could exclude both the victim and McClelland as the donors of the stain on the pants. Walsh found that five of the six bands of DNA detected in the stain matched five of the six bands from Bolin’s DNA. Walsh was not able to visualize one band because of the small amount of DNA remaining on the pants. Dr. Christopher Basten, an expert in population genetic frequency, testified that Bolin was 2100 times more likely to be the source of the semen than a random, unrelated person.

Bolin was convicted of first-degree murder as charged in the indictment. Following the conviction, but prior to the beginning of the penalty phase, Bolin informed the court that he did not want to have a jury advisory proceeding, put on mitigation evidence, or question witnesses. The trial judge held an on-the-record colloquy with Bolin; the trial judge made a finding that Bolin’s waiver was knowing, voluntary and intelligent; and the penalty phase proceeded without a jury. The State presented aggravating evidence through three witnesses with regard to aggravating circumstances. The Court stated that the defense could present whatever evidence in mitigation that the defense wanted to present at a Spencer hearing, which was thereafter scheduled.

The Spencer hearing was held on December 14, 2001, and again defense counsel told the court that Bolin instructed it not to call any witnesses or present any evidence. The prosecutor suggested that pursuant to Muhammad v. State, 782 So.2d 343 (Fla.2001), the court should obtain a presentence investigation to look for mitigation and review prior testimony in prior trials regarding mitigation. The court questioned Bolin about his decision, and Bolin declared his desire to waive presentation of penalty-phase evidence, stating, “I’ve read Muhammad three times. I understand the philosophy behind Muhammad, and I understand what counsel has told me. I’ve discussed it with them. I made a free and voluntary decision.” At the sentencing hearing on December 28, 2001, Bolin was once again sentenced to death for the murder of Mathews. The court followed the Muhammad guidelines and found three aggravating factors, one statutory mitigating factor, and twelve nonstatutory mitigating factors. The court found that the three aggravators outweighed all of the miti-gators combined.

FOR-CAUSE CHALLENGES

In his first claim, Bolin asserts that the trial court wrongfully denied his voir dire cause challenges as to prospective jurors Almas, Glass, and Gale, thus forcing him to use peremptory challenges. Bolin was allowed ten peremptory challenges, and he used all ten of those challenges. Pursuant to Trotter v. State, 576 So.2d 691 (Fla. 1990), Bolin then requested two additional peremptories, identifying jurors C. and B. as the jurors upon whom he would have exercised challenges if the additional challenges were granted. The trial court refused to grant the extra peremptory challenges. Two alternate jurors were seated, both of whom were accepted by Bolin.

We find no basis for relief. The record of the voir dire examinations of jurors C. and B. demonstrate that the examinations consisted of such confusing and leading questions that the answers to the questions which formed the basis of the cause challenges appear to have been merely answers prompted by the questions rather than the fixed beliefs of the jurors. Based upon the questions and answers of jurors C. and B., we do not find that the trial court’s decision to deny the cause challenges was an abuse of discretion. Hertz v. State, 803 So.2d 629, 638 (Fla.2001). Moreover, even if the trial court erred in denying the cause challenges during the voir dire examinations, any such error as to juror C. was subsequently rendered harmless and, as to juror B., was later waived.

In respect to juror C., he was excused during the trial because of illness and thus was not a member of the jury that returned the verdict in the case. C. was replaced by an alternate juror, to whom Bolin had no objection.

With regard to juror B., during the trial she advised the court that she recognized a witness, the victim’s mother, as a shopper at the Home Depot where B. worked as a cashier. The court questioned B., who stated that her knowledge of the witness would not affect her decision-making process. Defense counsel then moved to strike B. on the basis that she could not be fair. The court did not strike B. but stated to defense counsel, “Towards the end of the trial you can renew that and we’ll take it up again.” At the conclusion of the trial but before deliberations, the court gave defense counsel the option to replace B. with the second alternate juror. The record contains the following discussion:

MR. HALKITIS [prosecutor]: Judge you have to make a determination on Ms. B.

THE COURT: We’re going to do that now. Do you want a few minutes to chat?

MR. WILLIAMS [defense counsel]: We’re going to withdraw our motion.

THE COURT: Okay. So you’re going to keep Ms. B.?

MR. WILLIAMS: Yes.

THE COURT: For the record, did you discuss that with Mr. Bolin, he’s in agreement with that?

MR. WILLIAMS: I don’t know if we did or not.

MR. SWISHER [defense counsel]: I’m not sure. Let me go ask.

After consulting with Mr. Bolin, we’re going to keep Ms. B.

COURT: Okay. Just to make it clear, when I said we’d entertain your objection at the end of the trial had you elected to excuse Ms. B., I’m inclined to grant that.

With that knowledge in mind, Mr. Bo-lin wants to keep Ms. B.

MR. HALKITIS: Could the record reflect that they’ve had some time to consult with Mr. Bolin and they have consulted with Mr. Bolin.

It is plain that Bolin elected to keep juror B. and waived his objection to juror B. when he was given the opportunity to remove her at the conclusion of the trial before deliberations.

REPLACEMENT OF JUROR COX

Bolin next argues that the trial court abused its discretion by replacing juror C. with an alternate juror. Midway through the trial, juror C. called the trial court’s office and told a judicial assistant and the jury manager that he had been unable to sleep, was having breathing problems, and was going to the doctor or hospital. The trial court held a hearing at which both sides inquired of the judicial assistant and the jury manager about juror C.’s condition. The court then found that it was impractical to delay the trial on the chance that juror C. might be able to return, given that he was elderly, on oxygen, had emphysema, and had an attack the night before. We find no abuse of discretion by the trial judge in excusing juror C. and having the previously accepted alternate juror replace him.

USE OF TERM “MATCH” IN DNA EVIDENCE

Bolin next claims that the testimony about the DNA comparison of the semen sample from the victim’s pants and Bolin’s blood was improper because David Walsh, who analyzed the DNA in question, used the word “match.” We find no merit in this claim. First, the record reveals that no Frye hearing was requested with respect to this DNA evidence. Thus, there was no challenge similar to that in Brim v. State, 695 So.2d 268 (Fla.1997). This claim is only a challenge as to the use of the term “match.” The testimony of expert Walsh as well as the testimony of the two other DNA experts were subject to full cross-examination. In this record we do not find that the use of the term “match” was error, but even if it was error, such error would be harmless beyond a reasonable doubt.

LACK OF RECORD OF VENIRE’S OATH

Bolin next claims that he is entitled to a new trial or proof of the venire’s oath because the record does not reflect whether the prospective jurors were sworn prior to voir dire. Florida Rule of Criminal Procedure 3.300 states, “The prospective jurors shall be sworn collectively or individually, as the court may decide.” Bolin accurately contends that the record does not indicate whether the venire was sworn prior to voir dire. Rather, the record begins with the judge’s opening remarks and proceeds directly to voir dire. Although the record does not indicate whether the venire was sworn, defense counsel did not object at any point during the trial to a failure to give the oath to the venire and thus waived any objection. Id. We recently addressed this issue in Smith v. State, 866 So.2d 51 (Fla. 2004). In Smith, there was no record evidence that the venire was sworn, and we concluded that no fundamental error occurred. Consistent with Smith, we deny relief on this claim.

WAIVER OF PENALTY-PHASE JURY

Bolin’s final claim is that the trial court erred by accepting Bohn’s waiver of a penalty-phase jury recommendation. We have carefully reviewed the record on this issue and find that the trial judge correctly considered and ruled upon Bo-lin’s waiver.

After the jury returned its verdict of guilty, Bolin advised the trial court that he did not want to have a jury for the penalty phase. There followed an extensive hearing before the trial court in which the prosecutor, Bolin’s counsel, and Bolin himself discussed the proper procedure to be used in view of Bolin’s stated decision to waive the jury.

This Court’s recent decision in Muhammad v. State, 782 So.2d 343 (Fla.2001), was discussed at length with the prosecutor, defense counsel, and the trial court, each working to comply with what is required when a capital defendant states an intent to effect a waiver. That discussion follows.

MR. SWISHER [defense counsel]: He does not want us to call mitigation witnesses, that’s correct.

THE COURT: So you’re saying two things then. He doesn’t want a jury recommendation and he doesn’t want to utilize mitigating witnesses, whether there’s a recommendation from a jury or not?

MR. SWISHER: Correct.

THE COURT: Okay. Do you want to have him put anything on the record? He has that opportunity now.

MR. SWISHER: He’s sitting right here next to me and I’ve been talking out loud, so I assume if he disagrees with me, he’ll say something.

THE COURT: Well, let’s not assume anything.

MR. SWISHER: Well, ask him.

THE COURT: Do you want to add anything, Mr. Bolin, to what Mr. Swisher has said in your behalf?

[BOLIN]: I instructed counsel to not pursue a jury mitigation advisory sentence.

THE COURT: And he said more than that. Was there more to what you want to acknowledge in terms of the recommendation in terms of mitigation?

MR. SWISHER: Do you want us to put on mitigation evidence or not, to the jury? Do you want us to put on mitigation evidence in front of the jury?

[BOLIN]: No.

Then a brief recess was taken by the court, after which this discussion continued.

THE COURT: All right. Let’s see if we can finalize this current scenario.

Defense want to put anything on the record before I do additional inquiry of Mr. Bolin on this issue?

MR. SWISHER: No, sir.

THE COURT: All right. Mr. Bolin, to reiterate. I think we’ve covered this. I want to make sure there’s no doubt in your mind or mine as to what you’re telling me.

You want to waive your right to a jury recommendation; is that correct?

[BOLIN]: Yeah.

THE COURT: You want to waive the penalty phase by a jury, correct?

[BOLIN]: Yes.

THE COURT: In other words, you understand a penalty phase would be conducted, but it would be conducted by the Court and the Court alone. Do you understand that?

[BOLIN]: Exactly.

THE COURT: Okay. Now, I know you’re not, but in an abundance of caution, are you under the influence of any alcohol, drugs, or medication?

[BOLIN]: No.

THE COURT: Are you making this waiver of your own free will, understanding your rights?

[BOLIN]: Yes.

THE COURT: Okay. You consider yourself making an intelligent waiver?

[BOLIN]: I’m not under any influence or anything.

THE COURT: Well, no, because I’ve seen you participating right along. You seem to be very articulate, very intelligent. You seem to understand all these proceedings, from my observations.

Is there anything you don’t understand, you need your attorneys to clarify at this juncture?

[BOLIN]: No.

THE COURT: You understand everything; is that correct?

[BOLIN]: (Indicating.)

THE COURT: Okay. Counsel, can you assure the Court your client is fully aware of his rights and making a knowing and intelligent waiver?

MR. SWISHER: Yes, sir.

THE COURT: All right. Now you understand if you waive — if I dismiss this jury, send them home, and you waive your right to have a jury recommendation, that’s irreversible? You can’t turn around tomorrow or next week or five weeks or a month from now and say, oh, now I want a recommendation. It’s a final, irrevocable waiver. Do you understand that?

[BOLIN]: It’s a waiver of a jury recommendation as far as mitigation to them, nothing to do with the Court.

THE COURT: Right.

[BOLIN]: Yeah.

THE COURT: There’s no jury recommendation going to be sought today or any other time. You’re waiving that is irreversible, for all time. Do you understand that?

[BOLIN]: Yes, sir.

THE COURT: Okay. Either counsel have anything else?

MR. HALKITIS [the prosecutor]: Judge, I’d just like you to ask the defendant whether he’s had enough time to confer with his lawyers. Does he feel that he’s had an opportunity to discuss this situation and that he doesn’t need any more time?

THE COURT: Well, that’s a fair request, even though it’s pretty fairly obvious we’ve had several breaks in this to ferret out the final position.

Have you had a chance to speak to your lawyers, sir, to your satisfaction?

[BOLIN]: I’ve talked to both Mr. Swisher and Mr. Williams.

THE COURT: All right. So you’ve had all your questions answered, right?

[BOLIN]: Yes, sir.

THE COURT: So you still feel you’re making it of your own free will knowing your legal rights, and after speaking to your lawyers, this is your final decision; is that correct?

[BOLIN]: Yes, sir.

Based upon this record, we find no error in the trial court accepting Bolin’s waiver of the penalty-phase jury. This case is distinguishable from Thibault v. State, 850 So.2d 485 (Fla.2003), in which there was not a sufficient waiver. Additionally, even if there was merit to Bolin’s claim on appeal, Bolin would not be entitled to relief since he did not attack the voluntariness of his waiver in the trial court. Griffin v. State, 820 So.2d 906, 912 (Fla.2002).

PROPORTIONALITY

This Court must review the proportionality of a death sentence, even if the issue has not been raised by the defendant. See Jennings v. State, 718 So.2d 144, 154 (Fla.1998). To determine whether a sentence of death is a proportionate penalty, this Court must consider the totality of the circumstances of the case and compare this case with other capital cases. Urbin v. State, 714 So.2d 411, 416-17 (Fla. 1998). The trial court found three aggravating factors, one statutory mitigator, and twelve nonstatutory mitigators. However, each aggravator was given great weight by the court, while the mitigators were found insignificant. The trial court found that “each and every one of the aggravating factors in this case, standing alone, is more than sufficient to outweigh the entirety of mitigation.” The instant case is similar to other cases where death was imposed. See Singleton v. State, 783 So.2d 970 (Fla. 2001) (upholding sentence where two weighty aggravators justified death sentence over three statutory and nine non-statutory mitigators); Johnston v. State, 841 So.2d 349, 360 (Fla.2002) (upholding sentence where victim was sexually assaulted and later killed, and trial court found two weighty aggravators justified death sentence over one statutory and twenty-six nonstatutory mitigators). Therefore, we find that Bolin’s death sentence is proportionate. See Spencer v. State, 691 So.2d 1062 (Fla.1996).

SUFFICIENCY OF EVIDENCE

This Court must review the sufficiency of the evidence to determine whether sufficient evidence exists to support a first-degree murder conviction, even if this issue has not been raised by the defendant. See Mansfield v. State, 758 So.2d 636, 649 (Fla.2000). Upon a thorough review of the record, substantial evidence exists to support Bolin’s conviction. There is substantial testimony in the record of Bolin’s half-brother, Phillip, concerning Bolin’s activities on the night of the murder. Both Bolin and the victim had post office boxes at the Land O’ Lakes Post Office. Mathews’ car was found the next morning at the post office, with its headlights still on and her mail on the ground. Bolin picked up his wife’s social security check on the night of the murder from that post office. The victim’s body was found wrapped in a sheet from a hospital in which Bolin’s then wife, Cheryl Coby, had been hospitalized and from which Coby testified she had brought home sheets like the one wrapped around the victim’s body. Bolin failed to return his employer’s tow truck to the business on the night of the murder. The victim’s body revealed trauma wounds to the victim’s head that were consistent with the tire buddy given to Bolin, as corroborated by Phillip Bolin’s eyewitness portrayal of the beating of what Phillip testified Bolin told him was a girl’s body wrapped in a sheet. Phillip also corroborated that the body was shoeless but that the girl was wearing pantyhose. Bolin’s semen was found on the victim’s pants, as determined by DNA testing which revealed that Bolin was 2100 times more likely to be the source of the semen than a random, unrelated person. Based upon this evidence and the other evidence in the record, we conclude that the evidence is sufficient to support Bolin’s first-degree murder conviction.

CONCLUSION

For the reasons set forth above, we affirm Bolin’s conviction of first-degree murder and sentence of death.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, CANTERO, and BELL, JJ., concur.

QUINCE, J., recused.

NOTES TO THE OPINION

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

The aggravating factors found by the trial court were: (1) Bolin was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person (great weight); (2) the capital felony was committed while Bolin was engaged in the kidnapping of the victim from the post office or defendant intended to commit a sexual battery (great weight); and (3) the capital felony was heinous, atrocious, or cruel (great weight).

The court found the statutory mitigator that the capacity of Bolin to appreciate, the criminality of his conduct was substantially impaired because of brain damage, but the court gave this mitigator little weight.

The court found twelve nonstatutory miti-gators: (1) Bolin had a somewhat difficult childhood (some weight); (2) he had a sporadic and minimal educational experience (little weight); (3) he received improper care during childhood (little weight); (4) he was under stress at the time of the murder because of his wife being pregnant and frequently ill (slight weight); (5) Bolin was twenty-four years of age at the time he committed the murder; (6) he was respectful to other parties in this case (little weight); (7) he saved another life by rescuing a drowning person (some weight); (8) he was employed at the time of the offense (slight weight); (9) he received no adverse disciplinary reports from prison (some weight); (10) he had used alcohol and drugs as a minor, but did not have a dependancy problem (slight weight); (11) he had some evidence of minor brain damage or mental illness (little weight); and (12) he had a medical history that included multiple suicide attempts (slight weight).

Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).

8 So. 3d 428, decided March 20, 2009

Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 2D05-5365.

District Court of Appeal of Florida, Second District.

March 20, 2009.

James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

[OPINION BY NORTHCUTT, Chief Judge. type=majority]

NORTHCUTT, Chief Judge.

Oscar Ray Bolin, Jr., challenges his conviction for second-degree murder on two bases. We affirm the denial of Bolin’s motion to inspect grand jury testimony without further comment. Nevertheless, we must reverse for a new trial because the trial court did not properly instruct the jury on a lesser included offense.

One morning in January 1986 a jogger discovered the body of a young woman, Natalie Holley, near a Tampa roadside. She had been stabbed at least eight times. On August 1, 1990, a grand jury indicted Bolin for first-degree murder, robbery with a weapon, and kidnapping in connection with Ms. Holley’s death. Bolin was twice tried and convicted of those charges, but his convictions were overturned by the Florida Supreme Court. Bolin v. State, 796 So.2d 511 (Fla.2001); Bolin v. State, 642 So.2d 540 (Fla.1994).

Before this third trial, the State entered a nolle prosequi on the kidnapping and robbery charges and proceeded only on the charge of first-degree premeditated murder. § 782.04(1)(a)(1), Fla. Stat. (1985). At the ensuing trial, the court instructed the jury on first-degree premeditated murder and the lesser included offenses of second-degree murder and manslaughter. The jury convicted Bolin of second-degree murder.

Bolin challenges the manslaughter instruction given by the court. Manslaughter is a necessarily lesser included offense of premeditated first-degree murder. See Rayl v. State, 891 So.2d 1052, 1055 (Fla. 2d DCA 2004). Courts are required to instruct the jurors on necessarily lesser included offenses. State v. Wimberly, 498 So.2d 929, 932 (Fla.1986).

Unlike the instruction on a permissive lesser included offense, the instruction on a necessarily lesser included offense must be given regardless of the facts of the case. Roberts v. State, 694 So.2d 825, 826 (Fla. 2d DCA 1997). Still, the standard instruction for manslaughter requires the court to tailor the instruction to the case. As set forth in both the manslaughter statute, § 782.07, and in the standard jury instruction, the crime can be committed in three ways: by act, by procurement, or by culpable negligence. Thus, at the time of Ms. Holley’s death, the Florida Standard Jury Instruction on manslaughter read as follows:

MANSLAUGHTER

F.S. 782.07

Before you can find the defendant guilty of manslaughter, the state must prove the following elements beyond a reasonable doubt.

Elements

1. (Victim) is dead.

2. The death was caused by the

(a) act of (defendant).

(b) procurement of (defendant).

(Emphases supplied.) The instructions directed the court to “[g]ive 2(a), (b) or (c) depending upon allegations and proof.” (emphasis supplied.) See Fla. Bar re: Standard Jury Instructions Criminal Cases, 477 So.2d 985, 992 (Fla.1985).

Florida law distinguishes between voluntary manslaughter, which is committed by act or procurement, and involuntary manslaughter, committed by culpable negligence. Whereas voluntary manslaughter is a crime of intent, involuntary manslaughter is not. See Taylor v. State, 444 So.2d 931, 934 (Fla.1983). Thus, in 1986, when Ms. Holley was killed, it was clear that when the charged crime involved intent, as does premeditated first-degree murder, the lesser included offense instruction would have to include voluntary manslaughter. See id. Moreover, in Bo-lin’s case a voluntary manslaughter instruction was also supported by the fact that the victim had suffered multiple wounds, a fact that also precluded the possibility that the victim’s death was caused by negligence.

Given both the allegations of the indictment and the proof at Bolin’s trial, the court was required to instruct the jury on manslaughter by act. It did not. Instead, the court instructed the jury that it could find Bolin guilty of manslaughter if it determined, among other things, “that the death of Natalie Holley was caused by the culpable negligence of Oscar Ray Bolin.” (Emphasis supplied.) The court then defined culpable negligence for the jurors. Bolin raised no objection to this instruction.

Bolin asserts the court committed fundamental error when it failed to instruct the jurors on manslaughter by act, the only type of voluntary manslaughter that could apply in this case. Reed v. State, 837 So.2d 366, 370 (Fla.2002) (citing Castor v. State, 365 So.2d 701 (Fla.1978) for the proposition that “[instructions ... are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred”). The failure to give a complete instruction on manslaughter is fundamental error when a defendant is convicted of a greater offense that is not more than one step removed, such as second-degree murder. State v. Lucas, 645 So.2d 425, 427 (Fla.1994). Although Bolin was charged with premeditated first-degree murder, the jury convicted him of second-degree murder. The court’s failure to properly instruct the jury on voluntary manslaughter, a crime one step removed from the crime for which the jury convicted Bolin, was fundamental and per se reversible error. See Lucas, 645 So.2d at 427; State v. Abreau, 363 So.2d 1063 (Fla.1978); Cox v. State, 618 So.2d 291 (Fla. 2d DCA1993).

The error was compounded by the court’s instruction on culpable negligence manslaughter, which was misleading in the context of Bolin’s trial. The definition of culpable negligence that the court read to the jurors states: “Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.” In re Standard Jury Instructions, 477 So.2d at 992 (emphasis supplied). In the absence of an instruction on manslaughter by act, the jurors essentially were told that they could convict Bolin of manslaughter only if they found he acted “without any conscious intention to harm.” Given the extent of Ms. Holley’s wounds, no evidence at trial supported that possibility.

Fundamental error occurs when a jury instruction contains an incorrect definition of a disputed element of a crime. See McCain v. State, 995 So.2d 1029, 1034 (Fla. 2d DCA 2008) (citing Reed, 837 So.2d 366). Here, the disputed issues were whether Bolin was the perpetrator and, if so, whether he acted with premeditation. Negligence simply was not at issue in this case.

Similar fundamental error occurred in Reed v. State, 531 So.2d 358 (Fla. 5th DCA 1988). Reed was charged with and convicted of second-degree murder. The trial court instructed the jury only on the lesser included offense of manslaughter by intentional act, although the evidence could have supported the lesser included offense of culpable negligence manslaughter. The Fifth District reversed, stating that an “instruction [must] be sufficiently complete and accurate so that it does not mislead the jury and negate the defendant’s theory of defense.” Id. at 360. We agree, and we likewise reverse Bolin’s conviction for second-degree murder and remand for a new trial.

Because Bolin will be tried once again, we briefly address the ever-evolving Florida Standard Jury Instructions on manslaughter. We previously have set forth the 1985 instructions applicable at the time the crime was committed. On appeal, Bo-lin contends the court should have given the revised manslaughter instructions approved in 1994. These would have instructed the jurors that the State must prove that Bolin “intentionally caused the death” of Ms. Holley and that “[i]n order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.” See Standard Jury Instructions in Criminal Cases (93-1), 636 So.2d 502, 506 (Fla.1994). A sidebar to the instruction notes that the clarification of an “intentional act” is to be given “only if 2(a) alleged and proved, and manslaughter is being defined as a lesser included offense of first degree premeditated murder.” Id.

The 1994 instruction is merely a refinement of the instruction in effect when the charged crime occurred. Further, it more accurately describes the offense, the statutory definition of which has not changed since 1986. Therefore, we agree with Bo-lin that the more accurate instruction should be given at his retrial. Cf. Carpenter v. State, 785 So.2d 1182, 1198 n. 1 (Fla.2001) (remarking that defendant had not argued on appeal whether the new or the old jury instruction should have been given); Larman v. State, 724 So.2d 1230, 1232 (Fla. 5th DCA 1999) (noting that the defendant was not prejudiced when the court gave a more refined, more accurate instruction that was enacted four months after the crime was committed).

We further note that the placement of the language clarifying intentional act manslaughter was moved in the 2006 amendment to the manslaughter instruction. In re Standard Jury Instructions in Criminal Cases-No. 2006-1, 946 So.2d 1061 (Fla.2006). But the language of the instruction is the same as in the 1994 instruction that Bolin advocates.

Finally, when the court instructed the jury on manslaughter at the trial below, it failed to repeat the instruction on justifiable and excusable homicide, which it had previously given in connection with the first-degree murder charge. On retrial, the court must also read this definition in connection with the lesser included manslaughter instruction. See Pignataro v. State, 834 So.2d 965 (Fla. 2d DCA 2003); see also Beckham v. State, 884 So.2d 969 (Fla. 1st DCA 2004).

Affirmed in part, reversed in part, and remanded.

FULMER and SILBERMAN, JJ., Concur.

NOTES TO THE OPINION

On appeal, Bolin argues that manslaughter by act was the only appropriate lesser included instruction. We note that if the court had given instructions on both culpable negligence manslaughter and manslaughter by act, we would find no error. See Roberts, 694 So.2d at 825 (noting that facts need not support a necessarily lesser included offense instruction).

The only exception to this rule is when the defense affirmatively agrees to an incomplete instruction. Lucas, 645 So.2d at 427. That exception does not apply in this case. See also Roberts, 694 So.2d at 826 (noting that mere acquiescence to instructions as given is not an affirmative agreement to the instruction).

This language remains, unchanged, in the present standard jury instruction, Fla. Std. Jury Instr. (Crim.) 7.7.

We also note that the 2002 schedule of lesser included offenses for first-degree murder lists only voluntary manslaughter, not involuntary manslaughter, as a necessarily lesser included offense to premeditated first-degree murder. See Fla. Std. Jury Instr. (Crim.) 7.2 (Mar. 2004).

41 So. 3d 151, decided July 1, 2010

Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. SC08-1963.

Supreme Court of Florida.

July 1, 2010.

Robert A. Norgard and Andrea Norgard of Norgard and Norgard, Bartow, FL, for Appellant.

Bill McCollum, Attorney General, Tallahassee, FL, Stephen D. Ake and Katherine Maria Diamandis, Assistant Attorneys General, Tampa, FL, for Appellee.

[OPINION BY PER CURIAM. type=majority]

PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution.

FACTS

Teri Lynn Matthews’ body was discovered on December 5,1986, near the side of a road in rural Pasco County. Bolin v. State, 869 So.2d 1196, 1198 (Fla.2004). Her wet body was wrapped in a sheet imprinted with a St. Joseph’s Hospital logo, and had multiple head injuries. Id. There was a single set of tire tracks leading to her body. Id. Matthews’ car keys were found near her body, but her car was found the next day parked at the Land O’Lakes Post Office. Id. Her purse was found untouched in her car and her mail was found scattered nearby on the ground. Id.

Matthews’ murder remained unsolved until July 1990, when Danny Coby, of Indiana, telephoned “Crime Stoppers” and reported that he had received information from his wife, Cheryl Coby, regarding the murder of another of Bolin’s victims, Stephanie Collins. Following this call, the investigators interviewed Cheryl Coby about the Collins murder, which led them to question Philip Bolin about Matthews.

Bolin was convicted and sentenced to death for Matthews’ murder in 1992, but that conviction was overturned by this Court because improper evidence was admitted at trial. Bolin v. State, 650 So.2d 19 (Fla.1995) (concluding that the trial court erred in finding waiver of spousal privilege based on defendant’s deposition of ex-wife). On remand, Bolin was convicted and again sentenced to death, which this Court also overturned based on the abuse of discretion by the trial court for denying Bolin’s motion for individual voir dire of prospective jurors on the issue of pretrial publicity. Bolin v. State, 736 So.2d 1160, 1161 (Fla.1999).

At the third trial, Bolin’s half-brother, Phillip Bolin, testified that Bolin awakened him on the night of December 4, 1986, to help him move the body. Bolin, 869 So.2d at 1198. Phillip Bolin testified that he saw a sheet-wrapped body and that Bolin told him that the girl was shot near the Land O’Lakes Post Office. Phillip testified that Bolin straddled the body and struck it several times with a metal-tipped wooden stick. Bolin then turned on a water hose and sprayed the body. Bolin was convicted and sentenced to death a third time. Id. at 1199. Bolin waived presentation of mitigation and waived having a jury advisory proceeding. Id. at 1199. After the trial court found that Bolin’s waiver was knowing, voluntary, and intelligent, the penalty phase proceeded without a jury. In an abundance of caution, the trial court followed Muhammad guidelinés and found three aggravating factors, one statutory mitigating factor, and twelve non-statutory mitigating factors. Bolin, 869 So.2d at 1200. Bolin was sentenced to death.

On direct appeal, Bolin raised five issues: (1) whether the trial court erred in denying Bolin’s challenges for cause, (2) whether the court abused its discretion by replacing juror C., who had chronic emphysema, with an alternate juror, (3) whether the court erred by allowing expert DNA testimony that there was a “match” in the bands of the semen and blood samples, (4) whether Bolin was entitled to a new trial because the record did not reflect whether the prospective jurors were sworn prior to voir dire, and (5) whether the court erred by accepting Bolin’s waiver of a penalty phase jury recommendation. Although not raised by Bolin, this Court also considered whether Bolin’s conviction was supported by sufficient evidence and whether Bolin’s sentence was proportionate. This Court affirmed Bolin’s conviction and sentence.

Bolin filed his motion for postconviction relief on October 3, 2005. The court held an evidentiary hearing in several sessions beginning on November 16, 2006, and concluding on November 26, 2007. Bolin raised seven claims: five claims of ineffective assistance of counsel, one claim of cumulative error, and one claim that his due process rights were violated when he was forced to file his motion prior to receiving documents requested from the Federal Bureau of Investigation. Bolin decided not to pursue the two claims relating to Michelle Steen, and the court denied the remaining claims. Bolin now appeals, raising two claims of ineffective assistance of counsel.

ANALYSIS

Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 982 (Fla.1986) (citations omitted).

Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

There is a strong presumption that trial counsel’s performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689,104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that “strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.”

Testimony of D.F.

First, Bolin alleges that trial counsel was ineffective for failing to object to the descriptive use of what appeared to be blood in D.F.’ testimony. Below, the Sixth Circuit Court in and for Pasco County, Florida, denied Bolin’s first claim, stating:

Although there may be other ways to say it, the witness probably could not accurately convey to the jury that the substance looked like blood without using the word blood. Had D.F. simply said that he saw a red substance, it would not have conveyed the essence of what he observed. An intelligent person with some degree of experience may testify as a lay witness to what they observe. See Jones v. State, 440 So.2d 570 (Fla.1983), citing Peacock v. State, 160 So.2d 541 (Fla. 1st DCA 1964). In this case, the witness testified that he observed blood. See Trial Transcript, pp. 874-875.

Defendant’s objection to the testimony is partly that D.F. stated that he was sure it was blood, rather than it appeared to be, or looked like, blood. See November 16, 2006 Evidentiary Hearing Transcript, pp. 66-67. Even if counsel had objected, the testimony would not have been excluded. The State or defense counsel would simply elaborate on D.F.’ testimony by further establishing that he could not know to a scientific certainty that the substance was actually blood. There is little danger in this case that the jury was misled by the testimony to believe that the witness had scientifically tested the substance to determine that it was, in fact, actual human blood from the victim. The witness’ testimony revealed that he was approximately 13 years old and an elementary school student at the time of the murder. See Trial Transcript, pp. 871, 885. Moreover, the State elaborated on D.F.’ testimony that he saw blood by questioning him as to whether he had ever seen blood before and whether he had any doubt that the substance appeared to be blood. See Trial Transcript, pp. 874-875.

Mr. Swisher testified at the evidentia-ry hearing that he doesn’t recall whether or not he objected. See November 16, 2006 Evidentiary Hearing Transcript, pp. 68-70. Nor does he recall specifically why he would not have objected, but posited several tactical reasons why he might not have done so based on and depending on what other testimony followed that opinion. See id. During Defendant’s trial, Mr. Swisher attempted to show that the victim’s body was allegedly sprayed with a hose for several minutes and there was no blood visible on the ground at the time of the murder, yet D.F. testified that he saw a three foot circle of blood on the ground several hours later when Phillip Bolin brought him home after school. See Trial Transcript, pp. 524, 778-780, 823-826, 882-885; November 16, 2006 Evidentiary Hearing Transcript, pp. 97-98.

In this case, Mr. Swisher’s hypothesized tactical reasons why he may not object coincide with what occurred at trial. An attorney’s decisions regarding trial tactics are not subject to attack in a motion for post conviction relief. See Buford v. State, 492 So.2d 355 (Fla. 1986). Furthermore, the testimony would not have been excluded even if counsel had objected. An objection would only result in a clarification that the witness could not be certain the substance was actually blood. Between the State’s attempted clarification regarding D.F.’ knowledge of blood and the testimony that D.F. was a 13 year old elementary student at the time of the murder, there is sufficient clarification that the witness was testifying as to what he observed and not that he was testifying as to any scientific certainty that the substance was blood. This claim is denied accordingly.

We agree.

At trial, D.F. testified that in early December 1986, he and Phillip Bolin were best friends and attended the same elementary school, and that Phillip had told him something unusual at the bus stop one morning. D.F. agreed to go back to Valencia Drive with Phillip. In response to counsel’s question asking him to explain what he saw on the ground once there, D.F. testified that he saw “[a] lot of blood and stuff on the grass. And the grass was kind of — I don’t know.” This exchange continued:

Q. Well, let me ask you this. Back in '86, had you ever seen blood before?

A. Yes, sir.

Q. Did you know what color blood was?

A. Yes, sir.

Q. Did you feel comfortable enough that when you looked down on the grass that you could tell in your own mind that appeared to be blood?

A. Absolutely.

Q. Was there any doubt in your mind when you looked on that grass that that appeared to be blood?

A. No doubt. I knew it was.

(Emphasis added.) Accordingly, on direct examination, it was D.F.’ testimony that he saw what appeared to be blood on the grass and that in his mind there was no doubt what he saw. It is not likely that the jury was confused or believed that a thirteen-year-old boy had tested the substance he saw on the ground. Nor is it likely that D.F. could have conveyed what he saw without using the word blood.

Section 90.701, Florida Statutes provides:

If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

§ 90.701, Fla. Stat. (2001). Here, D.F. could have testified that he saw a red substance on the ground, but that would not have conveyed with equal accuracy that he saw what appeared to be blood. Likewise, there is not a readily apparent set of words that would equally convey that what D.F. saw appeared, to him, to be blood. Additionally, because D.F.’ testimony was that what he saw “appeared” to be blood, it is not likely that he misled the jury to Bolin’s prejudice. As we noted in Gardner v. State, 480 So.2d 91 (Fla.1985), “A lay witness may give opinion testimony so long as the opinion testimony does not mislead the trier of fact.” Id. at 93 (finding proper a police officer’s opinion testimony as a lay witness regarding a codefendant’s character based on hours of observation).

In Gantling v. State, 40 Fla. 237, 23 So. 857 (1898), we held that it was not improper for a witness to testify regarding the color of stains on a garment and their relationship to blood. Id. at 860. Specifically, after the trial court sustained a defense objection to the witness’s testimony “that he saw splotches or stains of some kind ..., which he supposed was blood; he felt confident that it was blood[,]” the witness rephrased his testimony, stating that he was not an expert and “that the stains were of a yellow or reddish color; they had been there so long that they were not the color of blood.” Id. We held that such testimony was not improper and that the trial court properly overruled the objection to it, stating, “It requires no expert knowledge to enable one to know that there are stains upon clothing, nor their color, where they are visible to the eye. These are matters open to common knowledge and common observation.” Id. Bolin now suggests that Gantling stands for the proposition that a witness may not opine that a stain is blood. Gantling makes no such holding. Nothing in Gantling supports Bolin’s assertion that D.F.’ testimony was improper or that defense counsel was ineffective for failing to object to it.

Bolin also raises Floyd v. State, 569 So.2d 1225 (Fla.1990), in support of his argument. In Floyd, a police officer testified “that a tablecloth found lying on the bed ‘appeared like someone had taken some type of object that had blood on it and wiped it on there and left it on the bed.’ ” Id. at 1281. We upheld the testimony as proper and “within the permissible range of lay observation and ordinary police experience.” Id. at 1232.

Additionally, there are cases where lay witnesses have mentioned blood in their testimonies that have been upheld by this Court and the district courts of appeal. See Smith v. State, 1 So.3d 473, 489 (Fla. 2009) (witness testified that he helped to clean up blood after he witnessed a shooting); Thorp v. State, 111 So.2d 385, 388 (Fla.2000) (an employee of the mission where defendant was staying testified that he saw Thorp with blood on his shirt); Davis v. State, 586 So.2d 1038, 1040 (Fla. 1991) (witness testified that she discovered the victim lying in pool of blood), vacated on other grounds, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992) (vacated and remanded for consideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992)); Moody v. State, 418 So.2d 989, 991 (Fla.1982) (a witness who had been living with Moody in a Volkswagen saw a puddle of blood on the victim’s floor); King v. State, 390 So.2d 315, 317 (Fla.1980) (a counselor at the facility where King was incarcerated saw that the crotch of King’s pants was covered in blood), receded from on other grounds by, Strickland v. State, 437 So.2d 150 (Fla.1983); Bartlett v. State, 993 So.2d 157,159 (Fla. 1st DCA 2008) (witness testified to there being a substance that appeared to be blood on one of two knives). Additionally, in Rose v. State, 617 So.2d 291 (Fla.1993), the defendant raised a similar issue on postconviction alleging that trial counsel was ineffective for failing to object to the testimony of two witnesses, neighbors of Rose who had given him a ride home the night of the murder and testified that he had blood on his person. Id. at 296; Rose v. State, 774 So.2d 629, 632-33 (Fla.2000), receded from on other grounds by, Guzman v. State, 868 So.2d 498 (Fla.2003). We upheld the court’s denial of Rose’s postconviction motion and did not find counsel deficient. Rose, 617 So.2d at 296-97.

Defense counsel, Swisher, testified that although he could not remember the exact reason he chose not to object to D.F.’ testimony, it was possible that he was attempting to discredit that there was ever anything on the ground for D.F. to identify. Swisher’s theory of the case, that the hose used to wash off Matthews’ body that left her and the grass wet would have also washed away any blood, was not unreasonable. Further, because Phillip Bolin’s testimony was not improper, it is likely that any objection would have been overruled. Accordingly, we do not find Swisher’s performance deficient.

Moreover, even if we found that Swisher was deficient, Bolin has not established prejudice sufficient to undermine confidence in the outcome of his trial. D.F.’ testimony corroborated that of Phillip Bo-lin. Phillip testified that he witnessed Bo-lin strike Matthews with a metal-tipped stick matching the description of one given to him by his employer. Both boys’ testimony that the ground was wet was corroborated by the physical evidence that Matthews was found wet although it had not rained recently. Additionally, a semen sample found on the victim matched Bo-lin’s blood sample. Furthermore, it is not likely that the jury was misled by D.F.’ testimony. Accordingly, this claim is denied.

Failure to Call Oscar Ray Bolin, Sr.

Second, Bolin alleges that counsel was ineffective for failing to call his father, Oscar Ray Bolin, Sr., to testify in order to rebut D.F.’ testimony. The circuit court denied Bolin’s second claim, stating:

The testimony referred to in this claim is, once again, D.F.’ testimony that he saw blood on the ground at the scene of the murder. Defendant claims that trial counsel failed to investigate and call as a witness Oscar Ray Bolin, Senior, who was present and available to testify. Bolin Senior would have testified that he was a carnival worker, and that he sprayed [sic] painted several items used in his carnival concession in the area where D.F. saw what he believed to be blood, but was actually red spray paint. Bolin Senior would also have testified that there were no hoses remaining on the family property on Valencia Drive, as he took all hoses with him in his travels with the carnival.

Mr. Swisher testified that he spoke to Bolin Senior, but that he made a tactical decision not to call him as a witness for several reasons. First, there is the fact that Bolin Senior was out of state for the two weeks prior to the murder and any spray painting would have been done prior to his departure. See Trial Transcript, p. 1472. Second, there was no way to independently corroborate Bolin Senior’s testimony 15 years after the murder. See November 16, 2006 Evidentiary Hearing Transcript, pp. 75-76, 99-101. Third, there is the perceived bias on the part of a father testifying for his son. See id. at 76. Fourth, counsel did not want to risk his being discredited in the guilt phase if he needed him to testify in the penalty phase. See id. at 103, 106-107. And fifth, Bolin Senior was not a good witness. See id. at 75-77. Not only did counsel believe so based on his own interview with Bolin Senior, but he testified that both Defendant and his wife, Rosalie Bolin, told him that Bolin Senior would not be a good witness. See id.

Furthermore, the information about the spray painting of carnival equipment and the removal of all hoses from the property was presented to the jury in the testimony of Gertrude Bolin, Defendant’s stepmother. See Trial Transcript, pp. 1470; November 16, 2006 Ev-identiary Hearing Transcript, p. 74-76. Whether the decision not to call Bolin Senior as a witness was the best tactical decision is not at issue in this proceeding. As long as an attorney has considered and rejected alternative courses of action, tactical or strategic choices do not constitute deficient conduct on the part of the attorney. See Henry v. State, 948 So.2d 609 (Fla.2006). The decision not to call Bolin Senior was a tactical decision made by counsel, and it was made with the agreement of Defendant. Based on the foregoing, the Court finds that counsel was not deficient, and the claim is denied accordingly.

We agree.

Here, both Bolin and his wife, Rosalie, told trial counsel that Bolin, Sr. would not be a good witness. Swisher confirmed this independently, and determined that Bolin, Sr. would not be a good witness.

We have previously found that trial counsel is not ineffective where counsel decides not to present a witness with questionable credibility. See Evans v. State, 995 So.2d 933, 943 (Fla.2008) (trial counsel’s tactical decision not to present witnesses with questionable credibility does not constitute ineffective assistance); Lamarca v. State, 931 So.2d 838, 848-49 (Fla. 2006) (reasonable trial strategy for counsel not to call people who were not credible and would not have made good defense witnesses); Marquard v. State, 850 So.2d 417, 427 (Fla.2002) (denying ineffective assistance claim for failing to call witness when counsel believed the witness would not exonerate the defendant).

In Evans, the defendant raised ineffective assistance of counsel because trial counsel failed to call witnesses Evans alleged could have contradicted the State’s timing of the murder. Evans, 995 So.2d at 943. At the evidentiary hearing, one of the witnesses testified that they had all been drunk the evening of the murder but he believed that the shots occurred between 9:30 and 10:00 p.m. Id. The witness also stated that he had injured his neck in an accident after the crime but before the trial and had experienced memory lapses since then. Id. We ruled that counsel was not ineffective for not calling the witnesses because both had questionable credibility. Id. Likewise, in the present case, Swisher was concerned about Bolin, Sr.’s credibility after being informed by both Bolin and Rosalie that he would not be a good witness. This concern, coupled with Bolin, Sr.’s relationship as Bolin’s father, led Swisher to make the tactical decision to reserve Bolin, Sr.’s limited credibility for the penalty phase. We do not find this decision to be unreasonable.

Similarly, in Lamarca, we found it a reasonable trial strategy to avoid calling witnesses believed to have questionable credibility. Lamarca, 931 So.2d at 848-49. Although the credibility issues presented in Lamarca — significant prison record, hearing difficulties, inconsistent and contradictory statements, and drunkenness-are distinguishable from the present case, Swisher’s decision was nevertheless reasonable. Swisher testified that he was concerned that using a mother, father, and wife to support the defense would improperly shift the jury’s focus to the defense’s credibility. There was no other evidence to corroborate the testimony that Bolin, Sr. would have provided, and his testimony would have contradicted Swisher’s theory of the case that D.F. could not have seen any substance on the ground. This was a reasonable tactical decision.

In Marquard, this Court found no ineffective assistance where counsel chose not to call witnesses who would not have exonerated the defendant. Marquard, 850 So.2d at 427. Despite Marquard’s assertions, the potential witnesses would have confirmed his participation in the crime. In the present case, it is not likely that Bolin, Sr. would have exonerated Bohn. His testimony could not be corroborated and would not establish definitively that Bolin could not have committed the crime. As stated above, D.F.’ testimony was corroborated by Phillip Bolin. Even if Bolin, Sr. had testified that there could have been spray paint on the ground, it was not likely to discredit D.F.’ version of events.

Additionally, Bolin cannot establish that the outcome of the trial would have been different had Bolin, Sr. testified. Bolin, Sr. would have testified that he spray painted equipment using many colors, including red, approximately three weeks prior to Matthews’ murder. It is not likely the spray paint would have remained on the grass, or that — if it had — D.F. would have mistaken the mixture of paint colors as blood. Further, it is not likely that the jury would have believed D.F. mistook weeks-old spray paint for blood. Because Bolin has failed to demonstrate that counsel was deficient or that he was prejudiced, this claim is denied.

Accordingly, we affirm the Sixth Circuit’s denial of Bolin’s motion for postcon-viction relief.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

QUINCE, J., recused.

NOTES TO THE OPINION

The victim's name has not been spelled consistently in the parties’ briefs, lower court's orders, and opinions of this Court — it is spelled either Mathews or Matthews. The original indictment spells the victim’s name Matthews, as do newspaper reports detailing the trials. Accordingly, this opinion will refer to the victim with the spelling Matthews.

Muhammad v. State, 782 So.2d 343, 363-64 (Fla.2001) (requiring preparation of a presen-tence investigation (PSI) in every case where the defendant is not challenging the imposition of the death penalty and refuses to present mitigation evidence to assist the trial court in considering all available mitigation).

The court found the statutory mitigator that the capacity of Bolin to appreciate the criminality of his conduct was substantially impaired because of brain damage, but the court gave this mitigator little weight.

The court found the following nonstatutory mitigators: (1) Bolin had a somewhat difficult childhood (some weight); (2) he had a sporadic and minimal educational experience (little weight); (3) he received improper care during childhood (little weight); (4) he was under stress at the time of the murder because of his wife being pregnant and frequently ill (slight weight); (5) Bolin was twenty-four years of age at the time he committed the murder; (6) he was respectful to other parties in this case (little weight); (7) he saved another life by rescuing a drowning person (some weight); (8) he was employed at the time of the offense (slight weight); (9) he received no adverse disciplinary reports from prison (some weight); (10) he had used alcohol and drugs as a minor, but did not have a dependency problem (slight weight); (11) he had some evidence of minor brain damage or mental illness (little weight); and (12) he had a medical history that included multiple suicide attempts (slight weight). .Bolin claimed: (1) counsel was ineffective for failing to object to the testimony of D.F., (2) counsel was ineffective for failing to call a witness who would have rebutted the testimony of D.F. — to wit, Oscar Ray Bolin, Sr., (3) counsel was ineffective for failing to impeach Michelle Steen, (4) counsel was ineffective for failing to impeach Michelle Steen by calling a witness who would have testified that Steen had previously admitted her testimony that Bolin confessed was false, and (5) counsel was ineffective for misadvis-ing Bolin to waive his right to testify.

117 So. 3d 728, decided February 21, 2013

Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. SC08-2148.

Supreme Court of Florida.

Feb. 21, 2013.

Rehearing Denied June 27, 2013.

Howard L. Dimmig, II, Public Defender, Deborah Kucer Brueckheimer, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, Florida and Stephen D. Ake and Carol Marie Dittmar, Assistant Attorneys General, Tampa, FL, for Appellee.

[OPINION BY PER CURIAM. type=majority]

PER CURIAM.

This case is before the Court on appeal from a judgment of conviction of first-degree murder and a sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm Bolin’s conviction and sentence.

OVERVIEW

Oscar Ray Bolin, Jr., was convicted of the first-degree murder of Stephanie Collins and sentenced to death. This Court twice reversed Bolin’s conviction and sentence of death for new trials because of evidence improperly admitted that was covered under the spousal privilege. On Bolin’s second retrial, a jury returned a verdict of guilty of first-degree murder. Bolin waived his right to a penalty phase jury, and after a penalty phase proceeding, the trial court sentenced Bolin to death. This is Bolin’s direct appeal. For the reasons below, we affirm Bolin’s conviction and sentence of death.

FACTS AND PROCEDURAL HISTORY

Oscar Ray Bolin, Jr., is before this Court on direct appeal of his conviction and sentence of death for the 1986 murder of Stephanie Collins. In 1990, a Hillsbor-ough County Grand Jury returned an indictment charging Bolin with first-degree murder, attempted robbery, and kidnapping. Bolin was tried and convicted for the murder. The trial judge followed the jury’s recommendation and sentenced Bo-lin to death. On appeal, this Court reversed Bolin’s conviction because improper evidence was admitted at trial. See Bolin v. State (Bolin I), 650 So.2d 21 (Fla.1995) (reversing and remanding for a new trial because the trial court erred in finding that Bolin waived his spousal privilege when he deposed his ex-wife). On remand, Bolin was again tried, convicted, and sentenced to death. On appeal, this Court reversed a second time, based on the admission of improper evidence at trial. Bolin v. State (Bolin II), 793 So.2d 894 (Fla.2001) (reversing and remanding because the trial court erred in finding that Bolin waived his spousal privilege in writing his suicide letter).

Guilt Phase

The evidence presented at the second retrial revealed that Stephanie Collins went missing on November 5, 1986, after stopping by the Eckerd’s Drug Store where she worked. She was last seen on that day in the passenger’s seat of a white van. On December 5, 1986, her body was discovered alongside a road in Hillsbor-ough County. An autopsy revealed that Collins sustained a number of stab wounds and several potentially fatal blows to the head.

The investigation into Collins’s murder proved unavailing until July 1990, when Danny Coby telephoned The Crime Stoppers Hotline in Ft. Wayne, Indiana, with information about the murder. Danny Coby obtained the information from his wife, Cheryl Coby, who had acquired the information during her prior marriage to Bolin. After Mr. Coby’s call, investigators interviewed Mrs. Coby, who provided investigators with details implicating Bolin in the murder.

After Coby’s disclosures, Bolin was extradited to the Hillsborough County Jail to await trial for the murder of Collins. On June 22, 1991, Bolin attempted suicide. After Bolin was taken to the hospital, the chief investigator, Captain Gary Terry, entered Bolin’s cell and saw a cardboard box sitting on the commode. A stamped envelope addressed to Captain Terry was on top of the box. Captain Terry opened the envelope and read the letter, which discussed, among other things, the murder investigation. Prior to the second retrial, the State filed a Motion to Admit Evidence that the Defendant Attempted to Commit Suicide, including the suicide letter addressed to Captain Terry. The trial court granted the motion, and evidence of Bo-lin’s attempted suicide and the suicide letter were admitted at trial over defense objection.

Because Coby suffered from a terminal illness, her trial testimony from Bolin’s first trial was videotaped. Coby died shortly after the first trial, and, in accordance with this Court’s decisions in Bolin I and Bolin II, the State introduced a redacted version of Coby’s testimony during the second retrial, which edited out privileged communications between Bolin and Coby. See Bolin I, 650 So.2d at 23 (concluding that the trial court erred in finding Bolin waived his spousal privilege based on defendant’s deposition of ex-wife but noting that Coby’s testimony regarding her observations of Bolin’s actions were admissible); Bolin II, 793 So.2d at 897, n. 3, 898 (concluding that trial court erred in finding waiver of spousal privilege based on Bo-lin’s suicide letter but noting that the privilege only applied to confidential communications).

Coby’s redacted testimony that was admitted during Bolin’s second retrial included that on November 5, 1986, Bolin, her husband at the time, picked her up from a restaurant and took her back to their travel trailer. Coby explained that, upon their arrival at the trailer, she saw Bolin load something wrapped in one of their quilts onto his truck. Coby also identified a sheet labeled “Hospital Property” that was found wrapped around Collins’s body as a sheet that Coby had taken during one of her hospital stays due to her continual health problems. Coby provided investigators with the same type of sheets when they interviewed her in Indiana. Coby testified that Bolin and Coby drove to a spot where Bolin dumped the body. Coby later identified that spot to police. When she returned to the trailer, Coby observed that everything inside, including a knife beside the kitchen sink that was usually kept in the drawer, appeared wet. Coby also noticed several blood stains in the trailer.

Robert Fram, an FBI hair analyst, testified that hair found on the towel wrapped around Collins’s body matched Bolin’s. Agent John Stewart testified as an expert that the mitochondrial DNA analysis of Bolin’s hair and saliva showed a profile match with that found on Collins’s body.

Lay witnesses Hennie Moss and David Fessler both testified during trial that they saw Collins in a white van with a man they could not identify on the afternoon she went missing. They testified that Collins was acting excited and waving her arms. Collins’s mother identified the clothes Collins was wearing on the day her body was discovered as the same clothes she was wearing on the day she went missing. Law enforcement also found Collins’s purse near her body. The purse contained a piece of paper on which “724-BYL, Ray” was written. Testimony provided that Bolin was usually called Ray and 724-BYL was the tag number of Bo-lin’s pickup truck. Michael Long, a friend of Coby and Bolin, testified that he had seen Bolin use a white van years before and that Bolin’s friend had allowed Bolin to borrow it.

The medical examiner, Dr. Peter Lardi-zabal, testified that Collins’s skull was struck several times so hard that parts of her skull were reduced to powder. He testified that there were twenty-eight fragments of the victim’s skull as a result of the blunt force trauma Collins sustained. The medical examiner could identify nine points of impact on her skull and testified that the blows would have been quickly fatal. He also testified that Collins’s body and clothes revealed six stab wounds to her back; however, due to the decomposition of her body, he was unable to tell whether the stab wounds were made while Collins was alive or postmortem.

On November 2, 2006, the jury returned a verdict of guilty of first-degree murder.

Penalty Phase

After the verdict was read, Bolin waived his right to a penalty phase jury. During the penalty phase before the trial court, the State presented evidence of the prior rape and kidnapping of Gennie Lynn Le-fever, to which Bolin pleaded guilty. The State also presented testimony from Rick Luman, a jail guard in Ohio who was attacked by Bolin during Bolin’s escape attempt while incarcerated for the prior rape and kidnapping. The State presented the testimony of Gary Kling, a Pasco County detective assigned to the case of the murder of Teri Lynn Mathews, who suffered blunt force trauma to her head and stab wounds, and whose body was found on the side of the road, for which Bolin was convicted of first-degree murder and received the death penalty. See Bolin v. State, 869 So.2d 1196 (Fla.2004).

The defense presented a mitigation notebook to the trial court, which included: (1) the presentence investigation report and sentencing order for the Pasco County murder for potential mitigation; (2) the testimonies of Bolin’s mother and sister from the prior penalty phase; (3) the deposition and testimony of Dr. Robert Ber-land from Bolin’s prior penalty phase; (4) the testimony of Rosalie Bolin, Bolin’s current wife, from Bolin’s prior penalty phase; and (5) Bolin’s medical records.

During the Spencer hearing on October 29, 2007, the defense proffered evidence from Dr. Frank Wood and Dr. Jonathan Burdette, along with Bolin’s mental health status report. The trial court reviewed all the evidence and found the following ag-gravator: (1) previously convicted of another capital felony or of a felony involving the use or threat of violence to the person — great weight. The trial court also found the following mitigation: (1) age of defendant at time of crime (24) — little weight; and (2) the following statutory catch-all mitigator of any other factors in the defendant’s background that would mitigate against imposition of the death penalty: (a) defendant suffered from the effects of his mother’s alcoholism and his own substance abuse — little weight; (b) defendant was abused as a child — some weight; (c) defendant had a poor and unstable childhood — little weight; (d) defendant had sporadic minimal education — little weight; (e) defendant received his GED while incarcerated — little weight; (f) defendant developed skills which included welding, electrical, plumbing, and small machinery skills — little weight; (g) defendant saved the life of another — little weight; (h) defendant was gainfully employed at the time — little weight; (i) defendant behaved appropriately at trial— little weight; (j) defendant has adapted to institutional living and had not received any disciplinary reports — little weight; (k) defendant has been married for eleven years and he seems to maintain that relationship, considering the obvious limitations — little weight; and (l) defendant’s physical and mental medical history indicates several problems — little weight. Additionally, the trial court gave some weight to a finding of some mental or emotional disturbance. The trial court stated in its sentencing order, “Although there is only one aggravating factor, both the nature of the Defendant’s crimes and the underlying facts of those crimes are so egregious that the one aggravating factor far outweighs the mitigating factors in this ease.” Thus, the trial court imposed the sentence of death.

Bolin appeals, raising the following issues for our review: (1) whether the trial court erred in denying Bolin’s motion to exclude Cheryl Coby’s redacted 1991 trial testimony; (2) whether the trial court erroneously denied Bolin’s motion to suppress the suicide note; and (3) whether the trial court erred in rejecting a statutory mitigator and in imposing a death sentence.

ANALYSIS

Guilt Phase Claims

I. Cheryl Coby’s Testimony

During the guilt phase of Bolin’s second retrial, the State read a portion of Cheryl Coby’s testimony from Bolin’s first trial and then played a videotape of a portion of her testimony that had been recorded. In accordance with this Court’s decisions in Bolin ■ I and Bolin II, the portions of Coby’s testimony that referred to privileged communications were redacted.

Bolin now contends that the admission of such dated testimony violates his right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Specifically, Bolin contends that because former counsel’s cross-examination was inadequate during Bolin’s first trial, and because counsel is now bound by such cross-examination that focused mainly on privileged testimony that has since been held inadmissible, the former cross-examination is not sufficient to bypass the requirements of Crawford. Bolin also asserts that this testimony violates his constitutional right to due process because the admissible testimony was so intertwined with the privileged communications that the redacted testimony still violates the spousal privilege. Finally, Bolin contends that to properly preserve the spousal privilege, this Court should reconsider its holding in Kerlin v. State, 352 So.2d 45 (Fla.1977), in which this Court found that observation of actions does not violate spousal privilege. These claims are without merit.

a. Crawford Claim

First, Bolin asserts that Coby’s testimony is so dated that it violates Crawford. The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. In Crawford, the United States Supreme Court held that testimonial statements of a witness who did not appear at trial would not be admissible unless that witness was unavailable and the defendant had a prior meaningful opportunity for cross-examination. Crawford, 541 U.S. at 68, 124 S.Ct. 1354; see § 90.804(2)(a), Fla. Stat. (2005). “In considering a trial court’s ruling on admissibility of evidence over an objection based on the Confrontation Clause, our standard of review is de novo.” McWatters v. State, 36 So.3d 613, 637 (Fla.2010) (quoting Milton v. State, 993 So.2d 1047, 1048 (Fla. 1st DCA 2008)).

Bolin contends that the cross-examination was not adequate to satisfy the requirement that he be given a meaningful opportunity to cross-examine Coby. See Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (noting that a primary interest of confrontation is the right of cross-examination). This claim is without merit. First, the Confrontation Clause guarantees only “an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” State v. Ford, 626 So.2d 1338, 1347 (Fla.1993) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985)). Bolin was given a meaningful opportunity to cross-examine Coby during his first trial.

Furthermore, the record reflects that the cross-examination was in fact thorough and effective. Despite Bolin’s contention that the cross-examination focused only on the privileged communications that were redacted for the second retrial, the record reflects that counsel thoroughly cross-examined Coby regarding her testimony about her observations of Bolin’s actions, all of which was admitted during this trial. Cross-examination of Coby admitted during this trial included her status as legally blind, her difficulty deciphering between different colors, the fact that her observations were made while it was dark outside and the fact that she had such trouble seeing at night that she was unable to drive. Cross-examination included Coby’s strained relationship with her ex-husband Bolin, which existed on the night of the murder in question and continued to the day Coby testified in Bolin’s first trial, and the fact that Coby did not want Bolin spending time with their son. Cross-examination also elicited that Coby did not mention the wet knife in her prior depositions yet testified during the first trial that she saw the knife next to the sink in the trailer. Cross-examination also included the potential reward money from Crime Stoppers if Bolin was convicted, along with Coby’s medical bills and financial troubles, including her bankruptcy filing and having her vehicle repossessed in 1986. Cross-examination also included Coby’s concession that she never saw Collins with Bolin, and that Cheryl first lied to the investigating officers in 1990, stating that she knew nothing and after an hour and a half break agreed to talk with police. Based on the above, it is clear that Bolin not only received a meaningful opportunity to cross-examine Coby, but the cross-examination was in fact thorough.

Bolin contends that because of the years that have passed since Bolin’s first trial, admitting Coby’s testimony in his second retrial violates Crawford. However, Bolin provides no support for his assertion and we find it without merit. Cf. Murray v. State, 3 So.3d 1108, 1124 (Fla.2009) (testimony of witnesses was admissible at the fourth trial since the witnesses were unavailable for trial, issues were unchanged, and defendant had prior opportunity to cross-examine them).

Accordingly, we find that Coby’s redacted testimony does not violate Bolin’s right to confrontation.

b. Due Process

Bolin next asserts that admitting the redacted portion of Coby’s testimony regarding her observations on the night of the murder violated Bolin’s due process because Coby’s observations were inextricably intertwined with the inadmissible privileged statements. Thus, Bolin asserts, even her redacted testimony violates spousal privilege. This claim is without merit.

Section 90.504 governs the Husband-wife privilege:

(2) The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.

§ 90.504, Fla. Stat. (1985). In Kerlin, 352 So.2d at 51, this Court held that the privilege does not apply to observations made by the spouse. See also Bolin I, 650 So.2d at 23 (“The testimony of Bolin’s former spouse regarding her observations of Bo-lin’s alleged criminal activity was admissible and may be admitted in the new trial.”); Bolin II, 793 So.2d at 897, n. 3 (“The spousal privilege only applies to confidential communications. See § 90.504(1), Fla. Stat. (1985). Therefore, while Coby’s testimony regarding Bolin’s confidential statements to her is privileged, Coby’s testimony regarding what she witnessed is not privileged.”). The record is clear that Coby’s redacted testimony is not so intertwined with the privileged communications so as to render her entii’e testimony inadmissible. Moreover, the precedent set forth in Kerlin is still sound and Bolin provides no support for his assertion that this Court should reconsider its precedent.

Accordingly, the trial court did not err in admitting Coby’s redacted testimony.

II. Admission of Bolin’s Suicide Note

Based on prior attempted escapes and threats of kidnapping family members of the key police investigators while incarcerated, Bolin was placed in a one-man cell with constant supervision and his cell was routinely checked. On June 22, 1991, Bo-lin attempted suicide. Captain Terry was in charge of the Criminal Investigation Bureau Sheriffs Office which included the investigation of homicides. In this role, Captain Terry also responded to any suicides or suicide attempts at the jail which resulted in major injuries. Captain Terry investigated Bolin’s suicide attempt, including searching Bolin’s cell. During that search, he found a stamped envelope, face-up, addressed to Captain Terry, on top of a cardboard box, in plain view. Believing it a suicide letter, Captain Terry read the letter. The letter contained instructions to Captain Terry as to how to dispose of the cardboard box which held Bolin’s personal effects, as well as apologizing for his suicide. Prior to Bolin’s second retrial, the State filed a Motion to Admit Evidence that the Defendant Attempted to Commit Suicide, including the suicide letter addressed to Captain Terry. In accordance with the Second District’s decision in State v. Bolin, 693 So.2d 583 (Fla. 2d DCA 1997), the trial court granted the State’s motion over defense objection. See generally Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 106 (Fla.2001) (recognizing that “[ujnder the law of the case doctrine, a trial court is bound to follow prior rulings of the appellate court as long as the facts on which such decision are based continue to be the facts of the case”); Henry v. State, 649 So.2d 1361, 1364 (Fla.1994).

Bolin contends that the trial court erred in admitting the suicide note. Specifically, Bolin contends that Terry illegally seized Bolin’s private property in violation of the Fourth Amendment. Bolin also contends that because he was represented by counsel at the time of the suicide attempt, opening the letter was in violation of his Sixth Amendment right to counsel. These claims are without merit.

To establish a Fourth Amendment violation, an individual must have a subjective expectation of privacy that society recognizes is reasonable. Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The United States Supreme Court has held that society is not prepared to recognize that a prisoner has a legitimate, subjective expectation of privacy in his or her cell and so “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Bolin contends that he was merely a pretrial detainee. However, this assertion ignores the fact that while Bolin was awaiting trial on the instant murder charge, he was serving two consecutive sentences based on his Ohio conviction for the rape and kidnapping of Jennifer LeFevre. Hence, he was not merely a pretrial detainee.

Bolin attempts to rely on the “plain-view” doctrine, asserting that the investigators were not justified in seizing his letter because the envelope itself did not establish probable cause that the letter was contraband; they would need to open and read the letter before realizing it was “contraband.” See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (stating that if an object’s incriminating character is not “immediately apparent” or if there is not probable cause to believe an object is contraband without a further search, the “plain-view” doctrine cannot justify its seizure). However, such a doctrine relies on the application of Fourth Amendment search and seizure protections. Based on the circumstances under which Bolin was monitored, the daily searches of his cell, and his suicide attempt, there was no reasonable expectation of privacy within Bo-lin’s prison cell which would trigger the Fourth Amendment protections against this action. Furthermore, the officers had a justified reason to search Bolin’s cell which would outweigh any Fourth Amendment protection.

Bolin contends that his constitutional rights were violated because the search was conducted merely to bolster the State’s case against the detainee and was not conducted for security reasons. See United States v. Cohen, 796 F.2d 20, 23 (2d Cir.1986). The record conclusively refutes this allegation. The search and seizure of the letter in question carried out after an attempted suicide was based on the prison’s policy to investigate such an attempt where serious injury occurred. The letter was placed in a prominent position on top of Bolin’s box of personal possessions, face up, addressed to Captain Terry, and stamped. The letter was seized and read after Bolin attempted suicide because it appeared to be, and was indeed, a suicide note. Accordingly, the officers did not violate Bolin’s Fourth Amendment rights by seizing this letter.

Bolin asserts that seizure of the letter violated his Sixth Amendment right to counsel. Once a defendant has asserted his right to counsel, “the State may not initiate any crucial confrontation with the defendant on that charge in the absence of counsel throughout the period of prosecution.” Traylor v. State, 596 So.2d 957, 968 (Fla.1992). Bolin asserts that the State initiated contact by perusing Bolin’s papers in the absence of his counsel. According to Bolin, this should be considered a crucial confrontation with the defendant and the State used the suicide attempt as a fishing expedition while Bolin was in the hospital. Bolin concedes that the letter contained no work product of defense counsel, but asserts that the box containing his personal effects could have included materials relating to his trial preparation. At the least, Bolin requests this Court to order an evidentiary hearing for such a determination. According to the evidence presented, the letter was not in the box, but on the top of the box. Bolin does not address why the letter should be suppressed because his box of personal effects could have contained attorney-client privileged information. Bolin fails to address how seizing the letter during an investigation of Bolin’s suicide attempt could constitute a crucial confrontation with the defendant himself. Moreover, as Traylor makes clear, the confrontation must concern the charge at issue. In this ease, the officers seized the letter in conjunction with a suicide investigation; they were not initiating contact with Bolin in regards to the murder charge he faced.

Accordingly, the trial court did not err in admitting the suicide letter.

III. Sufficiency of the Evidence

This issue was not briefed by the parties; however, this Court has a mandatory obligation to independently review whether there is sufficient evidence to support a first-degree murder conviction. Miller v. State, 42 So.3d 204, 227 (Fla.2010) (citing Blake v. State, 972 So.2d 839, 850 (Fla.2007)), cert, denied, — U.S. -, 131 S.Ct. 935, 178 L.Ed.2d 776 (2011); Fla. R.App. P. 9.142(a)(6). In conducting this review, we “view the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found the existence of the elements of the crime beyond a reasonable doubt.” Rodgers v. State, 948 So.2d 655, 674 (Fla.2006) (citing Bradley v. State, 787 So.2d 732, 738 (Fla.2001)). “Premeditation is defined as more than a mere intent to kill; it is a fully formed conscious purpose to ldll. This purpose may be formed a moment before the act but must exist for a sufficient length of time to permit reflection as to the nature of the act to be committed and the probable result of that act.” Bradley, 787 So.2d at 738 (quoting Woods v. State, 733 So.2d 980, 985 (Fla.1999)). Premeditation may be inferred from such facts as “the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted.” Id. (quoting Norton v. State, 709 So.2d 87, 92 (Fla.1997)).

Here, there is sufficient evidence to support a conviction for first-degree murder. On November 5, 1986, Stephanie Collins went missing after stopping by the Eckerd’s Drug Store where she worked. On December 5, 1986, Collins’s decomposed body was found in a ditch off of Morris Bridge Road in Tampa. Collins’s mother identified the clothes Collins was wearing on the day her body was discovered as the same clothes she was wearing on the day she went missing. Her body was wrapped in sheets and a quilt. Inside the quilt there were sheets and a towel with a hair on it. DNA analysis revealed that the DNA on the hair matched the DNA of Bolin. One of the sheets in which Collins’s body was wrapped had “Hospital Property” written on it. Law enforcement also found Collins’s purse near her body. The purse contained a piece of paper on which “724-BYL, Ray” was written. Testimony during trial provided that Bolin was usually called Ray and 724-BYL was the tag number of Bolin’s pickup truck.

In July, 1990, detectives located Bolin’s ex-wife, Cheryl Coby, in Indiana, in response to her then-husband, Danny Coby, calling the Crime Stoppers Hotline and stating that she knew about the Collins murder. Before Coby died in 1992, Coby’s testimony was recorded during Bolin’s first trial, during which she testified that in November of 1986, Bolin, her husband at the time, came to the Waffle House where she was having dinner with friends and insisted she leave with him. She testified that they returned to their trailer, and Bolin left her in the truck and went inside for about ten to fifteen minutes. Coby heard the trailer door open and saw Bolin pick up something wrapped in a quilt. He put the quilt in the back of the truck. She identified the quilt, sheets, and towel found with Collins’s body as belonging to her and Bolin. Coby testified that she would take the hospital sheets from the hospital when she stayed there because of her recurring health problems due to diabetes. Coby provided detectives in Indiana with hospital sheets just like the one found wrapped around Collins’s body. Coby testified that she and Bolin drove to Morris Bridge Road, where she watched Bolin dump a body in a ditch. Coby testified that when she and Bolin returned to their trailer, Coby saw spots of blood on the curtains, walls, carpet, and blinds. She also testified that the floor, ceiling, cabinets, and doors were wet. She testified that she saw a butcher knife, that was usually kept in a drawer, beside the sink and the handle was wet.

Hennie Moss and David Fessler testified during trial that they saw Collins in a white van with a man they could not identify on the afternoon she went missing. They testified that Collins was acting excited and waving her arms. Michael Long, a friend of Coby and Bolin, testified that he had seen Bolin use a white van years before and that Bolin’s friend allowed Bo-lin to borrow it.

The medical examiner, Dr. Peter Lardi-zabal, testified that Collins’s skull was struck several times so hard that parts of her skull were reduced to powder. The medical examiner testified that there were twenty-eight fragments of the victim’s skull as a result of the blunt force trauma Collins sustained. The medical examiner could identify nine points of impact on her skull and testified that the blows would have been quickly fatal. The medical examiner also testified that Collins’s body and clothes revealed that there were six stab wounds to her back; however, due to the decomposition of her body, the medical examiner was unable to determine whether the stab wounds were made while Collins was alive or postmortem.

Accordingly, there was sufficient evidence that Bolin committed the homicide with “a premeditated design to effect the death of the person killed[.]” See § 782.04(l)(a)l, Fla. Stat. (1985).

Penalty Phase Claims

I. Statutory Mental Mitigation

Bolin asserts that the trial court erred in not finding the statutory mitigator of “[t]he capacity of the defendant to appreciate the criminality of his [or her]” conduct or to conform his [or her] conduct to the requirements of law was substantially impaired. See § 921.141(6)(f), Fla. Stat. (1985). Bolin asserts that if the trial court had found this statutory mental mitigator, the death sentence would be disproportionate. We find this claim without merit.

The State asserts that this claim is not preserved for review because Bolin waived his right to present mitigation. While Bolin waived his right to a penalty phase jury, we find that he did not waive his right to present mitigation altogether. Rather, Bolin presented a mitigation notebook, which included .mitigation evidence admitted in his prior penalty phase trials: (1) Dr. Beriand’s testimony from the prior penalty phase; and (2) Mary Baughman and Sherry Jauregui’s (Bolin’s mother and sister) prior penalty phase testimonies. The trial court accepted the mitigation notebook into evidence and considered it in determining Bolin’s sentence. The trial court also considered the Pasco County sentencing order for Bolin’s conviction for the murder of Teri Lynn Mathews that provided potential mitigation. Additionally, the Spencer hearing was continued so that Bolin could have a PET scan, and during the Spencer hearing, on October 29, 2007, the defense proffered evidence from Dr. Wood and Dr. Burdette regarding Bo-lin’s mental status. The trial court accepted and relied on this mitigation in determining Bolin’s sentence.

Bolin contends that the trial court erred in rejecting the statutory mental mitigator that “[t]he capacity of the defendant to appreciate the criminality of his [or her] conduct or to conform his [or her] conduct to the requirements of law was substantially impaired.” See § 921.141(6)©, Fla. Stat. (1985). “Mitigating evidence must be considered and weighed when contained ‘anywhere in the record, to the extent it is believable and uncontroverted.’ ” LaMarca v. State, 785 So.2d 1209, 1215 (Fla.2001) (quoting Robinson v. State, 684 So.2d 175, 177 (Fla.1996)). Nevertheless, the sentencer is not precluded from according the mitigating factor no weight. Trease v. State, 768 So.2d 1050, 1055 (Fla.2000). The trial court must find a mitigating circumstance if it “has been established by the greater weight of the evidence.” Coday v. State, 946 So.2d 988, 1003 (Fla.2006). “However, a trial court may reject a proposed miti-gator if the mitigator is not proven or if there is competent, substantial evidence to support its rejection.” Id.

Bolin contends that Dr. Beriand’s uncontroverted testimony supports the finding of this mental mitigator. Trial judges have broad discretion in considering unrebutted expert testimony; however, the rejection of the expert testimony must have a rational basis. Id. at 1005. In Foster v. State, 679 So.2d 747, 755 (Fla.1996), this Court stated that “[e]ven uncon-troverted opinion testimony can be rejected, especially when it is hard to reconcile with the other evidence presented in the case.” Accord Coday, 946 So.2d at 1005; Morton v. State, 789 So.2d 324, 330 (Fla.2001).

In the instant case, the trial court found that the defense did not establish the existence of this mitigating circumstance and gave it no weight. We find that the trial court considered all the evidence that was presented by both sides and that competent, substantial evidence supports the trial court’s rejection of this proposed mitigator. Dr. Berland testified that Bolin suffered from a number of mental illnesses; however, aside from Dr. Ber-iand’s conclusory statement that Bolin’s illnesses could have rendered Bolin unable to conform his conduct to the requirements of law, there was no evidence submitted that linked these illnesses to the events of the night of Collins’s murder. Dr. Berland acknowledged that Bolin was capable of recognizing the criminality of his conduct, but opined that his mental illnesses would have made his impulses to commit the crime very hard to control. On cross-examination by the State, Dr. Berland acknowledged “the psychosis seems to be not in any way a controlling — no voice told him to do whatever he did. On the other hand, it seems to be a significant factor that simply can’t be ignored.” While Dr. Ber-land testified that such symptoms lasted a lifetime, he also testified that the symptoms would wax and wane throughout time, and testified that Bolin could control his impulses at certain times but perhaps not at others. Because Bolin did not discuss the events of the night of Collins’s murder with Dr. Berland, Dr. Berland could not specifically testify to whether such psychosis affected Bolin that night. Based on this testimony, although Bolin may suffer from mental illness, there is no evidence to support the conclusion that such illness affected Bolin during the events of Collins’s murder. Therefore, the trial court’s rejection of this statutory miti-gator is supported by competent, substantial evidence.

Accordingly, we find that the trial court did not err in rejecting the proposed statutory mental mitigator.

II. Proportionality

Bolin contends that his death sentence is not proportional. “[T]o ensure uniformity in death penalty proceedings, 'we make a comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence.’ ” Floyd v. State, 913 So.2d 564, 578 (Fla.2005) (quoting Anderson v. State, 841 So.2d 390, 407-08 (Fla.2003)). This Court has described its “proportionality review” as involving “a thoughtful, deliberate proportionality review to consider the totality of circumstances in a ease, and to compare it with other capital cases.” Tillman v. State, 591 So.2d 167, 169 (Fla.1991) (quoting Porter v. State, 564 So.2d 1060, 1064 (Fla.1990) (emphasis omitted)). “This entails ‘a qualitative review by this Court of the underlying basis for each aggravator and mitigator rather than a quantitative analysis.’ In other words, proportionality review ‘is not a comparison between the number of aggravating and mitigating circumstances.’ ” Offord v. State, 959 So.2d 187, 191 (Fla.2007) (citations omitted).

In the instant case, Bolin was convicted of the first-degree murder of Stephanie Collins. The trial court found one aggra-vator: (1) previously convicted of another capital felony or of a felony involving the use or threat of violence to the person-great weight. In mitigation, the sentencing court found: (1) age of defendant at time of crime (24) — little weight; and (2) the following statutory catch-all mitigator of any other factors in the defendant’s background that would mitigate against imposition of the death penalty: (a) defendant suffered from the effects of his mother’s alcoholism and his own substance abuse — little weight; (b) defendant was abused as a child — some weight; (c) defendant had a poor and unstable childhood — little weight; (d) defendant had sporadic minimal education — little weight; (e) defendant received his GED while incarcerated — little weight; (f) defendant developed skills which included welding, electrical, plumbing, and small machinery skills — little weight; (g) defendant saved the life of another — little weight; (h) defendant was gainfully employed at the time — little weight; (i) defendant behaved appropriately at trial — little weight; (j) defendant has adapted to institutional living and had not received any disciplinary reports — little weight; (k) defendant has been married for eleven years and he seems to maintain that relationship, considering the obvious limitations — little weight; and (l) defendant’s physical and mental medical history indicates several problems — little weight. Additionally, the trial court gave some weight to a finding of some mental or emotional disturbance.

This Court has previously explained that “absent unusual circumstances, ‘death is not indicated in a single-aggravator case where there is substantial mitigation.’ ” Green v. State, 975 So.2d 1081, 1088 (Fla.2008) (quoting Almeida v. State, 748 So.2d 922, 933 (Fla.1999)). “The vast majority of cases where we have upheld a death sentence based on a single aggravator have involved a prior murder or manslaughter.” Id.

This Court has previously stated that the prior violent felony aggravator is one of the “most weighty” aggravating circumstances set forth in Florida’s statutory sentencing scheme. See Bevel v. State, 983 So.2d 505, 524 (Fla.2008); Sired v. Moore, 825 So.2d 882, 887 (Fla.2002). Additionally, the underlying facts supporting the statutory aggravator in this case are particularly heinous, including: (1) a December 28, 2001, conviction for first-degree murder in Pasco County for the murder of Teri Lynn Mathews, for which Bolin was sentenced to death; (2) a 1988 kidnapping and rape conviction for Bolin’s rape of Gennie Lefever at gunpoint; and (3) a 1988 conviction for felonious assault and escape while incarcerated for the above-mentioned rape, for which Bolin pleaded guilty. Additionally, the mitigation was of insubstantial effect, to which the trial court allocated little or some weight. We find that the death sentence is proportional in this case. See, e.g., Rodgers, 948 So.2d at 671-72 (finding the death sentence proportionate even though it was supported by a single aggravator — prior violent felony conviction — where that aggravator included a robbery and a similar shooting and killing offense balanced against insubstantial mitigation); Ferrell v. State, 680 So.2d 390, 391 (Fla.1996) (affirming death sentence where sole aggravator was prior second-degree murder and insubstantial mitigation); Duncan v. State, 619 So.2d 279, 284 (Fla.1993) (affirming death sentence where sole aggravator was prior second-degree murder); Lemon v. State, 456 So.2d 885, 888 (Fla.1984) (death proportionate for defendant who killed a woman with whom he had a relationship after a previous conviction for a similar violent offense), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985).

CONCLUSION

Based on the foregoing, we affirm Bo-lin’s conviction and sentence of death.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, CANADY, LABARGA, and PERRY, JJ., concur.

QUINCE, J., recused.

NOTES TO THE OPINION

Prior to Bolin's first retrial, Bolin moved for the suicide letter to be suppressed. After an evidentiary hearing, the trial court granted his motion. The State took an interlocutory appeal to the Second District Court of Appeal, which reversed the trial court's ruling. State v. Bolin, 693 So.2d 583 (Fla. 2d DCA 1997). Specifically, the district court held that based on the factual circumstances, Bolin did not have a reasonable expectation to privacy in the letter. This Court declined to grant discretionary review of the district court's decision. Bolin v. State, 697 So.2d 1215 (Fla.1997) (table decision). The United States Supreme Court denied Bolin’s petition for a writ of certiorari. Bolin v. Florida, 522 U.S. 973, 118 S.Ct. 427, 139 L.Ed.2d 328 (1997) (table decision).

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

A technological issue with the videotape recorder did not allow the entirety of Coby's testimony to be videotaped.

184 So. 3d 492, decided December 17, 2015

Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. SC15-2149.

Supreme Court of Florida.

Dec. 17, 2015.

Jason Jervis Wise and Bjorn Erik Brun-vand of Brunvand Wise, P.A., Clearwater, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee.

[OPINION BY PER CURIAM. type=majority]

PER CURIAM.

Oscar Ray Bolin, Jr., a prisoner under sentence of death, appeals an order from the Sixth Judicial Circuit denying his successive postconviction motions filed under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the circuit court’s orders.

BACKGROUND

Oscar Ray Bolin, Jr., is scheduled for execution on January 7, 2016, for the first degree murder of Teri Lynn Matthews, Matthews’ body was discovered on December 5,1986, near the side of a road in rural Pasco County. Bolin v. State, 869 So.2d 1196, 1198 (Fla.2004). Her murder was unsolved until July 1990. Bolin was eventually implicated and convicted and sentenced to death for Matthews’ murder in 1992, but that conviction was overturned by this Court because improper evidence was admitted at trial. State v. Bolin, 650 So.2d 19, 21 (Fla.1995) (concluding that trial court erred in finding waiver of spousal privilege based on defendant’s deposition of ex-wife). On remand, Bohn was convicted and again sentenced to death. This Court overturned that conviction, finding that the trial court abused its discretion in denying Bolin’s motion for individual voir dire of prospective jurors on the issue of pretrial publicity. Bolin v. State, 736 So.2d 1160, 1166-67 (Fla.1999).

The evidence presented at Bolin’s third trial included:

Matthews^] body was discovered on December 5, 1986, near the side of a road in rural Pasco County. The body was found wrapped in a sheet imprinted with a St. Joseph’s Hospital logo. The body had multiple, head injuries, was shoeless, and was wet, although it had not rained recently.' The victim’s car keys were found close to the body. Evidence Collected from the scene included nylon pantyhose and a pah’ of white pants. There was a single set of truck tire tracks leading to the body. The victim’s car was found the next day by Matthews’ boyfriend, Gary McClelland, who was worried about her. disappearance and attempted to trace her steps after she left work the previous day. The victim’s red Honda was found parked at the Land O’ Lakes Post Office, with its headlights still on. The victim’s mail was found scattered on-the ground, and her purse was found undisturbed .on the seat inside her car.

Bolin’s half-brother, Phillip, testified that he was awakened by Bolin on the night of December 4, 1986. Bolin appeared, to be nervous and told Phillip that he needed Phillip’s help. The two walked outside, and then Phillip heard a moaning sound, which he thought could have been a wounded dog. Instead, he saw a sheet-wrapped body, and Bolin told him. that the girl was shot near the Land O’ Lakes Post Office. Bolin then walked over and straddled the body with his feet, raised a wooden stick with a metal end, and hit the body several times., Phillip said that he turned away because he was scared to watch, but compared the sound to hitting a pillow with a stick. Bolin next turned on a water hose and sprayed the body. Bolin demanded that Phillip help him load the body onto, the back of a black Ford tow truck, and Phillip helped by picking up the body by the ankles. Phillip testified that he noticed there were no shoes on the body and that the girl was wearing pantyhose. Phillip refused Bolin’s offer of money to go with him to dispose of the body, so Bolin went alone and returned twenty to thirty, minutes later. He continued talking to Phillip about the girl, stating that she had been shot in a drug deal.

At school the next day, Phillip talked with his friend, D.F., about what' happened the night before and took D.F. to where the body had been. D.F. testified at trial, to corroborate Phillip’s account of the murder, that there were blood stains on the ground at the site and that the grass in the area was disturbed. The State presented other corroborating evidence, which included the testimony of Rosie Kahles Neal. At the time of the murder, Neal co-owned with her now-deceased husband Kahles and Kahles, Inc., the business that employed Bolin as a tow truck driver. She testified that the truck Bo-lin was driving on the night of the murder was not returned that night, and she thought the truck had been stolen by Bolin because he could not be located and it was the first call he had handled by himself. Neal testified that Bolin was late coming to work the next morning, was wearing the same clothes as he had the day before, and had a foul smell. She further testified that Bolin played with and carried a knife and got excited when the story of the missing girl, Matthews, was reported on the news. Her testimony also corroborated the murder weapon, as she testified that she gave Bolin a “tire buddy” on the night of the murder. The tire buddy was a two-foot-long wooden club, which was drilled out and filled with lead.

The State then offered the perpetuated videotaped testimony of Cheryl Coby, Bolin’s ex-wife, who had died after the first trial. She had been a severe diabetic, was hospitalized numerous times in 1986, often brought home hospital towels and sheets from St. Joseph’s Hospital, and identified the sheet that had been wrapped around Matthews’ body as a hospital sheet resembling the ones she brought home. Cheryl Coby had a post office box at the Land O’ Lakes Post Office, and Bolin picked up her social security checks there when she was in the hospital.

The State also offered DNA testimony indicating that Bolin could have been the source of the semen found in a stain on Matthews’ pants. Federal Bureau of Investigation forensic serology expert John R. Brown testified that he could not eliminate Bolin as the contributor of the semen stain but could eliminate Gary McClelland, Matthews’ boyfriend, as the source of the stain. David Walsh, a molecular biologist, extracted DNA from the stain on the pants and found that he could exclude both the victim and McClelland as the donors of the stain on the pants. Walsh found that five of the six bands of DNA detected in the stain matched five of the six bands from Bolin’s DNA. Walsh was not able to visualize one band because of the small amount of DNA remaining on the pants. Dr. Christopher Basten, an expert in population genetic frequency, testified that Bolin was 2100 times more likely to be the source of the semen than a random, unrelated person.

Bolin, 869 So.2d at 1198-99. Bolin was convicted and sentenced to death, which this Court affirmed. Id. at 1198, 1205.

In 2010, this Court upheld the denial of postconviction relief. Bolin v. State, 41 So.3d 151, 153 (Fla.2010). Bolin filed a petition for a writ of habeas corpus in the federal district court, claiming “that his trial attorney was ineffective in (1) failing to object to testimony of D.F. that he saw blood on the ground where Philip Bolin told him the body had been, and (2) failing to call Bolin’s father, Ray Bolin, Sr., to rebut D.F.’ testimony.” Bolin v. Sec’y Dept. of Corr., No. 8:10-cv-1571-T-27EAJ, 2013 WL 3327873, at *5 (M.D.Fla. July 1, 2013). The federal district court denied Bolin’s habeas petition, and did not issue a certifícate of appealability. Id. at *17.

On September 26, 2014, Bolin filed his first successive postconviction motion based on newly discovered evidence. Bo-lin alleged that an Ohio inmate confessed to Matthews’ murder. The circuit court granted an evidentiary hearing, but the inmate, Steven Kasler, committed suicide before the hearing took place.

On December 9, 2014, Bolin filed a motion for postconviction DNA testing requesting that evidence in his case be compared to Kasler’s DNA profile. The circuit court summarily denied Bolin’s motion for DNA testing finding that Bo-lin failed to establish the availability of Kasler’s DNA. This Court affirmed the denial of Bolin’s motion for postconviction DNA testing. Bolin v. State, No. SC15-213, 40 Fla. L. Weekly S516, 2015 WL 5511523 (Fla. Sept. 18, 2015) (Table). Despite the circuit court’s denial and this court’s affirmance, DNA testing was ordered and completed August 26, 2015. The results excluded Kasler as a contributor to the samples collected from Matthews, but did not exclude Bolin.

Proceedings on Bolin’s first successive postconviction motion continued when, on December 15, 2014, the circuit court denied two of Bolin’s claims and granted leave to amend one claim. Bolin filed his amended first successive motion on February 13, 2015. On October 19, 2015, following an evidentiary hearing, the circuit court denied the amended motion.

Governor Scott signed Bolin’s death warrant on October 30, 2015.

Bolin moved for rehearing on November 3, 2015, and subsequently filed his second successive motion for postconviction relief. Thereafter, the circuit court issued an order denying both' the motion for rehearing and the second successive motion for post-conviction relief.

ANALYSIS

In these proceedings, Bolin claims that newly discovered evidence establishes that someone else committed the murder in question and that the State suppressed evidence relating to the crime. Because we find that Bolin has failed to establish that he is entitled to relief, we affirm the circuit court’s orders denying relief.

Newly Discovered Evidence

Steven Kasler

First, Bolin argues that the circuit court improperly denied his claim that newly discovered evidence in the form of Kasler’s confession would probably acquit him if introduced at a new trial. Because Bolin has failed to establish that the evidence would likely result in an acquittal or a lesser sentence, the circuit court properly denied this claim. Furthermore, Bolin’s additional corroboration offered at rehearing was properly denied because the information did not corroborate details associated with the crime at issue in this case— the murder of Teri Lynn Matthews. Accordingly, we affirm the circuit court’s denial of relief.

To obtain a new trial based on newly discovered evidence, Bolin must demonstrate that (1) the evidence was unknown by the trial court, counsel, or himself at the time of trial and that neither he nor counsel could have discovered it by the use of diligence and (2) the evidence is of such a nature that it would probably produce an acquittal on retrial. See Jones v. State (Jones II), 709 So.2d 512, 521 (Fla.1998). The- second prong is' satisfied if the evidence “weakens the case, against, .[the defendant] so as to give rise to a reasonable doubt as to his culpability.” Id. at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). If, as here, the defendant is seeking to vacate his sentence, the second prong requires that the evidence would probably produce a less severe sentence on retrial. See Jones v. State, 591 So.2d 911, 915 (Fla.1991). In determining whether the evidence compels a new trial, the postconviction court must consider all newly discovered evidence that would be admissible and evaluate the weight of both the newly discovered evidence and the evidence that was introduced at trial. Id. at 916.

In its analysis of this issue, the circuit court relied on Carpenter v. State, 785 So.2d 1182 (Fla.2001) (holding that under Florida law, it is the duty of the jury not the trial court to assess the credibility of the in-eourt witness who is testifying about the out-of-court statement), to determine the admissibility of Kasler’s confession. In so doing, the court found that “unlike the many specific corroborated facts found in Carpenter, ... the limited information provided by Easier, in confessing to the murder of Teri Lynn Matthews, is insufficiently specific and lacks the ‘particularized guarantees of trustworthiness,’ that seem to be required under § 90.804(2)(c).” The court therefore found that the “statements attributed to Easier are insufficiently corroborated to qualify as a hearsay exception under § 90.804(2)(c).” Nevertheless, the court also continued its Jones analysis as though the statements were admissible and found “that even if Easler’s statements were admitted on retrial, such evidence is not of a nature that it would probably produce an acquittal ... or a sentence other than death,”. The court based its determination on the “wealth of evidence against Bolin,” specifically the fact that DNA testing failed to exclude Bolin as the possible contributor but did exclude Easier. Based on these findings, the circuit court denied Bolin’s claim.

On rehearing, Bolin offered purported additional corroboration of Easler’s confession in the nature of a witness, Teri Ippoli-to, who could testify that the day before Stephanie Collins’ abduction and murder, a dark-complexioned man attempted to lure Ippolito away from the same parking lot where Collins was later abducted. Bo-lin asserted that this corroborated Easler’s confession that his travelling companion, Albert Eugene Holmes, Jr., aka Petey Holmes, raped Matthews, The circuit court treated Bolin’s claims on rehearing as a successive motion for postconviction relief and denied the motion. Specifically, the circuit court found that even if Ippoli-to’s testimony were admissible at retrial, such testimony would not be “relevant to this case because it occurred at a different time, in a different location, and to a different victim.”. Additionally, the circuit court noted that the trial court had “specifically excluded any comparisons or references to- the cases against [Bolin] from Hillsborough County.” and that Bolin failed to offer “proof that Petey Holmes even exists.” The circuit court’s determinations are supported by the record.

Bolin alleges that Steven Crane, an Ohio inmate, contacted Rosalie Bolin in March 2014 and informed her that another inmate, Steven Easier, confessed to committing the murder of Teri Matthews. In April 2014, Easier contacted Rosalie himself. Bolin filed his postconviction motion based on this confession and the court conducted a case management conference on November 13, 2014, at which it scheduled an evidentiary hearing to be held on December 10, 2014. Shortly after the case management conference, Easier committed suicide. The circuit court cancelled the evidentiary hearing and struck the claim, but granted Bolin leave to amend. Thereafter, Bolin filed his amended motion.

The circuit court conducted an evidentia-ry hearing on August 24, 2015. At the hearing, Crane was contacted but refused to testify. Bolin’s counsel, Bjorn Brun-vand, testified about -his September 2014 conference call with Easier and communication he had with Crane.. On cross-examination, Brunvand stated that he recalled Easier stating that he would confess,-to,a number of murders in order to avoid going to Angola Prison in Louisiana, where, he was due to serve a 99-year to life imprisonment for a kidnapping and robbery in St. Charles, Louisianá. Easier confessed to approximately 20 murders, including Teri Matthews’ murder, and gave greater detail on some of the other murders.

Eenneth Earnig, who runs a crime memorabilia website, testified that Easier contacted him in around 2013 by letter and by telephone. Earnig testified that Easier informed Earnig that he, Easier, had nothing to do with the Matthews murder and had written a false confession about it. Earnig testified that at the time Easier wrote the letter, May 2014, he was in “the hole” and did not have contact with other inmates. Earnig was able to identify letters written by Easier because they corresponded and discussed the items in the correspondence. According to Earnig, Easier confessed at the request of another murder memorabilia dealer in Georgia named Jeremy Tod Bohannon.

There was competent, substantial evidence presented at the evidentiary hearing for the circuit court to determine that Eas-ler’s confession would not result in a lesser sentence or acquittal for Bolin if it were presented to a jury. Even if Kasler’s alleged confession would qualify as a statement against interest, .and were admissible, the statements contain nothing more specific than what, was available in news accounts, on the internet, and the opinions regarding the murder. Coupled with the overwhelming evidence of Bolin’s guilt, see Bolin, 869 So.2d at 1198-99, it is unlikely that the alleged confession would probably produce an acquittal for Bolin. The sero-logical testing at trial was a match, to Bolin. The more recent DNA testing also did not exclude Bolin as the contributor of the semen stain on the victim’s pants. Further, evidence connecting Bolin to the crime was'provided-by his former boss (who testified that -Bolin' failed to return with the truck and “tire buddy” on his first night out alone, the same night that Matthews was murdered); preserved testimony from his ex-wife that she was often at St. Joseph’s hospital and brought home sheets similar to that Matthews’ body was found wrapped in; and testimony from Philip Bolin that he watched Bolin beat, rinse, ánd dispose of Matthews’ body. See Bolin, 869 So.2d at 1198-99.

Bolin’s additional arguments raised later regarding this claim were likewise, appropriately denied. As noted by the circuit court, Ippolito’s account of her avoided abduction, is not relevant to the Matthews case and does not corroborate any details that would support Easler’s involvement in-Matthews’ minder. Accordingly, the circuit court properly denied this claim.

Michael Malone

Second, Bolin argues that the circuit court erred in summarily denying his newly discovered evidence claim that .Dr. Frederic Whitehurst, a former FBI forensic analyst who testified at an evidentiary hearing in the Stephanie Collins case, would testify that any and all evidence handled by former FBI agent Michael Malone is unreliable. Because Bolin has not established any evidence that would probably produce an acquittal, the circuit court properly denied this claim.

A defendant is entitled to an evi-dentiary hearing on a postconviction motion unless it is clear from the motion or record that the movant is not entitled to relief or the claim is legally insufficient. See Jackson v. State, 147 So.3d 469, 485 (Fla.2014) (citing Valentine v. State, 98 So.3d 44, 54 (Fla.2012)). Conclusory allegations are not sufficient and the defendant must establish a prima facie case based on a legally valid claim. Id. If there is any doubt whether the movant has made a facially sufficient claim, this Court will “presume that an evidentiary hearing is required.” Id. (quoting Walker v. State, 88 So.3d 128, 135 (Fla.2012)).

Regarding this claim, in December 2014, the circuit court found that any claims related to Malone’s alleged tampering or contamination of the evidence in this case were untimely. Additionally, the circuit court denied Bolin’s claim after finding that the allegation was completely speculative and noting that defense counsel conceded that there was no proof that any contamination occurred.

In the present proceeding, Bolin reasserted the claim by alleging that Dr. Whi-tehurst could testify to support Bolin’s assertion regarding Malone’s involvement. The circuit court again found the claim untimely, stating: “On December 15, [2014], in summarily denying [Bolin’s] first successive motion, the court, in addition to ruling on the merits of the Malone claim, also agreed with the State that it was untimely.” Additionally, the court noted that no hair or fiber analysis performed by Malone in this case was ever presented to the jury. The Court found that the correspondence Bolin received “merely identifies Malone as having ‘performed laboratory work for the government,’” and was therefore unlike the case-specific testimony-discrediting letters at issue in Wyatt v. State, 71 So.3d 86 (Fla.2011), and Smith v. State, 75 So.3d 205 (Fla.2011), On the merits, the circuit court found that Dr. Whitehurst’s testimony from the Collins case would be irrelevant to the Matthews case. The court noted, “Malone’s involvement with the physical evidence in this case was limited to receiving it from law enforcement, checking for hair and fibers, and then forwarding it on to other examiners for processing.” Accordingly, the court found:

Given Malone’s .limited handling of the serological evidence in this case, that none of the evidence presented to the jury was tested by Malone, and that Malone did not testify in this case, the court does not see how Dr. Whitehurst’s proposed testimony would be relevant or admissible on retrial. At a retrial, [Bo-lin] would not be permitted to call Dr. Whitehurst for the sole purpose of attacking the credibility of Malone.

The circuit court did not err in summarily denying Bolin’s claim. The core of Bo-lin’s claim was filed in his first successive motion for postconviction relief on September 26, 2014. There, Bolin alleged that newly discovered evidence of a case-specific letter regarding Michael Malone’s credibility warranted postconviction relief. The correspondence at issue, an email, stated:

By email dated January 14, 2014 (attached), this Office notified you and attached our correspondence of 9-27-13 with your predecessor as defense counsel in this case, Mr. Norgard, in which we notified him of the 1997 report of the Department of Justice Inspector General that identified work of 13 FBI Laboratory examiners whose work may have failed to meet professional standards. We would like to further inform you that in 1999, the prosecutor advised the 1996 FBI Laboratory Task Force that Malone’s work had not been material to the verdict, in either the Matthew case, the Collins case, or the Holley case. As a result, the analysis conducted by Malone was not later the subject of an Independent Scientific Review. Please do not hesitate to contact me if you have further questions. Please confirm your receipt of this email.

(emphasis added). The circuit court properly summarily denied Bolin’s claim because, as defense counsel conceded, there was not, in fact, newly discovered evidence of actual contamination. On rehearing, Bolin asserted that there was additional evidence in the form of Dr. Whitehurst’s testimony in the Collins case, but Dr. Whi-tehurst’s testimony is not related to the Matthews case. Whether Malone contaminated evidence in the Collins case is not relevant to the Matthews case because neither case relies on the other as aggravation or collateral crime evidence. Further, as the circuit court correctly noted, Malone did not perform any analysis of evidence that was presented to the jury in the Matthews case. Accordingly, the circuit court properly summarily denied this claim as untimely and without merit.

Brady v. Maryland

Easier Confession

Third, Bolin claims that the State knowingly suppressed information that Easier confessed to the murder of Teri Lynn Matthews. Because Bolin has failed to establish the suppression of any material evidence, the court properly denied this claim.

To successfully raise a claim of a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), Bolin must show that (1) the evidence was favorable to him, either because it was exculpatory or impeaching; (2) the evidence was suppressed by the State; and (3) that the suppression resulted in prejudice. Conahan v. State, 118 So.3d 718, 729 (Fla.2013) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Johnson v. State, 921 So.2d 490, 507 (Fla.2005); Rogers v. State, 782 So.2d 373, 378 (Fla.2001)). “To establish the materiality element of Brady, the defendant must demonstrate ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’” Id. at 730 (quoting Guzman v. State, 868 So.2d 498, 506 (Fla.2003)). The review of a postconviction court’s denial of this claim is under a mixed standard where this Court defers to the lower court’s factual findings that are supported by competent, substantial evidence and reviews the application of law de novo. Id.

Below, the circuit court denied the claim stating “even if Easler’s confession and the limited and readily available details associated with it were admissible at trial; when considered within the context of the entire record, such evidence does not undermine confidence in the verdict.” The court noted that at the evidentiary hearing defense counsel conceded that there was nothing striking within the confession when combined with newspaper accounts and Supreme Court opinions about the case. The court’s ruling on Bolin’s reasserted claim in his second successive motion was that it was “successive, insufficiently plead[ed], untimely, and without merit.”

The circuit court did not err in denying this claim because Bolin cannot establish that the State suppressed any material evidence. As discussed above, Kasler’s confession was not reliable and would not likely have persuaded a jury to acquit Bo-lin in light of the overwhelming evidence of his guilt. Accordingly, Bolin has not demonstrated that the evidence was material. Additionally, Bolin has not demonstrated that the State suppressed the information. Bolin’s allegatiort is that the State became aware of Kasler’s confession through Crane in 2013 but did not turn that information over until after Kasler committed suicide in 2014. However, by Bolin’s own timeline, Crane contacted Rosalie in March 2014, six months before Bolin attempted to contact Kasler. Accordingly, Bolin has not demonstrated that the evidence was suppressed.

Malone

Fourth, related to the assertion of newly discovered evidence of Michael Malone’s misconduct, Bolin argues that the State violated Brady by failing to disclose the alleged bad acts of former FBI agent Malone. In its December 2014 order, the circuit court denied this claim finding that Bolin failed to identify what evidence was in the State’s possession that was favorable-to him. The circuit court, citing Trepal v. State, 846 So.2d 405, 423 (Fla.2003), noted that the correspondence between the Department of Justice and the State Attorneys Office was not admissible and additionally noted that the correspondence had been provided to Bolin in 2004 as part of the State Attorney’s ráspense to his public records request. The court also stated that, “as a result of a motion to suppress, no evidence was presented to the jury regarding any testing, analysis, or conclusions of Agent Malone.” In its most recent order, the circuit court denied Bolin’s reassertion of the claim as “successive, insufficiently pleadfed], untimely, and without merit.” The circuit court did not err.

Bolin cannot establish any of the prongs required to succeed under Brady. He cannot show that there was material evidence that was suppressed and that the suppression prejudiced him. First, the circuit court cited to the portion of the record that refuted Bolin’s claim that the evidence was suppressed. Bolin received the correspondence as part of his public records request in 2004—ten years before he filed the instant claim. Second, Bolin’s counsel conceded that there was no evidence of contamination in this case because Malone did not testify. Accordingly, Bolin cannot demonstrate any material evidence unknown to him that the State suppressed to his prejudice. Therefore, the circuit court properly denied this claim.

Death Warrant Selection Process

Last, Bolin argues that the unfettered discretion of the Governor to select condemned inmates for execution is unconstitutional. Because this Court has rejected this claim in the past and Bolin does not provide a compelling reason for this Court to reconsider its precedent, this claim is without merit. Furthermore, Bolin argues that his selection while claims -were still pending violates his right to due process.

The circuit court denied this claim without an evidentiary hearing. First, the court found that this claim was procedurally barred as untimely, specifically rejecting Bolin’s argument that this claim- constitutes newly discovered evidence. Second, the court found that the warrant selection process does not violate the Eighth Amendment. Third, the court found that the warrant selection process does not violate Bolin’s due process. Last, the court also rejected Bolin’s claim based on the principle of separation of powers, finding that Bolin’s argument misapplied the doctrine.

The circuit court properly rejected Bo-lin’s claim that the Governor’s discretion to select an inmate for execution is unconstitutional. This Court has previously and repeatedly denied similar claims. See, e.g., Ferguson v. State, 101 So.3d 362, 366 (Fla.2012); Gore v. State, 91 So.3d 769, 779-80 (Fla.) (holding that the Governor’s unfettered discretion under the Florida Rules of Executive Clemency and separation of powers concerns apply to claims relating to the Governor’s authority to sign death warrants) cert. denied, — U.S. —, 132 S.Ct. 1904, 182 L.Ed.2d 661 (2012); Valle v. State, 70 So.3d 530, 551-52 (Fla.) (rejecting a claim that the Governor’s absolute discretion to sign death warrants renders Florida’s death penalty structure unconstitutional) cert. denied, — U.S. ——, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011); Marek v. State, 14 So.3d 985, 998 (Fla.), cert. denied, 557 U.S. 960, 130 S.Ct. 40, 174 L.Ed.2d 625 (2009) (citing Marek v. State, 8 So.3d 1123, 1128-29 (Fla.2009)).

Bolin alleges that his claim is distinguishable because his first successive post-conviction motion was not final — no rehearing had yet been filed, and accordingly no appeal had been filed — when the Governor signed the death warrant. Thus,.Bolin contends that his selection while claims were still-pending violates his right to due process. In Abdool v. Bondi, 141 So.3d 529 (Fla.2014), this Court reviewed whether section 922.052 violates due process, recognizing that while “no single test ... applies to determine whether the requirements of procedural due process have been met,” courts must consider the “individualized facts of each case to determine whether the defendant has been accorded the process which the state and federal constitutions demand.” Id. at 544. In examining the statute, this Court concluded that the Act does not facially violate due process. Id.

In reviewing the circumstances of this case, we conclude that Bolin’s due process rights have not been violated and his argument fails. Bolin fully presented his claims to the circuit court, and the circuit court held an evidentiary hearing for those claims requiring additional factual development. On appeal, this Court has had ample opportunity to comprehensively review the record and the claims raised. Further, Bolin’s procedural posture is similar to the posture in Marek," where Governor Crist signed Marek’s death warrant on April 20, 2009, when his second successive postconviction motion was pending in the circuit court, which denied the motion on April 23, 2009. We find that Bolin has not presented any reason for this Court to recede from its prior decisions, and his claim was properly denied.

Conclusion

For the reasons expressed above, we affirm the order of the circuit court denying Bolin’s successive postconviction motions. No rehearing will be entertained by the Court, and the mandate shall issue immediately.

It is so ordered,

LABARGA, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, and PERRY, JJ., concur.

QUINCE, J., recused.

NOTES TO THE OPINION

The spelling of the victim's name has been corrected throughout this quote.

Bolin was separately tried and convicted for 'the murder of Stephanie Collins in Hillsborough County. See Bolin v. State, 117 So.3d 728 (Fla.2013), Bolin was also separately tried and convicted for the murder of Natalie Holley. See Bolin v. State, 8 So.3d 428 (Fla. 2d DCA 2009). Neither case was used in the guilt or penalty phases of Bolin’s third trial for Matthews’ murder.