Michael Goodyear was nineteen in May 1980. After three months at Walter Reed he had been moved to Tampa for long-term therapy for what the doctors called profound heavy metal neuropathy, a degeneration of the nerves of his limbs, and he wore heavy braces. His mother took him fishing on the East River in Santa Rosa County with his brother, leaving his younger sister ashore at the bridge. The canoe overturned. His mother and brother reached the bank; Michael, weighed down by the braces, drowned. She collected on insurance policies on his life.
His mother was Judias Buenoano. Nobody suspected her of anything until 1983, when a bomb went off in the car of her fiancé, John Gentry, and he survived. That investigation led back to Michael, and then to her husband, Air Force Sergeant James Goodyear, who had died in 1971, three months after coming home from Vietnam, and to Bobby Joe Morris, the man she lived with after Goodyear, who had died after the same vomiting, fever and hallucinations. Both bodies were exhumed in 1984, and both held arsenic.
The file holds three opinions. The First District Court of Appeal's decision of October 29, 1985, affirms her conviction for Michael's murder, for which she was serving life, and sets out the testimony about how she treated him: neighbors who said she was distant with him and close to his brother and sister, a former sister-in-law, and her daughter's boyfriend. A brief Florida Supreme Court order in 1987 follows, and the court's opinion of June 23, 1988, affirms her conviction and death sentence for the arsenic poisoning of James Goodyear, on the testimony of the doctors who read his symptoms and his exhumed tissue and of acquaintances who said she had talked with them about killing a person with arsenic, two of whom said she admitted killing him.
Buenoano was executed in the electric chair at Florida State Prison on March 30, 1998, at fifty-four, the first woman put to death in Florida since 1848. Asked for a final statement, she said, "No, sir." She was pronounced dead at 7:13 a.m. She had always said that Michael's drowning was an accident.
Both murder cases rested on circumstantial evidence and on the testimony of people who said she had spoken to them about killing, and the defense argued each time that the evidence proved no more than a drowning and an illness. The opinions are the appellate courts' findings that the juries were entitled to convict, not independent accounts; where they describe her feelings for her son, they are relaying what witnesses said. The attempted murder of John Gentry was a separate conviction and is not the subject of any of these opinions.
Her daughter was thirteen at the fishing trip, and she and her boyfriend, who testified that she had told him her mother drowned Michael for the insurance, are reduced to initials here. Her brother is named as the court named him. The neighbors, friends and doctors who testified are adults named in the court's own text. The record is public domain, and the scan's line-break hyphens, as in "Bed-narczyk," are left as they came.
Judias BUENOANO, Appellant, v. STATE of Florida, Appellee.
No. AZ-433.
District Court of Appeal of Florida, First District.
Oct. 29, 1985.
Rehearing Denied Dec. 6, 1985.
James A. Johnston, Pensacola, for appellant.
Jim Smith, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., for appellee.
[OPINION BY NIMMONS, Judge. type=majority]
NIMMONS, Judge.
Appellant appeals from judgments and sentences for the offenses of first degree murder and first degree grand theft. Appellant was accused of murdering her invalid son, Michael Goodyear, by drowning him and of stealing more than $20,000 from Prudential Life Insurance Company by defrauding the company of insurance proceeds on the son’s life. We affirm as to both convictions. Although the appellant raises several points on appeal, the only points which merit discussion are those wherein the appellant claims that the state failed to establish that the victim died as a result of criminal agency of another and that there was insufficient circumstantial evidence to support the appellant’s conviction of first degree murder. These are related points and will be discussed together.
After three months of therapy at Walter Reed Hospital beginning January 24, 1980, Michael Goodyear (age 19) had been transferred to Tampa to begin long-term physical therapy and occupational rehabilitation for profound heavy metal neuropathy, a degeneration of nerves outside the spinal column which had left Michael with no nerve or muscle function below his knees and elbows.
On May 12, 1980, appellant traveled to the Veterans’ Administration Hospital in Tampa to pick up Michael, her son, and return to their home in Pensacola. Michael required braces, weighing approximately 3V2 pounds each, on both legs for ambulation and a Robbins hook on his right arm, weighing approximately two pounds, to enable him to hold objects. His treating physician at Walter Reed, Dr. Barry, had cautioned Michael that adequate provisions for his safety would have to be taken should he go for a boat ride, because he would be unable to swim or save himself should the boat overturn. Michael was discharged to his mother, appellant, so that he could receive long-term rehabilitative care in Pensacola. Appellant had stated that she was spending nearly $40,000.00 in home alterations for Michael’s return. Dr. Barry informed appellant that Michael had a severe impairment and might never regain complete function of his arms and legs. According to Dr. Barry, Michael would be unable to walk without his braces, cast a fishing line, or swim.
The day after Michael’s discharge from the VA hospital, appellant, Michael, and appellant’s other son, James (age 14), and daughter, K. (age 13), went on a fishing trip on the East River in Santa Rosa County. While K. was left ashore at the East River Bridge, appellant, James, and Michael went out in the river in a two-seater canoe in the middle of which a folding lawn chair with legs approximately eight inches high had been placed for Michael. They started fishing between 10:30 and 11:00 A.M., moving upriver along the shore. Michael, seated in the lawn chair, wore both his leg braces with leather shoes, his Robbins hook and, by James’ account, a ski belt.
At trial, James testified that approximately a mile upriver from the bridge, about two hours after they had started fishing, they were six to eight feet from shore when a snake fell into the canoe and, in the ensuing confusion, the canoe hit a submerged log and capsized. James said that he was knocked unconscious and remembered nothing more until he was in an ambulance. James’ grand jury testimony reflected that he was unsure of how the canoe capsized. His written statement made for an Army investigator referred to the submerged log, but made no reference to the snake. Curiously, James was unable to say whether his written statement was his handwriting or bore his signature.
Ricky Hicks testified that he had gone fishing on the East River between 2:00 and 2:30 PM. He had been fishing for about an hour when he retrieved appellant and James from the river approximately 600 feet from the bridge. Hicks said that an overturned canoe, an ice chest, a flip-flop and a plastic lunch bag were floating near them in the river. Hicks testified that appellant told him that she had “lost the other boy” after a snake had gotten into the canoe which overturned as she tried to hold the snake down with a paddle. She said it was useless to go back for Michael. Upon returning to shore, appellant’s first concern appeared to be for James. She asked Hicks for a beer and drank it. Hicks drove appellant’s car to a nearby phone where he called the county rescue squad. The county sheriff and Hicks returned to the capsized canoe to look for Michael. They picked up the debris, including two ski belts. Hicks stated that thirty minutes had passed since he had rescued appellant and James. During that time the canoe and debris had barely moved as the river’s current was very slow that day.
Rescue squad diver Diamond testified that approximately three hours after the canoe allegedly capsized, Michael’s brace-laden body was found midriver approximately one-quarter mile upriver from where the canoe had been recovered and appellant and James had been rescued. Diamond stated the river’s current was “very, very slow” that day and was no impediment to swimming upstream.
While appellant’s version, as stated to Ricky Hicks, was that the canoe capsized during the ensuing excitement over a snake’s falling into the craft, she made conflicting statements to an Army investigator and others that the canoe capsized after hitting a submerged object, there being no mention of a snake.
Appellant first reported that Michael was wearing a life jacket, but later stated that he wore a ski belt. While appellant and James stated Michael was wearing a ski belt when the canoe capsized, no ski belt was on Michael’s body when it was recovered. Dr. Barry testified that a secured ski belt could not have slipped off Michael, given the braces he was wearing. The appellant’s version was that Michael was thrown into the water when the canoe capsized, which she said occurred approximately a mile upstream from where Hicks discovered her and James. She said that she surfaced after the canoe capsized, spotted James face down in the water, cleared his air passage, and resuscitated him. Not finding Michael, she said she began swimming downstream with James until she was picked up by Ricky Hicks. She said the current was too strong to swim anywhere but downstream.
A former neighbor and, later, housemate, Constance Lang, testified that appellant was ashamed of Michael. Appellant would have Lang, who was acting as a live-in baby sitter, take Michael from the house when visitors arrived. Lang said that appellant was distant to Michael, while being close to James and K. Former neighbor Ken Barnes visited often in appellant’s home and observed that James and Michael did not have a good relationship. He felt that appellant had an obvious bond with James, but not with Michael. Appellant’s former sister-in-law, Peggy Goeller, testified that she had spoken by telephone with appellant twice in November, 1980. Appellant made no mention of Michaels’ death during the first call. During the second call, appellant told her that Michael had recently died during Army maneuvers.
K. testified for the defense that appellant and Michael had a loving relationship. However, she admitted that she had made the statement to appellant during an argument “... just like you killed Michael.” On rebuttal, the state presented K.’s boyfriend, D.L., who testified that K. had told him that appellant had drowned Michael in order to collect insurance.
Bank records showed that appellant had a history of returned checks from June, 1979 until July, 1980. Employment records showed that appellant worked as a licensed practical nurse from December, 1978 to September, 1980, earning $3.50 per hour.
At the time of his death, Michael was covered by several insurance policies. Two policies, one issued in 1962, the other issued in 1964, with face values of $1,000.00 each and double indemnity provisions in case of accidental death, were owned by appellant. On April 5, 1980 there was a request signed by appellant and Michael for duplicates of these policies. A third policy owned by appellant, with a face amount of $15,000.00 and an accidental death benefit of an additional $30,000.00 was purchased March 22,1978. The fourth policy purchased by appellant on October 8, 1978 insured Michael for $20,000.00 with a double indemnity accidental death provision. There was no requirement that an insured of Michael’s age undergo a health physical for the amounts of coverage involved. As a member of the Army, Michael was insured for $20,000.00 under a servicemen’s group life policy on which he had designated the principal beneficiary to be determined “by law.” Subsequent to Michael’s death, appellant, as beneficiary of the above policies, received over $100,-000.00 in benefits.
The state’s theory was that appellant did not love Michael, viewed him as a burden and set out to kill him in such a way that his death would appear as an accidental drowning so that she could collect the life insurance proceeds. The defense’s version was that Michael’s death was a result of accidental drowning.
The standard of sufficiency of evidence applicable when a case is based upon circumstantial evidence is: “where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” McArthur v. State, 351 So.2d 972, 976 n. 12 (Fla.1977); Heiney v. State, 447 So.2d 210, 212 (Fla.1984), cert. denied, — U.S.-, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984). But the question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, the verdict will not be reversed on appeal. Heiney, id at 212.
Moreover, it is instructive to remember that the special standard governing sufficiency of evidence in circumstantial evidence cases does not, of course, mean that the trier of fact must believe the defense witnesses regarding facts on which the state has presented contrary testimony. See Drake v. State, 476 So.2d 210 (Fla. 2d DCA 1985) (the defendant’s testimony being contradicted, the version of events related by the defendant did not have to be believed); compare Bradford v. State, 460 So.2d 926, 931 (Fla.2d DCA 1984) (version of events related by the defense must be believed if circumstances do not show that version to be false).
Indeed, notwithstanding the overlay of circumstantial evidence principles, the state, as appellee herein, is entitled on appeal to a view of any conflicting evidence in the light most favorable to the jury’s verdict. Sellers v. State, 212 So.2d 659 (Fla. 3d DCA 1968); Land v. Patroni, 214 So.2d 94 (Fla. 1st DCA 1968); Bradford v. State, supra; 3 Fla.Jur.2d Appellate Review § 344. Thus, for example, notwithstanding the fact that there may have been evidence via the appellant’s statements contradicting the state’s evidence that the river current was “very, very slow,” the state is entitled to have this court assume the truth of the state’s version. Why? Simply because the jury was entitled to so find and such a finding is, as a matter of law, implicit in its verdict.
With the above principles in mind, we find the evidence supports the jury’s verdict that appellant was guilty of first degree murder. Based, in part, upon the conflicting statements given by the appellant and the contradictions between the physical evidence (assuming, as we must, the accuracy of the state’s testimony regarding such matters as the river current) and the appellant’s statements as to how and where the canoe capsized, the jury was entitled to reject the appellant’s hypothesis that Michael accidentally drowned as a result of the canoe capsizing. See Warren v. State, 475 So.2d 1027 (Fla. 1st DCA 1985). As in Drake v. State, supra, “[t]he jury had a right to conclude that appellant’s statements were not those of an innocent [person]”. Id. at 215. See also Rose v. State, 425 So.2d 521, 523 (Fla.1983).
There was also evidence, as described above, of the appellant’s motive for killing Michael. See Drake v. State, supra.
We have examined the other points raised by the appellant and find them to be without merit.
AFFIRMED.
THOMPSON and WIGGINTON, JJ., concur.
Appellant did not testify at trial. However, she had made several oral and written statements which were introduced by the state.
This testimony was apparently introduced for the purpose of impeaching K.’s earlier testimony that appellant- and Michael had a loving relationship.
From the evidence presented, the jury was entitled to conclude, contrary to the appellant’s version, that Michael did not drown as a result of the canoe capsizing. This is so because of the substantial distance between the locations where Michael’s body was found and where Hicks found the appellant and James near the overturned canoe, given the testimony that the current was so slow that there was very little downstream movement of objects in the water.
Judias BUENOANO, Petitioner, v. STATE of Florida, Respondent.
No. 68074.
Supreme Court of Florida.
April 9, 1987.
James A. Johnston, Pensacola, for petitioner.
Robert A. Butterworth, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for respondent.
[OPINION BY ADKINS, Justice (Ret.). type=majority]
ADKINS, Justice (Ret.).
We granted review of Buenoano v. State, 478 So.2d 387 (Fla. 1st DCA 1985), on the basis of apparent conflict with such opinions as Heiney v. State, 447 So.2d 210 (Fla.), cert, denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); and McArthur v. State, 351 So.2d 972 (Fla.1977), setting forth the standard of review for the sufficiency of the evidence in criminal cases in which convictions are based upon circumstantial evidence. Upon closer examination of Buenoano, however, we have determined that the district court decision is fully in accord with this line of precedent. Finding no direct and express conflict with any Florida appellate opinion, we note that jurisdiction has been improvidently granted and dismiss the instant petition for review.
It is so ordered.
McDonald, C.J., and OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur.
Judias V. BUENOANO a/k/a Judy Ann Goodyear, Appellant, v. STATE of Florida, Appellee.
No. 68091.
Supreme Court of Florida.
June 23, 1988.
James A. Johnston, Pensacola, for appellant.
Robert A. Butterworth, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Judias V. Buenoano appeals her conviction for first degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm both the conviction and sentence.
On August 31, 1984, Buenoano was indicted for first degree murder for the September 16,1971 death by suspected arsenic poisoning of her husband, Sergeant James E. Goodyear. Evidence at trial revealed that, shortly after Sergeant Goodyear returned to Orlando from a tour of duty in South Vietnam, he began suffering from nausea, vomiting and diarrhea. When hospitalized at the naval hospital in Orlando on September 13, 1971, Goodyear reported to Dr. R.C. Auchenbach that he had been ill with these symptoms for two weeks. When Dr. Auchenbach could find no explanation for these symptoms, he attempted to stabilize Goodyear’s condition but these attempts failed. Goodyear suffered fluid overload and pulmonary congestion and died as a consequence of cardiovascular collapse and renal failure.
No toxicological assay was performed at the time of Goodyear’s death because there was no reason to suspect toxic poisoning. However, Dr. Auchenbach testified that, had he known in 1971 arsenic was present in Goodyear’s body, his medical opinion would be that Goodyear could have died as a result of acute arsenic toxication because circulatory collapse and the other symptoms Goodyear exhibited are manifestations of acute arsenic poisoning.
Forensic toxicologist Dr. Lenard Bed-narczyk analyzed tissue samples from the exhumed body of Goodyear. He testified that the level of arsenic found in the liver, kidneys, hair and nails of Goodyear indicated chronic exposure to arsenic poison. The opinion of Dr. Bednarczyk and Dr. Thomas Hegert, the Orange County medical examiner who autopsied Goodyear’s remains in 1984, was that Goodyear’s death was the result of chronic arsenic poisoning occurring over a period of time.
In addition to the medical evidence regarding Goodyear’s condition, Debra Sims, who lived with Buenoano and Goodyear shortly before Goodyear’s death, testified that Goodyear became sick gradually and that she witnessed him having hallucinations about a rabbit on his bed as he picked at the bed linens. She also testified that Buenoano hesitated to take Goodyear to the hospital when he became ill. Two of Buenoano’s acquaintances, Constance Lang and Mary Beverly Owens, both testified that Buenoano discussed with each of them on separate occasions the subject of killing a person by adding arsenic to his food. Owens and Lodell Morris each testified that Buenoano admitted she killed Goodyear.
Evidence was also presented at trial that Bobby Joe Morris, with whom Buenoano lived after Goodyear’s death, became ill and died after exhibiting the same symptoms of vomiting, nausea, fever and hallucinating that Goodyear exhibited before his death. When Morris’ remains were exhumed in 1984, the tissue analysis revealed acute arsenic poisoning.
After Morris’ death Buenoano and John Gentry began living together and later became engaged. Gentry testified at trial that Buenoano told him Goodyear died in a plane crash in Vietnam and Morris died of alcoholism. In November of 1982, Gentry caught a cold, and Buenoano began giving him the vitamin C capsule Vicon C to treat it. Because he was experiencing extreme nausea and vomiting, Gentry checked into a hospital on December 15, 1982. After a full recovery he returned home, and on that same day Buenoano gave him Vicon C capsules again. The nausea and vomiting returned. Gentry had the capsules chemically analyzed, and the capsules were found to contain paraformaldehyde, a class III poison. Testimony at trial was that Buenoano had been telling her associates Gentry was suffering from terminal cancer.
Following Goodyear’s death in 1971, Bue-noano collected the benefits from various life insurance policies on her husband’s life totalling approximately $33,000. She also received $62,000 in dependency indemnity compensation from the Veterans Administration. When Bobby Joe Morris died, Bue-noano again received insurance money from three separate policies on Morris’ life totalling approximately $23,000. The house mortgage was also paid off. Bue-noano owned life insurance on Gentry’s life totalling $510,000 in benefits, and she was a 50% beneficiary under his will.
At trial the jury found Buenoano guilty of first degree murder for the death of James Goodyear and recommended imposition of the death penally. The trial court found four aggravating circumstances and no mitigating factors and sentenced Bue-noano to death.
Buenoano raises six points on appeal. Buenoano first claims it was error for the trial court to admit collateral crimes evidence regarding the arsenic poisoning of Bobby Joe Morris and the attempted poisoning of John Gentry in violation of the Williams rule. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). Buenoano contends that the collateral crimes evidence was admitted only to show bad character and criminal propensity of the accused.
Under the Williams rule evidence of other crimes, wrongs and acts is admissible if it is relevant to and probative of a material issue even though the evidence may indicate the accused has committed other uncharged crimes or may otherwise reflect adversely upon the accused’s character. Section 90.404(2)(a), Florida Statutes, (1983), codifies the ruling in Williams v. State and lists the purposes for which such evidence is deemed to be admissible: proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Because of the potential for prejudice to the defendant’s case, evidence of collateral crimes will not be admitted solely on the basis of mere similarity between the crime charged and the collateral crimes. For collateral crimes to be admissible there must be something so unique or particularly unusual about the perpetrator or his modus operandi that introduction of the collateral crimes evidence would tend to establish that he committed the crime charged. Chandler v. State, 442 So.2d 171 (Fla.1983).
In the case at bar we find poisoning to be a particularly unusual modus operan-di to warrant the introduction of the collateral crimes evidence. When compared, the details of each offense are strikingly similar. All three victims established a close relationship with Buenoano either as her husband, common-law husband or fiance. While living with her, each victim became seriously ill, requiring hospitalization upon displaying similar symptoms. A poison was used in all three cases. Buenoano was the beneficiary under a number of life insurance policies issued on the lives of the three victims and was also entitled to other monetary benefits upon the victims’ deaths. These details are not merely evidence of a general similarity between the charged of-fense and the collateral crimes. “These points of similarity ‘pervade the compared factual situations’ and when taken as a whole are ‘so unusual as to point to the defendant.’” Kight v. State, 512 So.2d 922, 928 (Fla.1987) (quoting Drake v. State, 400 So.2d 1217, 1219 (Fla.1981)). Under these facts the collateral crimes evidence was admissible to prove motive, opportunity, identity, intent, and absence of mistake, and to show a common plan or scheme.
Second, Buenoano contends that the state did not prove the corpus delecti in the instant case independent of Buenoano’s confessions and the collateral crimes evidence and, thus the trial court improperly denied the motion for directed verdict of acquittal. The corpus delecti in a homicide case consists of: (1) the fact of death; (2) the existence of the criminal agency of another; and 3) the identity of the deceased. Bassett v. State, 449 So.2d 803 (Fla.1984). The state must establish that the specific crime charged has actually been committed. However, the state is not required to prove the corpus delecti beyond a reasonable doubt before a confession or evidence of collateral crimes is admitted. Circumstantial evidence is all that is required to establish a preliminary showing of the necessary elements of the crime. State v. Allen, 335 So.2d 823 (Fla.1976).
In the instant case Dr. Auchenbach testified at trial to the fact of James Goodyear’s death. A certified copy of the death certificate was admitted into evidence, and the defense stipulated that the remains in the casket were those of Goodyear. Numerous medical experts testified that in their medical opinion the concentrations of arsenic found in Goodyear’s organs and hair were high enough to determine Goodyear’s death was caused by chronic arsenic toxication. Expert medical testimony as to the cause of death need not be stated with reasonable certainty in a homicide prosecution and is competent if the expert can show that, in his opinion, the occurrence could cause death or that the occurrence might have or probably did cause death. Delap v. State, 440 So.2d 1242 (Fla.1983) cert. denied, 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984).
Additionally, Constance Lang testified that Buenoano discussed her unhappiness with her marriage to Goodyear both before and after his tour of duty in Vietnam. Debra Sims testified that Goodyear appeared healthy upon his return from Vietnam, but his health began to deteriorate shortly thereafter. She further testified that, when Goodyear began to hallucinate, Buenoano refused to take him to the hospital right away. Upon Goodyear’s death Buenoano collected the insurance proceeds from the life insurance policies on his life.
We find that the state brought forth substantial circumstantial evidence to meet its burden of establishing a prima facie case of homicide independent of the confession and collateral crimes evidence. Bue-noano’s confessions and the collateral crimes evidence were not admitted for the purpose of proving the corpus delecti, and the trial court properly denied the motion for directed verdict of acquittal.
Buenoano’s third point on appeal questions whether the trial court improperly denied her motion for mistrial based on the gratuitous comment made by Mary Beverly Owens that Buenoano set fire to her own house to collect insurance proceeds. Buenoano contends this remark was irrelevant and constituted an attack on her character. Although we agree the remark was improper, given the totality of the circumstances we do not find the remark was so prejudicial as to require a mistrial. When the comment was made the trial judge sustained defense counsel’s objection, but no motion for mistrial was made. Later when defense counsel moved for a mistrial, the trial judge denied the motion but agreed to give a curative instruction to the jury if so requested. Defense counsel subsequently requested the instruction whereupon the trial judge instructed the jury to disregard the statement made by Ms. Owens. A mistrial should be declared only when the error is so prejudicial and fundamental that it denies the accused a fair trial. Even if the comment is objectionable, the proper procedure is to request a curative instruction from the trial judge that the jury disregard the remark. See Ferguson v. State, 417 So.2d 631 (Fla.1982). The curative instruction was sufficient in this case to dissipate any prejudicial effect of the objectionable comment. From our evaluation of the record Buenoano received a fair trial, and the trial judge did not abuse his discretion in denying her motion for mistrial.
After reviewing Buenoano’s claims we conclude there is substantial, competent evidence to support the conviction. We find no reversible error in the guilt phase of Buenoano’s trial and, therefore, affirm her conviction for first degree murder.
Buenoano’s fourth point on appeal concerns her sentencing proceeding. She claims it was error for the trial court to allow the testimony of the attorney who prosecuted her in Santa Rosa County, Florida for the first-degree murder of her son because the details of the testimony were inaccurate and amounted to hearsay. Section 921.141(1), Florida Statutes (1984), provides in part that all legally obtained probative evidence, including hearsay, is admissible during the penalty phase provided the defendant has a fair opportunity to rebut any hearsay statements. Testimony concerning the events which resulted in the conviction is admissible so the judge and jury can take into consideration the character of the defendant when determining whether the death penalty is called for in his or her particular case. Elledge v. State, 346 So.2d 998 (Fla.1977). Examination of the record in this case reveals the testimony at the sentencing proceeding was admissible and susceptible to fair rebuttal, especially since defense counsel also represented Buenoano in the prior felony cases. Furthermore, Buenoano’s allegation that the prosecutor’s testimony detailing her prior felony conviction was inaccurate is mere speculation. This Court has no way of comparing the testimony given by witnesses at the Santa Rosa trial to that given by the prosecutor in the case at bar since the Santa Rosa record was not made part of the record on appeal. Testimony during the sentencing proceeding relating to Buenoano’s prior conviction was extraneous and not critical to the finding of aggravation because there was a certified judgment and sentence evidencing the conviction. Although the testimony may have amounted to the type of “overkill” which this Court has repeatedly met with disapproval, in the context of the entire trial any error which may have occurred in admitting this particular testimony was harmless and did not result in prejudice to the defendant’s case requiring a new sentencing proceeding.
Next, Buenoano challenges two of the four aggravating circumstances found by the trial court. She argues that it was error for the trial court to find the murder was committed for pecuniary gain. We find the evidence was sufficient to support the trial court’s finding. Constance Lang testified that Buenoano never discussed the possibility of ending her marriage by divorce, but only mentioned using poison to solve her marital problems. The evidence showed that as a result of Goodyear’s death, Buenoano became entitled to and received life insurance proceeds and veteran’s benefits. Had Buenoano chosen to end her marriage by divorce, she would not have been entitled to any of this money. Additionally, Mary Beverly Owens testified that Buenoano advised her not to divorce her husband, but rather told her to take out additional life insurance on his life and then poison him. Further, Buenoano admitted to both Owens and Lodell Morris that she killed Goodyear. Thus it was not error for the trial court to apply this aggravating factor.
Finally, we reject Buenoano’s assertion that the arsenic poisoning of James Goodyear was not heinous, atrocious or cruel. The trial court based its finding of aggravation on the fact that Goodyear’s death was not swift and painless, but was the result of Buenoano slowly and methodically poisoning him. Under the standard set forth in State v. Dixon, 283 So.2d 1, 9 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), a homicide is especially heinous, atrocious or cruel when “the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” Systematically poisoning one’s husband over a period of time until it causes his death and witnessing the effects of the poison is an unusual manner and method of committing a homicide. This is clearly a conscienceless, pitiless crime, especially since Goodyear’s death did not occur as a result of a single effort, but by virtue of continued efforts on the part of Buenoano. His death was not instantaneous, and the medical descriptions reveal he suffered considerable pain and torture.
We find that the record also supports the trial court’s conclusions regarding the two remaining aggravating circumstances. We agree with the trial court, and Buenoano does not dispute, that the murder was committed in a cold, calculated and premeditated manner. We also agree, and Buenoano does not dispute, that the murder was committed by a person previously convicted of a felony involving the use or threat of violence. We find that the trial court properly found four aggravating circumstances and no mitigating factors.
From our review of the record we conclude that the imposition of the death penalty by the trial court was correct. For the reasons expressed, we affirm both the defendant’s conviction and sentence of death.
It is so ordered.
McDonald, C.J., and OVERTON, EHRLICH, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.
The reference to Buenoano’s confessions concerns statements made by Buenoano to Lodell Morris and Mary Beverly Owens that she killed Goodyear which were admitted as part of the testimony of these two witnesses.
Although Buenoano also alleges it was error to allow the testimony of the attorney who prosecuted her in Escambia County for the attempted murder of John Gentry, this argument was not developed in her brief, and therefore we do not address it.