2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.

3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.

4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.

5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.

6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.

7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.

8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..

9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.

10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.

11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.

12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.

13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.

14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.

15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.

16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.

17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.

18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.

19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.

20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.

21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.

< 22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.

23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.

24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.

25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.

26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.

27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.

28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.

29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.

30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.

31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.

32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.

33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.

34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.

35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.

36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.

37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.

38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.

39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.

40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.

41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.

42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.

43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.

44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.

45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.

46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.

47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.

48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.

49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.

50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.

51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.

52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.

53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.

54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.

55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.

56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.

57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.

58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.

59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.

60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.

61. Clarence Hill 20 September 2006 lethal injection Stephen Taylor Jeb Bush

62. Arthur Dennis Rutherford 19 October 2006 lethal injection Stella Salamon Jeb Bush

63. Danny Rolling 25 October 2006 lethal injection Sonja Larson, Christina Powell, Christa Hoyt, Manuel R. Taboada, and Tracy Inez Paules

64. Ángel Nieves Díaz 13 December 2006 lethal injection Joseph Nagy

65. Mark Dean Schwab 1 July 2008 lethal injection Junny Rios-Martinez, Jr.

66. Richard Henyard 23 September 2008 lethal injection Jamilya and Jasmine Lewis

67. Wayne Tompkins 11 February 2009 lethal injection Lisa DeCarr

68. John Richard Marek 19 August 2009 lethal injection Adela Marie Simmons

69. Martin Grossman 16 February 2010 lethal injection Margaret Peggy Park

70. Manuel Valle 28 September 2011 lethal injection Louis Pena

71. Oba Chandler 15 November 2011 lethal injection Joan Rogers, Michelle Rogers and Christe Rogers

72. Robert Waterhouse 15 February 2012 lethal injection Deborah Kammerer

Waterhouse v. State, 429 So.2d 301 (Fla. 1983). (Direct Appeal)

Defendant was convicted in the Circuit Court, Pinellas County, Robert E. Beach, J., of first-degree murder and sentenced to death. Defendant appealed. The Supreme Court held that: (1) seizure of defendant's car pending issuance of warrant for its search was proper in light of exigent circumstances; (2) police did not act improperly in questioning defendant further after his two equivocal statements expressing possible interest in seeing attorney; (3) evidence that defendant had committed or attempted to commit sexual battery upon inmate after his arrest was admissible because it explained context of incriminating admission made by defendant; and (4) imposition of sentence of death was appropriate in light of finding that crime was especially heinous, atrocious or cruel, that defendant was on parole at time of crime, and that defendant had previously been convicted of a violent felony. Affirmed.

PER CURIAM. This case is an appeal from a judgment of conviction of murder in the first degree. The trial court sentenced appellant to death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Appellant Robert Brian Waterhouse was tried before a jury and found guilty of the murder of Deborah Kammerer, which occurred in St. Petersburg on the night of January 2, 1980. A separate sentencing hearing was held, after which the jury recommended that appellant be sentenced to death. Appellant now challenges the legality of several items of evidence used against him and questions the propriety of the sentence of death on several grounds. We affirm the conviction and the sentence of death. On the morning of January 3, 1980, the St. Petersburg police responded to the call of a citizen who had discovered the dead body of a woman lying face down in the mud flats at low tide on the shore of Tampa Bay. An examination of the body revealed severe lacerations on the head and bruises around the throat. Examination of the body also revealed—and this fact is recited not for its sensationalism but because it became relevant in the course of the police investigation—that a blood-soaked tampon had been stuffed in the victim's mouth. The victim's wounds were such that they were probably made with a hard instrument such as a steel tire changing tool. Examination of the body also revealed lacerations of the

rectum. The cause of death was determined to have been drowning, and there was evidence to indicate that the body had been dragged from a grassy area on the shore into the water at high tide. The body when discovered was completely unclothed. Several items of clothing were gathered from along the shore at the scene.

The body showed evidence of thirty lacerations and thirty-six bruises. Hemorrhaging indicated the victim was alive, and defense wounds indicated she was conscious, at the time these lacerations and bruises were inflicted. Acid phosphotase was found in the victim's rectum in sufficient amount to strongly indicate the presence of semen there. Also, the lacerations in this area indicated that the victim had been battered by the insertion of a large object. The medical examiner was also able to determine that at the time of the murder the victim was having her menstrual period.

After several days of investigation the police were unable to identify the victim, so they announced the situation to the public. They then received an anonymous telephone call simply informing them of appellant's automobile tag number and advising them to investigate it.

The police also learned the identity of the victim from two of her neighbors. These two acquaintances, Yohan Wenz and Carol Byers, testified at trial that they went to the ABC lounge with the victim on Wednesday night, January 2, 1980. They testified that they later left the lounge and that Ms. Kammerer remained there at that time. Kyoe Ginn, who was working there as a bartender that night, testified that the victim came into the bar with a man and a woman, that they later left, that Ms. Kammerer then began talking with appellant (who was known to the witness) and that at about 1:00 a.m. appellant and Kammerer left the bar together.

On the evening of January 7, 1980, police officers asked appellant to voluntarily go with them to police headquarters for an interview. At this time he said that he did not know any girl named Debbie and that he went to the ABC lounge on January 2 but did not leave with a woman. After this interview appellant was allowed to leave but his car was impounded for searching pursuant to warrant. The automobile was searched on January 8 and appellant was arrested on January 9. Detectives Murry and Hitchcox arrested appellant. In the car on the way to the police station, after advising appellant of his rights, Hitchcox asked him, “We were right the other night, weren't we, when we talked to you about being involved in this case?” Appellant responded simply, “Might.” Shown a picture of Deborah Kammerer, appellant this time admitted that he did in fact know her.

On the afternoon of January 9, the detectives again interviewed appellant. Detective Murry testified concerning this interview. She said that appellant became emotionally upset and said repeatedly that his life was over, that he was going to the electric chair. He said that he wanted to talk to his interviewers as people and not as police officers. He then said that he had some personal problems with alcohol, sex, and violence. The two detectives interrogated appellant again on January 10. Again appellant said he wanted to talk to them as people rather than as police officers. Detective Murry testified that appellant again indicated that he experienced a problem involving sexual activity. He said that when he drinks a lot, it is like something snaps and he then finds himself doing things that he knows are terrible and bad, and that he cannot control his behavior on such occasions. Appellant also told the officers that when he wanted to engage in sexual activity with a woman but learned that she was having her menstrual period, he would become frustrated and angry and that this is what had happened the previous Wednesday night. He also said that he had had a lot to drink on Wednesday night.

Inspection of the interior of appellant's car revealed the presence of visible blood stains, and a luminol test revealed that a large quantity of blood had been in the car but had been wiped up. Analysis of the blood in the car and comparison with known blood samples of appellant and the victim revealed that the blood in appellant's car could have come from the victim but was not appellant's blood. A forensic blood analyst testified that it is possible through analysis of blood stains on certain surfaces to make estimates concerning the direction and velocity of motion of the blood making the stains. This witness concluded from her analysis that the blood in appellant's car was deposited in the course of a violent attack.

A forensic hair analyst testified that hairs found in appellant's car were consistent in their characteristics with known hair samples from the victim. A forensic fiber analyst testified that fibers found in the debris adhering to the victim's coat were similar to fibers from the fabric of the seat cover in appellant's car. Also, fibers were found in the car that had the same characteristics as fibers from the victim's coat and pants.

Appellant was employed as a plaster and drywall worker. His foreman testified at trial that on the morning of January 3, appellant arrived at work asking for the day off. He appeared to have a hangover and said he was feeling rough. The witness said that at this time appellant had scratches on his face. The witness also said that appellant had told him that he liked anal intercourse and liked being with women who allowed themselves to be hit and slapped.

On this appeal, appellant contends (1) that the trial court erred in denying his motion to suppress the statements he made during his first interview, on January 7; (2) that the trial court erred in denying his motion to suppress the tangible evidence obtained from inside his car; (3) that the trial court erred in denying his motion to suppress the statements he made after his arrest, on January 9 and 10; (4) that the trial court erred in denying his motions to exclude evidence of collateral unlawful activity; (5) that the trial court erred in giving improper double consideration to a single aggravating factor in imposing the sentence of death; (6) that the trial court erred in considering the aggravating circumstance that the capital felony was committed in the course of a felony since the felony was an essential element of proof of felony murder; (7) that the trial court erred in finding the capital felony was especially heinous, atrocious, or cruel; and (8) that the trial court erred in finding that the murder was committed for the purpose of avoiding arrest. On several of the above points, appellant argues two or more grounds.

Prior to trial, appellant moved to suppress his statement of January 7. Appellant asserted that the initial stop of his car was an illegal arrest and that he was forced to accompany the officers to the police station. At the hearing on the motion, however, the state presented the testimony of officers who said that appellant was not arrested at this time and that he accompanied them voluntarily. Moreover, we conclude that when appellant was first stopped and was asked to go in for questioning, the investigators had reason to believe that appellant and his car had some connection with the murder. Therefore appellant's contention of error in admitting testimony of the January 7 statement is without merit.

Appellant argues that his car was seized without probable cause. After appellant's initial interview was concluded, he was allowed to leave the police station; he was not under arrest at that time. However, he was not allowed to take his car, which he had parked on the street across from the police station. Later that night, a warrant for the search of the car was issued and the next day it was searched. Since appellant was not allowed to remove his car from where he had parked it, it is indisputable that the car was seized by the state without a warrant. It does not follow, however, that the subsequent search pursuant to a warrant was illegal. There was probable cause for the search, as is evidenced by the issuance of the warrant. There was also the exigent circumstance that the car was on the street and the appellant could have removed it and destroyed the evidence. Therefore, the seizure of appellant's car pending issuance of the warrant for its search was proper, based on probable cause and exigent circumstances. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

Appellant contends that his statements of January 9 and 10 should have been suppressed because the police violated his right to remain silent by questioning him after he had demonstrated a desire to consult an attorney. In the pretrial proceedings on the motion there was testimony concerning the two interrogation sessions. On January 9 after making certain statements in the car on the way to the station appellant said, “I think I want to talk to an attorney before I say anything else.” At this point the officers ceased questioning him. Then, when appellant was being processed into the jail on the charge of murder, Detective Murry asked appellant whether he would like her to come to his cell, talk to him, and answer any questions he might have. He seemed interested, so detectives Murray and Hitchcox went to talk to him at 2:00 a.m. At this point appellant became emotionally upset and made certain statements described previously. The conversation ended when appellant said, “I think I'd like to talk to my attorney. Would you all come back tomorrow?” Then on the following day there was further interrogation eliciting statements entered into evidence.

Appellant also argues that officers violated the fifth amendment by questioning him after he had invoked his right to consult an attorney. He cites Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which held that once an accused expresses a desire to deal with the authorities only through counsel, this desire must be scrupulously honored and the accused is not subject to further interrogation until counsel has been made available, unless the accused himself initiates further communication. Edwards does not apply here because appellant did not express a desire to deal with the police only through counsel. His statements that he thought he should talk to an attorney were at most equivocal requests to consult with counsel. The officers were not prohibited from initiating further communication for the purpose of clarifying appellant's request. Thompson v. Wainwright, 601 F.2d 768 (5th Cir.1979); Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979). Unlike in Edwards, appellant never explicitly stated that he did not want to talk to the police nor was he ever told that he was required to. Therefore the police did not act improperly in visiting appellant and questioning him further after his two equivocal statements expressing possible interest in seeing an attorney.

Appellant argues that the court erred in denying his motion to suppress the statements he made to detectives Murry and Hitchcox on the afternoon of January 10. That morning, appellant was taken to court for his first judicial appearance. At this time the public defender was appointed to represent appellant. Appellant argues that the officers should have notified his attorney before proceeding with the interview. There is no per se rule, however, requiring officers to notify the defendant's counsel before communicating with the accused and we decline to adopt such a rule now. The fact that an accused is represented by counsel does not preclude his waiver of the right to have counsel present when talking to law enforcement officers. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). Here the appellant had invited the officers to return, was warned of his rights, and knowingly waived his right to have counsel present.

Appellant also argues that his statements should have been suppressed on the ground that they were not made voluntarily but were the product of actual coercion. We find this argument to be completely without merit.

Appellant contends that the trial court should have prohibited any reference to some bags of marijuana that were found by the officers who searched and collected evidence from appellant's car. This testimony constituted evidence tending to show criminality separate from and unrelated to the crime charged in the indictment. The evidence was not relevant to any issue of material fact, and therefore should have been held inadmissible. See 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 error, however, was harmless. The Williams rule is calculated to prevent the unfairness of convicting the accused on the basis of evidence showing him to have bad character or a propensity to commit crimes such as the one charged. “Evidence that the defendant has committed a similar crime, or one equally heinous, will frequently prompt a more ready belief by the jury that he might have committed the one with which he is charged, thereby predisposing the mind of the juror to believe the prisoner guilty.” Nickels v. State, 90 Fla. 659, 685, 106 So. 479, 488 (1925). The admission of irrelevant evidence tending to show commission of a dissimilar or much less serious crime, on the other hand, may be harmless error. See Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA), appeal dismissed, 234 So.2d 120 (Fla.1969), cert. denied, 399 U.S. 927, 90 S.Ct. 2242, 26 L.Ed.2d 794 (1970). Appellant has failed to show how the testimony about the marijuana could have improperly prejudiced the jury against him. We therefore find the error to have been harmless. See State v. Wadsworth, 210 So.2d 4 (Fla.1968).

Appellant also contends that the trial court erred in allowing the testimony of a cellmate who described an incident after appellant's arrest in which he either committed sexual battery upon another inmate or attempted to do so. Again appellant argues that the testimony was not relevant to any issue of material fact. We find, however, that the testimony was relevant because it included, and explained the context of, an incriminating admission made by appellant. The witness testified that he did not actually see what transpired between appellant and the other prisoner because the witness and the remaining prisoners were ordered from the room by appellant, who had armed himself with a sharpened spoon. However, the witness said he saw appellant a short time afterward and that appellant, who appeared angry and disheveled, said, “I wonder how he'd like a Coke bottle up his ass like I gave her.” The relevance of this admission lies in its connection to the medical examiner's testimony that the victim's rectal lacerations were consistent with the insertion of an object such as a Coke bottle. The statement was therefore relevant and the testimony was admissible to provide the context in which the statement was made. The ruling was not error.

We come now to consideration of the sentencing proceeding and the sentence of death. As aggravating circumstances, the trial court found: (1) that appellant had previously been convicted of second-degree murder in the State of New York, a felony involving violence; (2) that at the time of the murder of Deborah Kammerer, appellant was on parole from the sentence imposed upon him for the New York murder (and was therefore under sentence of imprisonment); (3) that the murder of Deborah Kammerer was committed in the course of committing sexual battery; (4) that the murder of Deborah Kammerer was committed for the purpose of avoiding arrest by eliminating her as a witness to the crime of sexual battery; and (5) that the murder was especially heinous, atrocious, and cruel.

Appellant argues that the trial court gave improper double consideration to a single circumstance by reciting both that appellant had previously been convicted of a violent felony and that he was on parole, citing Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). The principle of Provence, however, is not applicable here. In Provence we reasoned that proof that a capital felony was committed during the course of a robbery necessarily was based on the same aspect of the crime that provided the basis for finding the motive of pecuniary gain. The same reasoning does not apply to the two aggravating circumstances in question here. The previous conviction and the parole status were two separate and distinct characteristics of the defendant, not based on the same evidence and the same essential facts. Therefore separate findings of the two factors were proper.

Appellant argues that it was improper for the court to find that the capital felony was committed in the course of the violent felony of sexual battery since the commission of the sexual battery was an essential element of proof of murder under the felony murder theory. This argument is without merit. White v. State, 403 So.2d 331, 335–36 (Fla.1981).

Appellant argues that the trial court's finding that the crime was especially heinous, atrocious, or cruel was erroneous. The clearly established facts of the murder show that this contention is without merit. The victim suffered numerous bruises and lacerations inflicted with a hard, sharp weapon. There were defense wounds showing that she was alive and conscious when she was attacked. The victim was left in the water where she drowned. The capital felony was especially heinous, atrocious, or cruel. See State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

Appellant argues that there was insufficient proof that the murder was committed for the purpose of avoiding arrest. In support of this finding the state refers us to a statement appellant made to his interrogators when they asked him what he thought he should do about his “problem.” He said, “You do what you have to do to protect Bobby Waterhouse. No one wants to go to jail.” It is questionable whether this statement supports the inference drawn by the state. Appellant's statements also included suggestions that the murder was committed in a spur-of-the-moment rage. We need not decide, however, whether the lone statement is sufficient to prove a witness-elimination motive, since even without this aggravating circumstance there are numerous other aggravating circumstances to support the sentence, and no mitigating circumstances.

Appellant's contentions of error in the judgment are all without merit. The judgment is affirmed. We conclude that under the proven facts of the case, a sentence of death is appropriate. Therefore the sentence of death is also affirmed.

It is so ordered.

Waterhouse v. State, 522 So.2d 341 (Fla. 1988). (PCR - DP Vacated)

Defendant filed motion for postconviction relief which was denied by the Circuit Court, Pinellas County, Robert E. Beach, J., and petition for writ of habeas corpus to prevent imposition of death penalty, following affirmance of conviction, 429 So.2d 301, and governor's signing of death warrant. The Supreme Court held that: (1) prosecution's failure to disclose availability of exculpatory witnesses until eve of trial was not improper; (2) prosecution's failure to disclose poor credibility of State's witness to defendant was harmless; (3) trial counsel was not ineffective; and (4) defendant was entitled to have jury consider nonstatutory mitigating factors in penalty phase of trial. Sentence of death vacated and remanded. McDonald, C.J., concurred in part and dissented in part with opinion.

Waterhouse v. State, 596 So.2d 1008 (Fla. 1992). (Direct Appeal - Affirmed)

Following affirmance of first-degree murder conviction, 429 So.2d 301, and order for a new sentencing hearing, 522 So.2d 341, death sentence was imposed by the Circuit Court, Pinellas County, Robert Beach, J., and defendant appealed. The Supreme Court held that: (1) defendant was not denied right to counsel by defense counsel's refusal to make closing argument demanded by defendant, on ground that counsel felt it would be unethical; (2) standards for waiver of right to counsel were met despite lack of final hearing; (3) there was no error in refusing to answer certain questions raised by jury during deliberations; (4) there was no error in admission of hearsay evidence regarding prior murder; and (5) evidence was insufficient as to two of the aggravating factors found below, but still warranted imposition of death sentence. Affirmed. Kogan, J., concurred in part and dissented in part with opinion in which Barkett, J., concurred.

PER CURIAM.

We have on appeal an order of the circuit court imposing a sentence of death upon Robert Brian Waterhouse for the murder of Deborah Kammerer. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The facts surrounding this murder were recited in our opinion: On the morning of January 3, 1980, the St. Petersburg police responded to the call of a citizen who had discovered the dead body of a woman lying face down in the mud flats at low tide on the shore of Tampa Bay. An examination of the body revealed severe lacerations on the head and bruises around the throat. Examination of the body also revealed-and this fact is recited not for its sensationalism but because it became relevant in the course of the police investigation-that a blood-soaked tampon had been stuffed in the victim's mouth. The victim's wounds were such that they were probably made with a hard instrument such as a steel tire changing tool. Examination of the body also revealed lacerations of the rectum. The cause of death was determined to have been drowning, and there was evidence to indicate that the body had been dragged from a grassy area on the shore into the water at high tide. The body when discovered was completely unclothed. Several items of clothing were gathered from along the shore at the scene.

The body showed evidence of thirty lacerations and thirty-six bruises. Hemorrhaging indicated the victim was alive, and defense wounds indicated she was conscious, at the time these lacerations and bruises were inflicted. Acid phosphatase was found in the victim's rectum in sufficient amount to strongly indicate the presence of semen there. Also, the lacerations in this area indicated that the victim had been battered by the insertion of a large object. The medical examiner was also able to determine that at the time of the murder the victim was having her menstrual period. Waterhouse v. State, 429 So.2d 301, 302-03 (Fla.), cert. denied, 464 U.S. 977, 104 S.Ct. 415, 78 L.Ed.2d 352 (1983). This Court affirmed Waterhouse's conviction of first-degree murder and the original sentence of death imposed upon him. Id. We subsequently ordered a new sentencing proceeding because the trial judge did not instruct on and the jury did not consider nonstatutory mitigating evidence. Waterhouse v. State, 522 So.2d 341 (Fla.), cert. denied, 488 U.S. 846, 109 S.Ct. 123, 102 L.Ed.2d 97 (1988). Upon resentencing, the jury recommended the death penalty by a vote of twelve to zero and the trial court again imposed a sentence of death. FN1. The judge found the following aggravating factors: (1) the defendant was under a sentence of lifetime parole at the time of the murder; (2) the defendant had been previously convicted of second-degree murder; (3) the defendant was engaged in the commission of a sexual battery against the victim at the time of the murder; (4) the defendant committed the murder to eliminate her as a witness; (5) the crime was especially wicked, evil, atrocious, or cruel; (6) the murder was committed in a cold, calculated, and premeditated manner. The judge found no mitigating circumstances.

We address first Waterhouse's claim that he was denied the right to counsel by defense counsel's refusal to make closing argument at the resentencing hearing. Waterhouse also alleges in this claim that the trial court erred by refusing to allow him to consult with counsel before requiring him to present his own closing argument.

An awareness of the events preceding the closing argument is necessary to an understanding of this claim. At the outset, it should be noted that several lawyers had previously withdrawn from representing Waterhouse because of his refusal to cooperate with them. During the proceedings below, Waterhouse and his counsel, Mr. Hoffman, began to differ about trial strategy. Prior to the resentencing hearing, Hoffman sought to withdraw because Waterhouse did not wish him to put on any evidence in mitigation and insisted that he present a lingering doubt defense. Because this Court has held that lingering doubt is not an appropriate nonstatutory mitigating circumstance,FN2 Hoffman recognized that he could not ethically pursue this course of action. Hoffman protected the record to make clear that Waterhouse desired to present such a defense.

FN2. See King v. State, 514 So.2d 354 (Fla.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988); Aldridge v. State, 503 So.2d 1257 (Fla.1987).

During the resentencing hearing, Waterhouse made various complaints about Hoffman, but it was clear that he was not seeking to represent himself. The court found Waterhouse's accusations against Hoffman to be unfounded and observed:

THE COURT: Well, I'm not going to let him control this case by discharging a lawyer that's appointed for him on the eve of the trial. It is obvious to me that he has been doing this over the years purely for the purpose of delay, and I'm not going to let that happen. As far as I'm concerned, Mr. Hoffman, you're on the case. I know it's tough for you. If he wants to dictate the terms of your representation and make it impossible for you to present a defense in mitigation, that's his choice. If he's done that, he has only himself to blame.

In the middle of the resentencing hearing, Hoffman advised the court that Waterhouse once again was complaining about his representation because he had not gone far enough in trying to relitigate the guilt issue.FN3 The court observed that Hoffman was providing effective representation. However, the court stated that if Waterhouse insisted, he would permit him to take over the trial but would keep Hoffman present so as to provide legal advice if requested. The court then asked Waterhouse whether or not he was discharging Hoffman and proceeding on his own:

FN3. Actually, the court, without objection by the prosecution, permitted Hoffman broad leeway in asking many questions which tended to bear on the issue of guilt.

THE DEFENDANT: Will he remain as advisory counsel? THE COURT: What? THE DEFENDANT: Will he remain as advisory counsel? That will be all? THE COURT: That's right. But he won't be participating. If you have a question, you'll take it up with him, but you're on your own. MR. CROW [Prosecutor]: I think what he's trying to indicate is he doesn't want Mr. Hoffman in an advisory capacity. THE COURT: I'll have him here available. He doesn't have to consult with him. He doesn't have to talk to him. If he doesn't have any questions to ask him, then obviously his advisory capacity is for naught; but he will be available to him. He will not be participating in the trial and Mr. Waterhouse will be handling the rest of this case on his own. THE DEFENDANT: What I'm actually trying to get at is will he have to be present in the courtroom? THE COURT: Doesn't have to be if you don't want him. We can have him sit outside. That's kind of a stupid place to put him if he's going to try and advise you on what he heard in here. THE DEFENDANT: Doesn't seem to matter where he is. We'll let it go. THE COURT: I'm sorry? THE DEFENDANT: Excuse me. Let it go. THE COURT: Let it go. In other words, he will continue as your lawyer? THE DEFENDANT: The railroad train is running, your Honor. THE COURT: I take it that you are accepting him as your lawyer? THE DEFENDANT: Excuse me? THE COURT: Pardon? THE DEFENDANT: I didn't hear what you said. THE COURT: He is your lawyer, is that correct? THE DEFENDANT: Not by much. THE COURT: Over your objection. THE DEFENDANT: On paper. He's doing nothing, your Honor. THE COURT: I didn't ask you that. Answer the question, please. THE DEFENDANT: I would respectfully refuse. THE COURT: Okay. Bring in the jury. Mr. Hoffman continues to remain as the lawyer.

At the close of the State's testimony, Hoffman made clear that Waterhouse refused to allow him to put on any mitigating evidence. Hoffman also indicated that Waterhouse wanted to address the jury in closing argument. The judge advised Waterhouse that this would not be a good idea because much of what he proposed to say would probably be stricken on objection. However, the judge said that if Waterhouse wished to do so, he would permit him to make the closing statement, even though Hoffman remained in the case. This is reflected in the following colloquy:

THE COURT: Let me interrupt you for a minute. Here's what I'm going to do. Just so he'll have no complaint. You're still in the case. He can say anything he wants. I'll rule on the objections. MR. HOFFMAN: I think that's fair, Judge. THE COURT: It's my observation that he is not best served by doing that, but if the result is adverse to him, he can't be heard to complain I didn't allow him to make a statement. MR. HOFFMAN: It may take a little preparation time, I would assume. THE COURT: You can come back at one o'clock. We've still got to resolve the instructions.

After the recess and the jury charge conference, Hoffman announced that Waterhouse would be making the closing argument. The prosecutor then presented his closing argument. Thereafter, the court took a ten-minute recess. When the trial resumed, Waterhouse stated that he would like Hoffman to make the closing argument. Hoffman responded that Waterhouse was still insisting that he make a lingering doubt argument and that he felt that he could not do this because it would be unethical. The following colloquy then occurred:

MR. HOFFMAN: The posture I've decided to take on this, right or wrong, is that he can't now force me to make what I feel is an ineffective representation in closing argument by reneging on his previous statements. And in light of the fact that he's not allowed me to put on any mitigation case, he's absolutely not allowed any mitigation case. So, there really isn't much to talk about. And rather than do that and make a half hearted attempt and skirt the issue of ethical bounds with regard to whether or not I can talk about the guilt issue, I would rather leave him to do what he said he wants to do. And if that turns out to be wrong and he turns out to get another trial- THE COURT: Well, you can always talk about the seriousness of the recommendation and it requires not taking it light. That certainly is a matter that can be argued to the jury. I mean, that's- MR. HOFFMAN: That's about the only thing; I mean, just get up and ask the jury what I did in opening statement; I can reiterate everything I said in opening. THE COURT: The question to you, Mr. Waterhouse, is do you want Mr. Hoffman to make the closing argument within the confines of the penalty, not the guilt or innocence of a homicide? MR. WATERHOUSE: Well, your Honor, Mr. Hoffman, as you know, and I have had a very-you can't even call it a rocky relationship, it's not even that good. He's been to see me once- THE COURT: Well, I'm not-I've heard this for the last year. MR. WATERHOUSE: I have not had a chance to sit down with him and explain to him the things that I want to put forth in mitigation at the closing. He's only been over there once, and all we discussed- THE COURT: Well, the description of your relationship with Mr. Hoffman is one of your own doing, not of his. MR. HOFFMAN: Judge, what he's doing now is back to what we already talked about, that I didn't want mitigating things put before the jury. I mean, people were here to do it. The four items that were in the previous case- THE COURT: Well, I'm going to ask this question one last time. If I don't get an answer, you're proceeding on your own, Mr. Waterhouse. Do you want Mr. Hoffman to make the closing statement for you within the confines of the recommendation of either death or life imprisonment or not, and not make an argument on your guilt or innocence of the homicide; yes or no? MR. WATERHOUSE: Your Honor, the problem is-see, I am not an attorney, I do not know the law fully, what you're talking about. That's why I need to get together- THE COURT: Yes or no? MR. WATERHOUSE: -with Mr. Hoffman in order so we could prepare for this, so he could tell me that this is admissible and this is not. We haven't got together on it. THE COURT: Yes or no? MR. WATERHOUSE: No. THE COURT: Bring in the jury. (Emphasis added.)

We do not find that Waterhouse was denied his right to counsel by these actions. Waterhouse initially indicated on the record that he wished to make the closing argument. He reneged on that at the last possible minute. At that point, Hoffman did not refuse to make closing argument. He was simply unwilling to make the argument that Waterhouse demanded because he felt it would be unethical. Waterhouse rejected the choice of a closing argument by counsel confined to the appropriate issues. Under the facts of this case we do not find that Waterhouse was denied his right to counsel. “[A] defendant may not manipulate the proceedings by willy-nilly leaping back and forth between the choices [of self-representation and appointed counsel].” Jones v. State, 449 So.2d 253, 259 (Fla.), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984). We refuse to permit an intransigent defendant to completely thwart the orderly processes of justice.

Nor do we find error in the trial court's refusal to permit Waterhouse to consult with his counsel before making the decision to make his own closing argument. It is obvious from the colloquies quoted above that this matter had been under consideration for an extended period of time, and Waterhouse had already consulted with Hoffman about this. Ironically, as things worked out, Waterhouse gave a closing argument in which he was given great latitude on what to say, including matters bearing on guilt or innocence. Clearly, the trial court, the prosecutor, and his own attorney bent over backwards in trying to give Waterhouse the benefit of every legal right to which he was entitled.

Waterhouse also argues that, in the event he is deemed to have asserted his right to self-representation insofar as closing argument is concerned, the trial court failed to conduct the inquiry required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Faretta requires that once a defendant asserts the right of self-representation, the court must make an appropriate inquiry to determine whether the defendant knowingly and intelligently waived the right to counsel. Normally, this requires a waiver hearing to insure that the defendant understands the disadvantages of self-representation. Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir.1986). However, under the facts of this case we find that the standards of Faretta were met despite the lack of a final hearing.

The trial judge warned Waterhouse on numerous occasions of the dangers in representing himself. The judge informed Waterhouse that he would be held to applicable procedural and evidentiary rules if he acted as his own counsel. From Waterhouse's conduct throughout the proceedings below, it is apparent that he was thoroughly knowledgeable about the proceedings against him. He filed motions in his own behalf with citation to supporting cases. During hearings on defense counsel's motion to withdraw and Waterhouse's motion to dismiss counsel, Waterhouse addressed the court at length, citing and discussing cases. He gave the court the names of witnesses he wished to call and indicated what their testimony would be. He took an active part in his defense during the resentencing hearing. He presented his counsel with questions for witnesses and raised objections to various testimony. He was obviously aware of the defenses available to him. He was allowed to represent himself only at the very end of the proceedings in closing argument. Defense counsel assisted him in closing argument by responding to the prosecutor's objections and by consulting with Waterhouse when Waterhouse so requested. Finally, Waterhouse's manipulation of the proceedings and his attempts to delay show an obvious understanding of the proceedings against him. Under these facts, we find that the requirements of Faretta were met. See Fitzpatrick, 800 F.2d 1057 ( Faretta requirements met despite lack of hearing where defendant manipulated the proceedings, had knowledge of possible defenses, had contacted numerous attorneys prior to trial, and understood the nature of the charges against him).

Waterhouse next asserts that he was improperly precluded from challenging the State's claim that the murder occurred during the commission of a sexual battery.FN4 Waterhouse argues that, in effect, the trial court directed a verdict against him on the issue of the sexual battery by refusing to allow evidence on the issue of guilt of the murder. FN4. The State introduced evidence of the sexual battery in order to establish this as an aggravating factor. See § 921.141(5)(d), Fla.Stat. (1989).

The judge appropriately precluded Waterhouse from presenting evidence questioning his guilt. However, Waterhouse was not precluded from challenging the State's evidence that a sexual battery occurred or from presenting evidence that a sexual battery did not occur. Our review of the record indicates that the court afforded Waterhouse and his counsel considerable leeway in cross-examining State witnesses on the evidence of sexual battery. The jury was instructed on the elements of a sexual battery and informed that each aggravating factor must be established beyond a reasonable doubt. We find no error.

Waterhouse claims that he was denied the right to counsel because of his counsel's conflict of interest. The alleged conflict arose from the difficulties between Waterhouse and his counsel. This claim is not supported by the record. Although a conflict of interest may be present where counsel's interests are inconsistent with those of his client, there was no such conflict here. It is apparent from the record that counsel's interest was in presenting the best possible case for Waterhouse. Any conflict between them was attributable solely to Waterhouse's own contumacious behavior and not to any competing interest of his counsel.

Waterhouse next argues that the trial court erred in refusing to answer the following questions raised by the jury during deliberations: (1) If he's sentenced to life, when would he be eligible for parole? Does the time served count towards the parole time? (2) If paroled from [Florida] would the defendant then be returned to [New York] to finish his sentence there? The trial judge informed the jury that they would have to depend on the evidence and instructions.

With regard to the first question, the jury instructions adequately informed the jury that a life sentence carried a minimum mandatory sentence of twenty-five years. See King v. Dugger, 555 So.2d 355, 359 (Fla.1990). With regard to the remaining questions, it cannot reasonably be argued that the jury would have been less likely to recommend the death penalty had it been informed that Waterhouse would receive credit for the ten years he had already served on death row and that the court could not know whether Waterhouse would be extradited to New York once he was paroled in Florida. This is not a situation in which the defendant was prohibited from presenting evidence that might cause the jury to decline to impose the death penalty. See McCleskey v. Kemp, 481 U.S. 279, 304, 107 S.Ct. 1756, 1773, 95 L.Ed.2d 262 (1987) (state may not narrow sentencer's discretion to consider relevant evidence that might cause it to refuse to impose the death penalty). The trial court did not abuse its discretion in refusing to answer the jury's questions.

Waterhouse also argues that the prosecutor acted improperly and misled the jury when he suggested in closing argument that fifteen years of imprisonment (deducting the ten years Waterhouse had already served) was not sufficient punishment for this crime. Because no objection was made to this comment, the issue has not been preserved for review. Teffeteller v. State, 495 So.2d 744, 747 (Fla.1986). Any error in this remark is not fundamental so as to obviate the need for an objection.

Waterhouse next claims that the State improperly introduced hearsay evidence regarding his prior second-degree murder conviction in New York. Retired Detective Hawes, one of the officers who investigated the New York murder, testified about the details of the New York murder. The trial court overruled defense counsel's and Waterhouse's objections to the testimony.

Details of prior felony convictions involving the use or threat of violence to the victim are admissible in the penalty phase of a capital trial. Rhodes v. State, 547 So.2d 1201, 1204 (Fla.1989); Tompkins v. State, 502 So.2d 415, 419 (Fla.1986), cert. denied, 483 U.S. 1033, 107 S.Ct. 3277, 97 L.Ed.2d 781 (1987). Such testimony “assists the jury in evaluating the character of the defendant and the circumstances of the crime so that the jury can make an informed recommendation as to the appropriate sentence.” Rhodes, 547 So.2d at 1204. Further, hearsay testimony is admissible, provided that the defendant has a fair opportunity to rebut it. § 921.141(1), Fla.Stat. (1989); Tompkins, 502 So.2d at 419. Defense counsel was afforded the opportunity to cross-examine Detective Hawes. We find no error in the admission of this testimony.

Waterhouse also claims that the trial court erred in allowing the State's pathology expert, Dr. Wood, to explain the New York autopsy report. Dr. Wood testified regarding the autopsy she performed on Deborah Kammerer. The State recalled Dr. Wood later to explain the New York autopsy report to the jury. Waterhouse argues that the State should have been required to call the person who prepared the New York autopsy report. Defense counsel cross-examined Dr. Wood and brought out the fact that she did not prepare the autopsy report and had not consulted with the person who prepared the report. The autopsy report was presented at the original penalty phase hearing, so defense counsel should have been well aware of its existence. Under these facts, we find no error in permitting Dr. Wood's testimony on the New York autopsy report. Even if the admission of this testimony was error, it was clearly harmless.

Next, Waterhouse claims that the trial court erred in refusing to exclude prospective juror Marshall for cause, thus requiring him to use his last peremptory challenge. Waterhouse argues that Marshall's responses during voir dire show that he would automatically impose the death penalty on anyone convicted of first-degree murder. According to the record, Marshall said that he would only vote to impose the death penalty if it were “justified” and that he would weigh the aggravating and mitigating factors to determine whether the death penalty should be imposed. Marshall met the test of juror competency. See Lusk v. State, 446 So.2d 1038, 1041 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984) (juror is competent if he can lay aside any bias or prejudice and render verdict solely on the evidence presented and the court's instructions). The trial judge did not abuse his discretion in refusing to excuse Marshall for cause. Penn v. State, 574 So.2d 1079, 1080-81 (Fla.1991); Pentecost v. State, 545 So.2d 861 (Fla.1989).

Waterhouse challenges the admission of certain incriminating statements that he claims were obtained in violation of his right to counsel. While we rejected this same argument on direct appeal, Waterhouse v. State, 429 So.2d at 304-06, he now relies on the recent case of Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). Waterhouse failed to object to the admission of these same statements at resentencing and therefore he has waived this claim for purposes of this appeal. The admission of the statements at the resentencing phase was not fundamental error which would excuse the failure to object to their admission. In any event, the statements could have had no significant impact on the jury's sentencing recommendation because Waterhouse's guilt of the murder was not at issue. See Teffeteller, 495 So.2d at 747. Thus, at most, the admission of these statements would be harmless error.

Waterhouse claims that the prosecutor improperly commented on his failure to take the stand during the sentencing hearing. FN5 The complained-of remark is not fairly susceptible of being interpreted as a comment on silence. Even if it could be so interpreted, defense counsel failed to object to the comment and thus the issue is waived. Clark v. State, 363 So.2d 331, 333 (Fla.1978), receded from on other grounds, State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Waterhouse also argues that the prosecutor falsely told the jury that the previous sentencing jury did not know that about the prior murder and that the prosecutor diluted the jury's sense of responsibility for its recommendation. Defense counsel did not object to these comments and therefore the issues have been waived for appeal. Teffeteller, 495 So.2d at 747.

FN5. The prosecutor made the following argument at closing: Whether you have the defendant's blood or whether you have the victim's blood; the victim and the defendant's blood are almost the same thing; there is only one enzyme that separates them. Well, have you heard any testimony that Robert Waterhouse got beaten with a tire iron in his own vehicle? Absolutely not. There is absolutely no evidence that blood came from anywhere [except] Deborah Kammerer's skull.

Waterhouse claims that the jury instructions failed to specify that each juror should make an individual determination as to the existence of any mitigating circumstance. These issues have been waived because counsel did not object to the instruction. Walton v. State, 547 So.2d 622 (Fla.1989), cert. denied, 493 U.S. 1036, 110 S.Ct. 759, 107 L.Ed.2d 775 (1990). In any event, Florida law does not require such an instruction.

We summarily reject Waterhouse's claim that the court improperly admitted gruesome photographs of the victim.

Finally, Waterhouse challenges the aggravating factors found by the court below. We previously rejected on direct appeal two of the arguments Waterhouse raises in this appeal. For that reason we reject his claim that the evidence does not support a finding that the crime was especially heinous, atrocious, or cruel. Similarly, we reject the argument that the trial court improperly doubled aggravators in finding, as two separate aggravators, that Waterhouse had been sentenced to life imprisonment for second-degree murder and that he was on parole at the time of the murder. See Waterhouse v. State, 429 So.2d at 307.

Waterhouse also argues that the finding that the crime was committed in the course of a sexual battery was tainted by the court's refusal to permit defense evidence on the sexual battery. Because we have rejected Waterhouse's claim that he was prohibited from presenting or challenging evidence relating to the sexual battery we find this claim to be without merit.

We agree with Waterhouse that the evidence is insufficient to establish two of the aggravating factors found by the court below. There is insufficient evidence to support the finding that the murder was committed for the purpose of avoiding or preventing arrest. We further find that the evidence does not show the heightened premeditation and calculation necessary to establish beyond a reasonable doubt that the murder was committed in a cold, calculated, and premeditated manner. Nevertheless, we find beyond a reasonable doubt that the elimination of these two aggravating factors would not have resulted in a life sentence in light of the remaining valid aggravating circumstances and the lack of mitigating circumstances.FN6 Hamblen v. State, 527 So.2d 800 (Fla.1988); Bassett v. State, 449 So.2d 803 (Fla.1984).

FN6. The original trial judge found five of the six aggravating circumstances found by the judge on resentencing. The aggravating factor of cold, calculated, and premeditated was not presented to the jury in the original penalty phase proceeding. On direct appeal, this Court questioned the evidence in support of the witness-elimination aggravator. Nevertheless, the Court found the death sentence valid even without that aggravating factor because of the other aggravating circumstances and the lack of mitigating circumstances. Although we later vacated Waterhouse's death sentence in order to allow him to present nonstatutory mitigating evidence, Waterhouse refused to allow the presentation of mitigation evidence at resentencing. Thus, this case stands in the same posture as it stood on direct appeal when the death sentence was upheld.

Accordingly, we affirm the sentence of death. It is so ordered. SHAW, C.J., and OVERTON, McDONALD, GRIMES and HARDING, JJ., concur. KOGAN, J., concurs in part and dissents in part with an opinion, in which BARKETT, J., concurs.

KOGAN, Justice, concurring in part, dissenting in part.

I find the following portions of the record dispositive of the present appeal: MR. WATERHOUSE: I would like Mr. Hoffman to [make the closing argument]; he's more articulate than myself. We seem to be at odds. THE COURT: He says he wants you to do it. Are you refusing? MR. HOFFMAN: Yes. Aside from for the record, I think that's what I have to do. What he wants me to do, I feel might be totally unethical, to go into the guilt phase issue. And he refused to put on anything in mitigation. Therefore, I don't know of-I don't have anything in mitigation to talk about. And I can get up there and speak about things unethical and this happened before he told me what to do. And I have gone on for what he told me to do, and we may have to do this again, but we may not. THE COURT: Well, this judge won't. All right, then, he proceeds on his own.

In the same exchange, the trial court asked defense counsel Hoffman if he was prepared to make the closing argument in the event this should become necessary. Defense counsel responded in the negative: Judge, I think I would take the posture that even if he would ask me to do it now, based on his previous instructions, that I couldn't do it. And now we're riding the same horse. He told me not to do things. And I can't jump, and I would not attempt; I would rather go with no attempt.

However, the prosecutor was troubled by this exchange and asked that further inquiry be made before the jury was brought back into the courtroom. At this point, Waterhouse exhibited considerable confusion regarding the options before him. He continued to state that he wanted the jury to be told of his claim of innocence, but also informed the court that he did not fully understand the law. Waterhouse specifically told the trial court that, if Hoffman would not make the closing argument, Waterhouse needed time both to consult with counsel and prepare to make the argument himself.

The following exchange occurred: THE COURT: Well, I'm going to ask this question one last time. If I don't get an answer, you're proceeding on your own, Mr. Waterhouse. Do you want Mr. Hoffman to make the closing statement for you within the confines of the recommendation of either death or life imprisonment or not, and not make an argument on your guilt or innocence of the homicide; yes or no? MR. WATERHOUSE: Your Honor, the problem is-see, I am not an attorney, I do not know the law fully, what you're talking about. That's why I need to get together- THE COURT: Yes or no? MR. WATERHOUSE:- with Mr. Hoffman in order so we could prepare for this, so he could tell me that this is admissible and this is not. We haven't got together on it. THE COURT: Yes or no? MR. WATERHOUSE: No. THE COURT: Bring in the jury. (Emphasis added.)

Based on the foregoing, I cannot agree with the majority's conclusion that “Hoffman did not refuse to make closing argument.” Majority op. at 1014. The records reflects the opposite. Because a defendant cannot be denied counsel-even a confused and equivocating defendant like Waterhouse-I believe the record compels a finding that the Sixth Amendment of the United States Constitution and article I, section 16 of the Florida Constitution have been violated here.

In particular I cannot ignore the portions of the exchange emphasized above, which clearly show that the trial court refused to give Waterhouse even a rudimentary opportunity to prepare to make the closing argument himself. The trial court would not even permit Waterhouse the opportunity to consult with counsel as to what argument he might make on his own. This occurred despite Waterhouse's express request for time to consult with Hoffman. Thus, the trial court clearly was endorsing Hoffman's refusal to make argument, was forcing Waterhouse to serve as his own counsel, and then simultaneously deprived Waterhouse of any opportunity whatsoever to prepare in a meaningful way.

This was plain error. The right to counsel is one of the most fundamental of rights granted to a person accused of crimes. U.S. Const. amend. VI; art. I, § 16, Fla. Const. Likewise, due process requires that a defendant not be deprived of a reasonable and meaningful opportunity to prepare for court, even when acting pro se. U.S. Const. amend. XIV; art. I, § 9, Fla. Const. The trial court below, the defense counsel, and now this Court have denied Waterhouse his rights.

Moreover, even if Waterhouse's statements are construed as a request for self-representation, they at best were equivocal statements. Florida law is settled that self-representation cannot be authorized-much less imposed upon a defendant by judicial fiat-unless the request is unequivocal and a proper hearing is conducted to gauge the defendant's age, mental status, lack of knowledge or experience in criminal proceedings, and whether the waiver is knowing and intelligent. Hardwick v. State, 521 So.2d 1071, 1074 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988); see Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). No such hearing occurred here, as the majority concedes. Majority op. at 1014. Thus, the trial court's determination of this matter was error, both procedurally and substantively.

Like the majority, I have no doubt that Waterhouse exhibited a lack of cooperation in this case. However, the trial court went too far in penalizing Waterhouse by denying him his right to counsel prior to the closing arguments; and defense counsel clearly exacerbated this error by announcing he was refusing to make argument for his client and was not prepared to make any sort of closing argument. No matter how contumacious a defendant may be, he may not be denied the right to counsel and counsel may not refuse to provide representation. U.S. Const. amends. V, VI; art. I, §§ 9, 16, Fla. Const.

Moreover, I cannot give credence to Hoffman's assertions that his actions were so constrained by Waterhouse that he was unable to develop a closing argument. The Florida Rules of Professional Conduct give considerable latitude to defense counsel to control the technical and legal tactical issues of the case. R. Regulating Fla. Bar 4-1.2(a) & 4-1.2 (comment on scope of representation) (1991). Hoffman could have exercised this prerogative had he so chosen, thus developing some sort of closing argument on behalf of his client. The very fact that Hoffman sat mute while Waterhouse rambled through an unskilled and confused closing argument could be considered a damning indictment in the eyes of jurors; and for this reason alone, I believe Hoffman did not meet his obligations to his client and assisted in depriving his client of the right to counsel and due process.

In my five years on this Court, I have read countless records in which defense counsel had far less to argue than did Hoffman, yet counsel still developed a moving and legally sound closing statement. In many instances, such attorneys have persuaded more than a few jurors to vote for a recommendation of life. I see no reason why Hoffman could not have done the same when his client asked him in open court to make the closing argument. For example, Hoffman could have argued against the existence of all or some of the aggravating factors, two of which this Court today finds inappropriate. The failure even to notice the inapplicability of these two aggravating factors, much less argue against them to judge and jury, reveals Hoffman's claims in court as an unacceptable excuse.

I also do not believe Hoffman would have violated any ethical rule by developing and arguing a case for mitigation, since an attorney retains substantial control over the means used in achieving the client's objectives. R. Regulating Fla. Bar 4-1.2(a) & 4-1.2 (comment on scope of representation) (1991). Accordingly, I believe that Waterhouse is entitled to a new penalty phase, and I would so order.

However, I agree with the majority that the evidence was insufficient to support two of the aggravating factors. Cold, calculated premeditation is improper here because there is insufficient evidence of a careful plan or prearranged design to effect this murder. See Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988).

As to witness elimination, the trial court expressed its opinion that this factor is present in virtually every case. This is not the law. Like cold, calculated premeditation, the factor of witness elimination focuses on a specific kind of heightened criminal intent. Witness elimination must include “very strong” evidence that the intent underlying the murder was to avoid arrest or detention. Armstrong v. State, 399 So.2d 953 (Fla.1981). Thus, there must be evidence beyond a reasonable doubt that a conscious purpose of the murder was to eliminate a witness or otherwise to avoid arrest or detention. It is not enough that the murder merely incidentally eliminates the victim as a witness, without evidence beyond a reasonable doubt of an intent to do so, since all murders by definition achieve this result. Thus, I find insufficient evidence in this record that Waterhouse's crime met the requirements described here.

BARKETT, J., concurs.

Waterhouse v. Secretary, Slip Copy, 2012 WL 503842 (M.D. Fla. 2012). (Habeas)

JAMES S. MOODY, JR., District Judge.

This cause is before the Court on Petitioner Robert Brian Waterhouse's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“petition”) (Dkt.1). Waterhouse is a Florida prisoner under sentence of death. Respondent filed a response to the petition (Dkt.8), and Waterhouse filed a reply (Dkt.12). Upon consideration of Waterhouse's claims, the Court has determined that the petition should be denied.

BACKGROUND

Waterhouse was convicted in 1980 of first-degree murder. He was sentenced to death. In 1983, the conviction and sentence was affirmed on direct appeal by the Florida Supreme Court. See Waterhouse v. State, 429 So.2d 301 (Fla.1983). In 1988, however, the Florida Supreme Court granted Waterhouse's petition for writ of habeas corpus and vacated his death sentence because the trial court failed to instruct the jury to consider evidence of nonstatutory mitigating circumstances. See Waterhouse v. State, 522 So.2d 341, 342 (Fla.1988). The case was remanded to the trial court for a new sentencing proceeding before a jury. Id. at 344.

After the resentencing proceeding, Waterhouse was again sentenced to death. In 1992, his sentence was affirmed by the Florida Supreme Court. See Waterhouse v. State, 596 So.2d 1008 (Fla.1992). His petition for writ of certiorari in the United States Supreme Court was denied on November 2, 1992. See Waterhouse v. Florida, 506 U.S. 957, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992).

In 1994, Waterhouse filed a motion for post conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. In January 1998, the state trial court denied the post conviction motion. On May 31, 2001, the Florida Supreme Court affirmed the denial of Waterhouse's post conviction motion. See Waterhouse v. State, 792 So.2d 1176 (Fla.2001).

In 2002, the Florida Supreme Court denied his petition for writ of habeas corpus. See Waterhouse v. Moore, 838 So.2d 480, 484 (Fla.2002).

In September 2003, for the first time, Waterhouse filed a motion for post conviction DNA testing in the trial court. He subsequently filed an amended motion for DNA testing. In July 2005, the trial court denied the motion for DNA testing because the evidence had been inadvertently destroyed by the Clerk's office. In October 2006, the Florida Supreme Court affirmed the order denying the motion for DNA testing. See Waterhouse v. State, 942 So.2d 414 (Fla.2006) [table].

On January 4, 2012, the Governor for the State of Florida signed a death warrant for Waterhouse. The execution is scheduled for February 15, 2012. On January 10, 2012, Waterhouse filed a successive motion for post conviction relief in the trial court in which he raised two grounds for relief:

1. EXECUTION SHOULD BE CONSTITUTIONALLY PROHIBITED WHEN A PERSON UNDER SENTENCE OF DEATH THAT HAS CONSISTENTLY AND CONTINUOUSLY MAINTAINED HIS INNOCENCE AND WHO IN GOOD FAITH FILES A MOTION FOR POSTCONVICTION DNA TESTING IN AN EFFORT TO ESTABLISH HIS INNOCENCE IS PROHIBITED FROM DOING SO DUE TO THE DESTRUCTION OF ALL EVIDENCE THROUGH THE NEGLIGENCE OF A GOVERNMENT AGENCY IN VIOLATION OF STATE LAW;

2. MR. WATERHOUSE WAS DENIED AN ADVERSARIAL TESTING AT HIS CAPITAL TRAIL DUE TO FAILURE OF THE STATE TO DISCLOSE A MATERIAL WITNESS UNDER BRADY, THE PRESENTATION OF FALSE TESTIMONY UNDER GIGLIO IN LIGHT OF THE AFFIDAVIT OF MR. LEGLIO SOTOLONGO WHICH, IN THE ALTERNATIVE, MAY ALSO BE CONSTRUED AS NEWLY DISCOVERED EVIDENCE.

(Respondent's Ex. M2 at 197–251). The trial court summarily denied the first claim, granted an evidentiary hearing on the second claim, and, after the evidentiary hearing, denied relief on the second claim on January 20, 2012. On February 8, 2012, the Florida Supreme Court affirmed the order denying the successive motion for post conviction relief. See Waterhouse v. State, 2012 Fla. LEXIS (Fla.2012). The Florida Supreme Court's mandate issued the same day.

On February 9, 2012, Waterhouse filed a petition for writ of certiorari and motion for stay of execution in the United States Supreme Court that were denied today, February 15, 2012. Waterhouse filed the instant federal habeas petition on February 10, 2012. Respondent filed a response on February 13, 2012, and Waterhouse filed a reply on February 14, 2012.

FACTS

In its opinion affirming Waterhouse's conviction and sentence in the initial direct appeal, the Florida Supreme Court set forth the salient facts as follows:

On the morning of January 3, 1980, the St. Petersburg police responded to the call of a citizen who had discovered the dead body of a woman lying face down in the mud flats at low tide on the shore of Tampa Bay. An examination of the body revealed severe lacerations on the head and bruises around the throat. Examination of the body also revealed—and this fact is recited not for its sensationalism but because it became relevant in the course of the police investigation—that a blood-soaked tampon had been stuffed in the victim's mouth. The victim's wounds were such that they were probably made with a hard instrument such as a steel tire changing tool. Examination of the body also revealed lacerations of the rectum. The cause of death was determined to have been drowning, and there was evidence to indicate that the body had been dragged from a grassy area on the shore into the water at high tide. The body when discovered was completely unclothed. Several items of clothing were gathered from along the shore at the scene.

The body showed evidence of thirty lacerations and thirty-six bruises. Hemorrhaging indicated the victim was alive, and defense wounds indicated she was conscious, at the time these lacerations and bruises were inflicted. Acid phosphotase was found in the victim's rectum in sufficient amount to strongly indicate the presence of semen there. Also, the lacerations in this area indicated that the victim had been battered by the insertion of a large object. The medical examiner was also able to determine that at the time of the murder the victim was having her menstrual period.

After several days of investigation the police were unable to identify the victim, so they announced the situation to the public. They then received an anonymous telephone call simply informing them of appellant's automobile tag number and advising them to investigate it.

The police also learned the identity of the victim from two of her neighbors. These two acquaintances, Yohan Wenz and Carol Byers, testified at trial that they went to the ABC lounge with the victim on Wednesday night, January 2, 1980. They testified that they later left the lounge and that Ms. Kammerer remained there at that time. Kyoe Ginn, who was working there as a bartender that night, testified that the victim came into the bar with a man and a woman, that they later left, that Ms. Kammerer then began talking with appellant (who was known to the witness) and that at about 1:00 a.m. appellant and Kammerer left the bar together.

On the evening of January 7, 1980, police officers asked appellant to voluntarily go with them to police headquarters for an interview. At this time he said that he did not know any girl named Debbie and that he went to the ABC lounge on January 2 but did not leave with a woman. After this interview appellant was allowed to leave but his car was impounded for searching pursuant to warrant. The automobile was searched on January 8 and appellant was arrested on January 9. Detectives Murry and Hitchcox arrested appellant. In the car on the way to the police station, after advising appellant of his rights, Hitchcox asked him, “We were right the other night, weren't we, when we talked to you about being involved in this case?” Appellant responded simply, “Might.” Shown a picture of Deborah Kammerer, appellant this time admitted that he did in fact know her.

On the afternoon of January 9, the detectives again interviewed appellant. Detective Murry testified concerning this interview. She said that appellant became emotionally upset and said repeatedly that his life was over, that he was going to the electric chair. He said that he wanted to talk to his interviewers as people and not as police officers. He then said that he had some personal problems with alcohol, sex, and violence.

The two detectives interrogated appellant again on January 10. Again appellant said he wanted to talk to them as people rather than as police officers. Detective Murry testified that appellant again indicated that he experienced a problem involving sexual activity. He said that when he drinks a lot, it is like something snaps and he then finds himself doing things that he knows are terrible and bad, and that he cannot control his behavior on such occasions. Appellant also told the officers that when he wanted to engage in sexual activity with a woman but learned that she was having her menstrual period, he would become frustrated and angry and that this is what had happened the previous Wednesday night [i.e., the night of the murder]. He also said that he had had a lot to drink on Wednesday night.

Inspection of the interior of appellant's car revealed the presence of visible blood stains, and a luminol test revealed that a large quantity of blood had been in the car but had been wiped up. Analysis of the blood in the car and comparison with known blood samples of appellant and the victim revealed that the blood in appellant's car could have come from the victim but was not appellant's blood. A forensic blood analyst testified that it is possible through analysis of blood stains on certain surfaces to make estimates concerning the direction and velocity of motion of the blood making the stains. This witness concluded from her analysis that the blood in appellant's car was deposited in the course of a violent attack. A forensic hair analyst testified that hairs found in appellant's car were consistent in their characteristics with known hair samples from the victim. A forensic fiber analyst testified that fibers found in the debris adhering to the victim's coat were similar to fibers from the fabric of the seat cover in appellant's car. Also, fibers were found in the car that had the same characteristics as fibers from the victim's coat and pants.

Appellant was employed as a plaster and drywall worker. His foreman testified at trial that on the morning of January 3, appellant arrived at work asking for the day off. He appeared to have a hangover and said he was feeling rough. The witness said that at this time appellant had scratches on his face. The witness also said that appellant had told him that he liked anal intercourse and liked being with women who allowed themselves to be hit and slapped. Waterhouse v. State, 429 So.2d at 302–04.

STANDARDS OF REVIEW

Because Waterhouse filed his petition after April 24, 1996, this case is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Henderson v. Campbell, 353 F.3d 880, 889–90 (11th Cir.2003); Maharaj v. Sec'y of Dept. of Corrections, 304 F.3d 1345, 1346 (11th Cir.2002). The ultimate issue with respect to each claim is whether the Florida Supreme Court's resolution of the claim was “contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Robinson v. Moore, 300 F.3d 1320 (11th Cir.2002); Van Poyck v. Florida Department of Corrections, 290 F.3d 1318 (11th Cir.2002). The standard Waterhouse must meet could not be higher; it is not enough that the state court “got it wrong.” Petitioner must show that the state court's decision was objectively unreasonable. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citing Williams v. Taylor, supra ).

In the event constitutional error is found in a habeas proceeding, the relevant harmless error standard is set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The test is “less onerous” than the harmless error standard enunciated in Chapman v. California, 386 U.S. (1967). “The test is whether the error had substantial and injurious effect or influence in determining the jury's verdict. Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice.’ ” Brecht, 507 U.S. at 637. Although no constitutional error has occurred in Waterhouse's case, any possible error would be harmless beyond any reasonable doubt based on the facts and the record.

No evidentiary hearing is required because none of Waterhouse's claims turn on any unresolved issue of fact. All involve issues of law argued on the basis of the existing record.FN1 FN1. The state post-conviction court conducted evidentiary hearings. Its findings are “presumed to be correct” (28 U.S.C. § 2254(e) (1)) and there is no showing that its decision “was based on an unreasonable determination of the facts ...” (28 U.S.C. § 2254(d)(2)).

Procedural Default

A section 2254 application cannot be granted unless a petitioner “has exhausted the remedies available in the courts of the State; ...” 28 U.S.C. 2254(b)(1)(A); Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir.1998). In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). See also, Henderson v. Campbell, 353 F.3d at 891 (“A state prisoner seeking federal habeas relief cannot raise a federal constitutional claim in federal court unless he first properly raised the issue in the state courts.”) (quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001)); Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (“[E]xhaustion of state remedies requires that the state prisoner ‘fairly present’ federal claims to the state courts in order to give the State the ‘opportunity to pass upon and correct alleged violations of its prisoners' federal rights[.]’ ”) (citation omitted).

Under the procedural default doctrine, “[i]f the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable.” Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir.2001). “The doctrine of procedural default was developed as a means of ensuring that federal habeas petitioners first seek relief in accordance with established state procedures.” Henderson, 353 F.3d at 891 (quoting Judd v. Haley, 250 F.3d at 1313).

Pre–AEDPA decisions from the Supreme Court establish the framework governing procedural default in federal habeas cases. A procedural default will only be excused in two narrow circumstances. First, petitioner may obtain federal habeas review of a procedurally defaulted claim if he shows both “cause” for the default and actual “prejudice” resulting from the default. “Cause” ordinarily requires petitioner to demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court. Henderson, 353 F.3d at 892; Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir.1995).

To show “prejudice,” the petitioner must show “not merely that the errors at his trial created a possibility of prejudice, but that they worked to his factual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Hollis v. Davis, 941 F.2d 1471, 1480 (11th Cir.1991) (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). The petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson, 353 F.3d at 892.

Second, a petitioner may obtain federal habeas review of a procedurally defaulted claim, without a showing of cause or prejudice, if such review is necessary to correct a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Henderson, 353 F.3d at 892. This exception is only available “in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent.” Henderson, 353 F.3d at 892. The fundamental miscarriage of justice exception concerns a petitioner's “actual” innocence rather than his “legal” innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.2001) (citing Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998)); Murray v. Carrier, 477 U .S. 478, 495–96 (1986) (explaining a “fundamental miscarriage of justice” occurs “in an extraordinary case, where a constitutional violation has resulted in the conviction of someone who is actually innocent”). To meet this standard, a petitioner must “show that it is more likely than not that no reasonable juror would have convicted him” of the underlying offense. Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

“[A] claim of actual innocence must be based on [new] reliable evidence not presented at trial.” Calderon, 523 U.S. at 559 (quoting Schlup, 513 U.S. at 324) (“given the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected”) (internal quotation marks omitted). The Schlup Court stated the petitioner must show constitutional error coupled with “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S. at 324. This fundamental miscarriage of justice exception is not available unless “the petitioner shows, as a factual matter, that he did not commit the crime of conviction.” Ward v. Cain, 53 F.3d 106, 108 (5th Cir.1995) (denying certificate of probable cause) (footnote omitted).

DISCUSSION
I. Timeliness of Petition

Respondent argues that Waterhouse's petition is untimely because it was not filed within one year of his state conviction becoming final excluding any tolling periods for state post conviction proceedings (Dkt. 8 at dkt. p. 50). FN2 FN2. Respondent also argues that the petition is untimely under § 2244(d)(1)(D) (Dkt. 8 at 73–82).

The AEDPA statute of limitation expressed in 28 U.S.C. § 2244(d) provides: (1) A 1–year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitations period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by a State action in violation of the Constitution or laws of the United States is removed, if the applicant is prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

In the Eleventh Circuit, “a single limitation period applies to a whole petition and ... the limitation period for the whole petition runs one year from the latest of the triggering events established in section 2244(d)(1)(A)-(D).” Zack v. Tucker, 2012 U.S.App. LEXIS 491, at (11th Cir. Jan. 9, 2012) (citing Walker v. Crosby, 341 F.3d 1240, 1245 (11th Cir.2003)).

In light of this rule, this Court concludes that the petition is timely because Ground II of the petition, the Brady claim, is timely under section 2244(d)(1)(D). The factual predicate of that claim could not have been discovered through due diligence until Mr. Sotolongo contacted Waterhouse's attorney in January 2012, and informed him that Detective Hitchcox's police report included false information regarding the statement Mr. Sotolongo gave to Detective Hitchcox in 1980 (See Dkt. 1–3 at dkt. pp. 2–12).

II. Ground I

“THE FLORIDA SUPREME COURT DECISION HOLDING THAT THE NEGLIGENT DESTRUCTION OF EVIDENCE BY A STATE AGENCY DOES NOT REQUIRE A NEW PROCEEDING OR ACT AS A BAR TO EXECUTION VIOLATES THE EIGHTH AMENDMENT BAN ON CRUEL AND USUAL PUNISHMENT AND THE FIFTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS.” Waterhouse asserts that pursuant to “[e]volving standards of due process under the Fifth, Eighth, and Fourteenth Amendments[,]” execution of an individual who has consistently maintained his innocence should be constitutionally prohibited when the individual, in good faith, has filed a motion for post conviction DNA testing to prove his innocence, but is precluded from obtaining DNA testing due to the “reckless, grossly negligent and/or negligent” destruction of the evidence by a government agency (Dkt. 1 at 12, 18).FN3 He further argues that where a government agency has negligently destroyed potentially exonerating evidence, a “mature society will not accept execution under the Eighth Amendment.” Id. at 21. In sum, Waterhouse asks this Court to recognize that he has a fundamental constitutional right not to be executed where he has maintained his innocence, and is precluded from obtaining DNA testing on evidence used at trial to convict him because a government agency negligently destroyed the evidence. These claims are procedurally defaulted and precluded from review in this Court.

FN3. In 2003, Waterhouse moved for post conviction DNA testing on blood found in his vehicle and on his clothes, serology evidence recovered from the victim at the autopsy, the victim's clothes, and hair evidence (Respondent's Ex. L1 at 1). The Clerk of the Court for the Sixth Judicial Circuit, Pinellas County, Florida, erroneously destroyed the evidence in 1988. Id. at 10–28.

When Waterhouse raised these claims in his successive Rule 3.851 motion, the trial court denied them as improperly pled under Rule 3.851(d)(2)(B), procedurally barred, successive, and untimely (Respondent's Ex. M3 at 340–42). When Waterhouse appealed the denial of his successive Rule 3.851 motion, the Florida Supreme Court expressly stated that the destruction of evidence issue was improperly pled in a successive Rule 3.851 motion, procedurally barred, successive, and untimely. Waterhouse, 2012 Fla. LEXIS at *29–42.

Generally, before a claim is procedurally barred from federal habeas review, a state court must reject reviewing an incorrectly presented claim. The fact that a federal habeas petitioner failed to abide by a state procedural rule does not, standing alone, prevent a federal court from reaching the federal claim: “The state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.” Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)). A state court's procedural ruling constitutes an independent and adequate state rule of decision if (1) the last state court rendering a judgment in the case clearly and expressly states that it is relying upon a state procedural rule to resolve the federal claim without reaching the merits of the claim, (2) the state court's decision rests solidly on state law grounds and is not intertwined with an interpretation of federal law, and (3) the state procedural rule is not applied in an “arbitrary or unprecedented fashion,” or in a “manifestly unfair manner.” Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir.2001) (citing Card v. Dugger, 911 F.2d 1494 (11th Cir.1990)).

The state trial court rejected Waterhouse's claims as improperly pled, procedurally barred, successive, and untimely. The Florida Supreme Court expressly affirmed the application of the procedural bars, and did not reach the merits of the claims. Florida courts consistently apply the procedural rule that a second or successive Rule 3.851 motion which is filed outside the one-year limitations period articulated in Rule 3.851(d)(1) FN4 and does not fall within a recognized exception to the one-year limitations period under Rule 3.851(d)(2) FN5 is untimely. See Walton v. State, 2011 Fla. LEXIS 2797, 36 Fla. L. Weekly S 702 (Fla. Dec. 1, 2011) (Rule 3.851(d)(1) prohibits the filing of a post conviction motion more than one year after a judgment and sentence of death become final unless the motion falls within a recognized exception to the one-year limitations period under Rule 3.851(d)(2)); Peterka v. State, No. SC08–1413, order at 2, 15 So.3d 581 (Fla. May 22, 2009) (unpublished order) (denying successive rule 3.851 motion as untimely where the defendant raised “a variant on a claim that he has already raised in prior proceedings by relying upon evidence that has been known since his trial”).FN6

FN4. Rule 3.851(d)(1) states, “Any motion to vacate judgment of conviction and sentence of death shall be filed by the prisoner within 1 year after the judgment and sentence become final.” FN5. Rule 3.851(d)(2) states: (2) No motion shall be filed or considered pursuant to this rule if filed beyond the time limitation provided in subdivision (d)(1) unless it alleges: (A) the facts on which the claim is predicated were unknown to the movant or the movant's attorney and could not have been ascertained by the exercise of due diligence, or (B) the fundamental constitutional right asserted was not established within the period provided for in subdivision (d)(1) and has been held to apply retroactively, or (C) postconviction counsel, through neglect, failed to file the motion. FN6. Waterhouse does not argue that his claim fell under one of the Rule 3.851(d)(2) exceptions to the one-year limitations period.

Thus, his due process and cruel and unusual punishment claims pertaining to the destruction of evidence are procedurally defaulted. Waterhouse fails to demonstrate cause and prejudice excusing his default, and fails to show that the fundamental miscarriage of justice exception applies. Waterhouse presents no evidence that could satisfy the difficult standard set forth in Schlup. See Schlup v. Delo, 513 U.S. at 324; Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir.2001). Therefore, these claims are procedurally barred from federal review. FN7. As the Florida Supreme Court noted, “Waterhouse presents no authority to support the proposition that [his claim that the destruction of the evidence was a bar to execution] is not ripe until a warrant is signed.” Waterhouse, 2012 Fla. LEXIS at *31 n. 9.

Even if Waterhouse's due process claim were not barred from review, it would be denied on the merits.FN8 Waterhouse's argument is based on the Clerk of the Court's negligent destruction of evidence FN9 approximately eight years after his trial and conviction. In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the Supreme Court held that due process is only violated when a defendant can show bad faith on the part of the police who failed to preserve potentially useful evidence. Waterhouse avers, however, that Youngblood is not controlling in his case because it was not a capital case, and did not address whether reckless or negligent destruction of evidence by a government agency would bar an execution on due process considerations.

FN8. In his amended Rule 3.853 motion for DNA testing, Waterhouse asserted that the destruction of the evidence was a due process violation and a violation of the prohibition against cruel and unusual punishment (Respondent's Ex. L1 at 55–56). On appeal from the denial of the motion for DNA testing, however, Waterhouse asserted only a violation of due process claim (Respondent's Ex. L3 at 18–45). He did not assert an Eighth Amendment cruel and unusual punishment claim. Id. Consequently, he did not exhaust his cruel and unusual punishment claim at that time. See Pruitt v. Jones, 348 F.3d 1355, 1358–59 (11th Cir.2003) (“ ‘[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process, including review by the state's court of last resort, even if review in that court is discretionary.’ ”) (citing O'Sullivan, 526 U.S. at 845); Sweet v. State, 810 So.2d 854, 870 (Fla.2002) (holding claims raised on appeal from order denying post conviction relief are procedurally barred if petitioner receives an evidentiary hearing and does not fully brief each issue in his appeal brief); Fla. R.App. P., Rule 9.142(a)(2) (“On appeals from orders ruling on applications for relief under Florida Rule of Criminal Procedure 3.851 or 3.853, and on resentencing matters, the [briefing] schedules set forth in rule 9.140(g) will control.”); Fla. R.App. P., Rule 9.140(g) (“Initial briefs shall be served within 30 days of service of the record or designation of appointed counsel, whichever is later ....”) (emphasis added). When Waterhouse presented his cruel and unusual punishment claim in 2012, both the state trial court and the Florida Supreme Court denied the claim as improperly pled under Rule 3.851(d)(2)(B) and untimely (Respondent's Ex. M3 at 340–42; Waterhouse, 2012 Fla. LEXIS at *29–42). Accordingly, it is clear that the state courts' denial of Waterhouse's Eighth Amendment cruel and unusual punishment claim rests on independent and adequate state grounds barring federal review of the claim. However, in its opinion affirming the denial of Waterhouse's 2012 successive Rule 3.851 motion, the Florida Supreme Court stated in pertinent part that “Waterhouse's due process challenge to the destruction of evidence in his case was previously fully presented, considered, and rejected by both the former postconviction court and this Court.” Waterhouse, 2012 Fla. LEXIS at *30 (emphasis added). Therefore, it is less clear whether the due process challenge to the destruction of evidence is procedurally defaulted. Accordingly, this Court will also address the due process claim on the merits.

FN9. During a move of the courthouse by court clerks, a decision was made that evidence which could legally be destroyed was to be destroyed rather than moved (Respondent's Ex. L1 at 48). The evidence in Waterhouse's case was inadvertently destroyed in 1988 when the clerks who were destroying the evidence utilized a preliminary list that included items that were under consideration for destruction, which included Waterhouse's case, rather than a final, approved list, which did not include Waterhouse's case. Id .

Destruction of evidence issues are analyzed in federal courts under California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) and Youngblood. In Trombetta, the Supreme Court explained that: [w]hatever duty the constitution imposes on the states to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of constitutional materiality, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. 467 U.S. at 479–80 (footnote omitted) (citation omitted). Under the two-prong Trombetta test, the Government violates a defendant's right to due process when: 1) it destroys evidence whose exculpatory significance is “apparent before” destruction; and 2) the defendant remains unable to “obtain comparable evidence by other reasonably available means.” Trombetta, 467 U.S. at 489. Youngblood extended Trombetta to provide that, if the exculpatory value of the evidence is indeterminate and all that can be confirmed is that the evidence was “potentially useful” for the defense, then a defendant must show that the Government acted in bad faith in destroying the evidence. Youngblood, 488 U.S. at 58.

To invoke Trombetta, a defendant must demonstrate that the government destroyed evidence possessing an “apparent” exculpatory value. Trombetta, 467 U.S. at 489. However, to trigger the Youngblood test, all that need be shown is that the government destroyed “potentially useful evidence.” Youngblood, 488 U.S. at 58. Youngblood defined “potentially useful evidence” as evidence of which “no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 57.

In Waterhouse's case, it can be objectively concluded from the state court record that Waterhouse did not alert anyone, prior to the time he requested DNA testing in 2003, that the blood, serology evidence, the victim's clothes, and the hair evidence was apparently exculpatory. But it is “potentially useful,” and the Youngblood rule rather than the Trombetta rule is applicable to his case.

When the evidence in question is only “potentially useful” to the defendant, the defendant must show that the government agency acted in bad faith when destroying the evidence to sustain a due process challenge. Youngblood, 488 U.S. at 58. Waterhouse does not allege and did not raise facts in state court or this Court that would show that the Clerk acted in bad faith in not preserving the evidence. The element of bad faith requires more than a showing of the intentional destruction of potentially exculpatory evidence. Waterhouse must show that the Clerk was aware of the exculpatory value of the destroyed evidence and made a conscious effort to prevent Waterhouse from securing the evidence. See Youngblood, 488 U.S. at 57 (presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed). Since there has been no showing that the evidence would have been exculpatory and no showing that the destruction of the evidence was motivated by bad faith, no due process violation occurred. Youngblood.

Although Waterhouse correctly asserts that Youngblood was not a capital case, he cites to no case law, controlling or otherwise, which supports his argument that Youngblood is inapplicable to destruction of evidence issues in death penalty cases. This Court's research reveals that federal courts continue to apply the Youngblood analysis to failure to preserve evidence issues in death penalty cases. See e.g., Allen v. McNeil, 2009 U.S. Dist. LEXIS 30694, at *30–32 (S.D.Fla. Mar. 31, 2009). Therefore, this Court concludes that pursuant to Youngblood, Waterhouse has not established a violation of due process.

“Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the ... state court's decision ‘was contrary to’ federal law then clearly established in the holdings of this Court, § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); or that it ‘involved an unreasonable application of’ such law, § 2254(d)(1); or that it ‘was based on an unreasonable determination of the facts' in light of the record before the state court, § 2254(d)(2).” Harrington v. Richter, ––– U.S. ––––, ––––, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011). In denying the due process claim raised in Waterhouse's amended Rule 3.853 motion, the state trial court ruled that pursuant to Youngblood, there was no due process violation because Waterhouse failed to show bad faith was involved in the destruction of the evidence (Respondent's Ex. L 1 at 59). Waterhouse argues that the state courts' denial of his due process claim involved an unreasonable application of clearly established federal law ( see Dkt. 1 at 6, 17–19) because the courts “failed to consider the necessity for an evolutionary development since issuance of [ Youngblood ], which would bar an execution where evidence used at trial to convict a defendant is destroyed in a capital case even if there is not a finding of bad faith.” (Dkt. 1 at 19).

“[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by” the Supreme Court. Harrington v. Richter, 131 S.Ct. at 786 (quoting Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009) (internal quotation marks omitted)). Waterhouse has not identified any Supreme Court precedent establishing a specific rule which bars “an execution where evidence used at trial to convict a defendant is destroyed in a capital case even if there is not a finding of bad faith.” To the contrary, Waterhouse asked the state courts, and now this Court, to change (in his words “to evolve”) existing Supreme Court law. It is not the place of this Court to change established Supreme Court law, but to ensure that it is reasonably applied by state courts.

Waterhouse fails to demonstrate that the state court's decision to deny his due process claim was an unreasonable application of clearly established federal law. Accordingly, Ground I does not warrant federal habeas relief.

III. Ground II

“THE FLORIDA SUPREME COURT DECISION HOLDING THAT THE STATE DID NOT VIOLATE BRADY V. MARYLAND BECAUSE THE STATE DID NOT WILLFULLY OR INADVERTENTLY SUPPRESS EXCULPATORY OR IMPEACHMENT EVIDENCE AND THAT THE EVIDENCE DID NOT DEMONSTRATE A REASONABLE PROBABILITY THAT THE RESULT AT TRIAL WOULD HAVE BEEN DIFFERENT UNDER BRADY AND NEWLY DISCOVERED EVIDENCE IS UNREASONABLE AS IT OVERLOOKS AND/OR CONFLICTS WITH THE SIXTH AMENDMENT'S RIGHT TO COUNSEL, TO CONFRONT THE STATE WITNESSES AND THE RIGHT TO COMPULSORY PROCESS” After the victim's body was found on January 3, 1980, Detective Gary Hitchcox (“Hitchcox”) from the St. Petersburg Police Department was assigned to assist in the investigation of the case. On January 7, 1980, Hitchcox prepared a Supplementary Report which stated in pertinent part:

At that time I felt it was necessary to contact the ID checkers or bouncers at the bar and make contact with a Leglio E. SOTOLONGO who was at the bar on Wednesday, 2 Jan 80. He advised he would contact everyone else he could think of that was working that night and would respond to the station. I interviewed him on the second floor at which time he ID'd himself as Leglio E. SOTOLONGO, WM/23, 8650 15 S/N, phone 576–3700. Stts that he works in Tampa and is manager of a candle shop, 1506 E. 7 Ave, Tampa, Fl 33605, phone 248–3559, and employed in the evening as an ID checker at ABC Lounge, 35354 S/N, phone 894–4875. He stts he has worked for ABC apprx 6 months and that on Wednesday, 2 Jan 80, he was off however was in the bar from 10 p.m. to 1 a.m. He was shown a photo of the vic and he sttd that he has seen her several times in the lounge however has never talked to her. He then saw several photos one of which was the susp WATERHOUSE and sttd that he knew WATERHOUSE by the name of BOB and that he comes in the bar several times a week. That he has had general conversation with this subj however does not remember when BOB left or when the vic left as this is not the type of thing he keeps track of. (Dkt. 1–1 at dkt. pp. 9–10).

Sotolongo did not testify at Waterhouse's trial. Thirty-two years later, on January 9, 2012, Sotolongo signed an affidavit in which he said he read an article about Waterhouse's case in the Tampa Tribune on January 5, 2012. (Dkt. 1–3 at dkt. p. 4). The article indicated that Waterhouse was seen leaving the bar with the victim. Id. Sotolongo knew this was not true, and therefore he took steps to “get in touch with people connected to [Waterhouse's] case regarding what [he] knew.” Id. On the date the victim was murdered, Sotolongo was employed as a doorman at the ABC Lounge (“ABC”). Id. at 2. He was at ABC on the night the victim was murdered, but he does not recall whether or not he was working there that night. Id. At that time, Sotolongo knew Waterhouse because Waterhouse regularly went to ABC, and Waterhouse lived next door to a friend of Sotolongo's. Id. at dkt. p. 3. On the night of the murder, Sotolongo saw Waterhouse enter ABC at some time between 7 p.m. and 8 p.m. Id. When Waterhouse entered ABC that night, he paid back Sotolongo ten dollars that Sotolongo previously loaned to Waterhouse. Id. Sotolongo saw Waterhouse leave ABC that night with two white males some time before ABC closed at 2 a.m. Id. He did not see Waterhouse leave ABC with a female. Id.

Also in the affidavit, he stated that at some time after the murder, Hitchcox interviewed him. Id. at dkt. p. 4. He told Hitchcox that he saw Waterhouse leave ABC with two other men, but Hitchcox seemed disinterested in what he had to say. Id. He also stated that he was certain that he did not tell Hitchcox that he did not remember when Waterhouse left ABC, and that the portion of the Supplementary Report which implied that he told Hitchcox that he did not remember when Waterhouse left ABC was false. Id. at dkt. pp. 4–5.

Both of Waterhouse's trial attorneys signed affidavits on January 10, 2012, in which they indicated that they had relied on Hitchcox's Supplementary Report as being an accurate and truthful statement of what Sotolongo told the police. Id. at dkt. pp. 8, 11. Because they relied on the veracity of Hitchcox's report, and because the report indicated that Sotolongo did not have information about the night in question and did not suggest that Sotolongo would be a witness useful to the defense, the defense team did not contact Sotolongo. Id. at dkt. pp. 8–9, 11–12. After reading Sotolongo's January 9, 2012 affidavit, however, both attorneys stated that had they known what Sotolongo actually knew about the night in question, they would have called him as a witness to impeach the testimony of the bartender who testified that she saw Waterhouse and the victim leave ABC together on the night of the murder, and to corroborate the testimony of Mr. Vasquez who testified that the victim left ABC alone,FN10 and Waterhouse left with two men. Id. at dkt. pp. 7–8, 10–11.

FN10. Vasquez actually testified at trial that he did not see the victim leave ABC that night (Respondent's Ex. A10, p.1946, lines 21–23).

Waterhouse maintains that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the State's failure to provide defendant with favorable, material evidence violates due process), and its progeny, by failing to disclose Sotolongo's actual statement to Hitchcox, and instead furnishing a false statement in Hitchcox's Supplementary Report. Waterhouse also asserts that the State's failure to provide Sotolongo's actual statement violated Waterhouse's rights under the Sixth Amendment to: 1) a fair trial; 2) present a defense through compulsory process of calling defense witnesses; 3) counsel; and 4) confront the State witnesses. He contends that the state courts' denials of his claim was an unreasonable application of Brady. He also avers that the Florida Supreme Court's decision “overlooks” his claims under the Sixth Amendment.

1. Sixth Amendment Claims

To the extent Waterhouse asserts in Ground II of his petition that his rights under the Sixth Amendment to counsel, a fair trial, confront witnesses, and present a defense were violated by the State's failure to provide Sotolongo's actual statement, the claims must be denied as unexhausted. Waterhouse did not raise these claims in the state courts. He did not raise the claims in either his successive Rule 3.851 motion (see Respondent's Ex. M2 at 214–21), or in his briefs on appeal from the denial of the successive Rule 3.851 motion (see Respondent's Exs. M5, M7). Waterhouse fails to demonstrate cause and prejudice excusing his default, and fails to show that the fundamental miscarriage of justice exception applies. Accordingly, these claims are dismissed as unexhausted and procedurally barred.FN11 See Smith v. Sec ‘y Dep't of Corr., 572 F.3d 1327, 1339–40 (11th Cir.2009) (petitioner failed to exhaust his state remedies where he never raised claim anywhere in the state courts, and procedural bar in that circumstance cannot be waived implicitly by the State's failure to assert it); McNair v. Campbell, 416 F.3d 1291, 1304 (11th Cir.2005) (“the State's failure to raise exhaustion does not constitute a waiver under AEDPA”).

FN11. It is clear that the claim would be untimely and procedurally barred in state court if this Court dismissed the petition for lack of exhaustion. See Fla. R.Crim. P., Rule 3.851(d)(2).

2. Brady Claim

The Eleventh Circuit has articulated the Brady rule in the following way: To establish a Brady violation a defendant must prove the following: (1) that the Government possessed evidence favorable to the defendant (including impeachment evidence) ... (2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence ... (3) that the prosecution suppressed the favorable evidence ... and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. United States v. Meros, 866 F.2d 1304, 1308 (11th Cir.1989) (internal citations omitted). A “reasonable probability” is one sufficient to undermine confidence in the outcome of the proceeding. See United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). To meet this standard, a defendant need not demonstrate that, after discounting the inculpatory evidence in light of the evidence in question, insufficient evidence existed to convict him. See Taylor v. Singletary, 122 F.3d 1390, 1395 (11th Cir.1997) (citation omitted). Rather, the defendant must show that the suppressed evidence, reasonably taken, puts the whole case in such a different light as to undermine confidence in the verdict. Id. (quotation omitted).

Waterhouse raised a Brady /newly discovered evidence claim FN12 in his successive Rule 3.851 postconviction motion; an evidentiary hearing was held; and the trial court denied relief in its January 20, 2012 Order Denying Defendant's “Successor Motion for Post–Conviction Relief”: FN12. Waterhouse also raised a claim pursuant to Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); however, he abandoned that claim during the evidentiary hearing (Respondent's Ex. M3 at 362).

The Court finds that Waterhouse has not shown that the State committed a Brady violation on the basis articulated in Claim II for the reasons set forth below.

First Prong of Brady: As to the first prong, the Court finds that Sotolongo's testimony would impeach Ginn's trial testimony. Specifically, Sotolongo's statements could serve to impeach Ginn's testimony as to the time Waterhouse left the bar. Ginn testified that she saw Waterhouse and the victim leave the bar at around 1:00 a.m. (TT, p. 519.) While Sotolongo testified he is confident he saw Waterhouse leave between 12:00 a.m. and 2:00 a.m., and not 12:00 a.m. and 1:00 a.m., this discrepancy does not foreclose the finding that Sotolongo's testimony could have been impeaching in nature in connection with the time Waterhouse was seen leaving the bar. Sotolongo's testimony could also impeach Ginn's testimony that Waterhouse left with the victim, to the extent Waterhouse contends there was no evidence that he in fact came back to the bar after he was seen leaving with two men. In this regard, Sotolongo's testimony would also serve to corroborate Vasquez's testimony.

Second Prong of Brady: In reviewing the second prong of the Brady analysis, however, the Court finds that Waterhouse has not shown that the State suppressed the information from Sotolongo. Waterhouse essentially contends that Hitchcox's police report is false based on Sotolongo's evidentiary hearing testimony that he told Hitchcox during the January 7, 1980 interview that he saw Waterhouse leave the bar with two men on the night of January 2, 1980. Waterhouse alleges that the State violated Brady by not providing this information from Sotolongo to the defense at the time of trial. The Court is confronted with the conflicting evidentiary hearing testimony of Sotolongo and Hitchcox. Sotolongo testified that he told Hitchcox during the police interview that he saw Waterhouse leave the ABC Lounge with two men. Hitchcox, on the other hand, testified that if Sotolongo had told him this information, he would have included it in the police report. Hitchcox told the Court that it was his practice to write down pertinent pieces of information when conducting an interview and then to memorialize such information in a report. Hitchcox testified that any statement by Sotolongo that he saw Waterhouse leave with two men certainly would have struck him as pertinent and that it would have been part of the report. Hitchcox further testified that he believed Sotolongo's January 9, 2012 affidavit was “false.”

It is uncontested that the State provided the police report in question to defense counsel prior to Waterhouse's trial. The affidavits of Attorneys Scherer and White, attached to Waterhouse's motion, provide that the State gave the defense the January 7, 1980 police report prior to trial. Additionally, Waterhouse confirmed this point on the record at the January 13, 2012 hearing. Waterhouse has not shown, however, that the report was in fact falsified. Hitchcox told the Court that in his capacity as a detective, he always followed the same procedures when conducting interviews and that he noted and included in his report pertinent information about the subject matter. Hitchcox further testified that had Sotolongo told him this information, it would have been “exciting” to him as a detective and that he would have written it in his notes and the report. Sotolongo maintains that the information he told Hitchcox at the time is not accurately represented in the report. While Sotolongo testified that he told Hitchcox he saw Waterhouse leave with two men and that Hitchcox's report was inaccurate, he agreed that his memory as to events of January 2, 1980 is not as good now as it would have been at the time. Sotolongo also stated that he consistently believed he was working at the ABC Lounge that night. But he testified that he had to acknowledge that it was possible he was not working based on the same police report's statements that he was not working because, assuming it was correctly reported, the information he provided to law enforcement at the time likely would have been more accurate. Sotolongo also testified that he did not remember police showing him a photo of the victim, but deferred to the accuracy of the police report as to this point. The Court finds that Sotolongo's testimony, standing alone, is not sufficient to show that the State suppressed false evidence, as the defense must show under Brady.

Further, the Court finds that the description of Sotolongo's interview by Hitchcox is more reliable since it was reduced to writing at the time of the interview. Additionally, the passage of time and Sotolongo's weak recollection militate against the reliability of Sotolongo's statements.

Third Prong of Brady: The veracity of the police report is not the dispositive consideration for this Court in its Brady analysis. Even assuming that Waterhouse met the second prong of this analysis by showing that the State had suppressed Sotolongo's statements, Waterhouse would not be entitled to relief because he would not be able to show prejudice under the third prong of the Brady analysis. As thoroughly discussed in section III.A of this order concerning the newly discovered evidence claim, the introduction of Sotolongo's testimony at trial would not have changed the outcome of this case in light of all the other evidence and testimony presented by the State. The Court emphasizes the following again here: evidence concerning Waterhouse's departure from the bar with two men was presented to the jury through the testimony of Vasquez; the testimony the jury heard from Vasquez left open the possibility that Waterhouse returned to the bar after initially leaving with two men; and the totality of the other uncontroverted evidence presented by the State, including Waterhouse's own incriminating statements, and the physical and circumstantial evidence against him, was of great importance. The Court finds that the introduction of Sotolongo's testimony would not have served to undermine confidence in the verdict in this case. See Smith, 931 So.2d at 796. In conclusion, it is the Court's finding that Waterhouse is not entitled to relief under Brady. (Respondent's Ex. M3 at 361–81).

The Florida Supreme Court affirmed the denial of the Brady claim as follows: Waterhouse next claims that the State violated Brady by failing to disclose Sotolongo's testimony to defense counsel. A Brady violation occurs when “(1) ... favorable evidence, either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced.” Taylor v. State, 62 So.3d 1101, 1114 (Fla.2011). This Court has expressed the standard of review of a Brady claim denial as follows: Brady claims present mixed questions of law and fact. See Sochor v. State, 883 So.2d 766, 785 (Fla.2004). Thus, as to findings of fact, we will defer to the lower court's findings if they are supported by competent, substantial evidence. See id. “[T]his Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.” Hurst [v. State, [sic] 18 So.3d 975, 988 (Fla.2009) ] (quoting Lowe v. State, 2 So.3d 21, 30 (Fla.2008)). We review the trial court's application of the law to the facts de novo. Franqui v. State, 59 So.3d 82, 102 (Fla.2011).

In rejecting this claim, the postconviction court noted that it was faced with the conflicting testimonies of Sotolongo and Detective Hitchcox. The court ultimately found Detective Hitchcox's testimony with regard to the interview to be more reliable than that of Sotolongo because “it was reduced to writing” at the time of the 1980 interview. Further, the court found that the passage of time and Sotolongo's “weak recollection militate against the reliability of [his] statements.” Because the postconviction court concluded that Hitchcox's depiction of the interview was accurate, it held that no favorable evidence was suppressed by the State.

Waterhouse has not established that a Brady violation occurred. As with the newly discovered evidence claim, the postconviction court heard the testimony of Sotolongo, and concluded that Detective Hitchcox's testimony with regard to the 1980 interview was more reliable. Given the passage of time and Sotolongo's admission that his memory of the interview was better thirty-two years ago than it was on January 17, 2012, we conclude that the postconviction court's finding is supported by competent, substantial evidence. See Franqui, 59 So.3d at 102 (stating that this Court will not substitute its judgment for that of the postconviction court on issues of witness credibility). Thus, if the interview occurred as reflected in the report, and as testified to by Detective Hitchcox, then the State did not suppress impeaching evidence because the report was not false.

Moreover, even if this Court were to reject the postconviction court's determination of witness credibility, and conclude that the State suppressed impeaching evidence because Detective Hitchcox's report is false (which we do not), Waterhouse's claim would nonetheless fail because he cannot establish prejudice under Brady . In Brady v. Maryland, the United States Supreme Court held that the suppression of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment. See 373 U.S. at 87. The Supreme Court has explained that to establish prejudice under the materiality prong of Brady, a defendant must demonstrate “a reasonable probability” that the result of the trial would have been different if the suppressed documents had been disclosed to the defense. As we stressed in Kyles[ v. Whitley, [sic] 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490, (1995) ]: “[T]he adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” 514 U.S. at 434. ... [T]he materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions. Id. at 434–435. Rather, the question is whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435. Strickler v. Greene, 527 U.S. 263, 289–90, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Rodriguez v. State, 39 So.3d 275, 288 (Fla.2010) (holding that defendant “failed to show prejudice—i.e., that ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ” (quoting Strickler, 527 U.S. at 290)).

First, as previously discussed in the analysis of the newly discovered evidence claim, the testimony of Sotolongo, Vasquez, and Ginn are not necessarily inconsistent and can be reconciled. Sotolongo's testimony is not, therefore, actually impeaching. Second, even if Sotolongo's testimony could be viewed as impeaching, in light of Waterhouse's incriminating statements and the other evidence of his guilt, this cumulative testimony cannot “reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435); see Rodriguez, 39 So.3d at 288. Accordingly, Sotolongo's testimony fails the materiality and prejudice prong of Brady, and we conclude that the claim presented by Waterhouse is without merit. Waterhouse, 2012 Fla. LEXIS at *57–62.

In assessing this claim, the state courts correctly identified the governing legal principle set forth in Brady. Further, Waterhouse has not cited to any decision of the United States Supreme Court that, faced with materially indistinguishable facts, reached a decision different from the state courts in this case. Therefore, the state courts' decisions were not “contrary to” governing United States Supreme Court precedent.

Moreover, the Court finds that the state courts' denials of the claim are supported by the record and are objectively reasonable. Arguably, Waterhouse has satisfied his burden under the second factor set forth in United States v. Meros, i.e., that he did not possess the evidence nor could he obtain it himself with any reasonable diligence. Id. at 1308. He has not, however, met his burden as to the other three factors.

As to the first and third factors, Waterhouse fails to show that the State possessed evidence favorable to him, and suppressed the evidence. In affirming the trial court's denial of relief on Waterhouse's Brady claim, the Florida Supreme Court affirmed the trial court's finding that “the State did not suppress impeaching evidence because the report was not false.” Waterhouse, 2012 LEXIS at *59. This factual finding is entitled to deference and Waterhouse fails to overcome this finding by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (“[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”).

The state courts found that Hitchcox's testimony at the evidentiary hearing with regard to his interview with Sotolongo in 1980 was more reliable than Sotolongo's testimony at the hearing regarding the interview because: 1) the interview was reduced to writing by Hitchcox at the time of the interview; 2) Hitchcox testified that it was his practice to write down any pertinent piece of information obtained during an interview, and had Sotolongo told him that he saw Waterhouse leave ABC with two men he would have considered that important and would have included that information in his report; 3) 32 years had passed from the time of the interview until the evidentiary hearing, and Sotolongo admitted that his memory was better at the time of the 1980 interview than it was at the time of the evidentiary hearing; and 4) Sotolongo had a weak recollection of the events that occurred on January 2, 1980.

A careful review of the transcript of the January 17, 2012 evidentiary hearing and the record persuades this Court that the state courts' fact finding and credibility determinations are supported by the record. The state courts' rejection of Waterhouse's claim is explicitly based, in part, on the determination that Hitchcox's testimony was more credible than Sotolongo's. This Court cannot redetermine witness credibility when the state trial court has observed the witnesses' demeanor and this Court has not. Marshall v. Lonberger, 459 U.S. 422, 434–36, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983).

Finally, this Court agrees with the state courts that Waterhouse has failed to establish the fourth factor set forth in United States v. Meros, i.e., prejudice. As previously stated, the prejudice or materiality requirement of Brady is satisfied if “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. at 682 (quotation marks omitted). During the evidentiary hearing, Sotolongo testified in pertinent part that he was at ABC on the night the victim was killed, but that he was not sure whether he was working at ABC that night. He also testified that he could not be sure what time Waterhouse left ABC that night, but that he did see Waterhouse leave with two white males, and did not see Waterhouse leave with a female (Respondent's Ex. M4 at transcript pp. 12–70). Thus, Sotolongo's testimony regarding the events on January 2, 1980, is essentially cumulative to Leon Vasquez's trial testimony regarding Waterhouse leaving ABC that night (Respondent's Ex. A10 at 1329–30).

In light of the evidence presented at trial, including Waterhouse's incriminating statements, and the significant physical and circumstantial evidence connecting Waterhouse to the murder, this Court concludes that there is no reasonable likelihood that Sotolongo's cumulative testimony could have affected the outcome in this case.

Based upon the foregoing, this Court concludes that Waterhouse has failed to show that the Florida courts' denials of Waterhouse's Brady claim was contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or an unreasonable determination of the facts in light of the evidence presented. Ground II fails on the merits.

ACCORDINGLY, the Court ORDERS that: 1. Petitioner's petition for writ of habeas corpus and request for a stay of execution (Dkt.1) are DENIED. No motions for reconsideration of this Order will be entertained. 2. The Clerk is directed to enter judgment against Petitioner, terminate any pending motions, and close this case. CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED

IT IS FURTHER ORDERED that Waterhouse is not entitled to a certificate of appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. “A [COA] may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. at § 2253(c)(2). To make such a showing, Waterhouse “must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)), or that “the issues presented were ‘adequate to deserve encouragement to proceed further,’ ” Miller–El v. Cockrell, 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)). Waterhouse cannot make the requisite showing in these circumstances.

Finally, because Waterhouse is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. DONE and ORDERED.